Dismissed

The Management of Emc Software and Services India Pvt. Ltd., v. Mr. Subramanian Kaleeshwaran

Karnataka HC6 Feb 2024WP/14422/2023

Case brief

AI extract

What is this about?

This writ petition challenges a Labour Court order allowing an additional issue regarding the fairness of a domestic enquiry and directing the Management to lead evidence. The High Court held that the Labour Court was justified in framing the issue as preliminary but granted the Management an opportunity to seek recall of an order to lead evidence.

What did the court decide?

The writ petition is dismissed; the Labour Court order is confirmed, but the Management is allowed to seek recall of a prior order to lead evidence.

The Management of Emc Software and Services India… — Service and Employment | Karnataka HC (2024)

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1 - NC: 2024:KHC:5186 WP No. 14422 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 14422 OF 2023 (L-RES)

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BETWEEN:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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THE MANAGEMENT OF EMC SOFTWARE AND SERVICES INDIA PVT. LTD., BHAGMANE WORLD TECHNOLOGY CENTER, MARATHHALLI NORTH, RING ROAD, HOBLI DODDANAKUNDI, MAHADEVAPURA, BENGALURU - 560 075. NOW CALLED AS; M/S. DELL INTERNATIONAL SERVICES INDIA PVT LTD., INCORPORATED UNDER COMPANIES ACT 1956, HAVING OFFICE AT, BAGMANE WORLD, TECHNOLOGY CENTRE, MARATHAHALLI NORTH, RING ROAD, DODDANAKUDI HOBLI, MAHADEVAPURA, BENGALURU - 560 048. REP. BY KAVITHA NARAYANAN, SENIOR MANAGER, HR GENERALIST. …PETITIONER

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(BY SRI. K.R. KRISHNAMURTHY., ADVOCATE)

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AND:

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MR. SUBRAMANIAN KALEESHWARAN S/O. SRI T.A. KALEESHWARAN, AGED ABOUT 42 YEARS, R/AT NO.990, 1ST MAIN ROAD, 3RD CROSS, NEAR THIPPASANDRA, HAL 3RD STAGE, BENGALURU - 560 075.

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…RESPONDENT

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(BY SRI. NARAYANA SWAMY K.B. ,ADVOCATE)

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NC: 2024:KHC:5186 WP No. 14422 of 2023

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN ID NO 250/2021 BEFORE THE II ADDL LABOUR COURT, AT BENGALURU VIDE ANNEXURE A AND ETC.

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THIS PETITION, COMING ON FOR DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner - Management of EMC Software & Services India Pvt. Ltd., (hereinafter referred to as 'the Management' for short) assails the order dated 17.04.2023 on I.A.No.1/2022 in I.D.No.250/2021 on the file of II Additional Labour Court, Bengaluru (hereinafter referred to as “the Labour Court” for the sake of convenience), filed by the respondent–workman under Section 11 of the Industrial Disputes Act, 1947 ('the ID Act' for short), whereby, the application was allowed and additional issue regarding conduct of domestic enquiry was framed and the Management was called upon to lead evidence on the additional issue.

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Respondent - workman filed claim statement

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under Section 2A r/w Section 10(4-A) of the (Karnataka

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3 - NC: 2024:KHC:5186 WP No. 14422 of 2023

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Amendment) of the ID Act, in I.D.No.250/2021 before the Labour Court, challenging the order of dismissal dated 20.07.2021 and sought for the relief of reinstatement to his original position with full back wages and continuity of service.

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The petitioner submitted counter statement, inter alia , contending that the respondent is not a workman as defined under Section 2(s) of the ID Act, before the Labour Court to try the same as preliminary issue. The Labour Court framed the following issues:

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a. “Whether First Party proves that he is a workman as defined in Sec.2(s) of Industrial Dispute Act 1947?

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b. Whether second party proves that the dismissal order dated 20.07.2021 passed by the second party is legal and justifiable?

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c. To what order the first party is entitled?”

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Respondent – workman filed an application

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(I.A.No.1/2022) under Section 11 of the ID Act, seeking to

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frame preliminary issue as to “Whether second party has held a domestic enquiry, and if held, whether the same is fair and proper”?

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NC: 2024:KHC:5186 WP No. 14422 of 2023

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The petitioner filed his objections to

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I.A.No.1/2022. The Labour Court on hearing both the counsel allowed I.A.No.1/2022 vide order dated 17.04.2023 and called upon the petitioner – Management to lead additional evidence on additional issue.

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Heard Sri K.R. Krishnamurthy, learned counsel for the petitioner and Sri Narayana Swamy K.B., learned counsel for the respondent.

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Learned counsel appearing for the petitioner would contend that:

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(i) The petitioner is seriously disputing the claim of

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the respondent as “Workman” and thus, the additional issue framed is contrary to the pleadings of the parties.

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(ii) The Labour Court ignored the objections raised by the petitioner - Management and proceeded to frame additional issue regarding the question

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of deciding the fairness and validity of the domestic enquiry contrary to the view expressed

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5 - NC: 2024:KHC:5186 WP No. 14422 of 2023

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by the Apex Court in the case of

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D.P.Maheshwari vs. Delhi Administration &

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Others¹ (‘D.P.Maheshwari’).

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(iii) Framing of additional issue and proceeding to post the matter for evidence of the petitioner is perverse and illegal.

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(iv) Without prejudice to his contentions would contend that directing the petitioner to lead evidence on additional issue without expressly treating the additional issue as preliminary issue, is totally erroneous.

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(v) The additional issue requires elaborate evidence

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on merits and cannot be treated as preliminary issue in the light of the petitioner disputing the status of the respondent as a “workman” and the preliminary issue even if framed has to be disposed of, with all other issues.

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1 (1983)4 SCC 293

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6 - NC: 2024:KHC:5186 WP No. 14422 of 2023

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In support of his contention, learned counsel

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has relied on the decision of the Apex Court in the case of V.G. Jagdishan vs. Indofos Industries Ltd² (‘V.G.

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Jagdishan’).

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Per contra , learned counsel appearing for the

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respondent would urge the following grounds:

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(i) That the framing of additional issue regarding the enquiry conducted is fair and proper, is necessary to be decided before the other issues are answered by the Labour Court.

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(ii) That treating of additional issue as a preliminary issue is relevant to the present facts as the petitioner - Management has contended that the domestic enquiry conducted is fair and proper by following the principles of natural justice.

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(iii) That though the preliminary issue cannot be framed by the Labour Court as it would lead to delay in the adjudication of the industrial dispute,

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2 (2022)6 SCC 167

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however, in the light to determine the proceedings before the disciplinary authority is fair and proper, needs to be adjudicated before answering the other issues and thus, the Labour Court was justified in raising the additional issue and to lead evidence to that effect.

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Having heard learned counsel for the parties,

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the point that arises for consideration is:

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"Whether the Labour Court was justified in framing the additional issue and directing the Management to lead evidence on the additional issue in the present facts and circumstances of this case?"

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This Court has carefully considered the rival

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contentions urged by the learned counsel for parties and perused the material on record.

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The law is well settled that the procedure that

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ought to be adopted by the Labour Court is to decide the validity of the domestic enquiry as a preliminary issue and if the said issue is decided against the management, the

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management is then to be afforded an opportunity to lead evidence supporting the dismissal/termination of the workman before the Labour Court.

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The Apex Court, in the case of D.P.

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Maheshwari , placed reliance by both the counsel, held that the Tribunal should dispose of all the issues, whether preliminary or otherwise at the same time. The Apex Court while considering the order of the Labour Court, where preliminary question therein was “whether the employee was a “workman” as envisaged under Section 2(s) of the ID Act,” took note of the fact that 13 years thereafter the matter is still at the stage of decision on a preliminary issue, the Apex Court held that the Tribunals and the 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. The Labour Courts are established under the provisions of ID Act, 1947 for speedy adjudication of industrial disputes to the

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NC: 2024:KHC:5186 WP No. 14422 of 2023

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exclusion of Civil Courts and necessarily all the issues, which involves disputed question of facts, must be established only after trial. The issue “whether an employee is a “workman” under Section 2(s) of the ID Act” is a mixed question of law and fact which has to be treated along with the other issues.

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In the instant case, I.A.No.1 is filed by the respondent seeking to decide additional issue No.1 regarding the fairness of the domestic enquiry. The sum and substance of the arguments advanced by the learned counsel appearing for the petitioner is that, the additional issue regarding the fairness of the domestic enquiry could not be treated as a preliminary issue as all the issues have to be heard together in the light of the decision of the Apex Court in the case of D.P. Maheshwari stated supra .

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It is well settled that the question of domestic enquiry having conducted to be fair and proper is an issue, which has to be first decided by the Labour Court, as, when there is no domestic enquiry or defective enquiry if

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admitted by the employer, there is no difficulty, but when the matter is in controversy between the parties, that question has to be decided as a preliminary issue, as, on that decision being pronounced, whether the enquiry held is not fair and proper, it is for the Management to decide whether it will adduce any evidence before the Labour Court on perversity, victimization and disproportionality of the punishment to the misconduct. It is only when a finding is given by the Labour Court on the domestic enquiry, the jurisdiction of the Labour Court/Tribunal would arise under Section 11A of the ID Act.

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The Apex Court in the case of The workmen of

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M/s. Firestone Tyre and Rubber Co. of India P. Ltd.

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Vs. The Management and others³ (Firestone Tyre) laid down the principle under Section 11A if the enquiry is not properly conducted by the employer, it will be open to the employee to lead further evidence before the Tribunal to establish that the domestic enquiry is invalid. The decision

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3 AIR 1973 SC 1227

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in Firestone Tyre in the first place held that, if the domestic enquiry conducted by the employer was round to be improper, then applying the Firestone ratio, the onus to adduce the additional evidence in support of dismissal lies on the employer, and not on the employee. In other words, by leading additional evidence to the satisfaction to the Tribunal, the employer can sustain the action of the dismissal, but to say that, in the event of an improperly held domestic enquiry, “the employee can lead further evidence before the Tribunal to prove that the enquiry is invalid” is like putting the cart before the horse. Why should the onus should be on the employee to lead additional evidence to establish the invalidity of the enquiry, which in any case is a finding of fact recorded in his favour by the Tribunal. After all, by adducing additional evidence, the employee is not going to prove the enquiry held by his employer is exponentially invalid.

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Secondly, question of taking further evidence

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would arise only when the Tribunal has recorded a

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preliminary finding that the domestic enquiry was not properly held. If the domestic enquiry is found unassailable in every respect, the need for the employer to adduce any further evidence would not arise. Thus, the right of the employer to adduce the additional evidence is founded on satisfaction of two conditions:

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a) The Tribunal has recorded a preliminary finding that the domestic enquiry was not properly held and

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b) That, in such an event, the employer makes a request to the Tribunal seeking permission to lead additional evidence to justify the action of dismissal.

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This being the proposition of law as stated supra the Apex Court in the case of Cooper Engineering Limited Appellant vs. P.P.Munde⁴ placed reliance by the respondent counsel has held at Para Nos.21 and 22 as under:

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“21. Propositions (4), (6) and (7) set out above are well-recognised. It is, however, fair and in accordance with the principles of natural justice for

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4 AIR 1975 SC 1900

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the Labour Court to withhold its decisions on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the court to give an opportunity to adduce additional evidence at the commencement of the proceedings or, at any rate, in advance of the pronouncement of the order in that behalf? In our considered opinion it will be most unnatural and impractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the Labour Court prior to embarking upon an enquiry to decide the dispute on its merits. The interference involves determination of the larger issue of discharge or dismissal and not merely whether a correct procedure had been followed by the Management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry, a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to? This is neither going to achieve the paramount object of the Act, namely, industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will be revived and industrial peace will again be ruptured. Again another object of

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expeditious disposal of an industrial dispute (see Section 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance o the ultimate aim of the Act to foster industrial peace.

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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 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 jurisdiction 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

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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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Keeping in mind the object of conducting preliminary issue regarding the fairness of domestic enquiry, the Labour Court in the instant case was justified in allowing I.A.No.1 and the same does not warrant any interference.

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The decision placed by the learned counsel in the case of V.G.Jagadishan stated supra was in the context where the issue of territorial jurisdiction was raised, the Apex Court held that as far as possible the same has to be decided as a preliminary issue and the same is distinguishable in light of the judgment of the Apex Court in the case of D.P. Maheshwari stated supra, wherein the Apex Court held that the question whether the employee is a workman under Section 2 (s) has to be decided along with other issues.

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NC: 2024:KHC:5186 WP No. 14422 of 2023

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In the instant case, the other issues have to be dealt with together, and the fairness of the domestic enquiry has to be dealt with in the first instance as rightly held by the Labour Court.

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At this stage, learned counsel for the petitioner would submit that the evidence of the second partymanagement was taken as ‘Nil’ on 30.10.2023 and the matter is posted for evidence of W.W.1-workman and would submit that an opportunity needs to be afforded to the petitioner-management to lead evidence on the additional issue regarding domestic enquiry. There is sufficient force in the submission made by the petitioner counsel, to meet the ends of justice and to curtail the delay, this Court deems it appropriate to afford an opportunity to the petitioner to lead evidence and this Court accords permission to the petitioner to file application seeking to recall the order dated 31.10.2023 and on such application being filed, the Labour Court to

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NC: 2024:KHC:5186 WP No. 14422 of 2023

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allow the application and permit the petitioner to lead evidence.

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For the foregoing reasons, this Court pass the

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following:

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ORDER

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i. Writ petition is dismissed .

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ii. Impugned order on I.A.No.1/2022 filed by the respondent-workman passed by the II Additional Labour Court, Bengaluru in I.D.No.250/2021 dated 17.04.2023, stands confirmed , however, the petitioner-management is at liberty to file an application seeking to recall the order dated 30.10.2023 and to lead further evidence, on such application being filed, the Labour Court to allow the application and permit the petitioner-management to lead evidence.

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iii. Parties to appear before the Labour Court on the hearing date as submitted by either side on 28.02.2024 .

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iv. The Labour Court to afford sufficient and reasonable opportunity to the petitionermanagement and respondent-workman to lead evidence and necessary orders to be passed on the fairness of the domestic enquiry and later on, consider all the issues together, in accordance with law.

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Sd/JUDGE

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DDU

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List No.: 1 Sl No.: 15

The Management of Emc Software and Services India Pvt. Ltd., v. Mr. Subramanian Kaleeshwaran

Case brief

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The Management of Emc Software and Services India Pvt. Ltd., v. Mr. Subramanian Kaleeshwaran

Case brief

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What did the court decide?

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