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2012 DIGILAW 162 (KAR)

Powercell Battery India Ltd. v. R. Servesh

2012-02-28

ARVIND KUMAR

body2012
ORDER Arvind Kumar , J.—The management is calling in question the award passed by Labour Court, Mysore, dated 2.4.2011 in LLD No. 98/2009, whereunder an application filed by the workman for grant of interim maintenance during the pendency of the proceedings before the Labour Court was allowed by directing the Management to by the workman 75% of the last drawn pay from the date of filing of the application till further order. Heard Sri, Kasturi, Senior Counsel appearing for petitioner and Sri. K.B. Narayana Swamy, learned counsel appearing on behalf of the respondent-workman as amicus curiae. 2. Mr. Kasturi learned Senior Counsel appearing for the petitioner-management has strenuously contended that Division Bench in the case of the management of Kanoria Industries Ltd. v. Bagalkot Cement Company Workers Union and Another, reported in ILR 2001 Kar 890 has not held that it is an inflexible rule to award maintenance whenever such an application is made and as such the principles emunclated in Kanoria's case cannot be made applicable to the facts on hand as erroneously held In the impugned order. He also contended that till the Labour Court enters into a finding on Domestic Enquiry it cannot adjudicate claim made for grant of interim maintenance and it is sine-qua-non for awarding interiom relief and it depends on facts and circumstance of each case and unless same is decided respondent-workman will not be entitled for any interim maintenance. He would draw the attention of this Court to observation of Division Bench in Kanoria's case reported in ILR 2001 Kar 890 whereunder it is held as follows: The final outcome of adjudication xxxxxxxx KALA SINGH. In these circumstance, we are of the view that the award of Interim relief in an industrial adjudications not dependent on the finding on the issue on the validity of otherwise of the domestic enquiry. It is to be awarded notwithstanding the finding with reference to the validity of the domestic enquiry. Therefore there is no necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. 3. He would further contend that Kanoria's case cannot be applied to the facts and circumstances of the case. Therefore there is no necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. 3. He would further contend that Kanoria's case cannot be applied to the facts and circumstances of the case. On the premise that the Division Bench therein having noticed the dicta laid down by a Coordinate Division Bench in the came of Mysore Cement Ltd. v. B.R. Siddaramaiah, reported in (1985) 67 FJR 136, wherein the issue regarding grant of interim maintenance came to be considered after Labour Court held that Domestic Enquiry conducted was fair and proper, and having noted the observations made by a Coordinate Division Bench it could not have applied the principle therein to the Kanoria's case and arrived at an erroneous conclusion namely, that even in case of the issue regarding fairness of Domestic Enquiry conducted is yet to be adjudicated would also cover such issue. He would submit that in Mysore Cements case referred to by the delinquent employee in Kanoria's case the issue was with regard to grant of interim relief after Labour Court found that the Domestic Enquiry conducted against the delinquent employee was not fair and proper and in this background in Mysore Cements case the award of interim relief to workman was considered and the said issue namely issue relating to fairness of Domestic Enquiry is yet to be adjudicated since there would not be any existing master and servant relationship or employer and employee relationship and it would have seized the moment the order of dismissal is passed. He would further elaborate his submission by drawing the attention of the Court to Section 17B of the Industrial Disputes Act whereunder the employer/management is made to pay or required to pay the last drawn salary/wages to workman once an Older is passed by a Competent Court in favour of workman and in the event of management pursuing said order in higher Forums. He contends that intention behind the said provision is that the order of the Disciplinary Authority imposing the punishment of dismissal/discharge or otherwise having been set aside it revives the relationship of employer and employee and in such situation when the management or the employer further peruses the grievance by way of challenge to the said award the workman should not be made to suffer, It is in this background that Section 17B has to be understood and when the facts are so examined in a situation like the one on. hand namely where the Disciplinary Authority has dismissed the workman from service it would not give rise for a cause of action to enable the workman to contend that there still exist relationship of employer and employee and even otherwise dehors such a situation he contends that prima facie material being placed by the workman or prima facie evidence being available on record before the Labour Court is sin-qua-non for granting interim maintenance. He contends in the absence thereof Labour Court should not grant interim maintenance as has been done in the present case. He would also contend that 75% of the last wages drawn by respondent-workman ordered to be paid is on the higher side. 4. Per contra, Sri K.B. Narayana Swamy, learned counsel for workman supports the order passed by Labour Court and contends that discretionary relief granted by the Labour Court should not be interfered by this in exercise of its jurisdiction under Article 227 of the Constitution and particularly in the instant case he contends that Labour Court has taken into consideration all relevant facts including the law laid down by Division Bench in ILR 2001 Kar 891 and has found that respondent-workman was not gainfully employed, and as such it has ordered payment of 75% of last drawn wages as maintenance allowance to be paid by the management, which is just and proper and does not all for interference and accordingly he prays for confirming the order of the Labour Court and dismissal of the writ petition. 5. 5. Having heard the learned advocates appearing for the parties and on perusal of the award impugned in the present writ petition as also the Judgments relied upon by the learned advocates, I am of the considered view that following questions/points arise for my consideration: i. Whether the application filed by the petitioner for grant of interim maintenance is maintainable before issue regarding fairness of Domestic Enquiry ia decided? ii. Whether the order of Labour Court awarding 75% of last drawn wages towards interim maintenance in favour of workman is to be sustained, set aside or modified? iii. Whether any direction is required to be issued to the Labour Court to dispose of the matter as sought for? If so within what period? iv. What order? 6. It is not in dispute that order dated 17.8.2010 passed by the Division Bench of this court in W.A. No. 2216/2010 and other connected matters was perused by the management before the Hon'ble Apex Court and Special Leave Rotation filed by the management came to be dismissed by the Hon'ble Apex Court by order dated 26.8.2011. This court in W.P.No. 35527/09 and W.P.No. 35826-867/09 disposed of on 7.7.2010, has held that interim order granted by Labour Court for limited period is a discretionary order and not to be interefered with and accordingly having held so, it has dismissed the writ petition. Said order was called in question before the Division Bench of this court in W.A. No. 3334/2010 and W.A. No. 3445-3496/2010 and. Division Bench of this Court has affirmed the order passed by learned Single Judge of this court and dismissed the writ appeals by order dated 14.9.2010. RE POINT NO. I 7. A reading of the principles enumerated in Kanoria's case referred to supra, it leaves no doubt on this issue being left out in a grey area at all. It has been held by Division Bench as follows: In these circumstances, we are of the view that the award of interim relief in an industrial adjudication is not. dependent on the finding on the issue on the validity or otherwise of the domestic enquiry. It is to be awarded notwithstanding the finding with reference to the validity of the domestic enquiry. Therefore there is not necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. It is to be awarded notwithstanding the finding with reference to the validity of the domestic enquiry. Therefore there is not necessity for the Labour Court to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. 8. It has been hold that grant of interim maintenance to a workman is not dependant on the issue of deciding the validity or otherwise of the Domestic Enquiry. 9. This court is bound by the findings of the Division Bench and as such the present application filed by the respondent-workman seeking for interim maintenance even before the finding regarding the fairness of Domestic Enquiry is recorded cannot be held to be contrary to the principles laid down in the above judgment. In that view of the matter, point number No. 1 deserve to be answered by holding that Labour Court was fully justified in entertaining the application for. grant of interim maintenance during the pendency of the proceedings and said application is maintainable. R.E. POINT No. II 10. By way of alternate submissions, it was contended by Sri. Kasturi, learned Senior Counsel appearing for the petitioner-management that even if the findings of Labour Court were to approved by this Court when such application is entertained, a duly is cast on the Labour Court to find out as to whether there is substance in the claim made by the workman and as to whether workman has proved the contents of the affidavit filed in support of said application. A perusal of the impugned order would go to show that while ordering for payment of 75% of last drawn wages to be paid as interim maintenance to the workman, Labour Court has taken into consideration Exhibit-M2 produced by the management witness MW1 to hold that from the date of dismissal the workman was unemployed has remained unchallenged. This is factually incorrect inasmuch as Exhlblt-M2. the certificate Issued by one Sri. K.S. Nanjappa, income Tax and Sales Tax Consultant and Advocate at Mandya, clearly reflects that the workman was employed by him during the month of May and June 2010 and was paid a salary of Rs. 2,000 per month. Even otherwise for this period of two months Labour Court has rightly held that workman is not entitled for maintenance i.e., for the month of May and June 2010. 2,000 per month. Even otherwise for this period of two months Labour Court has rightly held that workman is not entitled for maintenance i.e., for the month of May and June 2010. In other words, it has held that for the two months period for which the workman has worked, he is not entitled for maintenance. 11. It is to be noticed that burden of proving that workman was not gainfully employed is on the management when it was specifically contended by the management that respondent-workman was gainfully employed and when same is denied by workman. As held by the Division Bench in Kanoria's case, the facts of each case has to be examined while granting Interim maintenance. It cannot be said that in all cases where claim is made by the workman 75% of last drawn salary/wages is to be paid by the management as an universal application or as a straight jacket formula. It depends on the circumstances of each case. In the instant case, petitioner admittedly was gainfully employed for a period of two months. No other material has been placed by either of the parties to prove that workman was gainfully employed or unemployed for the remaining period. It is notices that the Labour Court has not delved upon the issue regarding the penury under which the workman was placed. In the absence of any material produced by the parties before the Labour Court for granting of 75% maintenance seems to be excessive as it is not supported by any reasoning given by the Labour Court. This court, in the normal course, would have remitted the matter back to the Labour Court for adjudication on this issue. However, I find from the record that the ends of justice would be met if parties are put on terms in this petition itself so that lis would reach finality. In these circumstances, I am of the considered view that if 50% of the last drawn wages is ordered to be paid to the workman during the pendency of the proceedings before the Labour Court, it would suffice and workman would also be not left in lurch and would be able to defend his case effectively before the Labour Court and sustain himself. 12. 12. In view of the discussion made above, I am of the considered view that order of Labour Court awarding 75% as interim relief from the date of application until further orders of the Labour Court requires to be modified by reducing it to 50% Accordingly, point No. 2 is answered partly in favour of petitioner. RE POINT NO. III 13. Learned counsel for petitioner has sought for a direction to Labour Court to dispose of the matter within a fixed time frame, which prayer cannot be construed as putting the respondent-workman to any hardship. In fact, the Industrial Disputes Act, 1947 mandates that such disputes should be adjudicated within a period of 6 months. Thus, keeping in mind the intent with which the provisions of ID Act has to applied, tarn of the considered view that if a direction is Issued to Labour Court to dispose of the dispute within ah outer limit of 4 months from the date of appearance of parties. It would meet the ends of justice. Accordingly point No. (iii) is answered. RE POINT NO. IV 14. It is noticed at the time of issuing notice of the present writ petition, petitioner was called upon to deposit a sum of Rs. 30,000 before this court and accordingly said amount hat been deposited lay the petitioner-movement before this court. Learned advocates appearing for both the parties agree that said amount can be transmitted to Labour Court, Mysore for being disbursed in favour of the respondent-workman. Accordingly, Registry is directed to transmit the said amount of Rs. 30,000 forthwith to the Labour Court, Mysore, for being disbursed by the said Court to respondent on proper Identification. Accordingly, point No. (iv) Is answered. 15. This court would like to place on record the services rendered by Sri. K.B. Narayana Swamy as Amicus Curiae In assisting the court to arrive at the above decision. In the result, following order is passed: ORDER a. Writ petition is allowed In part b. Order of the Labour Court, Mysore, passed in HO, No. 98/09 dated 2.4.2011 is modified and it is ordered that the petitioner-management shall pay 60% of the last drawn wage to the respondent-workman from the date of filing of the application (20.3.2009) till further orders of Labour Court Remaining portion of order Of Labour Court stands affirmed. c. The balance amount shall be deposited by the petitioner before the Labour Court or paid directly to the respondent-workman within two Weeks from the date of appearance of the parties before the Labour Court i.e., on next date of hearing, 31.3.2012.