POWERCELL BATTER INDIA LTD Vs. R SARVESH

JUDGEMENT

(1.) The management is calling in question the award passed by Labour Court, Mysore, dated 2.4.2011 in LLD No. 98/2009, whereunder an application filed by the workman for grant of interim maintenance during the pendency of the proceedings before the Labour Court was allowed by directing the Management to by the workman 75% of the last drawn pay from the date of filing of the application till further order. Heard Sri, Kasturi, Senior Counsel appearing for petitioner and Sri. K.B. Narayana Swamy, learned counsel appearing on behalf of the respondent-workman as amicus curiae.

(2.) Mr. Kasturi learned Senior Counsel appearing for the petitioner-management has strenuously contended that Division Bench in the case of the management of Kanoria Industries Ltd. v. Bagalkot Cement Company Workers Union and Another, 2001 ILR(Kar) 890has not held that it is an inflexible rule to award maintenance whenever such an application is made and as such the principles emunclated in Kanoria's case cannot be made applicable to the facts on hand as erroneously held In the impugned order. He also contended that till the Labour Court enters into a finding on Domestic Enquiry it cannot adjudicate claim made for grant of interim maintenance and it is sine-qua-non for awarding interiom relief and it depends on facts and circumstance of each case and unless same is decided respondent-workman will not be entitled for any interim maintenance. He would draw the attention of this Court to observation of Division Bench in Kanoria's case reported in ILR 2001 Kar 890 whereunder it is held as follows:

(3.) He would further contend that Kanoria's case cannot be applied to the facts and circumstances of the case. On the premise that the Division Bench therein having noticed the dicta laid down by a Coordinate Division Bench in the came of Mysore Cement Ltd. v. B.R. Siddaramaiah,1985 67 FJR 136, wherein the issue regarding grant of interim maintenance came to be considered after Labour Court held that Domestic Enquiry conducted was fair and proper, and having noted the observations made by a Coordinate Division Bench it could not have applied the principle therein to the Kanoria's case and arrived at an erroneous conclusion namely, that even in case of the issue regarding fairness of Domestic Enquiry conducted is yet to be adjudicated would also cover such issue. He would submit that in Mysore Cements case referred to by the delinquent employee in Kanoria's case the issue was with regard to grant of interim relief after Labour Court found that the Domestic Enquiry conducted against the delinquent employee was not fair and proper and in this background in Mysore Cements case the award of interim relief to workman was considered and the said issue namely issue relating to fairness of Domestic Enquiry is yet to be adjudicated since there would not be any existing master and servant relationship or employer and employee relationship and it would have seized the moment the order of dismissal is passed. He would further elaborate his submission by drawing the attention of the Court to Section 17B of the Industrial Disputes Act whereunder the employer/management is made to pay or required to pay the last drawn salary/wages to workman once an Older is passed by a Competent Court in favour of workman and in the event of management pursuing said order in higher Forums. He contends that intention behind the said provision is that the order of the Disciplinary Authority imposing the punishment of dismissal/discharge or otherwise having been set aside it revives the relationship of employer and employee and in such situation when the management or the employer further peruses the grievance by way of challenge to the said award the workman should not be made to suffer, It is in this background that Section 17B has to be understood and when the facts are so examined in a situation like the one on. hand namely where the Disciplinary Authority has dismissed the workman from service it would not give rise for a cause of action to enable the workman to contend that there still exist relationship of employer and employee and even otherwise dehors such a situation he contends that prima facie material being placed by the workman or prima facie evidence being available on record before the Labour Court is sin-qua-non for granting interim maintenance. He contends in the absence thereof Labour Court should not grant interim maintenance as has been done in the present case. He would also contend that 75% of the last wages drawn by respondent-workman ordered to be paid is on the higher side.