Karnataka High Court
Sri Anil Kumar vs The Management Of Skf India Limited on 29 July, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.18746 OF 2013 (L-TER)
BETWEEN:
SRI. ANIL KUMAR,
S/O LATE SRI. S.N.TRIAMBAK,
AGED ABOUT 45YEARS,
TOKEN NO.265, TURNING DEPARTMENT,
M/S. SKF INDIA LIMITED,
(NOW ILLEGALLY TERMINATED FROM SERVICE)
R/AT NO.48, 4TH CROSS, FCI LAYOUT,
DEEPANJALINAGAR, MYSORE ROAD,
BANGALORE-560 026.
...PETITIONER
(BY SRI. L MURALIDHAR PESHWA, ADVOCATE)
AND:
1. THE MANAGEMENT OF SKF INDIA LIMITED,
PLOT NO.2, BOMMASANDRA INDUSTRIAL AREA,
HOSUR ROAD, BANGALORE-560 099,
REPRESENTED BY ITS MANAGING DIRECTOR.
2. THE FACTORY MANAGER,
M/S. SKF INDIA LIMITED,
PLOT NO.2, BOMMASANDRA INDUSTRIAL AREA,
HOSUR ROAD, BANGALORE-560 099.
...RESPONDENTS
(BY SRI. S. N. MURTHY, SR. COUNSEL FOR SRI. SOMASHEKAR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DT.1.1.2010 ON ISSUE NO.1 AS THE SAID ORDER SUFFERS FROM ERRORS APPARENT ON THE FACE OF THE 2 RECORD, VIDE ANNX-N. QUASH THE AWARD DT.9.8.2012 MADE IN I.D.NO.1/2008 ON THE FILE OF THE PRESIDING OFFICER, II ADDL. LABOUR COURT, BANGALORE VIDE ANNX-T, AS THE AWARD SUFFERS FROM ERRORS APPARENT ON THE FACE OF THE RECORD AND THE LABOUR COURT HAS FAILED TO CONSIDER THE MATERIAL EVIDENCE AND HAS CONSIDERED IRRELEVANT MATERIALS WHILE PASSING THE AWARD AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08TH JULY, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE CAV ORDER The petitioner is assailing the award dated 09.08.2012 in I.D.No.1/2008 on the file of II Additional Labour Court, Bangalore.
2. In terms of the impugned award, the petitioner's challenge to the penalty of dismissal is rejected and the domestic enquiry conducted by the respondent -Management is held to be valid and charges of unauthorsied absence for 18 days (in a span of 9 months) is held to be proved. Hence, the petitioner/workman is before this Court. 3
3. The workman was dismissed from service on the charges of unauthorised absence for 18 days in 9 months, from 23.01.2006 to 25.09.2006. Admittedly, it was not 18 days of unauthorised absence at a stretch; the absence was intermittent in the aforementioned period. The maximum period of unauthorised absence at a stretch was 8 days. Second continuous period of unauthorised absence was 6 days. In addition on 4 occasions, it is alleged that workman did not report to duty for a day.
4. Learned counsel Sri Murulidhar Peshwa appearing for the petitioner/workman, taking through the facts of the case, would urge that the enquiry was not fair and proper. The charge sheet did not contain the necessary particulars. The domestic enquiry was vitiated as the list of witnesses was not furnished when the charge memo was issued. The documents based on which the domestic enquiry was initiated were not furnished, and a reasonable time was not given to the workman to cross-examine the witnesses, and the workman was compelled to cross-examine the witnesses on the same day when they were examined.
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5. Learned counsel appearing for the petitioner would also submit that the medical certificate produced by the petitioner, to prove his illness, the reason for absence in July 2006, was not considered by the Labour Court, though there was no dispute as to the authenticity of the medical certificate.
6. Referring to the medical certificate and also the evidence in the cross-examination of MW-1, learned counsel for the petitioner would urge that the medical certificate was received by the respondent/management and was forwarded to the higher officer with a note to consider the petitioner's request to treat the absence period as leave without pay. It is urged that the petitioner was not keeping well and was not a wilful defaulter, and it was not his intention to cause any loss, and no financial loss to the establishment is established.
7. It is also urged that the petitioner has worked overtime on 2 days to compensate for the alleged unauthorised absence on two days. In addition it is contended that the petitioner's duty on two days (out of 18 days) is wrongly treated as absence.
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8. Learned counsel would further contend that the charge sheet wrongly mentioned the provisions relating to the misconduct. The second notice issued after completion of the domestic enquiry did not propose a penalty, and there was no reference to the previous misconduct which is made the basis for discharge from service.
9. It is his further contention that the petitioner was the Secretary of the Union and raised several issues on behalf of the workmen, and for this reason, the petitioner was victimised.
10. In the alternative, it is submitted that the penalty or discharge from service is disproportionate to the misconduct of 18 days of intermittent absence in a period spanning 9 months.
11. Learned counsel for the petitioner would place reliance on the following judgments:
(a) Colour-Chem Limited vs. A.L.Alaspurkar and Ors.1 1 AIR 1998 SC 948 6
(b) L.Michael and Ors. vs. Johnson Pumps Ltd.2
(c) Sri.C.Ramesh vs. M/s Hindustan Aeronautics Limited and others.3
12. Learned Senior counsel Sri S.N. Murthy appearing for the respondent - Management would submit that the petitioner has not established that he reported to duty on those 18 days where he was unauthorisedly absent.
13. It is urged that even as per the defence raised by the petitioner, he remained unauthorisedly absent at least for 16 days, and the petitioner has not produced any documents to show that leave was sanctioned in those 18 days.
14. And as far as the defence that the petitioner attended the work on 2 days, no records are produced to prove attendence as such, the charge relating to 18 days unauthorised absence is established, is the submission.
15. Learned Senior Counsel would urge that once unauthorised absence is established, any reason for absence 2 ARI 1975 SC 661 3 2021:KHC:7435 7 other than the sanctioned leave cannot be a ground to say that the absence is authorised.
16. Domestic enquiry was held as required under law, and a charge sheet was issued, the evidence was led, the petitioner participated in the domestic enquiry, cross- examined the Management witness, and the petitioner has not led evidence in the domestic enquiry, and failed to establish the contentions raised by him. Thus, it is urged that the misconduct is proved.
17. It is also urged that the Labour Court recorded a finding that the enquiry was fair and proper, and thereafter the parties led evidence on alleged plea of victimisation, and the Labour Court further concluded that the charges were proved and the penalty of dismissal is proportionate to the proved misconduct.
18. It is his further submission that the Labour Court has also assigned valid reasons as to why the penalty of dismissal is proportionate and there is no scope for interfering with the said award. It is urged that petitioner's past history would demonstrate that he was a habitual 8 unauthorised absentee, and despite many warnings in this behalf has not mended his ways and these aspects have been taken into consideration to impose the penalty of dismissal from employment.
19. Learned counsel for the respondent would place reliance on the following judgments:
(a) Burn & Co., Calcutta vs. Their
4
Employees
(b) State Bank of Patiala vs. S.K.Sharma5
(c) Delhi Transport Corporation vs. Sardar
Singh6
(d) Karnataka State Road Transport
7
Corporation vs. A. Ramanna
20. This Court has considered the contentions raised at the bar and perused the records. The Court has also considered the ratio laid down in the aforementioned judgments cited by both sides.
21. It is not in dispute that a charge sheet was issued to the petitioner vide show cause notice dated 02.05.2007. In the charge sheet, specific dates commencing from 4 AIR 1957 SC 38 5 (1996) 3 SCC 364 6 (2004) 7 SCC 574 7 (2001) 2 LLJ 1212 9 23.01.2006 to 25.09.2006 during where the petitioner remained unauthorisedly absent are mentioned. It is alleged that the petitioner remained unauthorisedly absent for continuously 6 days from 24.07.2006 to 29.07.2006. Then, for 8 days continuously from 31.07.2006 to 07.08.2006, and the petitioner was absent for a day on 23.01.2006, 26.02.2006, 02.09.2006 and 25.09.2006. In all, for 18 days commencing from 23.01.2006 to 25.09.2006, the petitioner was absent.
22. The charge sheet would also refer to Clauses from 25.8 and 25.11 in the Standing Orders referring to habitual absence, breach of orders or Standing Orders or instructions and any act of subservience of discipline.
23. The petitioner has responded to the said show cause notice and has taken a stand that on 26.01.2006 and 13.03.2006, he worked overtime and has compensated for unauthorised absence. The petitioner states that on 23.01.2006, he entered the leave card and for the period commencing from 24.07.2006 to 07.08.2006, the petitioner claims that he was not keeping well and was advised rest and he applied for medical leave.
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24. The petitioner further states that on 2nd and 25th September, he did attend the duty, but same is wrongly treated as absence. The petitioner has also requested to consider his absence from 24.07.2006 to 07.08.2006 as leave without pay.
25. As already noticed, the Labour Court has recorded a finding that the enquiry was fair and proper. The enquiry report would also indicate that the petitioner participated in the enquiry, and cross-examined the evidence on behalf of the Management but did not lead evidence. Said finding cannot be held to be erroneous, as no provision of law or Standing Orders is pointed out to say that any mandatory procedure was violated and caused serious prejudice to the petitioner.
26. Learned counsel for the petitioner invited the attention of the Court to the petitioner's application to treat his absence as leave without pay, which was forwarded to the higher officer in the Establishment with a note that the same should be considered favourably. Referring to this, it is urged that even the officer of the Establishment has 11 accepted the petitioner's application that the petitioner could not attend to duty for a certain period on account of a valid reason, namely the ill-health, which, according to the petitioner, was beyond his control. Thus, it is urged that the enquiry officer, as well as the Labour Court, could not have held that it is a case of wilful or deliberate absence to disrupt the production activity. It is also urged that the finding of the Labour Court that the medical certificate is concocted is erroneous as respondent did not dispute the same.
27. Though it is true that the petitioner has submitted an application to treat his unauthorised absence for a certain period as leave without pay, the petitioner has not sought any leave before remaining absent for a certain period. Thus, the unauthorised absence is very much established or rather admitted. Even if the petitioner had a valid reason not to report to duty on a particular day or for certain days, the minimum expected from the petitioner was to submit an application seeking leave, which admittedly was not done. Thus, the finding of the Labour Court that the medical certificate is fake, though is without any basis, that by itself 12 would not make the unauthorised absence an authorised absence. The absence still remains unauthorised.
28. Learned counsel for the petitioner also raised a contention that the petitioner remained absent for 16 days, from 23.01.2006 to 25.09.2006 and notice came to be issued only in the year 2007 for unauthorised to victimise the petitioner after he was elected the Secretary of the Union. This contention though looks attractive, initial inaction of the Management in not initiating any disciplinary action against the petitioner or not issuing any warning to the petitioner, cannot be a ground to conclude that subsequent action amounts to victimisation. The leniency shown by the Management in not initiating any action cannot be construed as a complete waiver of the right to hold a domestic enquiry, in all circumstances.
29. As far as the contention that while imposing a penalty of dismissal, the disciplinary authority has also referred to the past misconduct and no opportunity is given to the petitioner to explain his past misconduct, it is to be noticed that no provision in the applicable Standing Orders which mandates such procedure is pointed out. Moreover, 13 the documentary evidence was produced in the domestic enquiry and before the Labour Court as well about past unauthorised absence. Thus the said contention is not tenable and it has caused no prejudice to the petitioner.
30. The next question is whether unauthorised absence is wilful or beyond the control of the petitioner as alleged. The finding of the Labour Court that the medical record is concocted is without any basis or evidence to that effect. In the cross-examination, it is stated by MW-1 that the petitioner has sent medical records, and the same were forwarded to another officer for consideration.
31. However, what is to be noticed is that even the medical records placed by the petitioner do not cover all the 18 days referred to in the charge sheet. Even assuming that the petitioner was not keeping well for some days out of the 18 days referred to in the charge sheet, then also the absence is unauthorised as the petitioner has not sought any leave by filing an appropriate application. He seeks to condone the absence later. Thus, the misconduct stands established, and it is also willfull and deliberate, as 14 admittedly for certain period, there is no medical records to hold that the petitioner was not keeping well.
32. Learned counsel has relied on the judgment of the Division Bench of this Court in Hindustan Aeronautics Limited, supra to support the plea of reinstatement as it was a case of 103 days unauthorised absence. This Court has considered the said judgment. It was rendered in a situation where the employee was found to be suffering from Asthama.
33. The judgment in Syed Zaheer Hussain vs. Union of India8, is also rendered in the factual background obtained in the said case and cannot be said to be having laid down any law. The judgment in Krushnakanth B. Paramar vs. Union of India9 also does not come to the aid of the petitioner as the petitioner has not established that his absence is due to unavoidable circumstances beyond his control. Excluding 8 days where petitioner claims he was not keeping well, for the remaining period of 10 days the absence is proved to be wilful.
8 (1999 (9) SCC 86) 9 (2012 (3) SCC 178) 15
34. The next question is on the proportionality of the penalty. Whether the respondent is justified in imposing a penalty of discharge from service. It is true that when it comes to imposing a penalty, the employer's decision should not likely be interfered with. The scope for interference is very much limited. If the Court finds that the penalty is shockingly disproportionate to the misconduct proved; then the Court will interfere in the penalty.
35. It is noticed from the records that the petitioner had applied to treat his absence for medical reasons. Application was forwarded to a higher officer with a request to do the needful.
36. It is also relevant to notice that when the petitioner unauthorisedly remained absent in the period mentioned in the charge sheet, the enquiry was not initiated or the notices were not issued to the petitioner. The enquiry was initiated after a few months.
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37. It is also noticed that the petitioner was aged 40 years when the dispute was raised in the year 2008 before the Labour Court; he is now aged 57 years. As already noticed, the unauthorised absence is for 18 days between 23.01.2006 to 25.09.2006. Continuous absence was for 8 days and subsequently for 6 days in the month of July and August between 24.07.2006 to 07.08.2006.On four occasions, it was an absence for a day. Out of 18 days, medical certificate is available to hold that he was not keeping well for 8 days.
38. Looking into the misconduct proved, this Court is of the view that it was a case where the Labour Court, taking into consideration his nature of the job, the tenure of employment in the establishment, could have exercised discretion under Section 11A of the Act of 1947 and could have substituted the penalty of dismissal by imposing a lesser penalty. And if so what should be the penalty proportionate to the proved misconduct in the circumstances of the case.
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39. At this juncture, it is necessary to notice the law laid down in J.K.Synthetics v/s K.P.Agrawal 10. In the said case, the Apex Court has held that when the penalty of termination from employment is substituted for a lesser penalty, on the ground that it is disproportionate to the proved misconduct, the reinstated workman is not entitled to back wages, as the penalty of dismissal is for the misconduct proved and substitution of lesser penalty is in exercise of discretion on the premise that the penalty is disproportionate.
40. Relevant portion of the judgment in paragraph 19, is extracted as under.
Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the 10 (2007) 2 SCC 433) 18 dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should 19 be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
41. It is also relevant to notice the law laid down in Deepali Gundu Surwas vs. Kranti Junior Adhyapak Mahavidyalay11. In paragraph No.38.7 of the said case, it has been held as under.
The observation made in J.K.Synthetics ltd. v.
K.P.Agarwal that on reinstatement the
employee/workman cannot claim continuity of
service as of right is contrary to the ratio of the judgment of the three Judge-Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the concept of reinstatement of employee/workman.
42. It is also noticed that in Deepali Gundu, supra, the Apex Court has referred to, two judgments rendered by three Judge-Benches in Surendra Kumar Verma vs Central Government Industrial Tribunal12, and Hindustan Tin Works vs Employees of M/S Hndustan 11 (2003) 10 SCC 324 12 (1980) 4 SCC 443) 20 Tin Works13. Those two judgements relate to a case where retrenchment is held to be illegal.
43. In Deepali Gundu termination was held to be illegal as charges are not held to be not proved. Whereas in J.K. Synthetics some of the charges are held to be proved.
44. In the instant case the charges are proved. Considering the nature of charges, nature of employment and duration of employment this court holds that the penalty of dismissal is disproportionate to the misconduct approved. Thus, if the petitioner is to be reinstated there cannot be an order for payment of backwages as the termination remains in force till it is set aside.
45. This Court has also noticed the fact that the workman is attaining the age of superannuation in another three years. For the last 17 years he is not working for the respondent. Under these circumstances, reinstatement as a lesser penalty is also not desirable. However, this Court can certainly substitute the penalty by awarding compensation. 13
(1979) 2 SCC 80) 21
46. The next question would be the appropriate compensation. It is not possible to come out with an exact figure as to the just compensation payable in a situation where the Court deems it appropriate to award compensation in lieu of the penalty of dismissal after recording a finding that the charges are proved. However, certain factors like workman's salary at the time of dismissal, his qualification, nature of the job, his age as on the date of dismissal, number of years of his employment, number of years left for superannuation, and as to whether the workman was gainfully employed elsewhere after the dismissal may be taken into consideration,
47. As already noticed the petitioner is aged around
57. Hardly three years of service is left assuming the age of retirement is 60. Since the Court is awarding compensation by calculating remaining years of service (around 3 years) awarding wages that the workman would have received in the remaining years is also not a just proposition as it amounts to paying the wages without work and the petitioner can also work elsewhere during the said period. 22 Hence some percentage of the wages is to be deducted, to balance the equity.
48. There is nothing on record to indicate the present day salary for the workman who is doing the kind of job which the petitioner did at the time of his dismissal. However it would be certainly more than what petitioner was paid 17 years ago. This being the position, even if the wages paid 17 years ago is taken as wages payable from the today onwards, till retirement, without taking into consideration the revision of wages in last 17 years, in effect it amounts to reduction of some percentage of wages, which reduction is for paying the wages in advance, without extracting the work.
49. Petitioner's salary as on the date of dismissal was around Rs 17,124/- per month. Taking said amount as the wages payable till retirement and taking next three years as the tenure left in the employment, the wages payable would be Rs.6,16,464.00. Considering all other circumstances and long drawn battle, this Court is of the view that compensation of Rs.7,00,000.00 is to be paid to the petitioner.
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50. Accordingly, the Writ Petition is allowed in part.
51. The impugned penalty of dismissal from services is modified by awarding compensation of Rs.7,00,000.00 towards the full and final claim of the petitioner, within 30 days from today.
52. If the compensation awarded is not paid, within 30 days, respondent shall pay interest on the said amount @ 7% per annum with effect from today, till the payment.
53. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE GVP