Karnataka High Court
The Management Of Narendra And Co Pvt Ltd vs Workmen Of Narendra & Co on 14 March, 2008
Author: Subhash B.Adi
Bench: Subhash B.Adi
-3-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 143'" DAY OF' MARCH 2008
BEFORE
THE H<)N'BLE'. MRJUSTICE SUBHASH B.AL">:. _f '
WRIT PETITION NO.41489I2O()h'2(1>¢-'41?§l3'r_'4'i--TT9 " ' 1' V
BETWEEN:
The Management of *
Narendra 8:. Company Private Limited "
No.27'3, Mysore Road,
BANGALORE-S60 026.
Represented by its President t
Mr.I{.K.Kabra. . jy - _ ,V."'}?'i<:TrT1oNER
Smtsubha Adv. b -
Sri. K. Mohan Kumaxj, Adfr.
Smt. Sribhoomi 'fesa§fiji11i," - . 9
(By M/s. Kasturi Ass;£§;iai§:;s, A:i§rs.€ _ ;
AND:
Rcpmsentexiiby the _____
Bangaiore nkaxaf sa,-ngha
By ii:'a_V G~¢:m:rai
No. 1, Corgzoratiéizi Emilxiwiixg
Workman ofsfwiaxendfzaw-85
Rqyan Roaéj,
u_I'$ANGALOR_E-563 Q53. .. RESPONDENT
' Ganafimafhy Hegdc. Adv. for C] R 'Ifl«.V1'i2:1*e2}_ran Swamy, Adm, Smt. Manjula M. Kulkarni, Advs.) AT *3'-hiwis Writ Petition is filed under Article 226 of the jcqnstimtion of inciia praying to quash the order of the Labour Dt.02.08.2002 vide Ammx-E, etc.,.
This Petition coming on for Hearing this day, the Court made the foliowingz .2.
QQQER The Union sought for refezence of a diepute in reiatio.n'.toe._V retrenchment of 1 1 workmen.
2. The case of the Union is that.
retrenched by the Management on 12.9.1;'£?92.§_'_' T Theee 7]' though made efibrt; to report, weze % attending the work w.e.f. 15.9.1992. .. had made a representation to the "19f9.1992. they sent a notice under Ieggistexedvpoette. 'Management by reply dated 23.9; were on strike and if they good behaviour, the reply, it is alleged that the workmen of work iJ1~charge by name R.K.Kabra. _ . _On Union repkied to the saute iniefaliq, the a11eged"ii1cident of assault or involvement of these' was a reply by the Management on Etltie workers to report to duty and further ~t1%e:I vhave not reported to the duty. It is further _ '1 there was a 1ay--ofi' fnom 4.3.1992. Management alleged that, there was a Iaywoff fimn on account of that, there was no good. prospect of fixoning the business, and economically, it was not viabie, and Wk -3- the condition of the market was adverse to the products. The Company fiaced huge financial loss and the Company was not a. position to sustain the heavy financial burden it intention to reduce the work force. these I 1 woifktnen it xtttrenched. It is alleged that the _ retrenchment compensation and ° it workmen were invoived in the assau1t'veoTt"'wor1e in:-chaztge account of which, they were asketi their good behaviour and they to give undertaking. It is was forced to obtain an isgainst the illegal activities of islleiéiged that the workmen had gone on.' st;-mew.' pi defence, the Management defended the claim theflnion.
the on behaif of the Union, two woritei*s"'s:iex'e WW4 and WW-2 and on behalf of the 'nManagen:ent, 3 were examined.
The Lahoux Court on appreciation of the evidence found ._:'th24i'§:,.i'th_e'»I\.1E.ie.nagen1e11t has not proved the lay ofi' by producing documents. The Management has not proved that the ~ fgzvfiriifinen were on strike. The Management also did not prove, as to Why the workxnen were required to give an undertaking of -4- their good behaviour in the manner the Management sought nor. the Management has not proved that, the workmen were in the alleged crime of assault and found that the is iflegal and directed the Management to reinstate_t}1e.- '4 with 50°/o of backwages.
6. Learned Counsel appearing foe ptitttionelj Vt Management submitted that, the from huge financia} loss and on 'nmtket eondition and in order to reduce the 'fast come firs! go' and has tnforl-nnen by paying retrenchxnent is V':-anibmitted that, the retxenchmentivicompteneationiswneee}:-.ted by the workmen and in View of the acceptance of "the:_"ietie1"1chment compensation, the claim' pefitiogx-'jg notV1nvnin'ta1na""
Teft is that the workmen were involved in "«Vt}¢or1e"it1~charge and the work izmeharge was Labour Court, who has stated that, he was Worrkmen and in View of the said assauit, the had sought for an undertaking of good behaviour , V _ "tiestaite the Management asking the workmen to report, they not come foxward to report to the duty. It is also submitted that the workers were on strike. In these circumstances, the -5- Management insisted for an undertaking. It is further submitted that the factory is closed on account of the adverse maxfiiitt conditions and also financial loss and was not in a pofsition A' revive. With these submissions. learned Counsel Z Labour Court without appreciating the which the worlwen were retrencheti, has ve:t'oneous1.3:r.".he1d " t' the retrenchment is illegal and *c31;.xt;..[txv1§e;I"§1§c Company is suffering from fi1:ancia1tVA1o"ssL.:ttofiiteep the"wot}nn.en itself would be overburdened. there was no reason for the vieinetatement with 50% backwages. thettnachinaxies wen:
also sokt on aceotant' the said aspect was also not consttlexed
8. Smt.Manj*u,ta,. appearing for the Union f a1tlefi€:d._.1a3?~-ofi} according to the Management, is AV'on~ <}'.'3.t1992«.a§'& further submitted that the layman' was However, the retrenchment is made on 199$." lay-ofiwas lifted on 20.8.1992, on the date there was no 1ay~»ofi'. She relied on the made by the Union as per Exs.W24 to W35 and .t , V _ Y that the retrenchment compensation was received pnotest and this is clear fmm the reply letter dated 77.10.1992 in which the Union has made it clear that, on account of unemployment and financial constraint. the worlunen had seceived the retrenchment compensation. She also submitted» that, as her Exs.W17, 18 and 19, the Union had made permit these workmen to report to the duty and despite~..'that,f V' Management had not allowed them to reeort also relied on the criminal case afleged to V the workmen and the-."»a.e workmen were inxtotved crimina} ease and despite the ohhque intention had directed the Wotkteen. subject to fiving an undertaking. In out from the copy of the nfoficnlen were not involved in *¢ase"--n¢%e: there" eras any charge sheet against thezntt despite tvere asked to give an undeltaidng to S V. '_ 'I afrtjfeeltng son'yfo_z'___th.e incident which took place on .V '-35.9;-199"2 at 09:15 Hrs in fiont of the factory ._;,rate__ I Iterebynndertake that I will not indulge in any " ,.t¢1'a1awfi;f"..«Vaotia:'_ties inside or outside the factory.
I<'wtt;,er I:.t_m1er;take that I will give nonnat production that I wilt not hamper the normal fiznctioning cf the . facrtory. I further undertake that I wit! obey all the 'Vinstnzctions of my superiors.' the undertaking sought for by the Management. she V _ submitted that the undertaking sought for by the t"'«,IlVIahagement is in the nature of accepting the accusation made Jagainst the workmen, even though they are not invokved in any .7- crime or misconduct. She submitted that, to prove the layoff, no matexiai was produced before the Labour Court. The bakmee sheet, though produced, but relating to the year 1993-94i.;;_&;¢:- . relevant balance sheet required was of 1991-92 W-"as; H pnoduced before the Labour Court. V MW-3 in his evidence has admitted filc f=_1:e'toq,t.V functioning till 3995. In ac1ditionRr.;§"~.:1;1s, "me va;eo,:Ase.b'mitted that. neither the 1ay~ofi' is;.."'t1_1e ..1'e'ga'}.iAty_:§of the retrenchment is proved. hv/Iereiy. rworkmen have received the retrenchxnenjz it cannot be a ground to c:i_en'y u this Iegard, she submitted "e1éé£boI*ate1y discussing the entire evidence: has fifidmg holding that, asking for undertaking eveii'--.g11o11é1V1v_' veorkmen were not involved in the proving the lay-off and not provmg or*v a.<::tiv:ity by the workmen, asldng undertaking is noejzietéfieii.' .. V
9. if i.stI.§.otV in dispute that, 11 workmen were Ietxenched on 12.9.1992 as per Annexuxe-M2. The justification by the Management for retrenehing these 11 . Woelonen was that, the Management is not having good prospects run the business in View of the adverse market conditions and in order to prove the adverse market condition or financial loss or -3- crises, the Management has produced the balance sheet pertaining to 1993-94. The Labour Court on consideration said balance sheet has found that, the lay-ofl' A' Management is 01' 1991-92 and as these V' " 9 zetrenched on 12.9.1992 as per Ex.M2{ sheet was not produced by the _N_Ianafie;rnent 'V Management has failed to to substantiate its gievance of which are not favourable for the indueti Management to prove the advemeimétket have produced the relevant balance and loss and as to how the the Management to retrench theee is no relevant evidence as found by the is no justification in the contentiovnv the for the petitioner that, there Waeno:'£avo!1t*e;h1e::V'merket condition and in this regent, lay-ofl"
was __t}._1'e"..Wor1cmen were Ietrenched front service. vV'."n\nnGther to be noticed hem is that, the lay--ofi', Management is from 4.3.1992 whereas, the lifted the lay-ofi' on 20.8.1992 and the retrenchment dated 12.9.1992, there is no nexus between the ':--«'V.AVoontention of lay-off as against the retrenchment of the workmen.
Jlf the Management has lified the lay-ofl" in August, there was no 5 % A5 a f -9- reason for rettenching these workmen in September £992. It is further evident fiom the statement of MW--3 Who, in his evidence, has stated that the industry was functioning ti}! 1995. if that is so. the pound on which the _ made is unjustifiable and the Labour Court u hoiding that the act of the Management it employees on the pound of 1ay-05' isrone unsnstainable
10. The Management has aklegefirtthat the wo'1§k1nen'"had gone on strike. The Management has made'-allejgattion, but has not proved with a»iec£.a.¢;e that these workxnen were on strike'. 7of,the Management that U wogkmen 'in assault of the Work in» charge, thofi' made, the Labour Court has refened to the has ended in acquittal. against whom the charge sheet was m¢:~¢'w;as{"no_ impediment for the Management to allow these Wofiemen' It is not a case of the Management that enqunjz' held against these workmen on the allegation of .1 Further, the Management had insisted giving of an To insist on the undertaking in the nature one V above, the Management must justify as to why such an was wananteti in this case. When the Management has not proved its case of any akleged misconduct or involvement -13- in any criminal case or any fllegal activities by these workmen, there is no justification for the Management to seek an nndertakitlg. The undextaldng sought for by the Manage1nen:t"'i$ also not simpie, the Management has sought for an A' asking the workmen to admit that they were ' alleged incident and they feel sony for J no criminal case against them, when they ;-a;~¢"not in T;41'1'r_~,,v '' crime, asking the workmen to acce1)'te«e:tV:he chvar'g;e_V_ or would amount to impflsinfl 'V'f'he"V:Labour Court in this regard has as to how the demand of is Management has failed to prove L-'axe Management has failed to prove the" Management has failed to prove the invoivetnent éfiitfoiinnen in any case, Ietzenching employees, wnen. MW--3 admits that the industxy {was ttfl«.be$'nning of was is totally iflegal. H has considexect all the aspects and has entire evidence elaborately and has given a ; the Labour Court exercises its power and on re- .» appreviation of the evidence. has given findings. There is no at . _ T othe'1*'n1ate1ia1 to the contrary.
-11..
12. Now the quesfion that requires to he considemd is, as regaxds to the backwages. Insofar as backwages is conoernedf the evidence is very iittle even on the part of the "
were examined except saying that the order of bad and they were not employed, no the workmen. The Labour Court itself "
years, the workmen cannot remain olzejie evidence as to whether or not beyond 1995. MW-3 heed' 'jndusuy was functioning em), up V' cnenmsmnces, as submitted by 'potifioner, when the industry itee13."~--mva:e' wanting of backwages would be and to this extent, I find then: is j"uet§iEeei'ioi'on::':t_§:'neconsider the award insofar as t§_aekwag£e:.' is %%%% all other respects. 1 find that the interference. However, the grant of 50% of be confined upto 1995 only. From the eeoord, mat the industry was fimctioning till the H of and the Union though has led the evidence. proved as to Whether the indusfiy was functioning or not. Though the evidence is recorded in 2902, there 'is:'d:oo material on necoxd to Show that, Whether the industry is functioning. Learned Counsel for the pefifioner contended that .\ .12- the industry is closed and not functioning. In such circumstances. in my view. 50% backwages as awarded byihe Labour Court be confined upto the beginning of ~ and in case the industry is closed, the workmen are -- H the necessaiy relief of closure compensatiqn';"' In these circuzxastances, the VVrit4_PetitVi'C-_!v1"i$ workmen are entitled for backwages E the industry is closed, the the closure compensation. Except!' the award stands V the petitioner submits that the this Court be paid within three of a copy of this order. in ie directed to consider the same. V' % ' sd/3:
Judge