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Himachal Pradesh High Court · body

2018 DIGILAW 1228 (HP)

Kitish Kumar v. Procter & Gamble Home Products Pvt. Ltd.

2018-07-06

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. Through the instant petition, the aggrieved workman/petitioner herein, casts a challenge to the pronouncement recorded, on, 22.12.2017, by the learned Additional District Judge-I, Solan, upon Civil Misc. Appeal No. 14-S/14 of 2017, whereunder, he proceeded to affirm the order pronounced by the learned trial Judge, upon, CMA No. 77/6 of 2017, whereby, the relief of ad interim injunction claimed by the petitioner herein was declined, vis-a-vis, him. 2. In respect of the articles of charges formulated against the aggrieved workman, the inquiry officer concerned, held an indepth incisive inquiry, and, in his inquiry report, he, on consideration of the evidence existing before him, recorded a conclusion of the charges, borne in the charge sheet, of, 7.3.2017, being proven against the delinquent workman. 3. Hereat, it is imperative to extract the concluding, operative portion of the report, rendered by the inquiry officer:- “Thus the charges levied vide charge sheet dated 7.3.2017 against delinquent workman Katish Kumar falling under Clause 16(g) and (h) of the Model Standing Orders framed under the Industrial Employment Standing Order H.P. Rules, 1973 stand proved during the enquiry.” Wherein, there occurs a clear display of the apt charges, in respect whereof, affirmative findings were pronounced, by the inquiry officer, hence, standing formulated, under, Clause 16(g), and, (h), of, the Model Standing Order, framed, under the Industrial Employment Standing Order, H.P. Rules, 1973. However, despite the inquiry report, carrying, in the operative part thereof the hereinabove apt extracted portion, yet the aggrieved workman chose, to, assail the findings recorded, by the Inquiry Officer, by his instituting a civil suit, and, also therewith, he, instituted an application, for grant of ad interim injunction, relief whereof, was concurrently declined, vis-a-vis, him, by both the learned trial Judge, and, by the learned Appellate Court, hence, the instant petition. 4. Consequently, the hereinabove apt extracted portion of the inquiry report, directly impinges upon the maintainability, of the civil suit, wherein, a challenge, is cast qua the affirmative findings, pronounced by the inquiry officer, upon the articles of charges, framed, against the aggrieved workman, conspicuously, in consonance, with, the Model Standing orders. 4. Consequently, the hereinabove apt extracted portion of the inquiry report, directly impinges upon the maintainability, of the civil suit, wherein, a challenge, is cast qua the affirmative findings, pronounced by the inquiry officer, upon the articles of charges, framed, against the aggrieved workman, conspicuously, in consonance, with, the Model Standing orders. The learned counsel appearing, for the plaintiff/petitioner herein, has contended that, dehors the applicability, of, the apt Model standing orders, vis-a-vis the workman, nonetheless, the apt mandate of the Hon'ble Apex Court, recorded, in a case titled as Premier Automobiles Limited vs. Kamlakar Shantaram Wadke and Ors, reported in 1988 (1) SCC 681 , the relevant portion whereof extracted hereinafter:- “The principles applicable to the jurisdiction of the civil Courts in relation to an industrial dispute may be stated thus: (1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil Court. (2) If the dispute is an industrial dispute arising out of a right or liability of the Civil Court is alternative, leaving it to the election of the suit or concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available tot he suitor is to gent an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act, such as chapter VA, then the remedy for its enforcement is either S.33C or the raising of an industrial dispute as the case may be.” more specifically, clause (1) thereof, being, attracted hereat, (a) thereupon the extant suit being maintainable, (b) also he places reliance, upon, paragraph No.35, of, the verdict of the Hon'ble Apex Court, rendered, in a case titled as Rajasthan State Road Transport Corporation vs. Krishna Kant, reported in (1995) 5 SCC 95, the apt portion whereof is stands reproduced hereinafter:- “7. The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and upon appeals and revisions applicable to civil courts. The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.” Thereupon, he contends that, since, the relationship of employer and employee, inter se, the aggrieved workman and his employer, came into existence, only under the general law of contract, (c) thereupon, the institution, of, a suit, cast under the provisions of the Specific Relief Act, being maintainable, dehors the dispute, as has, arisen inter se them,being also construable to be an industrial dispute. 5. However, the aforesaid contentions, reared before this Court, by the learned counsel, appearing for the petitioner herein/workman, warrant their imperative effacement, (i) given, even if, assumingly the relationship, of employer and employee, inter se, the petitioner and the respondent herein, may have coming into being, under a contract, oral or express executed inter se both, also when hence the dispute, as nowat, has arisen, inter se them, being founded upon the apt derelicting breaches, being made by the workman, (ii) also, if, the purported breaches, as, made by the workman, may empower, him to raise an industrial dispute in respect thereof, and, also render him equipped, hence, to avail the mechanism(s), existing in the Industrial Disputes Act, (iii) nonetheless, the trite predominant factum, of the relationship of employer and employee, coming into being inter se both, under a contract, implied or express, executed inter se both, would not for further hereafter assigned reason, yet per se equip the workman to redress his grievance, by his casting a suit before the civil court. 6. 6. Be that as it may, the stark and significant factum probandum, which evidently emerges, from, the material on record, and, is comprised, in the hereinabove apt extracted portion, borne in the operative part, of, the inquiry report, does contrarily, rest a firm conclusion, (i) that with the aggrieved workman, prior to his availing the remedy of his instituting the extant civil suit against the employer, rather acquiescingly participating in the inquiry, as, held, vis-a-vis, his purported delinquencies, and, with the apt charges framed, against him, bearing tandem, with, the apt Model Standing Order, framed, under the Industrial Employment Standing Order H.P. Rules 1973, (ii) all carrying hence, the, effects, of, his making a loud and candid display, of his acquiescing qua the attraction besides applicability, vis-a-vis, him, of, the Model Standing Order, as, framed under the Industrial Employment Standing Order H.P. Rules 1973. His apposite acquiescence(s) also carries the ensuing concomitant effect of the workman, within, the ambit of clause (2), of, the judgment, of the Hon'ble Apex Court rendered in a case titled as Premier Automobiles Limited' case (supra), rather, hence electing to redress, his grievance, through, a mechanism contained in the Industrial Dispute Act, (iii) especially when the holding, of, a domestic inquiry, under, the Model Standing Order, framed under the Industrial Employment Standing Order H.P. Rules 1973, is, an event or a legal phenomena, which, is concludable, to squarely, fall within, the apt mechanism(s) as contemplated, in the Industrial Disputes Act. With his hence electing, to, avail the apt mechanism, constituted under the Industrial Disputes Act, thereupon, the further remedy, to, the aggrieved workman, is also a remedy, as, encapsulated in the Industrial Dispute Act, and, with the plaintiff, rather choosing to assail the inquiry report, by his, casting a civil suit before the learned trial Court, has, hence obviously chosen a mis-maneuvered, and, ill constituted remedy. Immense fortification, to the aforesaid inference, is derived, from, the apt portion, of, paragraph No.17, borne in the judgment of the Hon'ble Apex Court, rendered in a case titled as Rajasthan State Road Transport Corporation and others vs. Deen Dayal Sharma, reported in (2010)6 SCC 697 , the apt portion whereof stands extracted hereinafter:- “17. Immense fortification, to the aforesaid inference, is derived, from, the apt portion, of, paragraph No.17, borne in the judgment of the Hon'ble Apex Court, rendered in a case titled as Rajasthan State Road Transport Corporation and others vs. Deen Dayal Sharma, reported in (2010)6 SCC 697 , the apt portion whereof stands extracted hereinafter:- “17. In the instant case, the respondent who hardly served for three months, has asserted his right that the departmental enquiry as contemplated under the Standing Orders, ought to have been held before issuing the order of dismissal and in absence thereof such order was liable to be quashed. Such right, if available, could have been enforced by the respondent only by raising an industrial dispute and not in the civil suit. In the circumstances, it has to be held that the civil Court had no jurisdiction to entertain and try the suit filed by the respondent.” wherein it has been, with clarity, expostulated qua upon holding of a domestic inquiry, within, the contemplation, of the apt Standing Order, and, when upon culmination thereof, findings adversarial to the workman, are recorded, thereupon, the only mechanism available, for redressal by the aggrieved workman, being comprised, in his raising an industrial dispute, and, not by his casting a civil suit. Consequently, the orders impugned before this Court, do not suffer, from any infirmity. 7. For the foregoing reasons, the instant petition is dismissed and the orders impugned before this Court are maintained and affirmed. The parties are directed to appear before the learned trial Court, on 30th July, 2018. However, it made clear that the findings recorded hereinabove shall have no bearing on the merits of the case. All pending applications also stand disposed of. Records be sent back forthwith.