Dismissed

Karnataka State Medical and Sales Representatives Association v. Astra Zeneca Pharma India Ltd.

Karnataka HC19 Dec 2024WA/550/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the writ appeal against an Industrial Adjudicator's dismissal of a termination petition. The Court held that the Industrial Adjudicator was not precluded from deciding on the merits of the termination because the appellant failed to specifically plead the violation of Section 33(2)(b) regarding prior approval. The termination was upheld as justified.

What did the court decide?

Writ appeal dismissed; the order of the learned Single Judge upholding the termination is maintained.

Karnataka State Medical and Sales Representatives… — Service and Employment | Karnataka HC (2024)

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WA No.550 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WA NO. 550 OF 2022

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BETWEEN:

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KARNATAKA STATE MEDICAL AND SALES, REPRESENTATIVES ASSOCIATION, CH 8/3, K R VANUM, MYSORE-570 008 AND ALSO AT 3768, 2^ND FLOOR, I MAIN ROAD, A BLOCK, SUBRAMANYANAGARA, BENGALURU-560 021, REPRESENTED BY SRI. B. CHANDRA KUMAR,

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AFFILIATED TO FEDERATION OF MEDICAL AND SALES, REPRESENTATIVES ASSOCIATION OF INDIA, (FMRAI), OPERATIONAL OFFICE, 60 A, CHARU AVENUE, KOLKATA-700 033.

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SRI. M. SHANMUGA SUNDARAM, S/O S. MURUGAN, AGED 46 YEARS, R/A NO.3768, 2^ND FLOOR, 1^ST MAIN ROAD, A BLOCK, SUBRAMANYANAGARA, BENGALURU-560 021, NOW RESIDENT AT NO.5-9-7/123, BALAJI NAGAR, 1^ST STREET, KALAI NAGAR EXTN,

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ANAIYUR P.O., MADURAI-625 017, TAMIL NADU.

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…APPELLANTS

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(BY SRI. RAM MOHAN .A, ADVOCATE)

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AND:

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ASTRA ZENECA PHARMA INDIA LTD. A COMPANY INCORPORATED UNDER THE COMPANY’S ACT, 1956 HAVING ITS REGD. OFFICE AT OFF BELLARY ROAD, HEBBAL BENGALURU-560 024.

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…RESPONDENT

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(BY SRI. C. K. SUBRAMANYA, ADVOCATE, SRI. B.C. PRABHAKAR, ADVOCATE)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT 1961 R/W RULE 27 OF WRIT PROCEEDING RULES 1977, PRAYING TO SET ASIDE THE ORDER DATED 12.05.2022 IN WP NO.8568/2013(L-TER) PASSED BY THE LEARNED SINGLE JUDGE AT ANNEXURE-A1, ETC.

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THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.09.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, V KAMESWAR RAO J. , DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE C M JOSHI

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CAV JUDGMENT

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(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO)

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The challenge in this appeal is to an order dated

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12.05.2022 passed by the learned Single Judge in WP No.8568/2013, whereby the learned Single Judge has dismissed the writ petition filed by the appellant herein

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challenging the award dated 27.04.2012 of the Labour

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Court rejecting the petition being ID No.28/2007.

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The facts to be noted from the record are, the appellant No.2 was working in the respondent-Company as a Medical Representative at Bengaluru from 02.05.2005 He joined the respondent-Company in June 1995 at Villupuram, Tamil Nadu. He was later transferred to Pondicherry in 2002 and later to Bhatinda in 2005.

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It is a matter of record while he was working in Bengaluru, a charge sheet was issued to him on 30.05.2007 which was replied to on 06.06.2007. A departmental enquiry was initiated and the same resulted in his termination. He challenged his termination by filing a petition under Section 10(4-A) of the Industrial Dispute Act, 1947 (‘Act of 1947’ in short) before the Labour Court, which rejected the same.

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The case of appellant No.2 before the learned

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Single Judge was that, despite there being several industrial disputes pending at the time of termination of

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appellant No.2, the respondent company has not filed application under Section 33(2)(b) of the Act of 1947 seeking post-facto approval of order of termination. It was also stated that the termination is non-est in the eyes of law in the absence of any approval under Section 33(2)(b) of the Act of 1947. The appellant No.2 had also pleaded victimization in not providing accommodation, transport allowance, non-supply of study material for sales promotion, etc.

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The case of the respondent was primarily that the charges framed against appellant No.2 were of serious nature which having been proved the termination is justified. The respondent had also justified the conclusion drawn by the Labour Court that the punishment imposed on appellant No.2 is proportionate to the gravity of misconduct.

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The learned Single Judge has dismissed the writ petition by stating that, the findings of the Labour Court are very well supported by both oral and documentary evidence and the order does not require any interference.

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On the plea of not taking approval of the Labour Court in violation of Section 33(2)(b) of the Act, of 1947. the learned Single Judge has, at pages No.22 to 27 of the impugned order, stated as under:

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“ REGARDING 33 (2) (B)

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Sri.A.Ram Mohan., learned counsel for petitioners vehemently contended that no approval has been granted by the Tribunal. It is also contended that several industrial disputes were pending at the time of termination of the second - petitioner. Hence, the respondent/companyManagement ought to have filed an application under section 33 (2) (b) of the I.D. Act. Learned counsel placed reliance on JAIPUR ZILLA SAHAKARI BHOOMI VIKAS BANK LTD VS RAM GOPAL SHARAMA's case reported in 2002 (1) LLJ 834. Having regard to the fact that no application was filed for the approval of dismissal order as required under Section 33(2)(b) of the I.D Act and in view of the law laid down by the Apex Court in Jaipur Zilla's case, the order of dismissal is void and inoperative and the dismissal order is void ab initio.

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In reply, it was argued by Sri C.K.Subramanya learned counsel for the respondent that the plea with regard to section 33(2)(b) was not taken by the workman before the Labour Court. It is also argued that the Labour Court is not precluded from deciding the dispute on merits of the case.

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I have considered the contentions urged on behalf of workman and the management with care. The preliminary point is, in effect a plea as to noncompliance of section 33 (2) (b) of the I.D. Act.

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In the present case, the Workman has not pleaded the violation of provision of Section 33(2)(b) of the I.D Act. If there is violation of section 33(2)(b), it must be specifically pleaded and brought in evidence.

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As is well known, that the pleadings must setforth sufficient factual details to the extent it reduces the ability to put forward a false or exaggerated claim or defense. The pleadings must inspire confidence and credibility. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration.

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The Apex Court has repeatedly held that the pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent any deviation

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from the course which litigation on particular causes must take.

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To over simplify again, the application was filed by the Workman challenging the legality of termination under Section 10(4-A) of the I.D Act. When once the application is made, the Labour Court is duty bound to decide the legality of the termination. If the termination is held to be justified, the allegation of violation of non-compliance of the provision i.e., section 33(2)(b) of the I.D Act is of no consequence.

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In this regard the law is well settled by the Hon'ble Apex Court in RAJASTHAN STATE ROAD TRANSPORT CORPORATION reported in 2013 (9) SCC 232; MANAGEMENT OF KARUR VYSYA BANK reported in 2016 (12) SCC 221; MANAGING DIRECTOR, NEKRTC KARNATAKA reported in 2017 (16) SCC 540.

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In the light of these authorities, it can safely be held that the Industrial Adjudicator is required to answer whether the dismissal or such other punishment as may have been imposed on the Workman is justified in law. The issue of sustainability of the punishment imposed naturally has to be decided within the contours of the Reference jurisdiction. The Industrial Adjudicator i.e., the Labour Court is not precluded deciding the dispute on merits even if there is violation of Section 33(2)(b) of the I.D Act. When the dismissal is

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justified, the Labour Court cannot interfere with the order of punishment just for violation of Section 33(2)(b) of the I.D Act.

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It is relevant to note that even according to the second petitioner no common dispute relating to workmen was pending when the order of dismissal was made.

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Assuming for a moment, there is violation of Section 33(2)(b) the Industrial Adjudicator has a twin duty in the matter of Reference; the first is to find out whether the employer has contravened provisions of section 33(2)(b) and if the finding is yes, the same is not conclusive since the Industrial Adjudicator is required to answer the further question as to whether the order of punishment of dismissal imposed on the workman is justified in law.

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As already noted above, there is no pleading with regard to non-compliance of Section 33(2)(b) and further the Industrial Adjudicator in extenso referred to the material propositions put forth by the parties to the dispute and has adjudicated the dispute. It is also well settled that the court cannot travel beyond the pleadings. Hence, the allegation that there is non compliance of section 33 (2) (b) must necessarily fail in the facts and circumstances of the present case.”

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Sri. Ram Mohan.A, learned counsel for the

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appellants would make similar submissions that, as the

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respondent has not taken approval of the Labour Court under Section 33(2)(b) of the Act of 1947, the termination

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is non-est in the eyes of law. He has relied upon many

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judgments including the following:

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(a) Judgments of the Supreme Court in:

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i. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. -Vs.- Shri Ram Gopal Sharma and Others [2002 AIR SCW 249] ;

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ii. M.D., Tamil Nadu State Transport Corporation -Vs.Neethivilangan Kumbakonam [2001 AIR SCW 2023] ;

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iii. Raj Kumar Dixit -Vs.- Vijay Kumar Gauri Shanker, Kanpur Nagar [(2015) 9 SCC 345] ;

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(b) Judgments of this Court in:

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iv. Sri.M.M.Narayana and Others -Vs.- The Managemenet of KSRTC, Central Officer, Bangalore [2012 (4) AIR KAR R 518] ;

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v. Divisional Controller, NEKRTC, Gulbarga - Vs.- Sitaram Amarsingh Rajput [2019(1) AKR 245] ;

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vi. The Divisional Controller, NEKRTC Division, Bidar -Vs.- Venkat, Bidar [2015 (4) AKR 857] ;

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vii. Holeyappa s/o Hanamappa Mοkashi -Vs.The Divisional Controller, NWKRTC, Bagalkot Division [2013 (3) AKR 168 (1)] ;

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viii. Management of Metropolitan Transport Corporation Ltd. -Vs.- Thiru D. Chinnathu Gownder and Anr. [2012 LAB I.C.4353] .

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The above findings of the learned Single Judge reveal that, the plea related to non-filing of application under 33(2)(b) was not advanced on behalf of appellant No.2 before the Labour Court. The Labour Court proceeded to decide the petition filed by appellant No.2 under Section 10(4A) of the Act on merits and dismissed the same. In such an eventuality, the learned Single Judge is justified in dismissing the writ petition, moreso on a finding that there is no pleading with regard to non-compliance of Section 33(2)(b) of the Act of 1947 and the Court cannot travel beyond the pleadings. Hence, the allegation of non-compliance of Section 33(2)(b) of the Act of 1947 must necessarily fail in the facts of the case.

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It cannot be said that the plea of non-

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compliance of Section 33(2)(b) of the Act of 1947 is a pure question of law, as a decision, on the issue of compliance of Section 33(2)(b) of the Act of 1947 presupposes a decision on a question of fact as to whether any industrial dispute concerning the workman is pending which require approval of the Labour Court on an application under Section 32(2)(b) of the Act of 1947. If no industrial dispute is pending, then no approval is required to be taken.

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In any case when the Labour Court itself has upheld the termination for misconduct on merits, the plea based on Section 33(2)(b) of the Act of 1947 would become inconsequential.

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This we say so because, the scope of jurisdiction of the Labour Court under Section 33(2)(b), is only to oversee the dismissal to ensure that no unfair labour practice or victimization has been practiced. If the procedure of fair hearing has been observed and a primafacie case for dismissal is made out; approval has to be

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granted. The jurisdiction of the Labour Court under Section 33(2)(b) cannot be wider than the reference. In this regard we may refer to Lalla Ram -Vs.- D.C.M.

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Chemical Works Ltd. [(1978) 3 SCC 1] and Cholan Roadways Ltd. -Vs.G. Thirugnanasambandam [(2005) 3 SCC 241] . The proceeding under Section 33(2)(b) is not a substitute for a petition filed under

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Section 10(4-A) of the Act of 1947.

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In this case, the conclusion of the Labour Court on the merit of the challenge to termination of the appellant No.2 under Section 10(4-A) of the Act of 1947 is in the following manner:

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“7. Issue No.1 to 3 : Thus first party 1 and 2 have come up with this petition U/s.10(4-A) of ID Act challenging the termination of First party-2 dated 6.8.2007 contending that from the beginning first party was being harassed and frequently transferred and eventhough his parents are stationed at Pondicherry and inspite of his request, he was transferred to Bangalore. First party has further contended that he could not afford accommodation at Bangalore and therefore he started staying in guest house of union and because of this second party management refused to supply sample and

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promotion material to him. First party has also alleged that he was also not provided with any vehicle and consequently he could not carry out his work efficiently and could not reach the requisite target of 10 calls per day and keeping it in mind, second party management has chosen to terminate the services arbitrarily without providing any opportunity to him.

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8. On the other hand second party has pleaded that the service of First party-2 was most unsatisfactory and he did not carry out the work efficiently and the turn out of his work was below average. Second party has denied that First party-2 was transferred frequently as a measure of harassment. According to the second party, the transfer is a measure and of administrative routine and convenience and it is in accordance with the terms of the employment of first party. Second party has further contended that no other medical representative/PSR was provided with any accommodation or vehicle and consequently first party also cannot claim the same.

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9. It is the definite case of the second party that as a matter of principle and policy and due to administrative difficulties, the employees are not expected to stay in the guest house of union and when first party started staying in guest house of union, second party specifically directed him to change his residence. Since first party failed to

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change his residence, second party could not send the promotional material to the guest office of the union and having failed to acquire separate residential accommodation, first party cannot blame the second party. It is further case of the second party that since the work of first party was not satisfactory, after providing him several opportunities to improve his work ultimately second party choose to terminate his services after holding enquiry Second party has further contended that infact even after enquiry was held, First party-2 was provided with opportunity to improve his work and as he did not choose to do so, without any alternative, his services came to be terminated.

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10. In the light of these contentions, it is for the second party to justify the termination of first party for the reasons stated in the charge sheet before taking such measure, First party-2 was provided with reasonable opportunity to improve himself and also to defend himself. On the other hand it is for the First party-2 to prove that he is being victimized for his trade union activities. Now let me examine how far the respective parties have succeeded in discharging the burden placed on them.

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11. First party-2 has examined himself as WW.1 given evidence in terms of the claim statement averments. He has relied upon the following documents:

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Ex.W.1: C/o termination letter dated 6.8.2007

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Ex.W.2: C/o memorandum of understanding arrived at from 30.3.05 to 1.4.05.

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Ex.W.3: C/o list of changing of doctors at four times

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Ex.W.4: C/o letters from doctors given to First

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party-2

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Ex.W.5: C/o charge sheet

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Ex. W.6: C/o Enquiry report

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Ex.W.7: C/o other PSRs profile all over India

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Ex.W.8: C/o letters from First party-2 requesting sample call report book, sales details

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Ex.W.9: C/o letter dated 7.4.2006 written by the management

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Ex.W.10: C/o letter dated 15.9.2005, 14.2.06, 25.2.06 and another without date threatening the first party not to stay in the union building

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Ex. W.11: C/o stop work notice

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Ex. W.12: C/o resolution

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12. On the other hand MW1 S.K.Ravi working as Relations Manager has deposed in terms of the counter statement averments. Through MW1 second party has got marked the following documents:

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Ex.M.1: C/o letter of appointment dated 17.1.1996

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Ex.M.2: C/o show cause notice dated 2.3.2006

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ExM.3: C/o stop work notice dated 8.3.2006 Ex.M.4: C/o stop work and attend the training notice dated 13.3.2006

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Ex.M.5: C/o Refresher training notice dated 28.3.2006

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Ex.M.6: C/o feed back on the doctors call rate dated 14.7.2006

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Ex.M.7: C/o review of doctor call rate dated 22.08.2006

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ExM.8: C/o feed back on joint field work dated 23.8.2006

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Ex.M.9: Clo review 4.9.2006 dated 13.9.2006

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Ex.M.10: C/o reply to charge sheet dated 6.6.2007 by first party

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Ex.M.11: C/o reply to the enquiry minutes by the first party dated 17.7.2007

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Ex.M.12: C/o letter extending the probation of the first party dt: 19.8.96

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Ex.M.13: C/o Inter office memo by the manager of the first party dt:16.7.2001

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Ex.M.14: C/o daily call report of first party

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Ex.M.15: C/o another call report

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Ex.M. 16. C/o call average report of the first party for Jan to august 2007

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Ex.M.17: C/o All India PSR call average list of Jan 2006 to December 2006

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Ex.M.18: C/o work norms applicable to confirmed professional sales representatives.

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Ex.M.19. C/o memorandum of understanding between the parties

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13. It is relevant to note that eventhough the Section 10(4-A) of ID Act an individual workman is at liberty to challenge his termination without the dispute being sponsored by a recognised union, in the present case, the Karnataka Medical and Sales Representative Association, has also joined hands

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with concerned workmen in filing the present petition i.e. the Karnataka State Medical and Sales Representative Association is arrayed as First party-1 and the concerned workman M. Shanmugam Sundaram is arrayed as First party-2. It is not a reference U/s.10(1)(C) of ID Act so as to require a recognised union to espouse the cause of maintainable. Therefore the lengthy cross examination of WW1 and MW1 on behalf of the other is not of much consequence.

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14. Now coming to the merits of the case. Even though First party-2 has pleaded and contended that he was transferred frequently as a measure of harassment, during his cross examination, he has admitted that transferring of an employee is an administrative exercise and privilege of the second party management. Infact in the appointment order of the First party-2 there is a condition that his services are liable to be transferred any where in India department/section/sister concern/branch of second party company. The fact that initially First party-2 worked at Villupuram and from there he was transferred to Pondichery, from there to Bhatinda of Punjab and from there to Bangalore is in dispute. While First party-2 has maintained that his parents are living in Pondichery and therefore he has requested for a transfer to Pondichery and instead of posting him to Pondichery he was transferred to Bangalore, a suggestion is made to MW1 to the effect that during 2002 First party-2 was transferred

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to Pondichery as a measure of victimisation. This suggestion is inconsistent with the stand taken by him.

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15. Admittedly before coming to Bangalore, First party-2 was working at Bhatinda and at his request, he has been transferred to Bangalore. A suggestion to that effect is made to MW1 and he has admitted the same. When First party-2 was transferred to Bangalore at his request, then how can he call it as a transfer to victimise him and make a grievance out of it. Therefore the suggestions made to MW1 to the effect that First party-2 protested his transfer to Bangalore and First party-1 has challenged the same are contradictory and inconsistent. First party-2 has gone to the extent of making a suggestion to MW1 that his transfer to Pondichery which is nearer to his home town where his parents are staying was a measure of victimisation. Therefore it does not lie in the mouth of First party-2 that he was being victimized by transferring him to Bangalore. Since according to him, his parents are at Pondichery, when compared to Bhatinda of Punjab his posting to Bangalore was nearer to Pondichery and consequently he cannot make a grievance saying that he is being transferred to Bangalore as a measure of victimisation.

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16. It is the definite case of the second party that the work performance of First party-2 was most unsatisfactory and he did not reach the minimum

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requirement and consequently time and again he was advised to improve his work without any result. What exactly was the work turned out by First party2 is evident from his report as well as the statement prepared by the second party. First party has come up with a reason for turning out less work stating that in Bangalore he could not afford accommodation and therefore choose to stay in union Guest house and that second party refused to send the promotional material including physician sample to that address and therefore he could not carry out his Work and reach the target. Infact he has produced 4 letters given by different doctors at Ex.W.4 series pointing out that the representative has met them Without samples and in the absence of samples and promotional material, they are not going to prescribe the products of second party. At the out set first party has not explained as to why he has not handed over these letters to the second party management to show that in the absence of promotional material and samples not able to meet the doctors and that was the reason for his low performance.

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17. Now coming to the case of the First party-2 that he could not accommodation at Bangalore. As stated by MW1, second party has not provided any accommodation to the employees of sales department. Such being the case, first party cannot as of right claim that second party should have provided accommodation to him. Eventhough accommodation at Bangalore is costly, at the same

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time, it cannot be accepted that first party who was drawing Rs.13,000/- gross at the time of his termination was not able to afford a reasonable accommodation at Bangalore especially when he was staying alone. He could have very well opted to stay in a room and carry out his work. Therefore the contention of the first party that he was not able to afford accommodation and therefore staying in union guest house cannot be accepted and it cannot be a justification.

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18. It is an admitted fact that as an employee of second party, first party-2 was required to maintain confidentiality and if he stays in company’s guest house, certainly it would cause embarrassment to the second party management to send the promotional material and samples to the address of the union. It would be certainly against the principles and policy and also cause administrative difficulties to the second party if its employees stay in union guest house. Inspite of management having good relationship with the employees, traditionally a union and management are rivals and it cannot be expected that second party would tolerate its employee staying in the union guest house and carrying on its work. Therefore, the demand of the second party that First party-2 should change his accommodation and provide new address to it, is quite reasonable and justified. However, first party has stubbornly continued to stay in the union guest house and demanded that the promotional material

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and samples should be sent to the address of the of the guest house and on the failure of second party to do so make out a grievance and not carry on his work on that ground. Eventhough at para 1 of page of his cross examination, first party has stated that after second party management objected and expressed its difficulty to supply material, he decided to stay away from the union office, admittedly first party did not change his residence at least he has not placed any material on record to that effect. Eventhough throughout his evidence, first party has stated that he was staying in the guest house of the union, during his reexamination he has clarified that he was staying in the office of the union and not the guest house of the union.

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19. Infact at page 9 of his cross examination, first party has admitted that except him all other PSRs are collecting the material from the company, which goes to show that it was not difficult for him to collect the same himself instead of waiting for the second party management to supply it at his address. In this regard, he has stated that the second party management was not ready to give him auto allowance therefore he did not collect the material on his own. In the very next sentence, First party-2 has stated that he is not having any documents to snow that his request for auto allowance has been rejected by the second party management. Therefore the evidence of First party-2 to that effect is not acceptable and it is a clear

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afterthought. When these aspects are examined, I have no hesitation to hold that first party was not carrying out his work and failed to give the minimum result and the reasons given by him are not acceptable.

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20. One more reason given by the First party-2 for low performance is that he was not provided with any vehicle and as such he was depending upon public transport and could not meet the target within the stipulated time. It is nobody's case including that of first party-2 that second party management had provide vehicle to any other employee. Infact it has come on record that the MR/PSRs are entitled for daily allowance of Rs.185/-, Infact when suggested that the first party was required to walk for his work MW1 has stated that he was entitled for daily allowance and also there was provision for interest free loan of Rs.50 to 60 thousand for purchasing a two wheeler. He has specifically stated that there is a provision for providing vehicle to sales promotional employees. It is not the case of the First party-2 that other sales promotional employees were provided with Vehicle. When there was provision for interest free loan to purchase a two wheeler there was no impediment for First party-2 to opt for the same and with the help of daily allowance to carry out his work. When there is no provision for providing accommodation as well as vehicle and when First party-2 accepted the terms of his employment, he cannot demand for the same and fail to carry out his

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normal work on that ground. Eventhough MW1 has admitted that the medical representatives are required to wait for the interview, the target of 10 doctors is fixed after taking into consideration all these aspects and what amount of work a normal human being is able to carry out in a particular point of time. The target of 10 doctors is fixed not only to the First party-2 but also to the other similar employees and they are able to carry out the same work in the same time, first party cannot complain about it.

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21. First party has also contended that since he was new to Bangalore and on account of language problem, he was unable to carry out his work on his own and he was not assisted by any other person and that was one of the reasons for his low performance. As suggested to MW1, the transfer of First party-2 to Bangalore was at his request. Moreover the MR/PSR, especially those of second party who can be posted to anywhere through India are expected to work and communicate through English. Bangalore being a cosmopolitan city it could not be very difficult for anyone who is knowing English to work in Bangalore.

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22. Even if a person is new to place, within few days it will not be difficult for him to know the areas, addresses and topography. Infract Ex.M.7 to 9 reveal that Ashfaq Ahmed, Area Business Manager has worked with him and discussed and reviewed his

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work. Ex.M8 reveal that on 21.8.2006 though First party-2 had promised to meet him at Shivaji Nagar in between 10.30 to 11 am. he reached at 11.30 am. Similarly on 22.8.2006 he reached at 11 am and stated that he would meet Ashfaq Ahmed after having break fast and made him to wait for 15 more minutes.

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23. Similarly on 23.8.2006 also, he has made Ashfaq Ahmed at 11.30 am. though promised to be at spot at 10.30 to 11 a.m. It is also stated in Ex.M.8 that he came without preparing the days work and after Ashfaq Anmed demonstrated how to work and how to know maintain the land marks, customers addresses etc., First party-2 has replied that he know all these things and he has been doing it and inspite of all these on 12.8.2006 he has met only one doctor.

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24. Infact in order to improve his work, second party management has chosen to give him training from 20.3.2006 to 24.3.2006 and for this purpose, directed him to stop work. When he was called upon to undergo and given training, First party-2 has come up with a grievance that only one hour lecture was given and for the remaining time, he was made to sit idle and that he was not provided with any food etc, Therefore the complaints and grievance made out by the first party are not genuine and they are not based on any valid grounds.

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25. During his cross examination, first party has admitted that in the show cause notice dated 2.3.2006, 4 types of inefficiency were pointed out and he was required to make 10 calls to the doctors per day. Though he has claimed that he used to make 7-8 calls per day, the statement produced by the second party is contrary and first party has not produced any document to show that his call average was 70 to 80%. First party-2 has also admitted that second party has provided full opportunity of training to him. He has also admitted that issued with number of letters to improve his standard. He has conceded the travelling expenses paid to him was equal to the allowances given to the others. He has also admitted that in the letters dated 20.8.2006, 23.8.2006 and 13.09.2006 the management has mentioned that he has not stated the doctors code correctly and his reports were not clear. WW.1 has further admitted that in his reply dated 6.6.2007 he has admitted that average call was not equal to the standard fixed by the company.

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26. During the cross examination, it is elicited through WW1 that probation was extended on the ground that his performance was not satisfactory. He has admitted that one Vallaba was the branch manager when he was working at Villupuram, but denied that there also his performance was not satisfactory and he used to tell the branch manager that if he is transferred to Madurai, he will improve. At page 9 he has admitted that a Field Consultative

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Committee (FCO) formed to discuss the problem with the management and 5 representatives of workmen were its members. Eventhough he has stated that before filing the present petition, he has approached FCC, he has not produced any document to that effect.

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27. First party has also come up with a plea that before terminating his services, no enquiry was held and he was not provided with any opportunity. It is an admitted fact that first party was issued with a charge sheet dated 30.5.2007 as per Ex.W.5. Before issuing this charge sheet, he has been issued with several show cause notices and memos to improve his work.

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28. Though a detailed enquiry is not conducted, as admitted by the first party he was called for an enquiry and he attended the enquiry on 25.6.2007. He has stated that the enquiry committee was consists of 3 persons namely Gagan Singh, Zonal Business Manager, Ravi - Employee Relationship Manager and Mr.Rajesh - HR Manager and the enquiry proceedings were conducted from 2.30 p.m. to 5.30 p.m. He has stated that some formal questions were put to him but he was not allowed to speak. As admitted by him, he has given explanation to the charge sheet and when suggested that proceedings were drawn and his answers were recorded First party-2 has replied that he do not remember it. He has also admitted that after the

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proceedings enquiry committee gave him one more opportunity and he has given written reply and in the said reply, he has admitted that he could not make average 10 calls per day. First party himself has produced documents pertaining to the enquiry at Ex W.6. It is relevant to note that the charges levelled against first party were based on the documentary evidence and they were admitted facts. It is a fact that first party was not able to make average of 10 calls per day, was staying in the union office and his work was not satisfactory. Such being the case, except giving written explanation, first party had nothing to do. Therefore there was no need to conduct a detailed enquiry by appointing an enquiry officer. Even where it is accepted that second party management did not conduct a detailed enquiry against first party, before this court through oral and documentary evidence in as much as through the admissions given by the first party, second party has proved the charges levelled against the first party.

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29. When once the misconduct is held to be proved, the next question that arise for consideration is whether the punishment imposed is proportionate or it is a fit case for interference by this court. As MR/PSRs first party was expected to make average 10 calls per day and he has failed to reach the target. It is not as though second party management has taken the drastic step of terminating him on the very first occasion.

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30. Second party management was given several opportunities to the first party to improve his work. He has not chosen to avail those opportunities. One of the main reason for not achieving target is that first party failed to collect the samples and promotional material from the office and insisted that they should be sent to his address. Inspite of being objected by the second party management, first party has continued to stay in the union office and consequently second party management has refused to send promotional material. Eventhough there is no provision for providing accommodation as well as vehicle, first party has attributed his failure to reach the target for not providing accommodation and vehicle. He has also not utilized the opportunity of availing interest free loan and purchasing a two wheeler since it would have helped him in a big way to reach the target in as much as saved time and energy. As rightly pointed out in Ex.M.13, first party has developed a negative attitude and trying to find out fault in every aspect. Infact suggestions made to MW1 to the effect that even his transfer to his native town Pondichery is to harass him makes this aspect evident. After providing several opportunity ultimately second party management has chosen to terminate his services. When all these aspects are examined, I have no hesitation to hold that the punishment imposed is proportionate and it is not a fit case to interfere U/s.11A of ID Act and

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accordingly issues 1 to 3 are answered and I proceed to pass the following:

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ORDER

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1. Petition U/s,10(4-A) of the Industrial Disputes Act is hereby rejected No order as to cost

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2. Send copy of this Award to the Government for publication.

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3. The Government is directed to publish the award in such manner as it thinks fit within a period of 30 days from the date receipt of the same.

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4. The award shall become enforceable on the expiry of 30 days from the date of its publication Under Section 17 of the I.D.Act. 1947.

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5. The Government is directed to intimate the publication of award to all the parties to the case by registered post acknowledgement due without fail.”

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The above conclusion of the Labour Court reveal

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that the termination of the appellant No.2 is justified. The Labour Court has examined, the case from the aspect of victimization and also principles of natural justice, to come to a conclusion that the termination is justified. In that

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sense even if an application under Section 33(2)(b) has not been filed, no prejudice is caused to the appellant No.2 on that count, as the Labour Court has examined the case in all respects to hold the termination is justified. In such circumstance also, the order of the learned Single Judge cannot be faulted.

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Insofar as the judgments relied upon by Sri. Ram Mohan are concerned, in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), the Supreme Court was concerned with an issue relatable to Section 33(2)(b) of the Act of 1947, and its effect, if it is not complied with. As no plea was advanced, the said judgment shall have no applicability. Similar is the position in the case of M.D., Tamil Nadu State Transport Corporation (supra). Insofar as the judgment in the case of Raj Kumar Dixit (supra) is concerned, the same was relatable to payment of 50% back wages by the High Court. The Supreme Court set aside the Judgment and granted full back wages. This judgment has no applicability in the facts of this case, moreso when the

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termination of the appellant has been upheld. Insofar as the judgment in the case of Sri.M.M.Narayana (supra) is concerned, there is a finding of fact by the Court that a plea relatable to Section 33(2)(b) was raised by the petitioner, which was not considered by the Industrial Tribunal. In the fact situation, the Court held that not following Section 33(2)(b) of the Act of 1947, shall make the termination bad. The petitioner was granted 100% backwages. The said judgment has no applicability in the facts of this case. Insofar as the judgment in the case of Sitaram Amarsingh Rajput (supra) is concerned, the Division Bench of this Court was considering the facts where the respondent was dismissed from service for unauthorized absence. He challenged his dismissal by seeking a reference to the Labour Court. One submission of the respondent was no approval under Section 33(2)(b) of the Act of 1947 was obtained by the appellant corporation. The Labour Court, on this ground, had set aside the dismissal order. The Learned Single Judge upheld the order of the Labour Court. Even the Division Bench dismissed the intra-court appeal. Suffice to state,

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the judgment is distinguishable on facts in as much as in the said case, a specific ground was taken by the respondent that approval under Section 33(2)(b) of the Act of 1947 was not taken unlike in the present case where no plea was advanced. Hence the judgment has no applicability to the case in hand.

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In so far as the Judgment in the case of Venkat, Bidar (supra) is concerned, the said judgment has no applicability to the case in hand for the reason the Division Bench of this court held that on failure to file application under Section 33(2)(b) of the Act, of 1947 the order of dismissal held to be in contravention of Section of 33 of the Act, of 1947. No such case has been argued by Sri. Rammohan Rao.

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Insofar as the judgment in the case of Holeyappa S/o Hanamappa Mοkashi (supra) is

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concerned, in that case, the petitioner was aggrieved by his dismissal on the ground that he has stolen a sum of Rs.5,98,869.50/-. The petition filed by him under Section

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10(4-A) of the Act of 1947 was rejected. The learned

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Single Judge of this Court by relying upon the judgment in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank

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Ltd. (supra), has come to a definite conclusion that because of the pendency of industrial dispute raised by the KSRTC Staff and Workers’ Federation, the approval was required to be taken under Section 33(2)(b) of the Act of 1947, and failure to take approval, the dismissal is bad. That apart, in the said case, the petitioner had given up his claim for backwages. Suffice to state, the judgment is distinguishable on facts in as much as the learned Single Judge herein on a finding of fact that no such plea was urged before the Labour Court, has dismissed the petition. Insofar as the judgment in the case of Thiru D. Chinnathu Gownder (supra) is concerned, the learned Single Judge of Madras High Court was considering the case of removal of the first respondent resulting in an application filed by the petitioner-Corporation before the Labour Commissioner seeking approval of removal which application was dismissed, resulting in the respondent No.1-employee joining the duties. He sought the benefits for the period of non-employment i.e., between

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02.06.1994 to 01.10.1999 due to the order of removal.

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The Labour Court has ordered payment of Rs.3,39,880/as against the claim of Rs.3,50,699/-. The learned Single Judge by relying on the judgment of the Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra), has dismissed the petition filed by the petitioner-Corporation against the order of the Labour Court granting an amount of Rs.3,39,880/- by holding that the order is proper, without any irregularity and impropriety. Hence, this judgment shall not enure to the benefit of appellant No.2 herein being distinguishable on facts.

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We may state here that, the learned counsel for the respondent has referred to the following judgments in support of his submissions, but in view of our finding above, need is not felt to deal with the same:

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