Dismissed

The General Manager v. Sri Nagesh Honnappa Gaonkar

Karnataka HC25 Jun 2021WP/44772/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Central Government Industrial Tribunal's interim order declaring a domestic enquiry unfair. The Court held that extraordinary jurisdiction should not be exercised at this interlocutory stage to avoid stalling the final adjudication of the industrial dispute before the labour forum.

What did the court decide?

Writ petition dismissed; Tribunal's orders affirmed.

The General Manager Vs Sri Nagesh… — Constitutional and Fundamental Rights | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA

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W.P. NO.44772/2019 (L-RES)

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BETWEEN:

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THE GENERAL MANAGER CORPORATION BANK HEAD OFFICE, MANGALADEVI TEMPLE ROAD MANGALORE - 575 001 REPRESENTED BY S. JAGANNATHAN SENIOR MANAGER-LAW ZONAL OFICE BANGALORE SOUTH.

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...PETITIONER

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(BY SRI. PRADEEP S SAWKAR, ADVOCATE)

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AND:

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SRI. NAGESH HONNAPPA GAONKAR S/O SRI. HONNAPPA AGED ABOUT 55 YEARS RESIDING AT PUJAGERE BELAMBAR POST BASGOD - 581 353 ANKOLA TALUK UTTARA KANNADA DISTRICT.

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…RESPONDENT

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(BY SRI. M.V. VEDAMURTHY, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 10.04.2017 PASSED BY

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CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUMLABOR COURT IN C.R.NO.4/2011 (ANNEXURE-Q).

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THIS PETITION COMING ON FOR ORDERS THIS DAY, ARAVIND KUMAR J, MADE THE FOLLOWING:

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O R D E R

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Second party before the tribunal namely,

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Management has filed this writ petition challenging the order passed by the Central Government Industrial Tribunal Cum Labour Court (for short 'CGIT') ) whereunder an order came to be passed on the validity of domestic enquiry by arriving at a conclusion that domestic enquiry held is not fair and proper. Opportunity to lead evidence afresh on merits in order to justify its action, has also been granted by the CGIT.

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We have heard Sri.Pradeep Sawkar, learned

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counsel appearing for petitioner and Sri.M.V.Veda Murthy, learned counsel appearing for the respondent. Perused the records.

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Respondent herein was working as a sub-staff

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at Karwar Branch in petitioner Bank and he came to be placed under suspension on account of alleged

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irregularities reported against him. Charge-sheet came to be issued and disciplinary authority ordered for holding an enquiry into the charges levelled against respondent. Enquiry officer held enquiry and on the first date of enquiry itself concluded the same and submitted a report on 16.11.2006 holding charges were proved. After issuance of show cause notice enclosing enquiry report, the disciplinary authority imposed the punishment of discharge from service. Central Government referred the dispute for adjudication to the tribunal and respondent herein filed his claim statement before CGIT. Petitioner also filed its counter statement and after recording evidence tribunal held that domestic enquiry held by Management is not fair and proper by order dated 10.04.2017 and has granted liberty to Bank to lead evidence afresh on merits in order to justify its action. Hence, this writ petition.

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It is the contention Sri. Pradeep Swakar,

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learned counsel appearing for the petitioner that tribunal committed a serious error in arriving at a conclusion that on account of signature of Delinquent Employee

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(hereinafter referred to as 'DE' for the sake of brevity) having not been taken in the proceedings recorded at the time of final hearing as proceedings have been vitiated, inasmuch as, disciplinary authority issues a separate attendance certificate to the DE for having attended the proceedings, which was also produced before the tribunal and as such order of the tribunal is erroneous. He would contend that finding recorded by the tribunal that enquiry conducted was not fair and proper on the ground of enquiry officer having not explained to DE in Kannada language and subsistence allowance not having been paid, is an erroneous finding, since DE himself has appeared in the enquiry held on 31.10.2006 and had admitted to having received charge sheet, list of documents and witnesses and had made a statement that he does not wish to take the assistance of employee and that apart he had admitted the charges made against him and as such enquiry has been concluded on the same day for which DE had also affixed his signature to the proceedings. He would further contend that for the first time before the tribunal the DE raised an objection

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with regard to procedure of enquiry having not been explained and as such impugned order is liable to be set aside. The records produced before the tribunal would clearly establish that DE had admitted the guilt and burden cast on DE was not discharged and on the basis of self serving statement of DE, tribunal could not have held the enquiry conducted is not fair and proper.

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5. He would also submit that when charges are

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admitted by the DE then there is no requirement for holding enquiry and as such enquiry officer was justified in closing the enquiry and submitting the report. He would draw the attention of the court to admissions elicited by the management in the cross examination of DE, which would relate to financial means to support himself during the pendency of proceedings and as such order dated 03.07.2019 passed by the tribunal directing payment of interim relief till the disposal of case, is liable to be set aside. In support of his submission he has relied upon the following judgments:

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(i) AIR 1968 SC 266: CENTRAL BANK OF INDIA v. KARUNAMOY BANERJEE

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(ii) 2007 (3) L.L.N 442: STATE BANK OF INDIA v. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, MADRAS AND ANOTEHR

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(iii) (2006) 2 SCC 269: L.K.VERMA v. HMT LTD. AND ANOTHER

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(iv) (1999) 6 SCC 667: COMMON CAUSE, A REGD. SOCIETY v. UNION OF INDIA AND OTHERS

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(v) (1971) 1 SCC 1 : CHANNABASAPPA BASAPPA HAPPLI v. THE STATE OF MYSORE

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(vi) (1996) 2 SCC 12: ADDITIONAL DISTRICT MAGISTRATE (CITY) AGRA v. PRABHAKAR CHATURVEDI AND ANOTHER

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Per contra, Sri.M.V.Veda Murthy, learned

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counsel appearing for respondent would support the impugned order and would raise objection with regard to this Court entertaining the writ petition contending that extraordinary jurisdiction vested in this Court should not be exercised when the proceedings before labour court is not finally concluded. Hence, he prays for dismissal of the writ petition.

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Having heard the learned Advocates appearing

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for parties and on perusal of pleadings and proposition of law relied upon, it would emerge that in the normal course this Court would not interfere with the findings recorded by the labour court, industrial court or a tribunal on the finding recorded with regard to fairness of the domestic enquiry, as it would scuttle further proceedings and delay the conclusion of proceedings. With benefit, we can note the judgments of Hon'ble Apex Court on this issue and they are:

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(1) (1996) 3 SCC 206 : CENTRAL BANK OF INDIA v. KARUNAMOY BANERGJEE

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"16. The facts in the instant case indicate that the appellant adopted the old tactics of raising a preliminary dispute so as to prolong the adjudication of industrial dispute on merits. It raised the question whether its activities constituted an ‘Industry’ within the meaning of the Industrial Disputes Act and succeeded in getting a preliminary issue framed on that question. The Tribunal was wiser. It first passed an order that it would be heard as a preliminary issue, but subsequently, by change of mind, and we think rightly, it decided to hear the issue along with other issues on merits at a later stage of the proceedings. It was at this stage that the High Court was approached by the appellant with the grievance that the Industrial Tribunal, having once decided to hear the matter as a preliminary issue, could

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not change its mind and decide to hear that issue along with other issues on merits. The High Court rightly refused to intervene in the proceedings pending before the Industrial Tribunal at an interlocutory stage and dismissed the petition filed under Article 226 of the Constitution. The decision of the High Court is fully in consonance with the law laid down by this Court in its various decisions referred to above and we do not see any occasion to interfere with the order passed by the High Court. The appeal is dismissed, but without any order as to costs."

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(2) AIR 1984 SC 153 :

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D.P.MAHESHWARI v. DELHI ADMN. AND OTHERS

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"It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Art. 226 of the Constitution and to this Court under Art. 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in

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the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Art. 226 of the Constitution nor the jurisdiction of this Court under Art. 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Art. 226 and Art. 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections journeyings up and down. It is also worth while remembering that the nature of the jurisdiction under Art. 226 is supervisory and not appellate while that under Art. 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues."

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(3) AIR 1979 SC 1900 : THE COOPER ENGINEERING LTD. Vs. P.P. MUNDHE

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"22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic

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enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."

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Thus, it would emerge from the authoritative

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pronouncement of the Apex Court that contesting parties before the labour court or tribunal, as the case may be, would invite the said authority to record a finding on preliminary issues like domestic enquiry held not being fair and proper, violation of principles of natural justice, defective enquiry, etc. On a decision being rendered, either of the parties may knock the doors of the writ court and it would be impermissible for interfering at that stage, since it would stall the proceedings before the

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labour court or tribunal and there would be postponement of final adjudication. Prudence commands that such interference would not be called for, inasmuch as, the aggrieved party would definitely have a right to question the said finding also at the time of challenging the award and in the event of adverse award is passed, no prejudice would be caused. On the other hand, if such petitions are entertained by this Court there is likelihood of proceedings before the Labour Court or Industrial Tribunal to languish for considerable time being more and the very purpose of speedy justice being rendered by the labour court or tribunal, would get truncated or defeated.

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Though Sri. Pradeep Sawkar has made a valiant attempt to contend that DE has admitted his guilt and as such, there is nothing which requires to be proceeded by relying upon the judgment of the Apex Court in the case of CENTRAL BANK OF INDIA v. KARUNAMOY BANERJEE reported in AIR 1968 SC 266, for which proposition there cannot be any quarrel, same cannot be extended to facts on hand for reasons more

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than one. In the instant case DE has raised a specific plea in his evidence tendered before labour court viz., in examination-in-chief vide paragraph 6 to the effect that he does not know even to write in Kannada language properly and he does not know how to read and write English. Said issue will have to be thrashed out on evidence being tendered by the management. That apart, DE has specifically contended in paragraph 10 of his affidavit filed in lieu of his examination-in-chief before the labour court that on 31.10.2016 he was informed by the Branch Manager about enquiry being conducted at Mangaluru and he had obtained his signatures on the papers typed in English and thereafter informed him to state before the enquiry officer admitting his signatures and this would result in saving his job and as such he had affixed his signature. The veracity of said statement will have to be necessarily examined by the tribunal while evaluating the evidence that would be tendered by the management to establish the domestic enquiry held against the DE was fair and proper. If this court were to embark upon a roving enquiry in this regard, it would

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definitely prejudice the right of the parties and we do not propose to shut out the evidence that the management

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may propose to tender before the labour court by preempting it on the basis of our findings. Hence, all contentions in this regard is to be kept open.

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Sri. Pradeep Sawkar, learned counsel

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appearing for petitioner has also relied upon the judgment of the High Court of Madras in the case of STATE BANK OF INDIA v. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, MADRAS AND ANOTHER

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reported in 2007 (3) L.L.N 422 to contend that writ petition would be maintainable. A perusal of the facts obtained in the said case would disclose that the industrial tribunal had held that enquiry conducted was fair and proper, which was challenged by the management and it was held therein the said case that records disclosed the delinquent employee had participated in several sittings and had abandoned the enquiry after certain stage and as such it was held that adequate opportunity was given to him and as such there was an exceptional case made out by the management or

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in other words, the management bank was justified in approaching the high court even against the order passed on a preliminary issue. Whereas, the facts obtained in the present case as noticed hereinabove, at the cost of repetition, when looked into it would disclose the notice of enquiry was issued on 04.10.2016 fixing the date of enquiry as 31.10.2006 on which date DE is said to have appeared before enquiry officer and is alleged or purported to have admitted his guilt according to the management bank which is seriously disputed and questioned by the DE in the statement made on oath before the labour court contending interalia that he was not given any opportunity and he did not understand the contents of the proceedings as he was not conversant with English language, are all issues which cannot be lightly brushed aside particularly, when the delinquent employee has denied of having understood the contents of the proceedings and/or having voluntarily affixed his signature. In this background we have already held hereinabove that said issue will have to be thrashed out after recording evidence that would be tendered by the

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Management and opinion if any expressed by us in that regard, at this juncture, is likely to prejudice the rights of parties.

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Yet another factor, which cannot go unnoticed is that, order of tribunal holding domestic enquiry held was not fair and proper came to be passed on 10.04.2017 and thereafter, order dated 03.07.2019 (Annexure-U) came to be passed for interim relief in exercise of the power vested under Section 11-A which cannot be construed as either error in exercise of jurisdiction or being perverse. The tribunal in fact has granted the interim relief from the date of application though claimed from the date of dismissal.

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