M/S. OSWAL BEVERAGES vs SMT. R. VINUTHA

M/s. Oswal Beverages, the petitioner, has challenged the legality of the order dated 6.6.2017, passed by the First Additional Labour Court,

Bangalore, whereby the learned Labour Court has dismissed the interim application filed by the petitioner under Section 11(1) and (3) of the

Industrial Disputes Act, 1947 read with Sections 75 and 151 of the CPC for appointing a Commission through a Registered Valuer (Government)

in order to assess, and evaluate the value and cost of the properties owned by the respondent.

Briefly the facts of the case are that by order dated 1.5.2007, the respondent was appointed as the General Manager with M/s. Oswal

Beverages. In the capacity as the General Manger, the respondent happened to be the whole sole incharge of the establishment belonging to the

petitioner. However, allegedly the respondent having won the confidence of the petitioner, started misappropriating the money that belonged to the

petitioner; allegedly, she amassed a huge wealth. When the respondent''s misconduct were discovered, the petitioner terminated her services by

order dated 25.5.2011. Since the respondent was aggrieved by the dismissal order, she raised a labour dispute, and filed her claim statement. The

petitioner, as the second party before the learned Labour Court, filed its objections. According to the petitioner, the respondent does not fall within

the definition of the word ""workman"". Most importantly, the respondent owns several sites, and constructed large houses by misappropriating the

funds from the petitioner Company. On the basis of the pleadings, the learned Labour Court had framed four issues. Issue No.2, which is germane

to the present dispute before this Court is as under:

Whether second party proves that the first party has committed misconduct referred to in para 6 of the counter statement and dismissal order.

After cross-examining the respondent in detail, even after the respondent had admitted that she is the owner of large properties mentioned by

the petitioner, the petitioner filed an application for appointment of a Government Valuer in order to value the properties owned by the respondent.

However, by order dated 6.6.2017, the petitioner''s application has been dismissed by the learned Labour Court. Hence, this petition before this

Court.

Mr. K. R. Anand, the learned counsel for the petitioner, has vehemently contended that according to issue No.2, mentioned above, the burden

lies on the petitioner to establish the fact that the first party has committed the misconduct alleged by the petitioner. In order to prove and establish

this point, it is imperative that the properties, owned by the respondent, be valued by a Government Valuer.

Secondly, the reasoning given by the learned Labour Court that there are no pleadings to the amassing of the wealth by the respondent, is clearly

misplaced. For, the petitioner has pleaded that the respondent owns various properties. The said fact has been admitted by the respondent in her

cross-examination. Therefore, the learned Labour Court was not justified in rejecting the application filed by the petitioner. Hence, the impugned

order deserves to be set aside by this Court.

On the other hand, Mr. V. S. Naik, the learned counsel for the respondent, submits that not only the respondent has admitted the fact that she is

the owner of the properties, but it is the respondent who has submitted the documents relating to these properties. She has also sufficiently

explained the source of her income for buying these properties.

Secondly, the issue pending before the learned Labour Court is not with regard to the value of the property, but is with regard to the legality of the

termination order. Once the respondent has admitted that she is the owner of the properties, mentioned by the petitioner, no fruitful purpose would

be served even if the properties were to be valued by the Government Valuer.

Lastly, even if the properties were to be valued, there is no presumption under law that the properties brought by the respondent must have been

brought by the alleged funds misappropriated by her. According to the learned counsel, it is the duty of the learned Labour Court to assess the

evidence produced by both the parties. Once the respondent has admitted that she is the owner, once she has given explanation, the application

filed by the petitioner is frivolous in nature. The application was filed by the petitioner in order to prolong the proceedings before the learned

Labour Court. For, the application had been filed after the case was listed for final arguments. Therefore, the petitioner is cleverly trying to prolong

the proceedings, and is trying to avoid the judgment day.

Heard the learned counsel for the parties, and perused the impugned order.

According to both the parties, the respondent has admitted in her cross-examination that she is the owner of the properties mentioned by the

petitioner. According to the learned Labour Court, the respondent had been subjected to a very lengthy cross-examination, wherein she has

explained the source of her income for buying the said properties. Therefore, the learned counsel for the petitioner is not justified in claiming that

unless the properties are valued, the petitioner would not be in a position to discharge its burden qua issue No.2, mentioned hereinabove. Needless

to say, admission is the best evidence. Moreover, it is for the learned Labour Court to eventually decide whether the explanation given by the

respondent is legally justifiable or not? And whether the owning of such properties proves the allegations leveled by the petitioner, or not? But even

if the properties were to be valued from a Government Valuer, there is no presumption in law that a disproportionate asset beyond the source of

known income must be the product of misappropriation. There can be other possible explanations for owning disproportionate properties beyond

the known source of income. Therefore, it would be a futile exercise to appoint a Valuer, especially when no such application was made during the

pendency of the proceedings, and the application has been filed only after the matter was listed for final arguments. Thus, it also seems to this

Court that filing of the application is merely a subterfuge to prolong the proceedings before the learned Labour Court.

The learned counsel for the petitioner has strenuously contended that there is sufficient pleading in the counterstatement filed by the petitioner

with regard to the properties owned by the respondent, therefore, the learned Labour Court is unjustified in concluding that there is lack of

pleading. Suffice it to say, that at times the logic given by the lower Court may not be valid but nonetheless, the conclusion drawn by the learned

Labour Court is legally justified.

Considering the various facts of this case, namely that the respondent has admitted in her cross-examination that she is the owner of the

properties mentioned by the petitioner, considering the fact that she has given explanation for the source of buying these properties, considering the

fact that the application has been filed after the final arguments had already commenced before the learned Labour Court, this Court does not find

any illegality or perversity in the impugned order.

For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed. No order as to cost.