Karnataka High Court
Balakrishna S vs Chairman on 21 August, 2024
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NC: 2024:KHC:33725
WP No. 27945 of 2013
C/W WP No. 18187 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO. 27945 OF 2013 (L-RES)
C/W
WRIT PETITION NO. 18187 OF 2013 (L - TER)
IN W.P.No.27945/2013
BETWEEN:
BALAKRISHNA S.,
S/O GOVARDHAN,
AGED 33 YEARS,
R/AT # 60/1, 7TH CROSS,
PIPELINE MAIN ROAD,
MALLESHWARAM,
BANGALORE - 560 003.
...PETITIONER
Digitally signed by (BY SRI. RAM MOHAN A., ADVOCATE)
MAHALAKSHMI B M
Location: HIGH
COURT OF AND:
KARNATAKA
CHAIRMAN,
M/S. FULFORD (INDIA) LTD.,
8TH FLOOR, "B" WING, EUREKA TOWERS,
MIND SPACE,LINK ROAD,
MALAD WEST,
MUMBAI - 400 064.
NOW AT:
M/S. FULFORD (INDIA) LTD.,
8TH FLOOR,PLATINA, C-59, G-BLOCK,
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NC: 2024:KHC:33725
WP No. 27945 of 2013
C/W WP No. 18187 of 2013
BANDRA-KURLA COMPLEX,
BANDRA (EAST),
MUMBAI - 400 098.
REPRSENTED BY DIRECTOR - HR.
...RESPONDENT
(BY SRI. C.K.SUBRAMANYA, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO 1.MODIFY THE
AWARD DATED 25.2.2013 PASSED BY III ADDL. LABOUR
COURT BANGALORE IN ID-11/2006 VIDE ANNEXURE -A ;
2.DIRECT THE RESPONDENTS TO PAY THE PETITIONER FULL
BACK WAGES FROM THE DATE OF TERMINATION TILL THE
DATE OF REINSTATEMENT.
IN W.P.No.18187/2013
BETWEEN:
M/S. FULFORD (INDIA) LTD.,
8TH FLOOR, "B" WING, EUREKA TOWERS,
MIND SPACE,LINK ROAD,
MALAD WEST,
MUMBAI - 400 064.
REPRSENTED BY DIRECTOR - HR.
NOW AT:
M/S. FULFORD (INDIA) LTD.,
8TH FLOOR,PLATINA, C-59, G-BLOCK,
BANDRA-KURLA COMPLEX, BANDRA (EAST),
MUMBAI - 400 098.
REPRSENTED BY DIRECTOR - HR.
VENKATRAMANI C IYER.
...PETITIONER
(BY SRI. C.K.SUBRAMANYA, ADVOCATE FOR
SRI.B.C.PRABHAKAR, ADVOCATE)
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NC: 2024:KHC:33725
WP No. 27945 of 2013
C/W WP No. 18187 of 2013
AND:
SRI. BALAKRISHNA S.,
S/O GOVARDHAN,
AGED 53 YEARS,
R/AT NO. 60/1, 7TH CROSS,
PIPELINE MAIN ROAD,
MALLESHWARAM,
BANGALORE - 560 003.
...RESPONDENT
(BY SRI. A. RAM MOHAN, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
LEADING TO THE PASSING OF THE AWARD DATED 25.02.2013
PASSED BY THE THIRD ADDL. LABOUR COURT, BANGALORE IN
I.D.NO.11/2006 VIDE ANNEXURE - J AND ETC.,
THESE PETITIONS, COMING ON FOR DICTATION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL ORDER
W.P.No.27945/2013 is preferred by the Workman insofar as denying of full backwages and W.P.No.18187/2013 is preferred by the Management against the order of reinstatement and granting of 25% backwages and awarding -4- NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 continuity of service and consequential benefit for the purpose of terminal benefits.
2 The Labour Court by the impugned order in ID No.11/2006 dated 25.02.2013, allowed the claim petition directing the Management to reinstate the workman into service to the old post with continuity of service and consequential benefits for the purpose of terminal benefits with 25% of backwages from the date of dismissal till the date of reinstatement.
3. The workman was appointed as Professional Sales Representative (Medical Representative), on 11.01.2006, he was terminated from the service, the workman filed claim petition under Section 10(4-A) of the Industrial Disputes Act, 1947 (the 'I.D. Act' for short) before the Labour Court. The Management filed counter statement, justifying the order of termination. In the earlier round, considering the rival contentions of the parties and the finding that Articles of Charge has not been issued and domestic enquiry has not been held, the Labour Court accepted the claim petition and set aside the order of termination dated 11.01.2006 and the -5- NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 Management was directed to reinstate the workman into service with continuity of service and consequential benefits, to pay 50% of backwages from the date of termination till the date of reinstatement.
4. Assailing the said award, the Management filed W.P.No.17953/2011 before this Court, this Court placing reliance on the judgment of the Apex Court in the case of 'The Workman of Firestone Tyre & Rubber Co., of India Vs. the Management & Others1, (Firestone) wherein it is observed that it is open to the employer to adduce evidence for the first time justifying his action and it is open for the employee to adduce evidence contra, with the said observation, the impugned order passed by the Labour Court was set aside and the Labour Court directed to decide the matter afresh on the issues other than issue Nos.2 and 3.
5. On remand, the Labour Court has passed the impugned order, holding that the order of termination is not justified and ordered for reinstatement with continuity of 1 (1973 (26) FL 359) -6- NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 service and consequential benefits with 25% backwages from the date of dismissal till the date of reinstatement.
6. Heard Sri Ram Mohan A., learned counsel appearing for the workman and Sri C.K. Subramanya, learned counsel appearing for the Management and perused the material on record.
7. Learned counsel for the workman submits that the workman has specifically stated in his claim statement about the fraudulent acts indulged in by M. Chandrashekar Melanta ('Melanta' for short) and how he forced the workman and the other PSR's to do the same and on the force of Melanta, the workman has put his signature in one order form and further, the workman was forced to write the said letter, part of which was dictated by the Melanta and similarly, it is stated that on 06.01.2006, the Melanta had called the workman to Mumbai and forced the workman to write the letter and made the workman to sign in the said letter. According to the workman, Melanta was indulging in all kinds of unfair acts and was manipulating the same and the workman was not involved in any act, the claim made by the workman was that, he has not -7- NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 committed any act as alleged in the termination order and sought for reinstating with backwages and other benefits. It is further contended that the termination order having been set aside by the Labour Court, the Labour Court ought to have awarded full backwages.
8. Per contra, Sri C.K. Subrahmanya, learned counsel for the Management submits that the Management had terminated the contract of the workman taking into account the investigation conducted by it and that the workman himself has admitted the act of misconduct committed when he was given an opportunity to give his explanation and the Management having lost confidence in the service of the workman, as the fraudulent acts committed by him directly affected the reputation of the Company and has rightly dismissed the service of the workman. That the Labour Court was not justified in passing the impugned order and the same warrants interference.
9. In view of the rival contentions of the parties, the point that arises for consideration is; -8-
NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 "Whether the impugned order passed by the Labour Court warrants any interference in the present facts and circumstances of the case?"
10. The order of termination was issued to the workman for the following acts;
1. "Improper use of the sample of the Company Products kept under your custody.
2. Generating sales through invoices and diverting stocks to unauthorized dealer.
3. Making Commitments to the customer beyond companies' guideline without appropriate approval.
4. Misrepresenting/suppression of facts pertaining to previous employment while seeking employment in the company.
5. Non-compliance of work norms."
11. The workman raised dispute under Section 10(4-A) of the ID Act contending that the workman was working at Bengaluru and his work was supervised by Senior Area Business Manager by name, Melanta and all his works was supervised and controlled by Melanta. Further, it is stated that the workman was performing his duties to the best of company's satisfaction and that on 05.10.2005, the workman was called to Mumbai for discussion and the Management directed the workman to put on record what transpired -9- NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 between the workman and Melanta and other PSR's and without any justification, has passed the order of termination.
12. The workman examined himself as WW-1 and reiterating the claim statement, he adduced evidence and the relevant portion of the evidence is extracted as under;
"4. I was called to Bombay on 5-10-2005 for discussion with regard to certain acts of Sri Melanta ABM. The said Sri Melanta had forced me to put signature in one order form for M/s Hindustan drug house for which they have not ordered. He had also forced me to put my signature on another letter dictated by him.
5. On 6-1-2006 I was again called to Bombay and forced to write another letter dictated by the management. In all these letters the subject matter was the mis conduct and misdeeds of Mr. Melanta. The details narrating these aspects written by me in those letters and the other parts were dictated by the management. Mr. Lokeshappa BL who was also PSR had sent e-mail to the management disclosing the misdeeds of Mr. Melanta."
(emphasis supplied)
13. The Management cross-examined the workman and he deposed at para No.8, which reads as under;
"I have worked for one year 4 months with Mr. Melanta before my termination. I met Damle only once during my
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NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 service. There was no Interaction with Damie. My relationship with him was good. I had gone to Bombay to October 2005 since I' was called. When I was called to Bombay in October 2005, I have spoken about irregularities. Prior to October 2005, I had no occasion to speak about irregularities. Till the management called me, I did not meet anybody with a letter of complaint against Melanta. It is not correct to suggest that I had created story against Melanta to cover up the lapses. There was no compliant against Melanta till I departed from the company. I might not have mentioned the date of threatening in my letter dated 5.10.2005 and 6.1.2006. I saw these letters on the last day of sitting before the court. I did not file any police complaint regarding threatening. I cannot secure any of my colleagues before the court. My Sales Head had called me to Bombay at that time Mr.Damle was Compliance Officer. Not correct to suggest that I was benefited out of the malpractices. My relation with the management was cordial till my termination. There was no reason for the management to get rid off me. I had given resignation once on 9.1.2005 with an intention to join M/S.HEINZ. But the company called me back and counseled to retain me. Accordingly I agreed to remain, Not correct to suggest that I have created story in my letters. Not correct to suggest that company terminated me because it has lost confidence."
(emphasis supplied)
14. The workman categorically admitted in his cross- examination that there was no complaint filed against Melanta
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NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 by him. Further, WW-1 in his cross-examination has deposed as under;
"The letter is marked at Ex.M12. Ex.M12 letter was addressed to Kiran Das who was looking after the business of South West. I wrote this letter while I was at Bombay. I wrote this letter voluntarily and there was no force. In Ex.M12 letter I have stated that I was party in sending stocks from Bangalore to other areas with a third party help and I regret this activity of mine under pressure. It is not correct to suggest that the termination was a result of loss of confidence because of this. I have not complained against Melanta or the company prior to Ex.M12 letter. It is not correct to suggest that I have caused monetary loss to the company. Now I see the Xerox copy of my letter dated 17.11.2005 which is in my handwriting. The said letter is marked at Ex.M13. Now I see the minutes dated 5.10.2005 which bears my signature that is marked at Ex.M14. I read the contents of the minutes and I have signed it. Now I see Xerox copy of my letter dated 6.1.2006. The letter is marked at Ex.M15. It is not correct to suggest that KNS was the transport agent for the second party."
(emphasis supplied)
15. On careful perusal of the evidence and cross- examination of WW-1 indicates that the workman has not given any complaint against Melanta during his tenure and further cross-examination indicates that he regrets for the acts done
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NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 by him and states that the act of misconduct was under
pressure.
16. The workman addressed a letter to the Management at Ex.M.12 stating that one Melanta, Senior AGM, is the key person to all this malpractice. The relevant portion of Ex.M12 reads as under;
"Ultimately they also pressurized me and I was a party in sending stocks from Bangalore to other areas with a third party help. I regret this activity of mine and I will feel bad about the same for the rest of my life.
All these goods which are sent to unknown area by the third party are being billed on "Hindustan Drug House" our authorized stockiest in Bangalore. The stocks have not reached to him till date. Well the party (Hindustan Drug House) has got no idea of the stocks being billed on his name."
(emphasis supplied)
17. Careful perusal of Ex.M12 indicates that the workman in his reply has stated that he was pressurized and the workman was sending stocks from Bengaluru to other areas with a third party help and he regret this activity and he feel bad about the same for the rest of his life. Careful perusal of the evidence of WW1 and Ex.M12 would clearly indicate that
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NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 the workman was indulged in the acts detrimental to the interest of the Company and this aspect was totally overlooked by the Labor Court while setting aside the order of termination, warranting interference by this Court.
18. The act of the workman indulging in serious misconduct is detrimental to the interest of the Company, but the Labour Court while setting aside the order of termination has totally given a go bye to the admitted misconduct of the workman and failed to consider whether the workman is entitled for misplaced empathy, the Labour Court has totally fell in error in considering the relevant evidence of W.W.1 and this Court is of the considered opinion that the order passed by the Labour Court is unsustainable warranting interference by this Court. The Labour Court was not justified in exercising the powers conferred under Section 11-A of the ID Act and accordingly, the point framed for consideration is answered in favour of the Management and this Court pass the following:
ORDER i. W.P.No.27945/2013 filed by Workman is hereby dismissed.
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NC: 2024:KHC:33725 WP No. 27945 of 2013 C/W WP No. 18187 of 2013 ii. W.P.No.18187/2013 filed by the Management is allowed.
iii. The impugned order passed by the Labour Court dated 25.02.2013 in I.D.No.11/2006 as per Annexure-J is hereby set aside.
Sd/-
(K.S. HEMALEKHA) JUDGE PN CT: SN List No.: 1 Sl No.: 24