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Achutha H.S. Vs. Chief Engineer (Chakra) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 34381 of 1982
Judge
Reported in1985(2)KarLJ44; (1985)IILLJ481Kant
ActsIndustrial Disputes Act, 1947 - Sections 10
AppellantAchutha H.S.
RespondentChief Engineer (Chakra) and ors.
Excerpt:
.....in public interest, the subsequent event of holding of the elections is saved. - 226 of the constitution are reluctant to examine matters which would involve investigation of facts which is better done in the appropriate forum, if statutory remedy is prescribed. but the court also has to consider the difficulty the writ petitioner and the like of him will have in getting the government to refer the disputes to the labour court or to the tribunal under the protracted preparatory proceedings contemplated under s. if in the light of this, assertion made in the statement of objections extracted above is seen, it amounts to deliberate suppression of facts with which the court is not happy. in that position when there is gross violation of the fundamental principles of rules of natural..........october, 1981 calling upon him to explain. thereafter, a formal memo of charges was issued by the enquiry officer. then the enquiry officer was changed and a new enquiry officer appointed on the objections raised by the petitioner. the enquiry was conducted. the petitioner was found guilty and his disciplinary authority, namely, the chief engineer-corporation, the 1st respondent herein, dismissed the petitioner from service as per order dated 2nd september, 1982 which is impugned in this writ petition. it is needless to notice several of the contentions urged by the petitioner and the respondents. however, it will be useful to extract a paragraph from the statement of facts urged for the petitioner. '8. the authority erred in passing the order of dismissal dismissing the petitioner from.....
Judgment:
ORDER

1. The petitioner was at the relevant time Assistant Security Guard working at Malali Village, Chakranagar Post in Shimoga District. He was served with a memo directing his suspension pending initiation of disciplinary proceedings against him for his involvement in the theft of Corrugated Galvanized Iron Sheets of the Karnataka Power Corporation (hereinafter referred to as the Corporation). That suspension was followed by a charge sheet dated 17th October, 1981 calling upon him to explain. Thereafter, a formal memo of charges was issued by the Enquiry Officer. Then the Enquiry Officer was changed and a new Enquiry Officer appointed on the objections raised by the petitioner. The enquiry was conducted. The petitioner was found guilty and his disciplinary authority, namely, the Chief Engineer-Corporation, the 1st respondent herein, dismissed the petitioner from service as per order dated 2nd September, 1982 which is impugned in this writ petition. It is needless to notice several of the contentions urged by the petitioner and the respondents. However, it will be useful to extract a paragraph from the statement of facts urged for the petitioner.

'8. The authority erred in passing the order of dismissal dismissing the petitioner from the service without proper enquiry as contemplated under the standing orders of the Karnataka Power Corporation and without examining any witnesses in support of the allegations and charges and further erred in not affording an opportunity to cross-examine the opposition witness.'

Based on that assertion, the learned Counsel for the petitioner has contended that the enquiry is vitiated as opposed to rules of natural justice and fair play in as much as the finding has been recorded on the oral evidence recorded by the Enquiring Authority in the absence of the petitioner behind his back. The particular averment extracted above has been met by the respondent-Corporation in its statement of objections as follows :

'6. Further the petitioner was again called upon to appear before the enquiry officer on 9th June, 1982. Notices were also issued to other persons who were involved in the theft case. For the first time the notices were returned undelivered and for the second time notices were refused by them. As such the enquiry fixed on 9th June, 1982 was postponed to 10th June, 1982.

7. On 10th June, 1982 the petitioner attended the enquiry and he had not brought any witnesses. Therefore, the following witnesses of the Corporation were examined.

Sriyuth :1. H.K. Thankappa Gowda,Assistant Security Guard,K.P.C. Martikatte.2. V. V. Chavan, ASG, Chakra.3. Moris Demellow, ASG, Chakra.4. S. V. Pattar, Store Supervisor.5. K. Gurumurthy, Helper.6. Govinda.7. N. Krishna Shetty. Management witnesses deposed before the enquiry officer that the petitioner had actually shown the hidden place of the stolen materials during investigation by the police authorities and 106 new CGI sheets were recovered and seized by the police authorities on 11th October, 1981.'

2. In addition to the above, the learned Counsel for the respondent-Corporation has raised several preliminary objections for the maintainability of the petition. They are, that he has an alternative remedy under the Industrial Disputes Act, 1947, (hereinafter referred to as the Act) being a workman answering to the description as defined in that Act and therefore this Court should not entertain the writ petition under Art. 226 of the Constitution. He has placed reliance on the decision of this Court in the case of Hariba v. K.S.R.T.C. [1983-II L.L.J. 76].

3. It will be proper for me to deal with the preliminary objection the first before I deal with the contentions for the petitioner. Undoubtedly, the learned single Judge of this Court in Hariba's case did come to the conclusion that S. 10 of the Act provides an adequate alternative efficacious remedy more appropriate for redressal in the case of wrongful dismissal in an industrial establishment. But I do not think, on a perusal of that judgment, the learned Judge has laid down an inflexible rule by which this Court is rendered powerless to interfere under Art. 226 of the Constitution where alternative remedy exists. The Constitution itself does not impose any fetter on the exercise of that jurisdiction. The rule is a Judge made Rule for the convenience of all concerned. The Courts exercising jurisdiction under Art. 226 of the Constitution are reluctant to examine matters which would involve investigation of facts which is better done in the appropriate forum, if statutory remedy is prescribed. This Court or the High Courts in India do give relief when there is initial lack of jurisdiction notwithstanding the existence of efficacious alternative remedy. I do not therefore propose to accept the contention of the learned Counsel appearing for the Corporation that Hariba's case lays down an inflexible rule in any way fettering this Court's jurisdiction under Art. 226 of the Constitution.

4. He next pointed out that if the petitioner is not driven to remedy under the Act, the respondent-Corporation will loose its valuable right of sustaining the wrongful dismissal by adducing proper evidence before the Labour Court or the Tribunal as the case may be and therefore having regard to that this Court should decline to exercise the jurisdiction. It may be so. But the Court also has to consider the difficulty the writ petitioner and the like of him will have in getting the government to refer the disputes to the Labour Court or to the Tribunal under the protracted preparatory proceedings contemplated under S. 10 of the Act. In fact, this statement of the Counsel practically tantamounts to admitting that there has been violation of not only the Regulations of the Corporation in regard to a domestic enquiry but also violation of the rules of natural justice. With reference to the controversy as to the doctrine of relation back when a Tribunal sustains the order of dismissal, when the employer has led evidence before it to sustain the dismissal. Krishna Iyer, J., as he then was in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes, Mazdoor Sabha and others [1980-I L.L.J. 137] had this to say :

'A void dismissal is just void and does not exist, If the Tribunal, for the first time, passes an order recording a finding of misconduct and thus breathes life into dead shell of the Management's order, pre-dating of the nativity does not arise.'

5. From the above enunciation it is clear that the time consumed from now till the disposal of the case by the Labour Court or the Tribunal will be time which accumulates in favour of the petitioner, assuming his dismissal would be sustained by the employer-Corporation before the Labour Court or the Tribunal and he is paid back wages till the date of the order of the Labour Court or the Tribunal.

6. On the other hand, if this Court interferes under Art. 226 of the Constitution, as the respondent-Corporation is among that corporate bodies which answer to the description of 'other authorities' under Art. 12 of the Constitution, the time saved is money gained to the Corporation if on a finding recorded by this Court that there has been a violation of rules of natural justice, the impugned order is liable to be set aside.

7. I, therefore, do not subscribe to the view that this Court is deprived of its power under Art. 226 of the Constitution where alternative remedy exists in all cases as an inflexible rule.

8. Now coming back to the merits of the contention, no contemporaneous record has been maintained as is seen from the records produced by the learned Counsel for the Corporation. It is to be found in the report of the Enquiry Officer that on 10th June, 1982 the delinquent employee appeared before the Enquiry Officer but without his witnesses. The Enquiry Officer appears to have been under the impression that the delinquent employee should first examine his witness and thereafter the management is required to examine their witness. It is difficult to understand how he formed that notion. However, the records reveal that as there were no witness produced by the delinquent employee, he proceeded to examine on the 11th and 21st June, 1982 eight witnesses for the management behind the back of the petitioner. The statements recorded do not indicate either the presence of the petitioner at the spot or at the time of recording the statements of the witnesses or that he was asked to cross-examine the witnesses and that he refused to do so. There is no other material on record from which it can be safely deduced that the petitioner was asked to appear on the 11th or the 21st June, 1982 when the statements were recorded. In fact, there is no record at all as to the appearance of the petitioner after 10th June, 1982 nor the reason as to why he did not appear if he was called upon to appear. If in the light of this, assertion made in the statement of objections extracted above is seen, it amounts to deliberate suppression of facts with which the Court is not happy. In that position when there is gross violation of the fundamental principles of rules of natural justice as well as fair play, the impugned order cannot be sustained. It is therefore liable to be quashed and it is accordingly quashed.

9. A feeble attempt was made by the learned Counsel to state that the petitioner had the opportunity of preferring a mercy petition under the Regulations to the Chairman of the Corporation which not having been made, he has not availed of another statutory remedy and this Court should not be lenient in the matter of alternative remedies. I do not think that a provision for mercy petition would be considered by this Court as an efficacious alternative remedy at all. In fact, I am of the view that it is no remedy at all.

10. Having regard to the preamble to our Constitution and the directive principles of State Policy contained in Part-IV of the Constitution, the Court must sub-serve the ends of social justice. To delay it by directing the petitioner to adopt the procedure prescribed for resolving industrial individual disputes, this Court would be doing grave injustice to litigants who seek expeditious remedy. The experience in this Court itself has been that adjudication of labour disputes take enormously long time than the writ petitions in this Court. I could well understand if this Court had declined to issue notice regarding rule at the stage of preliminary hearing.

Having issued notice and kept the matter pending in this Court for nearly two years or over, it would be travesty of justice to throw it out at this late stage on the ground of the existence of alternative remedy. In most cases alternative remedy would be more efficacious if it is pursued from the very inception. In fact, this Court on more than one occasion has pointed out such remedies must be pursued and this Court will not interfere under Art. 226 of the Constitution, if the alternative remedy is ignored either deliberately or due to negligence. This Court will take into consideration the hardship to which the opposite party will be put to, if alternative remedy is not pursued by the petitioner who seeks relief in this Court. That is one of the important tests that this Court would apply. On the facts of this case I have reached this conclusion to expedite justice and not lay down a precedent. This conclusion must be understood in that light and not as throwing the doors of this Court open under Art. 226 of the Constitution notwithstanding the existence of an alternative remedy. It is a discretionary jurisdiction and therefore the facts of each case plays their own role.

11. Liberty is however reserved to the respondents concerned to pursue the enquiry from the stage of recording of evidence of witnesses for the management permitting the petitioner to cross-examine them, if he so wished and thereafter permitting the petitioner to adduce such evidence in rebuttal of the management's case as he deems fit and then record the findings against the charge levelled. In this behalf, the petitioner is directed to appear before the Enquiry Authority designated by the Chief Engineer-1st respondent on 20th October, 1984, and seek directions as to before which Enquiring Authority he is required to appear for continuing the enquiry proceedings. The suspension is deemed to have been continued. But the petitioner will be entitled to such allowances as the rules permit for the period of suspension.

12. For the above reasons, all the contentions raised for the respondents are rejected and accordingly rule will issue and be made absolute.

13. In the circumstances, there will be no order as to costs.


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