IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE G.NARENDAR W. P. No.1989/2017 (L-RES) BETWEEN M/S TOYOTA KIRLOSKAR AUTO PARTS PVT. LTD. PLOT NO.21, BIDADI INDUSTRIAL AREA BIDADI, RAMANAGAR DISTRICT BANGALORE-562109 REPRESENTED BY MR PRASSANNA KUMAR M.I VICE PRESIDENT HRD & ADMIN ... PETITIONER (BY SRI. SRINIVAS N. MURTHY-SR. COUNSEL FOR SRI. SOMASHEKAR-ADV) AND SRI MALAKAJAPPA S DHARI S/O SRI SIDDARAMAPPA MAJOR RESIDING AT NO.123 1ST MAIN ROAD, 2ND CROSS K K LAYOUT, MALATH HALLI NEAR AMBEDKAR COLLEGE BANGALORE-560072 ... RESPONDENT (BY SRI. T S ANANTHARAM-ADV) THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED : 7.1.2017 IN SL. APPLICATION NO.40/2014 IN A.I.D.NO.29/2014 PASSED BY THE ADDITIONAL INDUSTRIAL TRIBUNAL, BANGALORE AT ANNEXURE-K TO THIS WRIT PETITION.
THIS WP COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner/Management and the learned counsel for the respondent/workman.
2. The petitioner is before this Court being aggrieved by the order passed by the Tribunal on Serial Application No.40/2014 (A.I.D. No.29/2014) dated 7.1.2017.
3. The petitioner preferred an application under the provisions of Section 11(1) and (3) (d) of the Industrial Disputes Act, 1947 (for short hereinafter referred to as ‘the Act’ for short) with a request to send the documents to the hand writing expert’s opinion. The application was necessitated on account of the respondent having denied the suggestions during the course of cross examination.
In course of the cross examination of the workman it was specifically suggested that the respondent was gainfully employed and that he was employed by a Company by name AO Smith Company and the employee was also confronted with the document titled ‘Service & Installation Report’ which is produced as Annexure-F to the writ petition.
4. The petitioner has also placed on record Annexures G and H, which are copies of the text message and an envelope with the name of AO Smith printed on it. The said documents have been relied to demonstrate that the employee was gainfully employed and upon a categorical denial by the employee of his signature at Annexure-F, they (Management) have sought for reference of Annexure-F to handwriting expert. The said application came to be contested by the employee.
5. The Tribunal after hearing the parties was pleased to reject the application on the premise that the enquiry on an application for interim relief being summary in nature, it is not possible to refer the application for an expert opinion. The Tribunal further proceeded to hold that the proceeding being of a limited scope, there was no necessity to refer it for opinion by an expert and that the only issue that was required to be addressed is, whether the party was in a distress condition to grant an interim relief or reject interim relief. Being aggrieved by the said order, the Management is before this Court.
6. Heard the learned Senior Counsel for the petitioner and the learned counsel for the respondent.
7. It is contended that the Tribunal erred in not noticing the provisions of Section 11 of the Act, more particularly Sub Section (3) of Section 11 of the Act which prescribes the procedure to be adopted and would submit that the Tribunals are vested with the powers of a Civil Court as envisaged under the Code of Civil Procedure in respect of enforcing the attendance of any person and examining him on oath, compelling the production of documents and material objects, issuing commissions for examination of witnesses and in respect of such other matters as may be prescribed.
8. The learned Senior Counsel appearing for the petitioner/management would contend that the reasonings ascribed by the Tribunal is contrary to the provisions of Section 11 of the Act and hence he would submit that the same requires to be interfered with.
Learned counsel would also rely on the ruling of the Hon’ble Apex Court in the case of Kendriya Vidyalaya Sangathan - vs - S.C.Sharma reported in (2005) 2 Supreme Court Cases 363, wherein it has been held as follows :
“16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard”.
and also the ruling of the Apex Court in the case of North East Karnataka Road Transport Corporation - vs - M.Nagangouda reported in 2007(1) LLJ 1013 wherein it has been held that even agricultural income is a relevant factor for the purpose of assessing and granting back wages. He would submit that the exhibits A15 series (Annexures F, G & H to the writ petition) would demonstrate that respondent/employee was gainfully employed, with an other Corporate entity and on account of a bland denial by the employee during the course of cross examination, the burden of demonstrating the same is on the Management. Hence, he would submit that the Tribunal ought to have afforded an opportunity.
9. He would further submit that if the reasoning accorded by the Tribunal is accepted, it would lead to a chaotic situation wherein evidence produced by the Management to demonstrate a case of gainful employment could be brushed aside on the mere pretext of it being a summary enquiry. He would further submit that it involves financial implications and civil consequences on the Management and hence the Tribunal ought to have accorded an opportunity to the petitioner.
10. Per contra, learned counsel for the respondent/employee would rely on the ruling of the Hon’ble Apex Court rendered in the case of D.P.Maheshwari - vs - Delhi Admn. and others reported in AIR 1984 SC 153 and would contend that the Hon’ble Apex Court has held that preliminary issues ought not to be made a ground for prolonging the enquiry proceedings. He would submit that the Industrial Disputes Act is a social beneficial legislation and hence the Courts, more particularly, this Court ought not to have entertained litigation which would only protract the period of enquiry. He would submit that the enquiry requires to be completed within a period of six months as stipulated under the order of Reference. He would submit that the employee is not gainfully employed and that the petitioner ought not to be granted the relief prayed for as it would only result in dragging the proceedings.
11. In the light of the law laid down by the Apex Court in the cases of Kendriya Vidyalaya Sangathan - vs - S.C.Sharma reported in (2005) 2 Supreme Court Cases 363 and North East Karnataka Road Transport Corporation - vs -
M. Nagangouda reported in 2007(1) LLJ 1013, the question of payment of back wages or interim relief is not a mere empty formality and the issue whether the employee is “gainfully employed” is the core issue and requires adjudication in terms of Section 11 of the Act.
12. From a perusal of the records before this Court it would demonstrate that the petitioner/Management has adopted a line of defence that the employee is gainfully employed. The Management being entitled to take a defence, the natural corollary would be that the management is also entitled to demonstrate its case. The petitioner having categorically asserted and suggested to the respondent/employee that he is gainfully employed and the employee having categorically denied the said fact, in the considered opinion of this Court, rules of natural justice, more particularly the provisions of Section 11 of the Act enables the party to resort to the provisions of said Section to demonstrate their case. Hence, the reason of the Tribunal that it is a summary proceedings and hence it has no powers to refer the same to an expert opinion is incorrect and contrary to the provisions of Section 11 of the Act.
13. A reading of the provisions of Section 11 of the Act clearly demonstrates that the Tribunal is vested with the powers of the Civil Court to enforce the attendance of witnesses and to summon documents etc. By the impugned order the Tribunal has abdicated the duty vested in it. The payment of wages, pending enquiry is not by way of charity but it is by way of entitlement to a workman who is deprived of his employment on account of the act of the Management and the entitlement is restricted by the sole circumstance that he is not gainfully employed. It is also designed with the objective to enable the employee to fight the litigation and for his sustenance during the enquiry. If the management or the other party places some prima facie material during the enquiry and is desirous of proving or demonstrating a case that the employee is gainfully employed and hence not entitled to the interim relief, then the party must be allowed to demonstrate its case. Hence, in the considered opinion of this Court the impugned order requires to be intervened with. In the case on hand, it is not a case of the employer resorting to a roving search to gather evidence of employment but the specific allegation is that the employee is gainfully employed with a particular entity. Where the allegations are not either bald, vague or ambiguous and the allegations are backed by prima facie material, the employer prays for an enquiry under Section 11(3) of the Act, which the Tribunal ought to have favourably considered.
14. The Tribunal by its reasoning that the enquiry is a summary enquiry, in the light of the facts of this case, has contravened the procedure as envisaged under Section 11 of the Act.
15. The Hon’ble Apex Court in the case of State of Bihar and Another Vs. J.A.C. Saldanha and others, reported in (1980) 1 Supreme Court Cases 554 was pleased to hold at paragraph 17 as follows:
“… It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the Court would not expect its being done in some other manner….”
The Hon’ble Apex Court was pleased to observe further that “because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way”. In Ex-parte Stephen, [(1876) 3 Ch D 659], the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Debi [1963] Supp 2 SCR 812 at p.823, spelt out the combined effect of the aforementioned principles thus;
“A general Act must yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way.”
16. Accordingly, the impugned order being devoid of merits, requires to be rejected and is accordingly set aside. The writ petition is allowed in part. The Additional Industrial Tribunal, Bangalore, to re-hear the parties and pass appropriate orders in consonance with the provisions of Section 11 of the Act. The parties shall appear on 20.2.2017. The petitioner shall furnish the list of witnesses whom they wish to examine and keep the witnesses present on the said date.
The Serial Application No.40/2014 preferred by the petitioner under Section 11(1) (3) of the Act shall be re- heard by the Additional Industrial Tribunal, Bangalore and shall dispose off the same within a period of six weeks.
The writ petition is disposed off in the above terms and there shall be no order as to costs.
Sd/- JUDGE rs