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Workmen of Yelandur Taluk Land Mortgage Co-operative Society Ltd. Vs. Yelandur Taluk Land Mortgage Co-operative Society Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 716 of 1971
Judge
Reported in(1972)IILLJ588Kant; (1972)2MysLJ149
ActsIndustrial Disputes Act, 1947 - Sections 10, 10(1), 22, 33, 33(1) and 33(2)
AppellantWorkmen of Yelandur Taluk Land Mortgage Co-operative Society Ltd.
RespondentYelandur Taluk Land Mortgage Co-operative Society Ltd. and anr.
Excerpt:
.....could not be deemed to be a punishment of the workman at all. on the other hand, the dictum of the supreme court that there is nothing like a contingent punishment of a workman would indicate that the permission or approval for dismissal or discharge given by the tribunal under s. krishnaiah placed strong reliance on the observations of the supreme court in sasa musa sugar works private ltd......the action of the management in dismissing or discharging a workman, will relate back to the date of his dismissal or discharge. 9. mr. krishnaiah next referred to the observations of the supreme court in ranipur colliery v. bhuban singh, [1959] 16 f.j.r. 176. there, the management, after holding an enquiry against certain workman, came to the conclusion that they were guilty of the misconduct with which they were charged and should be dismissed. as, however, an industrial dispute between the management and its workmen was pending before the industrial tribunal, the management applied under s. 33 of the act for permission to dismiss them. the tribunal granted such permission. however, in appeal, the labour appellate tribunal, while upholding such grant of permission, directed that.....
Judgment:

Per Chandrasekhar, J.

1. In this petition under Arts. 226 and 227 of the Constitution, the principal question that arises for decision is as follows : Where before dismissing an employee no domestic enquiry has been held by his employer but the Industrial Tribunal or the Labour Court upholds such dismissal on the basis of evidence adduced by the employer before it, is the employee entitled to get his salary or wages from the date of such dismissal till the date of the award or order of the Tribunal or the Labour Court upholding such dismissal

2. One C. M. Krishnamurthy was assistant secretary to Yelandur Taluk Land Mortgage Co-operative Society Ltd. (hereinafter referred to as the management), respondent 2 herein. The management terminated his services by its order dated November 15, 1967. His case was espoused by the Mysore District Employees Union which raised an industrial dispute. The Government referred under S. 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the following point of dispute for adjudication :

'Are the management of Yelandur Tuluk Land Mortgage Co-operative Society Ltd., Yelandur, Mysore District justified in terminating the services of Shri C. M. Krishnamurthy, assistant secretary If not, whether the above employee is entitled for reinstatement with back wages and continuity of service or to any other relief ?'

The Labour Court held that the management was justified in terminating the services of the employee and that he was not entitled to reinstatement with back wages or any other relief.

3. In this petition, Mr. S. Krishnaiah, learned counsel for the petitioner, contended that the Labour Court was in error in upholding the termination of the services of the employee. It was also contended by him that even if that finding was correct., the Labour Court should have directed the management to pay the salary and allowances to the employee from the date of termination of his services till the date of the award upholding such dismissal.

4. We shall first consider the finding regarding the termination of the services of the employee. Certain material facts bearing on this question are not in dispute. One M.R. Narasimha Murthy made an application to the management for grant of a loan of Rs. 5,000 for sinking a well. The employee was asked by the management to inspect the land of that applicant and to submit a report. Accordingly, he submitted a report in which he stated that a sum of Rs. 3,600 would be required for sinking the well. Acting on that report, the management granted a loan to that applicant. Subsequently, the Assistant Registrar of Co-operative Societies brought to the notice of the management that that applicant had already sunk a well before he asked for loan and that the report made by the employee was false and misleading. In his statement before the Assistant Registrar of Co-operative Societies, Mysore Division, the employee admitted that the well had been sunk in that applicant's land a year or two prior to his application for the loan. He pleaded thus :

'In the circumstances, the charge against me that I have misused my powers and I have made a false report, etc., may be exonerated ....... If I am in the wrong, I may kindly be excused and I may be guided properly.'

The management did not frame any charge and did not hold any oral enquiry before terminating his services. However, before the Labour Court the management examined witnesses and produced documents to establish that the employee was guilty of misconduct. The employee also adduced evidence. The Labour Court considered the evidence and held that misconduct on the part of the employee had been established.

5. The question whether the employee was guilty of misconduct is purely of fact. Mr. Krishnaiah has not been able to show any ground which would justify our interfering with such finding of fact.

6. However, it was strongly urged by Mr. Krishnaiah that even if the Labour Court upheld the termination of service of the employee, it should have directed payment of his salary and allowances up to the date of its award because there was no enquiry before terminating his services. Elaborating his contention Mr. Krishnaiah argued that there could be no valid termination of services without an enquiry, that a valid termination was brought about for the first time by the award of the Labour Court and that consequently the employee was entitled to his salary and allowances up to the date of such award. Mr. Krishnaiah sought to derive support for this contention from observations of the Supreme Court in certain decisions.

7. All the decisions relied on by Mr. Krishnaiah relate to dismissal or discharge coming within the purview of S. 33 of the Act or S. 22 of the Industrial Dispute (Appellate Tribunal) Act, 1950, (hereinafter referred to as the Appellate Tribunal Act.) But Mr. Krishnaiah referred to the decision of the Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, [1972 - I L.L.J. 180]; [1972] 41 F.J.R. 42, wherein the Supreme Court has pointed out that in principle there is no difference whether the matter comes up before the Tribunal for approval under S. 33 of the Act or on a reference under S. 10 of the Act.

8. In Laxmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956] 11 F.J.R. 273, the management has held an enquiry into the alleged misconduct of certain workmen during the pendency of an appeal before the Labour Appellate Tribunal. The management thereafter made an application under S. 22 of the Appellate Tribunal Act before that Tribunal which rejected that application. In appeal by special leave, the decision of that Tribunal was reversed by the Supreme Court which said thus at page 284 :

'It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permission of the Tribunal under the relevant section could not be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal had passed orders thereupon. If the permission was accorded the workmen would not be paid during the period of suspension but if permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and, therefore, such suspension could not be deemed to be a punishment of the workman at all.'

We are unable to see how the above observations can be of any assistance to Mr. Krishnaiah. On the other hand, the dictum of the Supreme Court that there is nothing like a contingent punishment of a workman would indicate that the permission or approval for dismissal or discharge given by the Tribunal under S. 33(2) of the Act or under S. 22 of the Appellate Tribunal Act would relate back to the date of suspension of the workman pending such permission or approval of the Tribunal. On the same reasoning, the order or award of the Tribunal or the Labour Court upholding the action of the management in dismissing or discharging a workman, will relate back to the date of his dismissal or discharge.

9. Mr. Krishnaiah next referred to the observations of the Supreme Court in Ranipur Colliery v. Bhuban Singh, [1959] 16 F.J.R. 176. There, the management, after holding an enquiry against certain workman, came to the conclusion that they were guilty of the misconduct with which they were charged and should be dismissed. As, however, an industrial dispute between the management and its workmen was pending before the Industrial Tribunal, the management applied under S. 33 of the Act for permission to dismiss them. The Tribunal granted such permission. However, in appeal, the Labour Appellate Tribunal, while upholding such grant of permission, directed that those workman should be paid their wages from the date of their suspension without pay till the date of the Industrial Tribunal's order, less ten days wages as provided in clause 27 of the standing orders. In the appeal from the decision of the Labour Appellate Tribunal, the Supreme Court referred to its decision in Laxmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [1956] 11 F.J.R. 273, explained the scheme and object of S. 33 of the Act and observed thus at page 180 :

'Section 33 of the Act, as already stated, imposes a ban on the employer, thus preventing him from dismissing an employee till the permission of the Tribunal is obtained. But for this ban, the employer would have been entitled to dismiss the employee immediately after the completion of his enquiry on coming to the conclusion that the employee was guilty of misconduct. Thus, if S. 33 had not been there, the contract of service with the employee would have come to an end by the dismissal immediately after the conclusion of the enquiry and the employee would not have been entitled to any further wages. But S. 33 steps in and stops the employer from dismissing the employee immediately on the conclusion of his enquiry and compels him to seek permission of the Tribunal, in case some industrial dispute is pending between the employer and his employees. It stands to reason, therefore, that so far as the employer is concerned he has done all that he could do in order to bring the contract of service to an end. To expect him to continue paying the employee after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed, is, in our opinion, unfair, simply because of the accidental circumstance that an industrial dispute being pending he has to apply to the Tribunal for permission. It seems to us, therefore, that in such a case employer would be justified in suspending the employee without pay after he has made up his mind on a proper enquiry to dismiss him and to apply to the Tribunal for that purpose.'

10. Mr. Krishnaiah argued that from the above observations, it would follow that a contract of service with an employee cannot come to an end unless the employer holds an enquiry and at the conclusion of such enquiry find the employee guilty and that if the employer purports to dismiss or discharge an employee without holding an enquiry, the contract of service with the employee does not come to an end and the liability of the employer to pay his wages also does not cease, but will continue till the date of the award or order of the Tribunal upholding such dismissal or discharge.

11. From the proposition enunciated by the Supreme Court that but for S. 33 of the Act, the contract of service with an employee would come to an end by the dismissal immediately after the conclusion of the enquiry in which the employer comes to the conclusion that he (the employee) is guilty of misconduct, it does not, in our opinion, follow that where an enquiry has not preceded a dismissal which is subsequently upheld by the Industrial Tribunal of Labour Court on the strength of evidence adduced by the employer to establish misconduct, the employer is liable to pay wages of the employee up to the date of the award or order upholding such dismissal.

12. Mr. Krishnaiah placed strong reliance on the observations of the Supreme Court in Sasa Musa Sugar Works Private Ltd. v. Shobrati Khan, [1959 - II L.L.J. 388]; [1959] 17 F.J.R. 1. There, during the tendency of a dispute before the Industrial Tribunal, the management suspended certain workmen until further orders and made an application under S. 33 of the Act for permission to dismiss them. The Tribunal rejected that application on the grounds that the management's application had not been preceded by any enquiry into the misconduct of the workmen and that such suspension amounted to punishment in contravention of S. 33 of the Act. However, in appeal, the Supreme Court granted permission to the management to dismiss those workmen, but subject to the condition that they should be paid their wages during the period of suspension up to the date of the award of the Industrial Tribunal. The reasoning of the Supreme Court reads thus at page 8 :

'But, as the management held to no enquiry after suspending the workmen and proceedings under S. 33 were practically converted into the enquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till the case for dismissal was made out in the proceedings under S. 33 ......'

13. The above observations were referred to and explained by the Supreme Court in P. H. Kalyani v. Air France, [1963 - I L.L.J. 679]; [1963] 24 F.J.R. 464, in the following passage at page 470 :

'That was a case where an application had been made under S. 33(1) of the Act for permission to dismiss the employees and such permission was asked for though no enquiry Whatsoever had been held by the employer and no decision taken that the employees be dismissed. It was in those circumstances that a case for dismissal was made out only in the proceedings under S. 33(1) and, therefore, the employees were held entitled to their wages till the decision of the application under S. 33. The matter would have been different if in that case an enquiry had been held and the employer had come to the conclusion that dismissal was the proper punishment and then had applied under S. 33(1) for permission to dismiss ...... The observations, therefore, in Sasa Musa Sugar Company's case, [1959 - II L.L.J. 388]; [1959] 17 F.J.R. 1, on which appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact'.

14. From the underlined portion of above observations of the Supreme Court it is clear that the dictum in Sasa Musa Sugar Company's case (supra), that an employee would be entitled to his wages till the decision on an application under S. 33, would apply only where the employer has neither dismissed the employee nor has come to the conclusion that a case for dismissal has been made out. But, in the present case, the management had dismissed the employee though such dismissal had not been preceded by any enquiry. Hence, the observations in Sasa Musa Sugar Company's case (supra) are not of any assistance to Mr. Krishnaiah.

15. Thus, none of the decision relied on by Mr. Krishnaiah is of any assistance to him. However, Mr. Krishnaiah sought to make out a distinction between a case where there is no domestic enquiry preceding the dismissal of an employee and a case where a domestic enquiry, though held, is defective. According to Mr. Krishnaiah, even if it be held in a case where there was an enquiry against a workman before dismissing him but such enquiry was defective, that the employer is not liable to pay the salary or wages to such employee upto the date of the award or order of the Tribunal or labour Court upholding such dismissal, the same consequence could not follow in a case where the employer did not hold any enquiry whatsoever before dismissing the employee but such dismissal is upheld by the Tribunal or the Labour Court. In the latter case, the employer is according to Mr. Krishnaiah, bound to pay the salary or wages of such employee till the date of the award or order upholding such dismissal.

16. On principle, we do not see any distinction between the case in which the enquiry held against an employee was defective, and a case where no enquiry whatsoever was held before dismissing him, if the employer succeeds before the Tribunal in justifying such dismissal. The view that we take receive support from the following observations of the Supreme Court in Workmen of Motipur Sugar Factory P. Ltd. v. Motipur Sugar Factory P. Ltd. [1965 - II L.L.J. 162]; [1965] 27 F.J.R. 376, at page 386 :

'A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the Tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the Tribunal that on facts the order of dismissal or discharge was proper.'

17. Thus, even in regard to the liability of the employer to pay wages subsequent to the date of the dismissal of an employee, which has been upheld by the Labour Court or the Tribunal, there is, in out opinion, no distinction between the case where the management has not held any enquiry and the case where the enquiry held by the management is defective. Consequently, we are unable to accede to the contention of Mr. Krishnaiah that the employee was entitled to his salary and allowance between the date of termination of his services and the award of the Labour Court.

18. In the result, we dismiss this petition. As the respondents are absent and unrepresented, there will be no order as to costs.


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