THE MANAGEMENT OF M/S. TOYOTA KIRLOSKAR AUTO PARTS PRIVATE LIMITED v. MR. SHIVAPPA S. BADAGAUDRA

Judgment

#1. THE MANAGEMENT OF M/S. TOYOTA KIRLOSKAR AUTO PARTS PRIVATE LIMITED, PLOT NO.21 BIDADI INDUSTRIAL AREA BIDADI, RAMANAGAR DISTRICT BENGALURU-562 109 REGISTERED UNDER COMPANIES ACT REPRESENTED BY ITS DEPUTY MANAGER (HR AND ER) MR. VIJAY H.V. ... APPELLANT (BY SRI S.N. MURTHY, SENIOR ADVOCATE ALONG WITH MS. S. ROOPASRI, ADVOCATE) AND:

#1. MR. SHIVAPPA S. BADAGAUDRA S/O. SHANKARAPPA, PHC QRTS. GURUDEVARAHALLI CHIKKANARASINAKERE (P) MADDUR TALUK, MANDYA DISTRICT- 571 422. (BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI SHANKAR S. BHAT, ADVOCATE FOR C/R) ... RESPONDENT

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 04.09.2024 IN WRIT PETITION NO.17324 OF 2021 (L-RES) GRANTING INTERIM RELIEF OF 50% OF HIS LAST DRAWN PAY OF RS.29,014/- FROM 16.01.2015 AND CONSEQUENTLY SET ASIDE THE ORDER DATED 22.07.2021 PASSED BY THE IN SLA HON'BLE ADDITIONAL NO.41/2014 (IA No.1) GRANTING INTERIM RELIEF TO THE RESPONDENT, ETC. INDUSTRIAL TRIBUNAL - 2 - THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, M.I.ARUN J., DELIVERED THE FOLLOWING: CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N.V. ANJARIA HON'BLE MR. JUSTICE M.I.ARUN CAV JUDGMENT (PER: HON'BLE MR. JUSTICE M.I.ARUN) Aggrieved by the order dated 22.07.2021 passed by the Additional Industrial Tribunal, Bengaluru, in Serial Application No.41 of 2014 on I.A.No.1 and the order dated 04.09.2024 passed by learned Single Judge in Writ Petition No.17324 of 2021, the present writ appeal is filed by the employer.

#2. The appellant is engaged in the business of manufacture of auto components and is a private limited company. The respondent is one of its employee. The respondent has been dismissed from service by the appellant on allegations of misconduct. It resulted in an industrial dispute being raised by way of AID No.39 of 2014, in which the Tribunal found that the domestic inquiry conducted against the respondent to be improper and not fair. Thereafter, the Tribunal entertained an interim application filed by - 3 - respondent, in which the respondent had made the following prayer, "For the reasons set forth in the accompanying affidavit, the Opposite Party workman prays that this Hon'ble Tribunal be pleased to grant interim relief to the Opposite Party Workman with effect from the date of dismissal i.e. 30.12.2014 at the rate of 100% last drawn wages every month commencing from 30.12.2014 till the disposal of the case, in the interest of justice and equity."

#3. The Tribunal, on the said application, has passed the following order, "O R D E R I.A.I filed by the opposite party under Section 10(4) of I.D.Act is hereby allowed in part. The opposite party is entitled for the interim relief of 50% of his last pay drawn of Rs.29,014/- from the date of dismissal i.e. from 30.12.2014 till the disposal of this case. Both the parties are hereby directed co-operate for earlier adjudication of this matter within three months. There is no order as to costs."

#4. Aggrieved by the said order of the Tribunal, the appellant herein preferred Writ Petition No.17324 of 2021 wherein the learned Single Judge has passed the following order, i. ii. "ORDER Writ petition is allowed in part. The impugned order passed by the Labour Court stands modified to the extent of holding that the respondent-workman is entitled for interim relief of 50% of his last pay drawn of Rs.29,014/- from 16.01.2015." - 4 -

#5. Aggrieved by the order of the learned Single Judge and the order of the Tribunal, the present writ appeal is filed by the employer.

#6. The case of the appellant is that the respondent has been dismissed on account of continued 'go slow' in work. It is submitted that it constitutes a serious misconduct and an interim relief cannot be granted on the ground of mercy alone. It is contended that the respondent has not made out a prima facie case against the appellant herein. It is also submitted that the respondent owns 2 acres of land in Haveri District and his wife is working as a nurse and ignoring all these facts, the Tribunal as well as the learned Single Judge have entertained the prayer of the respondent, which is erroneous.

#7. Per contra, learned Senior Counsel respondent submits that the Tribunal has entertained the application filed by the respondent only after concluding that the domestic inquiry conducted against the respondent is not fair and proper. It is further submitted that once the domestic inquiry is held to be improper and not fair, in that event, it has to be presumed that the respondent is not guilty of the charges alleged until it is established by the management and the Industrial Disputes Act being a beneficial legislation, the - 5 - workman is entitled to certain interim protection by way of payment of part of the salary. It is contended that Haveri District is a dry area and owning 2 acres of land does not prove anything regarding earning any income and the fact that his wife is working as a nurse cannot be held against the workman. It is also contended that the appellant has failed to establish that the respondent is earning any money out of his 2 acres of land and merely owning 2 acres of land cannot be attributed that the respondent is gainfully employed. On the said grounds, the order passed by the Additional Industrial Tribunal and also the order passed by the learned Single Judge are sought to be justified by the respondent and hence, it is prayed that the writ appeal be dismissed.

#8. The question that arises for consideration intra-court appeal is whether, under the given peculiar facts and circumstances of the case, the learned Single Judge was justified in granting the protection as ordered in Writ Petition No.17324 of 2021 in favour of the respondent herein?

#9. Admittedly, there have been serious allegations of misconduct made against the respondent-workman. However, the Tribunal has found the domestic inquiry conducted against the workman not to be fair and proper. Under the said - 6 - circumstances, the burden of proving that the workman is guilty of the charges alleged is on the employer and the status of the workman has to be equated with the status of an employee who is kept under suspension pending inquiry. Under the circumstances, any payment in the form of the interim relief is nothing but subsistence allowance as contemplated in the service jurisprudence. A Division Bench of this Court in the case of the Management of Kanoria Industries Ltd. vs Bagalkot Cement Company Workers Union & Another reported in ILR 2001 KAR 890 while deciding the question at what stage the interim relief can be granted to a dismissed employee while a labour dispute is pending adjudication, in paragraphs 7, 8 and 10 has held as under: "7. Is there a right in an employee suspended pending inquiry to receive any allowance? This question has been answered by the Supreme Court in M. PAUL ANTHONY vs. BHARAT GOLD MINES LTD. in the following manner: the employer "26. To place an employee under suspension is an unqualified right of the employer. This right is conceded in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Government of India and the State Governments. (See for example, Rule 10 of Central Civil Services (Classification, Control and Appeal)) Rules. Even under the General clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss.

#27. The order of the suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his - 7 -