Karnataka High Court
The Management Of Emc Software And ... vs Mr. Subramanian Kaleeshwaran on 6 February, 2024
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WP No. 14422 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO. 14422 OF 2023 (L-RES)
BETWEEN:
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,
Digitally signed by
MAHALAKSHMI B M HR GENERALIST.
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. K.R. KRISHNAMURTHY., ADVOCATE)
AND:
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.
...RESPONDENT
(BY SRI. NARAYANA SWAMY K.B. ,ADVOCATE)
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WP No. 14422 of 2023
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.
THIS PETITION, COMING ON FOR DICTATION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
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.
2. Respondent - workman filed claim statement
under Section 2A r/w Section 10(4-A) of the (Karnataka
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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.
3. 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:
a. "Whether First Party proves that he is a
workman as defined in Sec.2(s) of Industrial
Dispute Act 1947?
b. Whether second party proves that the
dismissal order dated 20.07.2021 passed by
the second party is legal and justifiable?
c. To what order the first party is entitled?"
4. Respondent - workman filed an application
(I.A.No.1/2022) under Section 11 of the ID Act, seeking to
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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5. The petitioner filed his objections to
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.
6. Heard Sri K.R. Krishnamurthy, learned counsel
for the petitioner and Sri Narayana Swamy K.B., learned
counsel for the respondent.
7. Learned counsel appearing for the petitioner
would contend that:
(i) The petitioner is seriously disputing the claim of
the respondent as "Workman" and thus, the
additional issue framed is contrary to the
pleadings of the parties.
(ii) The Labour Court ignored the objections raised
by the petitioner - Management and proceeded
to frame additional issue regarding the question
of deciding the fairness and validity of the
domestic enquiry contrary to the view expressed
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by the Apex Court in the case of
D.P.Maheshwari vs. Delhi Administration &
Others1 ('D.P.Maheshwari').
(iii) Framing of additional issue and proceeding to
post the matter for evidence of the petitioner is
perverse and illegal.
(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.
(v) The additional issue requires elaborate evidence
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.
(1983)4 SCC 293
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8. In support of his contention, learned counsel
has relied on the decision of the Apex Court in the case of
V.G. Jagdishan vs. Indofos Industries Ltd2 ('V.G.
Jagdishan').
9. Per contra, learned counsel appearing for the
respondent would urge the following grounds:
(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.
(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.
(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,
(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.
10. Having heard learned counsel for the parties,
the point that arises for consideration is:
"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?"
11. This Court has carefully considered the rival
contentions urged by the learned counsel for parties and
perused the material on record.
12. The law is well settled that the procedure that
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.
13. The Apex Court, in the case of D.P.
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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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.
14. 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.
15. 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.
16. The Apex Court in the case of The workmen of
M/s. Firestone Tyre and Rubber Co. of India P. Ltd.
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
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.
17. Secondly, question of taking further evidence
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:
a) The Tribunal has recorded a preliminary finding that
the domestic enquiry was not properly held and
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.
18. 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:
"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
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.
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".
19. 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.
20. 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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21. 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.
22. At this stage, learned counsel for the petitioner
would submit that the evidence of the second party-
management 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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allow the application and permit the petitioner to lead
evidence.
23. For the foregoing reasons, this Court pass the
following:
ORDER
i. Writ petition is dismissed.
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.
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 petitioner-
management 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.
Sd/-
JUDGE
DDU
