Karnataka High Court
Sri P P Appanna vs M/S Rmc Readymix (India) Pvt Ltd on 24 January, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24 TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.4693 OF 2012 (L-TER)
BETWEEN
SRI P P APPANNA
AGED ABOUT 42 YEARS,
S/O P. POOVAIAH,
24, VENKATESHWARA NILAYA,
BACHANNA LAYOUT,
1ST MAIN, 1STCROSS,
B. CHANNEAASANDRA,
BENGALURU 560043
...PETITIONER
(BY SRI A J SRINIVASAN, ADVOCATE)
AND
M/S RMC READYMIX (INDIA) PVT LTD
REP BY ITS VICE-PRESIDENT,
YELAHANKA UNIT,
BENGALURU 560064
...RESPONDENT
(BY SRI VASKUKI, ADVOCATE FOR
SRI B C PRABHAKAR, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER ON DOMESTIC ENQUIRY DT 17.9.08 PASSED BY THE
1ST ADDL. LABOUR COURT, BANGALORE IN ID NO.45/05 VIDE
ANNX- W AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 31.10.2022, COMING ON FOR
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'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The above Writ Petition is filed seeking the following reliefs:
(a) Issue a Writ of Certiorari or any other appropriate writ or order, quashing the impugned order on domestic enquiry dt. 17-
09-2008, passed by the First Addl Labour Court, Bengaluru in LD.No.45/2005, a Certified copy of which is at ANNEXURE-W.
(b) Issue a Writ of Certiorari or any other appropriate writ or order, quashing the Award LD.No.45/2005, a certified dated copy 23-06- 2011, in which is at of ANNEXURE-AA,
(c) Issue a Writ of Mandamus or any other appropriate writ or order or direction, directing the respondent to reinstate the petitioner with all consequential benefits including full back wages from the date of termination till the date of reinstatement.
(d) Direct the contesting respondent management to pay the petitioner costs throughout, and
(e) Grant such other relief or reliefs as this Hon'ble Court may be pleased to grant, in the facts and circumstances of the case, to meet the ends of justice.
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2. It is the case of the Petitioner - Workman that he has joined the Respondent - Management as a "Truck Mixer Driver" and he was working since the year 2002. On 24.11.2004, the Petitioner was issued a charge sheet-cum- show cause notice alleging that on 18.11.2004 he had not checked out at 4.00 a.m. as instructed and stayed till the end of shift at 6.00 a.m.; that on the next day he has reported for work at 7.00 a.m. instead of coming in the second shift at 7.00 p.m.; that when questioned, he raised his voice and used abusive language.
3. The Workman replied to the charge sheet on 30.11.2004. The enquiry was conducted on various dates between 2004 and 2005. It is the case of the Workman that his daughter was diagnosed with Congenital Heart disease on 19.4.2005 which was life threatening and required hospitalization and expensive surgery, for which he gave a letter to the enquiry officer on 27.4.2005 explaining his position and requested to adjourn the enquiry proceedings till 15.5.2005. Despite the said 4 request, the enquiry officer fixed the next date of enquiry on 10.5.2005. On 9.5.2005 the Workman sent a representation by fax explaining his inability to attend the enquiry on 10.5.2005 and requested to postpone the enquiry by two months. However, on the same day, the enquiry officer concluded the enquiry without giving an opportunity to the Workman to cross-examine the Management witness and lead his evidence and submit his arguments. The enquiry officer submitted his findings on 23.5.2005 holding the Workman guilty of charges alleged. On 11.6.2005 the Workman submitted his reply to the second show cause notice and requested for reopening of the enquiry and to give him a second chance. On 5.7.2005 the Workman was dismissed from service.
4. The Workman challenged the dismissal order before the Labour Court in ID No.45/2005. The Management entered appearance in the said proceedings. The Labour Court, vide order dated 17.9.2008 held that the enquiry was just and proper. The said order dated 5 17.9.2008 was challenged by the Workman in W.P. No.15437/2008, which was disposed off vide order dated 18.12.2008 reserving liberty to the Workman to challenge the order of domestic enquiry after passing of the main Award. The Labour Court, vide Award dated 21.1.2010 partly allowed the claim petition filed by the Workman, set aside the dismissal and directed the Management to reinstate the Workman with continuity of service, but without backwages by withholding 4 annual increments with cumulative effect. The said Award dated 21.1.2010 was challenged by the Management in WP.No.16308/2010. Vide order dated 1.4.2011, this Court remanded the matter to the Labour Court for fresh consideration. After remand, the Labour Court, vide Award dated 23.6.2011, dismissed the claim petition filed by the Workman. Being aggrieved, the Workman has filed the present Writ Petition challenging the order dated 17.9.2008 holding the enquiry is fair and proper as well as the Award dated 23.6.2011 and for other reliefs.
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5. The learned Counsel for the Workman contends:
a) That the Workman did not have an adequate opportunity to participate in the enquiry proceedings;
b) That the punishment imposed is grossly disproportionate to the charge alleged;
c) That the Workman could not attend the enquiry proceedings because of the ill health of his daughter which was made known to the Management as well as the enquiry officer. Despite which, the enquiry was proceeded with.
Making the aforesaid submissions, the learned Counsel for the Workman seeks for allowing of the Writ Petition and granting of the reliefs mentioned therein. In support of his submissions, the learned Counsel relied upon the following decisions:
(i) Phulbari Tea Estate Vs. Its Workmen1
(ii) Radhey Kant Khare v. UP Co-operative Sugar Factories Federation Ltd.2 7
(iii) Ved Prakash Gupta and Messrs Delton Cable India (P) Ltd.,3
(iv) Rama Kant Misra v. State of UP & Ors4
6. Per contra, the learned Counsel for the Management submits that the Labour Court while passing the Award dated 23.6.2011 has considered all aspects of the matter and recorded a detailed finding both with regard to the charge as well as the punishment imposed and the same does not warrant interference. In support of his submissions, the learned Counsel relied upon the following decisions:
i) Mahindra and Mahindra Ltd., v. N.B.Naravade & Ors.,5;
ii) Union of India v. P.Gunasekaran 6;
iii) Union of India and ors., v. Dalbir Singh 7
iv) Dharamraj Kumar Singh v. Union of India & Ors., 8 1 AIR 1959 SC 1111 2 [2003 II LLJ 725] 3 [I LLJ SC 546] 4 [AIR 1982 SC 1552] 5 AIR 2005 SC 1993 6 AIR 2015 SC 545 7 AIR 2021 SC 4504 8 2007 (3) GLT 579 8
7. I have considered the submissions made by the learned Counsel for the parties and perused the material on record. The question that arises for consideration is, "Whether the relief sought in the Writ Petition is liable to be granted?"
8. The order dated 17.9.2008 holding the domestic enquiry to be fair and proper was challenged in WP.No.15437/2008. The said Writ Petition was disposed off vide order dated 18.12.2008. The relevant portion of the said order is extracted hereinbelow for ready reference:
"5. Therefore, the petition is disposed off reserving liberty to the petitioner to urge these contentions if ultimately the main award is passed against the petitioner. It is needless to mention that even while the Labour Court is considering the issue relating to the perversity or otherwise of the findings rendered by the Enquiry Officer, it would still be open for the learned counsel for the petitioner to point out this aspect of the matter also to the Labour Court."9
9. Consequent to the order dated 18.12.2008, the Labour Court, vide order dated 21.1.2010, allowed the claim petition filed by the Workman in part, setting aside the order of dismissal dated 5.7.2005 and directed the Management to reinstate the Workman with continuity of service but without back wages by withholding 4 annual increments with cumulative effect. The said Award dated 21.1.2010 was challenged by the Management in WP.No.16308/2010. This Court, vide order dated 1.4.2011, allowed the Writ Petition and remanded the matter to the Labour Court for fresh consideration, the relevant portion of which is extracted hereinbelow for ready reference:
"6. The Labour Court recorded a finding on 17.9.08, holding that, the domestic enquiry conducted by the Management is fair and proper. Both sides have adduced evidence with regard to the victimisation. Perusal of the impugned Award shows that, the Labour Court has failed to examine, whether the findings recorded by the enquiry Officer that, the charges levelled against the workman are proved is perverse or not? There was an obligation on the part of the Labour Court to have considered the issue "whether there is any perversity in the findings of the enquiry 10 Officer on which the Disciplinary Authority acted upon and imposed the punishment on the workman?". The Labour Court without recording any finding in that regard, only noticing the arguments advanced on both sides, taking aid of S.11-A of the Act, which empowers the Labour Court to interfere with the quantum of punishment, has passed the impugned Award. There is material deficiency on the part of the Labour Court in deciding the claim. It ought to have kept in view the Order dated 18.12.08 passed in W.P.15437/08 and examined the record of enquiry to find out, whether the findings recorded in the domestic enquiry against the workman are justified or not. Without undertaking such an exercise, invoking the power under S.11-A of the Act is not correct. Since there is a misdirection adopted by the Labour Court in deciding the claim, I have no other option than to quash the impugned Award.
In the result, the writ petition is allowed and the impugned Award is hereby quashed.
I.D. No.45/05 on the file of the I Addl. Labour Court, Bangalore, stands revived for consideration and decision, keeping in view the observations made supra and in accordance with law.
Needless to observe that the Labour Court has to decide the claim keeping in view the observations made in the Order dated 18.12.08 passed in W.P. 15437/08."11
10. Consequent to the order dated 1.4.2011, the Labour Court appreciated the entire factual aspect of the matter and vide Award dated 23.6.2011 rejected the claim petition filed by the Workman.
11. It is not in dispute that the Petitioner is a permanent Workman working with the Respondent- Management since 2002. The charge against the Workman is that on 18.11.2004 when he was on duty in the second shift commencing from 7.00 p.m. and he was directed to clock out at 4.00 a.m. on 19.11.2004. However, the Workman remained in the plant till 6.00 a.m. without doing any work; that on 19.11.2004, the Workman was required to attend duty in the second shift at 7.00 p.m. However instead of coming at 7.00 p.m., he reported for duty in the first shift itself at 7.40 a.m. without obtaining permission from the competent authority. When he was asked the reason for changing of shift without permission, the Workman used abusive language against the 12 production incharge. When he was further cautioned, he again used abusive language.
12. In this regard, the Workman was issued charge sheet cum show cause notice dated 24.11.2004 to which Workman submitted an explanation dated 30.11.2004 which was found not satisfactory. An enquiry was conducted and the Workman initially participated in the enquiry; however, subsequently, he did not participate and he did not cross examine the Management witnesses. The enquiry was conducted and number of adjournments granted. The Domestic Enquiry commenced on 17.12.2004 and concluded on 10.05.2005. The enquiry Officer gave a detailed report holding that the charges were proved. The enquiry report and finding furnished to the Workman with the second show cause notice. The Workman submitted an explanation dated 11.06.2005. The Management considered the explanation and found it not satisfactory. The Disciplinary Authority after going through the entire enquiry reports found that the reasonable 13 opportunities were given to the Workman and was satisfied with the fairness of the Domestic Enquiry and the reasonableness of the findings of the enquiry officer. In view of the seriousness of the proved misconduct and past history of the workman, the Respondent-Management dismissed the Workman from service on 05.07.2005.
13. The Workman filed a Petition under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short 'ID Act') challenging his dismissal dated 05.07.2005. The Respondent-Workman entered appearance and contested the case of the Workman. The Labour Court on the pleadings of the parties framed the following three issues:
1. Whether the domestic enquiry conducted by the second party against the first party workman is fair and proper?
2. Whether the second party management is justified in dismissing the first party workman from service?
3. To what relief, the first party workman is entitled to?14
14. Regarding issue No.1 i.e., fairness of the domestic enquiry, the Management has examined its witness as M.W.1 and got marked Exs.M1 to M18. The Workman has not adduced any evidence on domestic enquiry. After hearing both the parties, by order dated 17.09.2008, the Labour Court held Domestic Enquiry as fair and proper and answered issue No.1 in the Affirmative. Thereafter, the Workman has examined himself as W.W.1 and has given evidence on victimisation. However, no document was produced. The Respondent-Management led further evidence on past history by examining MW.2 and got marked Exs.M19 to M20. The Labour Court vide its Award dated 23.06.2011 dismissed the application filed by the Workman.
15. Vide its award, the Labour Court has elaborately noticed the factual aspect of the matter with regard to the manner of occurrence of the incident. The Labour Court has appreciated the evidence of MW.1 and MW.2 regarding the incident. It is also noticed the manner 15 in which the enquiry was conducted and has in detail noticed various dates of hearing in the said enquiry proceedings starting from the first date i.e. 17.12.2004 and the proceedings that took place on every date of hearing. It is noticed that on the first date of hearing, the Workman submitted that he wanted to engage the services of G.Somu who was his co-employee and the said Sri.G.Somu was also present and consented for the same. On the 3rd date of hearing i.e. on 16.02.2005, though the Management's representative was ready to go on with the evidence, the Workman submitted that he wanted to take the assistance of Sri V.Kumar and since on that date Sri.V.Kumar was not present, an adjournment was sought. Despite the objection of the representative of the Management, the matter was adjourned.
16. Thereafter, on 28.02.2005 although initially the Workman was not present, later he appeared and sought time and inspite of the objection of the representative of the Management stating that they were 16 ready to go on with the evidence, the enquiry officer adjourned the matter. On the next date i.e. 16.03.2005, the first witness of the Management was examined and at the request of the Workman, cross examination was deferred to 01.04.2005. On 01.04.2005, the second witness of the Management was examined and at the request of the Workman, the cross-examination of both the witnesses was deferred. On the next date of hearing i.e. on 10.05.2005, the Workman remained absent and the Management's representative brought to the notice of the enquiry officer that the Workman had faxed a letter requesting two months leave on the ground that his child was unwell and was undergoing treatment. The Labour Court upon noticing that no documents were produced to show the reason for adjournment to be genuine, held that the enquiry officer was justified in closing the enquiry. It was then noticed by the Labour Court that the evidence of MW.1 and MW.2 who are the eye witnesses to the incident have remained unchallenged and upheld the finding that the misconduct was proved.
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17. It is forthcoming from the material on record that the aspect of enquiry has been adequately appreciated by the Labour Court. There is sufficient material to demonstrate the misconduct alleged against the Petitioner-Workman. Although on 10.05.2005 the aspect regarding the illness of the daughter of the Workman was brought to the notice of the enquiry officer, having regard to the material on record, it cannot be said that the Workman was not given a fair or adequate opportunity to participate in the enquiry proceedings. Hence, there is no good ground to interfere with the finding of the Labour Court with regard to the finding that the misconduct alleged against the Petitioner-Workman is proved.
18. With regard to the punishment imposed, the Labour Court has noticed that the use of abusive language is a serious misconduct. With regard to the past history of the Workman, the Management has issued warning letter dated 28.11.2003 and memo dated 19.05.2005 issued for 18 being unauthorisedly absent which were marked as Exs.M19 to M-20. The Labour Court has noticed that past history of the Workman is not very serious. However, after noticing the present incident, held the same is a serious misconduct and imposed the extreme penalty of dismissal. In this regard, the following judgments of the Hon'ble Supreme Court were noticed viz., Hombe Gowda EDN and Another and State of Karnataka and Others9, Usha Breco Mazdoor Sangh and Management of Usha Breco Ltd., and Another10, Mahindra and Mahindra Ltd.,(supra) and Muriadih Colliery of Bharat Coking Coal Ltd., Vs. Bihar Colliery Kamgar Union11.
19. In the case of Phulbari Tea Estate (supra), the Hon'ble Supreme Court was dealing with a case where the Tribunal had set aside the dismissal of a Workman on the ground that the proper procedure was not followed in the enquiry. Challenging the order of the Tribunal, 9 2006 - I - LLJ page 1004 10 2008(3) LLN 84 19 pursuant to the application for Special Leave the Company had approached the Hon'ble Supreme Court which after noticing that the enquiry was not conducted by following the proper procedure, confirmed the award of the Tribunal and dismissed the appeal filed by the Company.
20. In the case of Radhey Kant Kharve (supra), a Division Bench of Allahabad High Court was dealing with a case where no witness was examined in the presence of the person against whom enquiry was conducted, nor opportunity was given to cross examine the said witnesses. Hence, it was held that there was total violation of principles of natural justice in the alleged enquiry against the appellant.
21. In the case of Ved Prakash Gupta (supra), the Hon'ble Supreme Court was considering a case where the Workman used abusive language and whether the same would lead to loss of confidence and whether the dismissal of the Workman was justified. The Hon'ble 11 (2005) 3 SCC 331 20 Supreme Court, in the said case held that the charge is not a serious one and would not amount to loss of confidence of the Management and the punishment of dismissal was shockingly disproportionate with regard to the charge framed.
22. In the case of Rama Kant Misra (supra), the Honb'le Supreme Court was considering the case of dismissal of an employee for use of indiscreet language against a co-worker. In the said case, the award of the Labour Court was set aside and the Hon'ble Supreme Court ordered for reinstatement of the Workman with all benefits including back wages but withholding two increments.
23. In the case of Union of India Vs. Gunashekaran (supra), the Hon'ble Supreme Court has held as follows:
22. xxxx The High Court can only see
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
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(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;22
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
24. The ratio as held in the case of P.Gunasekaran (supra) was also reiterated and followed by the Hon'ble Supreme Court in the case of Dalbir Singh (supra).
25. In the case of Mahindra and Mahindra Ltd., (supra), the Hon'ble Supreme Court considering a case where a Workman abused a superior officer set aside the order of the Division Bench, as well as the learned Single Judge of the High Court and of the Labour Court directing reinstatement and upheld the order of disciplinary authority dismissing the Workman from service. The 23 learned counsel for the Workman seeks to distinguish the case of Mahindra and Mahindra (supra) from the facts of the present case. It is to be noticed that in the said case, the Workman had been charge sheeted several times and on every instance the Management took a lenient view. One such incident was when the Workman assaulted a co-worker with a galvanized pipe. Hence, it is clear that the factual matrix in the said case is completely different from the factual scenario arising in the present Writ Petition.
26. In the case of Dharmraj Kumar Singh (supra), a Division Bench of Gauhati (Agartala Bench) High Court noticing the settled proposition of law upheld the order of the learned Single Judge which has upheld the order issued by the commandant of Central Reserve Police Force (CRPF) imposing penalty of dismissal of service and held that "discipline in the force is the sine qua non and if the member of such disciplinary force becomes indiscipline like the delinquent, petitioner/appellant then the 24 consequence will be nothing but nullification of the force which is recognized by virtue of its discipline". However, it is pertinent to note that the said case pertains to dismissal of a Constable who was employed with the Central Reserve Police Force (CRPF). Also the factual scenario in the said case arises out of an incident where a Constable while on duty had consumed alcohol and had abused his co-worker and misbehaved with the Platoon Commander. The said fact situation is wholly different from the facts of the present case.
27. Having regard to the well settled propositions of law as noticed with regard to the scope of jurisdiction of this Court under Article 226 of the Constitution, it is clear that there is no ground made out for this Court to interfere with the finding recorded by the Labour Court with regard to the proved misconduct. However, with regard to the punishment imposed, the Labour Court was empowered under Section 11-A of the Industrial Disputes Act, to interfere with the quantum of punishment. However, 25 despite the Labour Court recording a categorical finding that the earlier misconducts are not serious, after noticing the judgments as aforementioned has answered issue No.2 in the affirmative. The Labour Court has not in any manner noticed as to how the punishment imposed is proportionate to the proved misconduct. It is clear and forthcoming from the factual aspect noticed earlier that the present misconduct is a first instance of abusive conduct of the Workman. Under the circumstances, the punishment of dismissal of service is shockingly disproportionate to the misconduct. Hence, the same is required to be interfered with in the present Writ Petition.
28. Having regard to the aforementioned, admittedly, the earlier misconduct by the Workman where two incidents i.e. warning letter dated 28.11.2003 and the Memo dated 09.05.2005 regarding unauthorised absence (Ex.M20) are not serious misconducts. The present misconduct which is proved against the Workman is not serious enough to warrant imposition of punishment of 26 dismissal of service and the said punishment is shocking disproportionate to the misconduct. Hence, it is necessary that the Workman is directed to be reinstated into service without back wages and by withholding four annual increments with cumulative effect which would be an adequate punishment to the misconduct of the Workman.
29. In view of the aforementioned, I proceed to pass the following:
ORDER
(i) Writ Petition is partly allowed.
(ii) The award dated 23.06.2011 passed in I.D.No.45/2005 by the I Addl.
Labour Court, Bangalore is set aside.
(iii) The application in I.D.No.45/2005 filed by the petitioner on the file of the I Addl. Labour Court, Bangalore is allowed in part and the order of dismissal dated 05.07.2005 passed by Respondent-Management dismissing the petitioner from service is set aside..
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(iv) The Respondent-Management is directed to reinstate the Petitioner- Workman into service with continuity of service without back wages and by withholding four annual increments with cumulative effect.
(v) No costs.
Sd/-
JUDGE
Nd/BS