THE MANAGEMENT OF NTTF v. Location: High

services were confirmed on 01.02.1984. While he was working such, it was alleged against him that he along with another employee namely Dayanandasagar brought outsiders on the factory premises and abused and assaulted the Divisional Manager Sri.Ramesh Pai. A show cause notice was issued to the respondent. He was also placed under suspension on the basis of the complaint received from the said Divisional Manager.

3. The respondent herein denied the allegations leveled against him. The appellant proceeded to hold an enquiry by appointing an Enquiry Officer. The first date of enquiry was fixed as 14.11.2009. The same was concluded on 28.12.2009. It appears that the respondent had walked out of enquiry during the proceedings held on 26.11.2009. It is on the same date that the respondent was proceeded ex-parte by the Enquiry Officer. After the respondent was - 4 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 proceeded ex-parte, the proceedings were held for four more sittings, the last one being 14.11.2009. The Enquiry Officer submitted his report dated 27.02.2010 holding the respondent guilty of the misconduct. On 31.03.2010, a show cause notice was issued to the respondent and an explanation was sought on the report submitted by the Enquiry Officer. Pursuant thereto, the order of dismissal dated 10.12.2011 was passed dismissing the respondent from the services of the appellant.

4. Since an Industrial Dispute was pending consideration before the Labour Court, the appellant herein had filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 ('ID Act' for short) seeking approval of the Labour Court for dismissing the respondent.

5. The Labour Court while considering application filed under Section 33(2)(b) of the ID Act had though held that the enquiry which has been conducted against the respondent fair and proper, still - 5 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 considered whether the order of dismissal passed against the respondent is arbitrary, perverse, not justified amounting to victimization or unfair labour practice.

6. On the aspect of victimization, the Labour Court was of the following view in paragraph Nos.15 to 17 and 23, which we reproduce as under: "15. In the present case, the charge against the opposite party is the misconduct as per Clauses 31.19,

31.39. 31.40 of the Certified Standing Orders of the applicant company. It is the charge against the opposite party that on 12.9.2009 at around 12.05 pm, when Mr. Ramesh Pai, Divisional Manager (HR) was in his office, the opposite party and one Mr. W.Dayanandasagar, who was the office bearer of NTTF Unit of engineering and General Workers Union along with outsides around 20 people entered his office without any permission and shouted against him using abusive language and threatened him of dire consequences if he does not leave the company and continue to work for the company. Further it is stated that the opposite party had assaulted said Mr.Ramesh pai. Upon these charges, the domestic enquiry was conducted and then dismissed the opposite party from service.

16. The applicant management has led evidence of AW.1, who is the Enquiry Officer and who has deposed - 6 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 regarding the domestic enquiry conducted against the opposite party. AW.2 is the Divisional Manager-HR, who has deposed regarding the ingredients of Section 33(2)(b) of the Industrial Disputes Act are followed viz. passing of dismissal order, payment of last month wage drawn through cheque and filing of serial application are one and single transaction.

17. Further the applicant Corporation had produced the documentary evidence, Ex.A.1 to A.26 regarding charges levelled against the opposite party, holding domestic enquiry by issuing articles of charge, intimating the opposite party to participate in the enquiry, submitting enquiry report, passing dismissal order, sending cheque and filing serial application. But upon considering rival contentions of both parties, the aspect of victimisation and unfair labour practice can be appreciated in the present case based on the principles of law laid down by Hon'ble Supreme Court of India stated supra.

18. to 22. xxxxxxx

23. Therefore upon considering the entire evidence on its preponderance of probability, there is victimisation is occurred in the present case in dismissing the opposite party workman from service on the doubtful facts and circumstances. Therefore the report of the Enquiry Officer is found to be perverse one and under these circumstances, the approval cannot be granted." - 7 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019

7. The Labour Court had also by considering the judgment of the Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMI VIKAS BANK LTD., VS. RAM GOPAL SHARMA AND OTHERS (2002 I LLJ 834) was of the following view in paragraph No.26, which we reproduce as under: "26. Therefore upon considering the entire case on its probability and applying the theory of preponderance of probability above discussed and under the facts and circumstances stated above, the allegation of incident stated to have been occurred is found to be full of suspicious and also there is doubt occurred in the mind of the Tribunal what whereupon the suspicious facts and circumstances, a purported domestic enquiry might have been initiated just to target the dismissing of the opposite party workman. Therefore under circumstances discussed above, the dismissal of the opposite party from service is found to be victimization and unfair labour practice and the order of dismissal passed is not in good faith. Therefore by following the principles of law laid down by the Hon'ble Supreme Curt of India stated supra, the approval cannot be granted and this serial application is liable to be dismissed. Accordingly I answer point No.1 in 'affirmative', Point No.2 in 'negative', Point Nos.3 and 4 in 'affirmative'." - 8 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019

8. Suffice to state a reading of paragraphs Nos.16 to 23 reveal that the appellant-Management had also led evidence before the Labour Court. It had produced the Enquiry Officer as AW.1, who had deposed regarding domestic enquiry conducted against the respondent. It had also produced AW.2, the Divisional Manager (HR), who according the Labour Court deposed regarding ingredients of Section 33(2)(b) of the ID Act. Having followed the provisions inasmuch the appellant had passed the order of dismissal; paid the last month wage through cheque to the respondent; filed an application under Section 33(2)(b) of ID Act; the appellant had produced the documentary evidence-Exs.A1 to A26 regarding charges leveled against the respondent; holding of domestic enquiry by issuing articles of charge intimating the opposite party to participate in the enquiry, there is no illegality.

9. But what is important is insofar as the merit of the charge is concerned, the Labour Court after weighing - 9 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 the evidence produced by the appellant before the Enquiry Officer through MWs.1 and 2 has disbelieved the allegations framed by the appellant against the respondent stating that the allegation that 20 outside persons have come along with the respondent is highly improbable as every factory premises has security arrangement and without entering in the register maintained in the office of the security, no person can enter inside the factory premises. It was also of the view that the allegation that Sri. Ramesh Pai was beaten by more than 20 persons must have resulted in severe injuries on him but there is no evidence by Sri.Ramesh Pai had gone to the Hospital for taking treatment to the assault injuries and as such, the version of MW.1 and MW.2 cannot be believed.

10. On the basis of the aforesaid conclusion, the Labour Court was of the view that victimization had occurred while dismissing the respondent from the services. On the basis of the aforesaid conclusion, the - 10 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 Labour Court had denied the approval to the appellant under 33(2)(b) of the ID Act.

11. The appellant having challenged the order of the Labour Court in the above writ petition, the learned Single Judge by noting the conclusion of the Labour Court in paragraph Nos.20 to 22 was of the following view in paragraph Nos.10 to 14 of the impugned order, which we reproduce as under: "10. Firstly, the Tribunal on re-appreciation of the evidence has found that rejection of the application for reopening of the enquiry amounts to victimization. It is not in dispute that within a short span of time, after closure of enquiry, the application has been made by the workman i.e., even prior to passing of the order of dismissal. Hence, inference that there is denial of an opportunity by the Enquiry Officer and that the same amounts to victimization, cannot be faulted with. The finding rendered by the Tribunal is after appreciating the evidence of MW.1 and MW.2.

11. Learned counsel for the petitioner is unable to demonstrate any fact which would contradict the finding rendered by the Tribunal. The other inference drawn by the Tribunal, which is seriously attacked by the learned counsel for the petitioner, is that if 20 persons - 11 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 had assaulted the complainant, he would have definitely suffered injuries and in the instant case, there are no medical records much less any FIR registered with the Jurisdictional Police.

12. Learned counsel for the petitioner would contended that the complainant had merely stated that the respondent-workman along with other employee had brought the outsiders and that it was the respondent and other employee alone assaulted the complainant-the Divisional Manager.

13. Perused Annexure-A to the writ petition. The charges alleged against the respondent reads as under: “On 12th September 2009 at about 12.05 pm, you along with Mr. W.Dayanandasagar brought outsiders and assaulted Mr. Ramesh Pai, Divl. Manager – HR and also threatened him” The charge is one of assault. It was for the petitioner to prove the said charge.

14. As could be seen, there is no material except for the oral testimony of two other employees of the Management. It is seen that the complainant has not been examined before the Industrial Tribunal. It is submitted that the complainant was MW.1 in the enquiry which was concluded ex-parte. The matter having been seriously contested before the Tribunal, the petitioner ought to have made available the witness for cross- examination. On the other hand, they have attempted to screen the witness from any cross-examination by the - 12 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 workman before the Tribunal. Hence, this Court finds no ground or reason which warrants interference with the order of the Industrial Tribunal."

12. Today before us, Mr.Mohan Kumar, learned counsel for the appellant would submit that the conclusion of the Labour Court and the learned Single Judge denying the approval under 33(2)(b) of the ID Act and upholding the order is totally untenable inasmuch as the Labour Court having arrived at a conclusion that the enquiry held against the respondent being fair and proper, it could not have re-appreciated the evidence which was led by the appellant before the Enquiry Officer and hold that it was a case of victimization.

13. He states that the Labour Court was only required to look into the fact that the enquiry which has been held against the respondent was fair and proper. In other words, if the enquiry was fair and proper, then the only requirement in law is that the Labour Court should have granted the approval to the appellant for the dismissal of the respondent under 33(2)(b) of the ID Act. - 13 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 Even otherwise, it is his submission that even the conclusion of the Enquiry Officer of perversity is not borne out from the record inasmuch as there is a sufficient evidence through MW.1 and MW.2 who had deposed that 20 persons had entered the office of Sri.Ramesh Pai and threatened, abused and assaulted him. The said evidence of complainant Sri.Ramesh Pai remained unchallenged as the respondent walked out of the enquiry, resulting in the Enquiry Officer proceeding ex-parte against him. He also states that till 15.04.2010, the respondent had not made request for re-opening of enquiry. It was only after he had received the copy of the report submitted by the Enquiry Officer and second show cause notice that such a request was made.

14. We are unable agree with both the submissions made by Mr.Mohan Kumar for the simple reason as noted by the Labour Court in paragraph No.25 of the order, wherein, the Labour Court had referred to the judgment of the Supreme Court in the case of JAIPUR ZILLA SAHAKARI - 14 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 BHOOMI VIKAS BANK LTD. (referred supra), wherein in paragraph Nos.13 and 14, the Supreme Court has clearly held that the Proviso to Section 33(2)(b) of the ID Act relates to protection to a workman to safeguard his interest. It is a shield against victimization and unfair labour practice by employer during the pendency of Industrial Dispute when the relationship between them are already strained. That apart, even in para No.14, the Supreme Court held where an application is made under Section 33(2)(b) of the ID Act, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal of discharge is bonafide, whether it was by way of victimization or unfair labour practice, whether the conditions contained in the proviso were complied with or not etc.

15. There is no doubt that the process which is contemplated for seeking approval under Section 33(2)(b) of the ID Act has been fulfilled as noted by us in the - 15 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 aforesaid paragraphs, but the fact is even after enquiry officer has submitted his report and after the issuance of the second show cause notice before an order of dismissal was passed against the respondent, the appellant as per the request of the respondent could have re-opened the enquiry proceedings and allowed the respondent to cross- examine the MW.1 and MW.2 as it is on the basis of the evidence adduced by these two witnesses that the charge against the respondent was proved. The order of dismissal surely suggest that the action of the appellant was not bonafide and having a colour of victimization. This we say because the denial to re-open the enquiry proceedings has resulted in grave prejudice to the respondent inasmuch as he has been dismissed from the services of the appellant resulting in deprivation of his livelihood. We must also state that additionally the Labour Court has also held the action of the appellant is a case of victimization on a finding that the allegation against the respondent that he and other 20 outside people have assaulted Sri.Ramesh Pai is highly improbable and as such, respondent could not - 16 - NC: 2024:KHC:29081-DB WA No. 3928 of 2019 have been dismissed. There is some basis for the Labour Court to hold so more specifically in view of the findings, which we have already reproduced as above.

16. In view of our above discussion, we are of the view that the Labour Court and learned Single Judge having decided in the manner they had done, in the facts of this case, the impugned order of the learned Single Judge does not call for any interference. Accordingly, the appeal is dismissed. Sd/- (V KAMESWAR RAO) JUDGE Sd/- (C M JOSHI) JUDGE NR/- List No.: 1 Sl No.: 36