RPG CABLES LIMITED HEBBAL INDUSTRIAL AREA HOOTAGALLI, BELAVADI POST MYSORE 571186 Vs. SRI G.M. KULKARNI

JUDGEMENT

(1.) IN this Appeal the management of RPG Cables Limited Mysore (hereinafter 'Management' for brevity) has assailed the Order dated 03.11.2011 passed by the learned Single Judge by which a certiorari to quash the Order dated 25.07.2011, passed by the Labour Court Mysore in ID. No. 154/2002 had been prayed for. The writ petition, however, came to be dismissed. Succinctly stated, the Respondent -Workman joined the service of the Appellant -Management in 1989 and very quickly became a Union/Labour Leader. On 27.09.2001 a Charge Sheet was issued alleging that the Workman frequently left the factory premises without recording requisite entries with the Security and was therefore guilty of dereliction of duty as well as misconduct. Consequent upon the Report submitted by the Enquiry Officer, the Workman was terminated from service on 29.04.2002. Prior to that Reference No. 253/2001, under 1 Section 33(2)(b) of the Industrial Dispute Act [hereinafter referred to as 'the ID Act' for the sake of brevity] for approval of his dismissal was registered and came to be finally decided on 12.02.2008 holding that the Management had succeeded in establishing prima facie, that a proper Domestic Enquiry against the Respondent -Workman had been conducted. In view of the prima facie finding, the approval under Section 33(2)(b) of the ID Act came to be granted but even at that stage it had been clarified by the Industrial Tribunal that "it was for limited purpose of this case and without prejudice to the rights of both parties in the dispute raised by the Respondent in ID. No. 154/2002 on the file of the Labour Court Mysore." In ID. No. 154/2002 the Respondent -Workmen had challenged the termination of his employment under Section 10(4A) [applicable to the State of Karnataka] of the ID Act. The Appellant -Management contends that the conclusion arrived at in the proceedings under Section 33(2)(b) of the ID Act viz., holding that the Domestic Enquiry was conducted in accordance with law, would operate as res judicata even in the adjudication of the dispute under Section 10 (4A) of the ID Act, initiated by the Respondent -Workmen. Reliance appears to have been placed on Mysore Lamp Works Vs. State and Another, ILR (1984) KAR 778 and keeping this decision in perspective the learned Single Judge has once again clarified that plea of res judicata can be agitated by the Management at the time of passing of the final award by the Labour Court, in the event, the Industrial Tribunal as well as the learned Single Judge concurrently held that the verdicts given in the proceedings under Section 33(2)(b) of the ID Act were not conclusive so far it relate to the Industrial Dispute raised by the Workman under Section 10(4A) of the ID Act.

(2.) BEFORE the Labour Court in ID.No. 154/2002, the Management had placed reliance on Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., Vs. Shri Ram Gopal Sharma 2002 LLR 237, which was concurrently found to be irrelevant for the contention raised on the applicability of the principles of res judicata. We may also record that the Industrial Tribunal Mysore has permitted the Management to adduce evidence prior to granting its approval under Section 33(2)(b) of the ID Act. Thereafter, a memo dated 21.09.2010 came to be filed by the Management in ID. No. 154/2002 claiming that the principles of res judicata were attracted even in the proceedings under Section 10(4A) of the ID Act. The Labour Court had formulated a preliminary issue to the following effect: whether the order passed by the Industrial Tribunal in respect of Domestic Enquiry acts as res judicata and whether this court is precluded from considering the validity and fairness of Domestic Enquiry? By its order dated 25.07.2011, the Labour Court held that "Order passed by the Industrial Tribunal does not act as Res Judicata while considering the validity and fairness of the Domestic Enquiry in the dispute raised by the Workmen". The Labour Court further observed that the Management had filed the Memo with an intention to drag on the proceedings and to harass the Workman. Challenging the said order dated 25.07.2011 passed by the Labour Court, the Management had preferred W.P.No. 41010/2011 which has been rejected by the impugned Order passed by the learned Single Judge who thereby affirmed the view taken by the Labour Court.

(3.) THE distinction between the proceedings initiated under Section 10 and Section 33(2)(b) of the ID Act should not be lost sight of or diluted. Under Section 10, a full fledged dispute has to be adjudicated upon by the Labour Court. However, in Section 33(2)(b) proceedings, only a prima facie view has to be arrived at so that approval of dismissal of the Workmen can be granted (always without prejudice to the final adjudication of the industrial dispute raised by the Workmen), in the backdrop of the necessity of conditions of service remaining unchanged/undisturbed during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or an Arbitrator or a Labour Court or Tribunal or National Tribunal. The purpose of an Enquiry under Section 33(2)(b) of the ID Act is not to return a conclusive determination as to the legal propriety of a Dismissal of workmen but only for according an approval of such dismissal on adopting a prima facie view. The accent is on ensuring that no victimization occurs, and this is all the more important where the victim is a Union Leader, as in the present lis.