Bangalore District Court
Was Terminated Sometime In 198586 vs Management. The Relevant Paragraph on 3 January, 2023
THE PRESIDING OFFICER,
PRINCIPAL LABOUR COURT, AT BENGALURU
DATED : 06/01/2023
PRESIDING OFFICER : SRI.HATTIKAL PRABHU S.
M.A., LL.M.,
DISTRICT & SESSIONS JUDGE
REFERENCE NO. 051/2019
BETWEEN
Smt. Rathnavva Kadlikoppa,
aged about 27 years,
W/o. Late Rudrapa Kadlikoppa,
Resident of Kadlikoppa at Goravinakola Post,
Savadatti Taluk, Belagavi District.
FIRST PARTY
(By S.B. Mukkannappa and Associates, Advocates)
AND
The Divisional Controller,
B.M.T.C., North Zone,
K.H. Road, Shanthinagar,
Bengaluru.
SECOND PARTY
(By Sri C.T. Nagaraja, Advocate)
AWARD
The appropriate government viz., Karnataka State Government
acting u/s.10(1)(c)(d) of Industrial Disputes Act, 1947, vide orders
bearing No.LDIDM/352/2019LD.DO.5.L.S dated 02/11/2019
referred this industrial dispute to this court for adjudication after
framing the points for adjudication.
2) The points for adjudication framed by the
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Government are as under:
(1) ಆಡಳತವರರದವರರದ ವಭರಗಗಯ ನಯಯತತಣರಧಕರರ,
ಉತತರ ವಭರರ, ಯಶವಯತಪಪರ, ಬಬಯರಳಳರರ560022
ಇವರರ ತಮಮ ಕರರರಕ ಶತಗ ರರದತಪಪ ಕಡಡಕಬಳಪಪ, ಚರಲಕ, ಬಲಬಡ
ಸಯ: 12435, 08 ನಬಗ ಘಟಕ, ಬಬಯರಳಳರರ ಇವರನರನ ಆದಬಗಶ
ಸಯ: ಬಬಯಮಸರಸಯ/ಉವ/ಶಶರ/ಗಬಗಹರ/ಕರ08/426/1345/
201516, ದನರಯಕ: 29.06.2015 ರನನಯ ಸಬಗವಬಯಯದ ಶಕಬಕ
ವಧಸರರವಪದನರನ ಪತಶನಸ ಅರರದರರರ ವರರಸರದರರರರದ
ಶತಗಮತ ರತನವನ ಕಬಳಗಯ, ರರದತಪಪ ಕಡಡಕಬಳಪಪ, ವರಸ: ಕಡಡಕಬಳಪಪ,
ಸವದತತ ತರಲಳಡಕರ, ಬಬಳಗರವ ರಲಡ ಇವರರ ಸರಮರರರ 04
ವರರರಳ ನಯತರ ಕಬಗಗರರಕರ ವವರದ ಎತತರರವಪದರ
ನರನಯಸಮಮತವಬಗ?
(2) ನರನಯಸಮಮತವರದಲಡ, ಆಡಳತವರರದವರರದ ವಭರಗಗಯ
ನಯಯತತಣರಧಕರರ, ಉತತರ ವಭರರ, ಯಶವಯತಪಪರ,
ಬಬಯರಳಳರರ560022 ಇವರರ ತಮಮ ಕರರರಕ ಶತಗ ರರದತಪಪ
ಕಡಡಕಬಳಪಪ, ಚರಲಕ, ಬಲಬಡ ಸಯ:12435, 08 ನಬಗ ಘಟಕ,
ಬಬಯರಳಳರರ ಇವರನರನ ಆದಬಗಶ ಸಯ: ಬಬಯಮಸರಸಯ/ಉವ/
ಶಶರ/ರತಹರ/ಕರ08/426/1345/201516, ದನರಯಕ:
29.06.2015 ರನನಯ ಸಬಗವಬಯಯದ ವಜರಗಬಳಳಸರರವಪದರ
ನರನಯಸಮಮತವಬಗ?
(3) ಹರರಲಡದದದಲಡ, ಸದರ ಮಮತ ಕರರರಕನ ವರರಸರದರರರರ
ಯರವ ಪರಹರರಕಬಕ ಅರರರರ?
3) After receipt of the reference the same is registered and
in pursuance of the notice, both the parties appeared. The first party
filed claim statement and second party filed counter statement.
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4) In brief, the facts of the case:
The deceased workman Mr Rudrappa Kadlikoppa,
husband of the first party joined the second party Corporation
as a driver w.e.f., 09/04/2006. On 07/12/2013 articles of
charge was issued to the workman under Rule 22 of the
K.S.R.T.C.S.(C & D) Regulations, 1971, with allegation that the
workman was remained absent to the duty w.e.f. 07/09/2013
till the date of charge sheet. The workman did not submit
reply. The Disciplinary Authority initiated domestic enquiry
against the workman and converted the enquiry under Rule 23
of the K.S.R.T.C.S.(C & D) Regulations, 1971. In the domestic
enquiry the Enquiry Officer conducted detailed enquiry and
submitted his findings dated 07/04/2015 holding the guilt of
the workman. Considering the enquiry findings and past
history as per orders dated 29/06/2015 the Disciplinary
Authority pleased to dismiss the first party from the services.
During enquiry the workman was submitted representation
along with medical documents and considering the request the
second party Corporation was permitted the workman to join
duty w.e.f., 17/02/2014. After dismissal the workman died on
26/07/2015. Thereafter wife of the workman i.e., first party
approached the Conciliation Officer cum Labour Officer. The
conciliation is failed. Hence the Government referred the
present dispute for adjudication.
5) In the claim statement the first party (wife of
workman) contended as under:
A false articles of charge was issued against the
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workman. The workman was submitted leave application to
the depot manager, but the same was not considered. The
enquiry conducted against the workman was not fair and
proper. After death of the workman the first party approached
the second party Corporation for monetary benefits and
thereafter she came to know about the dismissal orders.
Thereafter she approached the Conciliation cum Labour Officer
and the conciliation is failed. The second party Corporation
discriminated against the workman and dismissal orders
against the workman is not justifiable. After dismissal the
workman was became unemployed. With these grounds the
first party prayed for setting aside the dismissal orders and
consequential monetary benefits.
6) In the counter statement second party Corporation
contended as under:
The deceased workman was remained unauthorised
absent to the duty from 07/09/2013 to 17/02/2014 without
submitting any leave application and without getting any
sanction of leave. The enquiry was conducted and it was held
in fair and proper manner. Considering the enquiry report and
past history of the workman the second party Corporation
pleased to dismiss the first party from the series as per orders
dated 29/06/2015 There is no discrimination against the
workman as alleged. The dismissal order is justifiable one.
There is delay in raising dispute and the same is not
maintainable. The first party is not entitle for any relief. With
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these grounds the second party Corporation prayed for
rejection of claim statement.
7) Based on the controversy between the parties in addition
to the points for adjudication framed by the government, on
19/10/2020 the following additional issue is framed:
ADDITIONAL ISSUE
Whether the second party corporation
proves that the domestic enquiry conducted
against late Rudrappa Kadlikoppa, deceased
husband of the first party is fair and proper?
This issue is treated as preliminary issue.
8) The evidence of MW1 is adduced and documents ExM1
to ExM26 are got marked on behalf of second party on preliminary
issue. The first party did not choose to adduce evidence on
preliminary issue. After hearing arguments from both sides, as per
orders dated 06/05/2022 this court answered the preliminary issue
in the affirmative and held that the domestic enquiry conducted
against the workman is fair and proper. Thereafter the matter is
posted for evidence of first party on victimization.
9) The first party himself entered the witness box and
examined herself as WW1 and got marked ExW1 to ExW13 and
closed her side. On behalf of second party evidence of MW2
adduced and documents ExM22 to ExM26 are got marked and
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closed the side.
10) After hearing arguments from both sides and after
appreciating the evidence, my finding on the above said points for
adjudication are as under:
Point No.1 In the Affirmative
Point No.2 In the Negative
Point No.3 As per final order
for the following
REASONS
11) Point No.1 for adjudication: This point No.1 is framed
as to delay of four years in raising the industrial dispute. It is specific
pleading of the first party in the claim statement that her husband
workman died on 26/07/2015 and thereafter she approached the
second party Corporation for monetary benefits and thereafter she
came to know about the dismissal orders. Further it is pleaded that
the conciliation is failed and thereafter the dispute is referred.
Accordingly the first party is examined as WW1 and explained in the
chief examination affidavit. This material aspect is not disputed
during cross examination of WW1. In the chief examination affidavit
the WW1 explained that after dismissal the workman committed
suicide along with his two children. This fact is also not disputed
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during course of trial.
12) During the course of arguments the learned counsel for
the first party relied on the following decisions:
(1) 2003 (4) SCC 27 [S.M.Nilajkar and other vs
Telecom District Manager, Karnataka] wherein
it is held:
"17. It was submitted on behalf of the respondent
that on account of delay in raising the dispute by
the appellants the High Court was justified in
denying relief to the appellants. We cannot agree.
It is true, as held in Shalimar Works Ltd. v.
Workmen1 that merely because the Industrial
Disputes Act does not provide for a limitation for
raising the dispute, it does not mean that the
dispute can be raised at any time and without
regard to the delay and reasons therefor. There is
no limitation prescribed for reference of disputes
to an Industrial Tribunal; even so it is only
reasonable that the disputes should be referred as
soon as possible after they have arisen and after
conciliation proceedings have failed, particularly
so when disputes relate to discharge of workmen
wholesale. A delay of 4 years in raising the dispute
after even re employment of most of the old
workmen was held to be fatal in Shalimar Works
Ltd. v. Workmen. In Nedungadi Bank Ltd. v. K.P.
Madhavankutty a delay of 7 years was held to be
fatal and dis entitled the workmen to any relief. In
Ratan Chandra Sammanta v. Union of India it was
held that a casual labourer retrenched by the
employer deprives himself of remedy available in
law by delay itself; lapse of time results in losing
the remedy and the right as well. The delay would
certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and
rendered not available. However, we do not think
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that the delay in the case at hand has been so
culpable as to dis entitle the appellants to any
relief. Although the High Court has opined that
there was a delay of 7 to 9 years in raising the
dispute before the Tribunal but we find the High
Court factually not correct. The employment of the
appellants was terminated sometime in 198586
or 198687. Pursuant to the judgment in Daily
Rated Casual Labour v. Union of India the
Department was formulating a scheme to
accommodate casual labourers and the appellants
were justified in awaiting the outcome thereof. On
1611990 they were refused to be accommodated
in the Scheme. On 28121990 they initiated the
proceedings under the Industrial Disputes Act
followed by conciliation proceedings and then the
dispute was referred to the Industrial Tribunal
cumLabour Court. We do not think that the
appellants deserve to be nonsuited on the ground
of delay.
(2) 2015 (4) SCC 458 [Jasmer Singh vs State of
Haryana and Another] wherein it is held:
"14. On Issue 3, after adverting to the case of
State of Punjab v. Kali Dass4, wherein the High
Court has observed that the workman cannot be
allowed to approach the Labour Court after 3
years of termination of his services, upon which
reliance placed by the respondent emplover with
reference to the said plea, the Labour Court has
rightly placed reliance upon the judgment of this
Court in Ajaib Singh v. Sirhind Coop. Mktg.cum
Processing Service Society Ltd. in which it is
observed by this Court that there is no period of
limitation to the proceedings in the Act.
15. Accordingly, Issue 3 is answered against the
respondent management. The relevant paragraph
from Ajaib Singh case is extracted hereinbelow:
(SCC p. 90, para 10)
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"10. It follows, therefore, that the provisions
of Article 137 of the Schedule to the
Limitation Act, 1963 are not applicable to
the proceedings under the Act and that the
relief under it cannot be denied to the
workman merely on the ground of delay.
The plea of delay if raised by the employer
is required to be proved as a matter of fact
by showing the real prejudice and not as a
merely hypothetical defence. No reference
to the Labour Court can be generally
questioned on the ground of delay alone.
Even in a case where the delay is shown to
be existing, the Tribunal, Labour Court or
Board, dealing with the case can
appropriately mould the relief by declining
to grant back wages to the workman till the
date he raised the demand regarding his
illegal retrenchment/termination or
dismissal. The court may also in appropriate
cases direct the payment of part of the back
wages instead of full back wages."
(3) 2014 (10) SCC 301 [Raghubir Singh vs
Harayana Roadways, Hissar] wherein it is held:
"16. Further, the workman cannot be denied to
seek relief only on the ground of delay in raising
the dispute as held in S.M. Nilajkar v. Telecom
District Manager, it was held by this Court as
follows:
"17. It was submitted on behalf of the
respondent that on account of delay in
raising the dispute by the appellants the
High Court was justified In Ratan in
denying relief to the appellants. We cannot
agree. Chandra Sammanta v. Union of
India9 it was held that á casual labourer
retrenched by the employer 'deprives
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himself of remedy available in law by delay
itself; lapse of time results in losing the
remedy and the right as well. The delay
would certainly be fatal if it has resulted in
material evidence relevant to adjudication
being lost and rendered not available.
However, we do not think that the delay in
the case at hand has been so culpable as to
disentitle the appellants to any relief."
(emphasis supplied)
17. In view of the legal principles laid down by
this Court in S.M. Nilajkars, the reference of the
industrial dispute made in the case on hand by the
State Government to the Labour Court to
adjudicate the existing industrial dispute between
the parties, was made within a reasonable time,
considering the circumstances in which the
workman was placed, firstly, as there was a
criminal case pending against him and secondly,
the respondent had assured the workman that he
would be reinstated after his acquittal from the
criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the
delay in raising and referring the matter, since
there is no mention of any loss or unavailability of
material evidence due to the delay. Thus, we do
not consider the delay in raising the industrial
dispute and referring the same to the Labour
Court for adjudication as gravely erroneous and it
does not debar the workman from claiming
rightful relief from his employer.
19. Hence, we are of the opinion, having regard to
the facts and circumstances of the case that there
is no delay or laches on the part of the workman
from the date of his acquittal in the criminal case.
Thereafter, upon failure of the respondent in
adhering to the assurance given to the workman
that he would be reinstated after his acquittal
from the criminal case, the workman approached
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the conciliation officer and the State Government
to make a reference to the Labour Court for
adjudication of the dispute with regard to the
order of dismissal passed by the respondent.
Keeping in mind the date of acquittal of the
appellant and the date on which he approached
the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance,
the State Government had rightly referred the
dispute for its adjudication. Therefore it cannot be
said that there was a delay on the part of the
appellant in raising the dispute and getting it
referred to the Labour Court by the State
Government."
(4) 2021(4) KLJ 665 [Bata India Ltd. vs State of
Karnataka and another] wherein it is held:
"11. On the bedrock of the principles laid down by
the Apex Court in the case of Prabhakar (supra),
the facts of the case at hand will have to be
considered for which the narration of dates and
events are required to made. The proceeded
against workman was departmentally by issuance
of two charge sheets which resulted in the Enquiry
Officer holding the workman guilty and the matter
was placed before the Disciplinary Authority for
appropriate orders. During the pendency of those
proceedings the workman filed an application the
Assistant Labour on 24042001 before
Commissioner who is the competent authority for
management declaration of his status as a
protected workman under Section 33(4) of the
Industrial Disputes Act. During the pendency of
those proceedings, the dismissed the workman on
16.07.2001. If the competent authority had
declared the workman to be a protected workman
the order of dismissal could not have been passed
without permission of the competent authority
under Section 33(3) of the Act. It is, therefore,
that these proceedings become relevant."
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Perused the said decisions
13) Further I would like to rely on the decision reported in
(2015) 15 SCC 1 (Prabhakar v. Sericulture Department) wherein
the Hon'ble Supreme Court observed at para 43 and 45 as under :
"43. We may hasten to clarify that in those cases
where the court finds that dispute still existed, though
raised belatedly, it is always permissible for the court to
take the aspect of delay into consideration and mould
the relief. In such cases, it is still open for the court to
either grant reinstatement without backwages or lesser
backwages or grant compensation instead of
reinstatement. We are of the opinion that the law on
this issue has to be applied in the aforesaid perspective
in such matters."
"45. On the application of the aforesaid principle
to the facts of the present case, we are of the view that
the High Court correctly decided the issue holding that
the reference at such a belated stage i.e. after fourteen
years of termination without any justifiable explanation
for delay, the appropriate Government had no
jurisdiction or power to make reference of a nonexisting
dispute."
"Therefore, in the light of the law laid down by
the Apex Court in the aforesaid cases, which are relied
on by both the learned Counsel for the parties, what
would unmistakably emerge is that the workman or the
Union espousing the cause of the workman should be
diligent or indolent. The workman should not have slept
over his rights for a long period and should have a
plausible explanation for the delay in raising the dispute.
A dispute in a given case should exist and should not
have become stale."
Perused the said citation.
14) In the present case on hand the second party dismissed
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the first party from the service as per orders dated 29/06/2015. The
dismissal orders is not served on the workman. The first party come
up with the explanation that he was not aware of dismissal orders till
she approached the second party for monetary benefits. This
contention is not disputed by the second party during trial. It is
pertinent to note here that there is no extraordinary delay in raising
the industrial dispute. The second party Corporation is able to
produce all the evidence before the court and to establish its case.
The circumstances speaks that after dismissal the workman went in
depression and he committed suicide. Considering all the
circumstances this court come to the clear conclusion that there are
reasonable and acceptable reasons for delay in raising the industrial
dispute. Hence this court come to the conclusion that the first party
made out good grounds to justify the delay of four years in raising
the industrial dispute. Accordingly, I answer point No.1 for
adjudication in the Affirmative.
15) Point No. 2 for adjudication: As per orders dated
06/05/2022 Addl. Issue No.1 is answered in the Affirmative and it is
held that the domestic enquiry conducted against the first party is fair
and proper. Hence it is the burden on the first party to prove the
alleged discrimination and to prove that dismissal orders is not
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justifiable. The first party herself entered the witness box and
examined as WW1. This WW1 in the chief examination reiterated
the claim statement averments. In support of oral evidence the first
party produced in all 13 documents and the same are marked as
ExW1 to ExW13. ExW1 is the death certificate of the deceased
workman. ExW2 and ExW3 are the death certificates of the two
children of the deceased workman. ExW4 is the copy of the petition
submitted by the first party to the conciliation officer. ExW5 is the
factual report dated 16/09/2019, ExW6 to ExW13 are the copies of
minor punishment orders relating to other workmen. These ExW6 to
ExW13 documents are produced to show that the second party
Corporation discriminated against the first party.
16) On behalf of the second party one Mr. Narasimhaiah
D.H. is examined as MW2 and this witness in the chief examination
affidavit explained that the first party was involved in four long
unauthorised absenteeism cases and minor punishments were
imposed in the said four past cases. Further he explained that the
absenteeism of the first party for the period of 164 days caused loss
to the second party Corporation. This witness identified the second
show cause notice and the same is marked as ExM22. The unserved
postal envelope is identified by the witness and the same is marked as
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ExM23. The second show cause notice and enquiry findings which
were found in ExM23 envelope are marked as ExM24 and ExM25.
The dismissal orders dated 29/06/2015 is marked as ExM26. It is
pertinent to note here that WW1 herself admitted in her cross
examination that her husband did not receive the notices and he sent
back the same. In the cross examination of MW2 he admitted that
no documents produced to show the revenue loss to the second party
Corporation. Further it is suggested that first party did not remain
absent to the duty from 07/09/2013 to 17/02/2014. This suggestion
is denied as false by the witness. Further it is suggested that the first
party was submitted leave application and the same is denied as false
by the witness. In the lengthy cross examination of MW2 nothing is
elicited to establish that this witness is deposing false evidence as to
absenteeism of the first party. During course of arguments the
learned counsel for the first party argued that under unavoidable
circumstances the first party could not attend duty and leave
application submitted by the first party was not considered. Further
he argued that the second party Corporation did not dismiss other
employees even though they committed similar misconduct and
discriminated against the first party. Further he argued that the
dismissal orders passed by the second party is not justifiable one.
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According to the learned counsel for the first party it is a fit case to
invoke jurisdiction u/s. 11A of the Industrial Disputes Act, 1947 and
to grant appropriate relief.
17) The learned counsel for the first party in support of his
arguments relied on the following decisions:
(1) 2012 (3) SCC 178 [Krushnakant.B.Parmar vs
Union of India and another] wherein it is held:
"16. In the case of the appellant referring to
unauthorised absence the disciplinary authority
alleged that he failed to maintain devotion to duty
and his behaviour was unbecoming of a
government servant. The question whether
"unauthorised absence from duty" amounts to
failure of devotion to duty or behaviour
unbecoming of a government servant cannot be
decided without deciding the question whether
absence is wilful or because of compelling
circumstances.
17. If the absence is the result of compelling
circumstances under which it was not possible to
report or perform duty, such absence cannot be
held to be wilful. Absence from duty without any
application or prior permission may amount to
unauthorised absence, but it does not always
mean wilful. There may be different eventualities
due to which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalisation, etc.,
but in such case the employee cannot be held
guilty of failure of devotion to duty or behaviour
unbecoming of a government servant.
18. In a departmental proceeding, if allegation of
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unauthorised absence from duty is made, the
disciplinary authority is required to prove that the
absence is wilful, in the absence of such finding,
the absence will not amount to misconduct."
(2) 2009 (15) SCC 620 [Coal India Ltd And Another
Vs Mukul Kumar Choudhuri and others] In this
decision at para 21 the Hon'ble Supreme Court
observed as under:
"21. In a case like the present one where the
misconduct of the delinquent was unauthorised
absence from duty for six months but upon being
charged of such misconduct, he fairly admitted his
guilt and explained the reasons for his absence by
stating that he did not have any intention nor
desired to disobey the order of higher authority or
violate any of the Company's rules and regulations
but the reason was purely personal and beyond his
control and, as a matter of fact, he sent his
resignation which was not accepted, the order of
removal cannot be held to be justified, since in our
judgment, no reasonable employer would have
imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly
harsh but grossly in excess to the allegations."
(3) Decision of Hon'ble High Court of Karnataka in
W.P.No. 24012/2014 [Smt.P.Latha vs Bharath
Heavy Electricals Ltd.]wherein it is held:
"7. The unauthorized absence of the workman is
not in dispute. In the written statement at
Annexure 'B' filed by the workman before the
disciplinary authority, she has stated that her
absence was not intentional. She has given
detailed reasoning for her absence. It is on
account of domestic problems and health reasons,
the workman has remained unauthorisedly absent
from duties. The disciplinary authority has not
considered the reasons assigned by the workman
for her absence.
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9. It is clear from the aforesaid decision that in a
departmental proceeding, if allegation of
unauthorized absence from duty is made, the
disciplinary authority is required to hold that the
absence is wilful. In the absence of such finding
the absence will not amount to misconduct.
10. In the instant case, except for the period from
1.4.2006 to 4.8.2006, the management has failed
to establish that the unauthorized absence of the
workman from duties was wilful. The burden was
on the management to establish that the absence
was wilful. In the circumstances, the Labour Court
has rightly come to a conclusion that the dismissal
of the workman from service was unjustified. I do
not find any error in the said finding."
(4) Decision of Hon'ble High Court of Karnataka in
W.P No. 29503/2018 (LKSRTC [Sri. R.H.
Mokashi vs The division controller KSRTC]
wherein at para No.7, 9 and 10 it is held as
under:
5. After hearing the learned counsel for the parties
and upon perusal of the material on record, the
only question that arise for consideration in the
present petition is with regard to the quantum of
punishment in the order of dismissal dated
05.09.2014, which was affirmed by the Labour
Court in the impugned judgment and award. In
this context, it is relevant to state that immediately
after reporting to duty on 31.08.2012, petitioner /
workman has submitted a letter / explanation as
to why he remained absent between 01.06.2012 to
31.08.2012 and has stated that he was suffering
from typhoid problems and undergoing treatment,
which resulted in him remaining absent during the
aforesaid period. Though the petitioner has not
produced any material on record to establish the
said contention, taking a lenient view in the
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matter and by imposing certain restrictions and by
issuing certain directions to the petitioner not to
repeat the repeat the same misconduct
subsequently and by awarding a lesser penalty
than the penalty of dismissal by this Court, which
is permissible under Section 11A of the Industrial
Disputes Act, 1947, as held in the case of
MANAGEMENT OF BHARAT HEAVY
ELECTRICALS LIMITED Vs. M. MANI reported in
(2018) 1 SCC 285 and SENAPATH WHITELEY
LTD. Vs. KARADI GOWDA AND ANOTHER
reported in (1999) 9 SCC 259, I am of the
considered opinion that the order of dismissal as
well as the impugned judgment and award passed
by the Labour Court deserves to be modified and
the petitioner be directed to be appointed into
service with the respondent as a fresher on regular
basis without any back wages or any other
benefits."
(5) 1984(3) SCC 5 [Jithendra Singh Rathor Vs Sri
Baidyanath Ayurved Bhawan and another]
wherein it is held:
"4. Under Section 11A of the Act, advisedly wide
discretion has been vested in the Tribunal in the
matter of awarding relief according to the
circumstances of the case. The High Court under
Article 227 of the Constitution does not enjoy such
power though as a superior court, it is vested with
the right of superintendence. The High Court is
indisputably entitled to scrutinise the orders of the
sub ordinate tribunals within the wellaccepted
limitations and, therefore, it could in an
appropriate case quash the award of the Tribunal
and thereupon remit the matter to it for fresh
disposal in accordance with law and directions, if
any. The High Court is not entitled to exercise the
powers of the Tribunal and substitute an award in
place of the one made by the Tribunal as in the
case of an appeal where it lies to it. In this case,
20
Ref No. 051/2019
the Tribunal had directed reinstatement, the High
Court vacated the direction of reinstatement and
computed compensation of Rs 15,000 in lieu of
restoration of service. We are not impressed by the
reasoning of the High Court that reinstatement
was not justified when the Tribunal in exercise of
its wide discretion given under the law found that
such relief would meet the ends of justice. The
Tribunal had not recorded a finding that there was
loss of confidence of the employer. The job of a
librarian does not involve the necessity of
enjoyment of any special confidence of the
employer. At any rate, the High Court too did not
record a finding to that effect. Again, there is no
indication in the judgment of the High Court as to
how many years of service the appellant had put
in and how many years of service were still left
under the Standing Orders. The salary and other
service benefits which the appellant was receiving
also did not enter into the consideration of the
High Court while computing the compensation.
We are, therefore, of the view that the High Court
had no justification to interfere with the direction
regarding reinstatement to service and in
proceeding to substitute the direction by
quantifying compensation of Rs 15,000 it acted
without any legitimate basis.
5. Mr Prasad for the first respondent invited our
attention to the fact that the High Court was
cognizant of the necessity of a remand but taking
into consideration the delay involved and the fact
that a remand was unnecessary in view of the
nature of the order it was going to make took
upon itself to give a final decision. We reiterate
that ordinarily it is not for the High Court in
exercise of the jurisdiction of superintendence to
substitute one finding for another and similarly
one punishment for another. We may not be
understood to have denied that power to the High
Court in every type of cases. It is sufficient for our
21
Ref No. 051/2019
present purpose to hold that on the facts made
out, the approach of the High Court was totally
uncalled for and the manner in which the
compensation was assessed by vacating the order
of reinstatement is erroneous both on facts and in
law."
Perused the said decisions.
18) During the course of arguments the learned counsel for
the second party argued that the materials placed on record is
sufficient to prove the alleged misconduct of absenteeism for 164
days and this misconduct caused revenue loss to the second party
Corporation and the dismissal orders is justifiable one. Further he
argued that the minor punishment orders produced by the first party
at ExW6 to ExW13 are not comparable with the case of the first
party.
19) In the back ground of rival submissions, I carefully
examined both oral ad documentary evidence placed on record.
Keeping the law laid down in the above stated decisions in my mind,
I have appreciated the facts and circumstances of the case on hand.
In this case, as I have above stated the domestic enquiry is held fair
and proper. Admittedly the deceased workman died after the
dismissal. There are reasons to believe that under unavoidable
circumstances the first party could not attend to his duty and he was
22
Ref No. 051/2019
remained absent to the duty. Under the circumstances, the law laid
down in the Krushnakant B. Parmar's case supra is amply applicable
to the present case on hand. Apart from that on careful perusal of
ExW6 to ExW13 copies of minor punishment orders this court come
to the conclusion that the second party imposed minor punishments
against the other employees who committed similar misconducts.
But in the case of first party the second party dismissed the first party
from the service. After going through the entire materials this Court
come to the opinion that the punishment imposed against the first
party for the misconduct of absenteeism is not proportionate
punishment against the misconduct of absenteeism. Under these
circumstances, I feel it relevant to reproduce Section 11A of the I.D.
Act which reads as under:
11A. Powers of Labour Courts, Tribunals and
National Tribunals to give appropriate relief in in
case of discharge or dismissal of workmen.--Where
an industrial dispute relating to the discharge or
dismissal of a workman has been referred to a Labour
Court, Tribunal or National Tribunal for adjudication
and, in the course of the adjudication proceedings, the
Labour Court, Tribunal or National Tribunal, as the case
may be, is satisfied that the order of discharge or
dismissal was not justified, it may, by its award, set aside
the order of discharge or dismissal and direct
reinstatement of the workman on such terms and
conditions, if any, as it thinks fit, or give such other relief
to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the
circumstances of the case may require:
Provided that in any proceeding under this section
23
Ref No. 051/2019
the Labour Court, Tribunal or National Tribunal, as the
case may be, shall rely only on the materials on record
and shall not take any fresh evidence in relation to the
matter.
20) As I have above stated in detail, though the second party
is able to prove the absenteeism there are reasons to believe that
under unavoidable circumstances the first party remained absent. The
deceased workman died after dismissal orders. Considering all the
facts and circumstances of the case, this court come to the conclusion
that it is a fit case to invoke the jurisdiction of Section 11A off the I.D.
Act and grant appropriate relief. With these observations I answer
the Point No.2 for adjudication in the Negative.
21) Point No.3 for adjudication: In view of my finding on
point No.2 for adjudication, it is clear that the first party made out
good and sufficient grounds to set aside the dismissal orders dated
29/06/2015 passed against the workman. Admittedly the workman
is died on 26/07/2015 after dismissal. Hence the question of
reinstatement does not arise. Under the circumstances this court
come to the conclusion that it is proper to set aside dismissal orders
with a direction to the second party to extend monetary benefits to
the first party, as if the workman died while he was in service.
Further, Under the circumstances this court not satisfied to award
back wages. With these observations as an answer to the point No.3
24
Ref No. 051/2019
for adjudication, I proceed to pass the following:
ORDER
The claim statement filed by the first party is hereby allowed in part.
The dismissal orders bearing No. ಬಬಯಮಸರಸಯ/ಉವ/ಶಶರ/ಗಬಗಹರ/ಕರ08/426/1345/201516, dated 29/06/2015 passed against the deceased workman Sri Rudrappa KadliKoppa, is hereby set aside.
Since the workman Sri Rudrappa KadliKoppa, died on 26/07/2015 the prayer for reinstatement does not survive and accordingly rejected.
The second party is directed to extend monetary benefits to the first party as if the deceased workman Sri Rudrappa KadliKoppa, was in service as on the date of death.
The prayer for back wages is rejected.
No orders as to costs.
Send copy of this Award to the Government for publication.
The Government shall publish the award in such manner as it thinks fit within a period of 30 days from the date of receipt of the same.
The award shall become enforceable on the expiry of 30 days from the date of its publication Under Section 17 of the Industrial Disputes, Act 1947.
25Ref No. 051/2019 The Government shall intimate the publication of award to all the parties to the case by registered post acknowledgement due, without fail.
(Dictated to the Judgment Writer, computerized by him, corrected and then signed by me on this the 6 th day of January, 2023).
(HATTIKAL PRABHU S.) PRESIDING OFFICER, PRINCIPAL LABOUR COURT, BENGALURU ANNEXURE WITNESS EXAMINED FOR I PARTY ON D.E.: NIL DOCUMENTS MARKED FOR I PARTY ON D.E.: NIL WITNESS EXAMINED FOR II PARTY ON D.E.:
MW.1 Sri Basavaraj Y. Thalageri DOCUMENTS MARKED FOR II PARTY ON D.E.:
ExM1 ExM1 Unauthorised absence report dated 12/10/2013 ExM2 History sheet of unauthorised absence ExM3 call notice dated 16/09/2013 ExM4 unauthorised absence report dated 16/09/2013 ExM5 past history sheet dated 09/04/2015 ExM6 call notice dated 07/12/2013 ExM7 article of charge dated 07/12/2013 ExM8 reply to article of charge ExM9 Medical certificate issued by Naragunda Taluk Hospital stating that first party is fit for duty from 21/11/2013. ExM10 Medical certificate issued by Madlur PHC, Belagavi Dist. Dt 08/12/2013 ExM11 Medical certificate issued by Taluk Health Officer, Naragund, Gadag Dist stating that first party is fit for duty from 19/01/2014 ExM12 Medical certificate by PHC Nargund dated 13/02/2014 26 Ref No. 051/2019 ExM13 Permission to report for duty ExM14 Postal acknowledgement ExM15 Order of appointment of Enquiry Officer ExM16 Preliminary enquiry proceedings ExM17 Evidence of Depot Manager before Enquiry Officer ExM18 Cross examination of Depot manager before Enquiry Officer ExM19 Defence statement ExM20 Written arguments by the first party ExM21 Enquiry findings dated 07/04/2015 WITNESS EXAMINED FOR I PARTY ON MAIN:
WW1 Smt. Rathnavva R. Kadlikoppa DOCUMENTS MARKED FOR I PARTY ON MAIN:
ExW1 Death certificate of deceased Mr. Rudrappa Kadlikoppa ExW2 Death certificate of deceased Mr. Purushotham ExW3 Death certifiate of deceased Mr. Pradeep ExW4 Copy of the petition submitted to conciliation officer and Labour Officer dated 25/03/2019 ExW5 Facutal report dated 16/09/2019 ExW6 to 13 Certified copies of minor punishment orders WITNESSES EXAMINED FOR II PARTY ON MAIN:
MW2 Narasimhaiah D.H. DOCUMENTS MARKED FOR II PARTY ON MAIN:
ExM22 Second show cause notice dated 15/04/2015 ExM23 Postal envelope (unserved) ExM24 Show cause notice dated 15/04/2015 ExM25 Enquiry findings dated 07/04/2015 ExM26 Dismissal order dated 29/06/2015 PRESIDING OFFICER, PRINCIPAL LABOUR COURT, BENGALURU 27 Ref No. 051/2019 Award Passed.
Send copy of the award for publication to the Government.
PRESIDING OFFICER, PRINCIPAL LABOUR COURT, BENGALURU