Sri A.S. Nagesh Kumar vs Titan Industries Limited

A.N. Venugopala Gowda, J.—The Petitioner was a driver in the Respondent Company. A charge-sheet was issued on 9.4.05 alleging commission of misconduct. The reply submitted having been found to be unacceptable, a domestic enquiry was ordered and held. The Petitioner was thereafter dismissed from service by the employer on 12.9.95. A dispute was raised by the workman which was adjudicated in I.D. No. 63/05. The Labour Court by its Award dated 26.4.06, set aside the order of dismissal and directed the Management to reinstate the workman in his original post with backwages and consequential benefits. The Award was questioned by the Management in W.P. No. 12127/06. The writ petition was allowed and the impugned Award was quashed. The Labour Court was directed to consider the matter on the question of reinstatement in the light of decision of the Apex Court and based on the circumstances noticed in the body of the order and the evidence on record. Aggrieved by the said order passed on 19.3.08 by the learned Single Judge, the workman filed W.A. No. 906/08. The appeal upon consideration was dismissed by a judgment dated 19.11.08.

The matter having been taken up for consideration by the Labour Court, the workman filed LA. No. 11 to recall the order posting the case for hearing of arguments and permit him to lead further evidence on the issue of gainful employment and loss of confidence of the employer. LA. 12 was tiled by the workman to grant permission to amend the claim statement by incorporating the proposed pleading as para 20(a) in the claim statement. The applications were opposed by the Management. The Labour Court having heard the arguments, upon raising the points for consideration, taking into consideration the order passed in W.P. 12127/06 on 19.3.08, held that, liberty having not been given to the parties to lead further evidence, there is no scope to amend or adduce any evidence. In the said view of the matter, LA. Nos. 11 and 12 were dismissed. Aggrieved, the workman has filed this writ petition.

Sri V.S. Naik, learned Counsel appearing for the Petitioner submitted that the onus of proving the loss of confidence being on the Management, the workman would not insist for the incorporating of the pleading with regard to loss of confidence and also would not adduce any evidence on his side with regard to the contention of the Management that it has no confidence in the workman. Learned Counsel submitted that, the workman may be permitted to incorporate the proposed amendment in the claim i.e., the one relating to the workman being not in gainful employment from the date he was dismissed from service by the employer and adduce evidence.

Sri K. Kasturi, learned Senior Advocate appearing for the Respondent/Management on the other hand submitted that, there is no need for the workman to Incorporate the proposed pleading with regard to he being not gainfully employed after the passing of the order of dismissal by the Management and that the workman is at liberty to adduce evidence in proof of he being not gainfully employed. It was submitted that, in the said view of the matter, there is no need to permit the prayer for amendment of the claim i.e., to incorporate the proposed pleading with regard to the workman being not gainfully employed.

Keeping in view the submissions made, in my opinion, the issue relating to loss of confidence and the employee being not allowed to be continued in employment is a factor which the Management has to make out from the materials on record of the case. The workman has little to say with regard to the said aspect is concerned. The workman need not have to place material on record to establish the negative. In the said view of the matter, the permission sought by the workman to lead evidence with regard to loss of confidence in him is ill-conceived. The Management is at liberty to make out from the material on record that the workman is not a person to be continued in employment by it i.e., his acts being detrimental to the interests of the Management, resulted in the Management losing confidence in him.

In so far as the prayer with regard to the incorporation of the proposed amendment by the workman, i.e., he being not gainfully employed, Sri Kasturi, fairly conceded that there need not be a pleading by the workman and if he were to produce evidence of he being not gainfully employed after the order of dismissal, the same can be taken into consideration and appreciated by the Labour Court. Learned Counsel has no objection for the employee leading evidence in proof of he being not gainfully employed after 12.9.95. In view of the submission of learned Senior Counsel, there is no need for the workman to incorporate the proposed pleading in the claim statement i.e., with regard to he being not gainfully employed after 12.9.95. Needless to observe that the Management is entitled to cross-examine the witness and lead rebuttal evidence.

In the result, the writ petition is allowed in part and the impugned order is quashed. The workman is permitted to adduce evidence on the aspect of he being not gainfully employed after 12.9.95. The Management is at liberty to adduce rebuttal evidence if any. The Labour Court is directed to take the matter on Board on 23/3/11 and the parties to receive further orders on the said date. The evidence shall be adduced and completed before 30.4.11.

The claim/dispute is directed be adjudicated and disposed of as early as practicable and at any event before 31.5.2011.

The Petitioner to place a copy of this Order on the record of the Labour Court before 22.3.2011.