Karnataka High Court
Management Of Sree Siddartha vs Sri B N Umashankar on 15 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 611, 2019 LAB IC 3742, 2019 (3) AKR 774, (2019) 3 CURLR 761
Bench: Ravi Malimath, S G Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 15TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE S. G. PANDIT
WRIT APPEAL NO.1306 OF 2018 (L-RES)
BETWEEN:
MANAGEMENT OF SREE SIDDARTHA
INSTITUTE OF TECHNOLOGY
MARALUR, TUMAKURU - 572 105
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER. ... APPELLANT
(BY SRI. MURALIDHAR H. M, ADVOCATE)
AND:
SRI. B. N. UMASHANKAR
SON OF NANJAPPA
AGED ABOUT 62 YEARS
RESIDING AT NO 24
FIRST CROSS
MARALUR DINNE
TUMAKURU - 572 105.
... RESPONDENT
(BY SRI. T. S. ANANTHARAM, ADVOCATE)
2
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE
WRIT APPEAL, SET ASIDE THE IMPUGNED ORDER DATED
12/03/2018 PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.34195 OF 2009 [L-RES],
CONSEQUENTLY ALLOW THE WRIT PETITION, SET ASIDE
THE AWARD PASSED BY THE LABOUR COURT,
BENGALURU, IN I.D. NO.25/2006 DATED 17/07/2009,
VIDE ANNEXURE-B IN THE WRIT PETITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.04.2019 COMING ON THIS DAY,
S.G. PANDIT J., PRONOUNCED THE FOLLOWING:
JUDGMENT
Aggrieved by the order dated 12.03.2018 passed by the learned Single Judge in Writ Petition No.34195 of 2009, by which the petition was dismissed, the writ petitioner is in appeal.
3
2. The petitioner filed the writ petition under Article 226 of the Constitution of India assailing the award dated 17.07.2009 in I.D.No.25 of 2006 passed by the Principal Labour Court, Bangalore, by which the respondent was granted reinstatement with 50% backwages. The respondent was working as SDA with the petitioner institution having been appointed as such on 01.12.1993. The petitioner Management issued show-cause notice on 10.06.2002 alleging that the respondent was collecting Rs.10/- from each student towards examination application form. The respondent submitted his reply denying the allegations. Not being satisfied with the reply, the petitioner instituted enquiry committee and also issued article of charges. In the article of charge it was alleged that the respondent was illegally collecting Rs.10/- from each student towards July 2002 VTU examination application form. The respondent submitted his reply to the charge sheet. In the meanwhile, the respondent also filed an application under Section 33(C)(2) of the 4 Industrial Disputes Act, 1947, (for short 'the Act') seeking subsistence allowance during the period of suspension. The Enquiry Officer conducted the enquiry and submitted his report holding the charge as proved against the respondent. The respondent was issued with the second show-cause notice on 25.02.2006. On 09.03.2006 respondent submitted his reply to the second show-cause notice. It is stated that the petitioner-management on examination of the entire records of the enquiry dismissed the respondent from the petitioner - Institution. Aggrieved by the same the respondent filed I.D.No.25 of 2006 under Section 10(4-A) of the Act before the Labour Court, Bangalore. The Labour Court by its order dated 16.10.2007 held that the enquiry conducted against the respondent is not fair and proper. Thereafter both the parties adduced evidence on merits. The Labour Court by award dated 17.07.2009 allowed the claim petition directing reinstatement of the respondent with 50% backwages with continuity of service. Aggrieved by the 5 said order the petitioner filed the instant writ petition. The learned Single Judge by the impugned order dismissed the writ petition confirming the order of the Labour Court. Hence the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the appeal papers.
4. The learned counsel for the appellant would submit that the learned Single Judge committed an error in confirming the award of the Labour Court. He further contends that the respondent would not be entitled for 50% backwages as ordered by the Labour Court and as having given a finding that the respondent was out of employment for a long time and the first party has not starved. It is contended that the respondent would not be entitled for any backwages and prays for allowing the appeal.
6
5. Per contra, learned counsel for the respondent would submit that the writ appeal is liable to be dismissed as there is no perversity or erroneousness in the order passed by the learned Single Judge. It is contended that as the petitioner was out of employment and he had no other avocation, he would be entitled for 50% backwages as ordered by the learned Single Judge, thus prays for dismissal of the appeal.
6. Having heard the learned counsels for the parties and on perusal of the appeal papers, we are of the view, that the only question that arises for our consideration is whether the respondent is entitled for 50% of backwages as awarded by the Labour Court in the facts and circumstances of the case. The respondent was working as SDA in the petitioner - Institution. The respondent was issued with article of charge alleging illegal collection of Rs.10/- from each student towards VTU Examination application form. In support of the charge, the 7 management examined three witnesses on its behalf and marked seven documents, whereas the respondent examined himself as WW.1 and marked one document. The management has failed to prove the charge of collecting Rs.10/- from each of the students towards the examination form, since MW.3 - Former Principal of the petitioner - Institution admitted in the cross-examination that the management had asked to collect Rs.10/- towards the VTU examination form. Further MW.3 had stated that over and above Rs.10/- the respondent was collecting Rs.2/- per application as per the HOD Mr.Sahasranama and Mr.Narasimhamurthy. The management has not examined those persons before the Labour Court. When MW.3 has categorically admitted that the management was collecting Rs.10/- towards VTU examination form, the charge against the respondent that he was collecting Rs.10/- towards VTU examination form fails. The petitioner - management has failed to prove the charge leveled against the respondent. Further the petitioner - 8 management has also failed to prove that the respondent was collecting Rs.2/- from each student towards xerox of examination application form. Therefore, we are of the view, that the Labour Court was justified in ordering reinstatement of the respondent.
7. But whether the respondent would be entitled for 50% of the backwages as awarded by the Labour Court is to be examined. The Labour Court in the award has observed that the management has not placed any material to show that the first party was gainfully employed. But however, has recorded that the first party has not starved. It is to be noted that the respondent was out of employment for several years and he was initially suspended from service on 30.12.2002. Merely because the management has not produced any material to show that the first party was gainfully employed, it cannot be held that the respondent-first party would be entitled for 50% backwages. The Courts and Tribunals shall not lose sight of the fact that without there being any employment 9 the respondent could not have survived for more than fifteen years. But on the other hand, when the respondent was dismissed, which could not be sustained legally by the petitioner - management, the respondent would be entitled to some backwages, but not to the extent of 50% as awarded by the Labour Court. In the facts and circumstances, of the case and also taking into consideration that the respondent was out of employment from the petitioner - Institution for more than fifteen years, we are of the view, that justice would be met if the respondent is awarded 25% of backwages instead of 50% as awarded by the Labour Court.
8. Hence, in the facts and circumstances of the present case we modify the award dated 17.07.2009 passed in I.D.No.25 of 2006 by the Principal Labour Court, Bangalore, holding that the respondent would be entitled for reinstatement with 25% of backwages and with continuity of service. Rest of the order is sustained. Accordingly the writ appeal is party allowed. 10
In view of the disposal of the appeal, I.A.No.2 of 2018 filed for stay does not survive for consideration, hence the application is dismissed.
Sd/- Sd/-
JUDGE JUDGE
NG*
CT:bms