Karnataka High Court
Vijaykumar S/O :Shankar Rao Basutkar vs The Management Of The Karnataka on 1 June, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JUNE 2017
BEFORE
THE HON'BLE DR. JUSTICE VINEET KOTHARI
WRIT PETITION No.68570/2010(L-TER)
BETWEEN:
1. VIJAYKUMAR S/O SHANKAR RAO BASUTKAR
SINCE DECD. BY HIS LRS
RAJU S/O : VIJAYKUMAR BASUTKAR
AGE : 28 YEARS, OCC : PRIVATE SERVICE
R/O : C/O D S BASUTKAR
31, HEGGERI COLONY, 3RD MAIN ROAD
HUBLI - 24
2. KISHORE S/O : VIJAYKUMAR BASUTKAR
AGE : 26 YEARS, OCC : PRIVATE SERVICE
R/O : C/O D S BASUTKAR
31, HEGGERI COLONY
3RD MAIN ROAD, HUBLI-24
3. SMT. SHANTA W/O : VIJAYKUMAR BASUTKAR
AGE : 40 YEARS,
OCC : HOUSEHOLD WORK
R/O : C/O D S BASUTKAR
31, HEGGERI COLONY
3RD MAIN ROAD
HUBLI-24
... PETITIONERS
(BY SRI. ANANT P SAVADI, ADV.)
Date of Order: 01.06.2017 in WP No.68570.2010(L-TER)
Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of
the Karnataka Agro Industries Corporation Ltd. & Another
2
AND:
1. THE MANAGEMENT OF THE KARNATAKA
AGRO INDUSTRIES CORPORATION LTD
REP. BY ITS MANAGING DIRECTOR
HEBBAL, BANGALORE
2. THE MANAGEMENT OF KARNATAKA
AGRO INDUSTRIES COPORATION LTD.
REP. BY ITS MANAGER
IBRAHIMPUR, BIJAPUR
... RESPONDENTS
(BY SRI. M B KANAVI, ADV. FOR R1)
(NOTICE TO R2 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
A. QUASH THE AWARD PASSED BY THE LABOUR
COURT, BIJAPUR IN KID. NO.78/1996
DATED:05/01/2010 AT ANNEXURE-M.
B. DIRECT THE RESPONDENT TO PAY FULL
BACKWAGES WITH OTHER BENEFITS WITH ALL
CONSEQUENTIAL FRINGE BENEFITS FROM THE
DATE OF DISMISSAL TILL DATE OF DEATH OF
VIJAYKUMAR BASUTKAR.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING B GROUP THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Mr.Anant P Savadi, Adv. for the petitioners. Mr. M.B. Kanavi, Adv. for the respondent.
Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 3
1. This writ petition has been filed by the legal representatives of the deceased workman-Vijaykumar S/o Shankar Rao Basutkar against the employer-Karnataka Agro Industries Corporation Ltd.(A Government of Karnataka Undertaking)(for short, 'the Corporation), aggrieved by the order passed by the learned Labour Court, Bijapur, dated 5.1.2010 in KID No.78/1996, by which, the claim of the workman was rejected by the learned Labour Court.
2. The said workman Vijayakumar Shankar Rao Basutkar, who unfortunately expired in the second round of litigation before the learned Labour Court, on 16.04.2008, was represented by his wife and two sons as the legal representatives. The deceased workman was working as a Messenger(Class-4 employee) in the respondent-Corporation and he was transferred from Hungund unit to Ilkal. Later on, again from Bagalkot to Hungund. He was made in-charge of the Hungund Unit of the respondent-Corporation and the said Unit came to be closed by the respondent employer for some reasons. On the basis of the Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 4 audit report giving the position of the stocks of certain commodities, a charge-sheet came to be issued to the workman, vide Annexure-A, dated 13.04.1994, showing the short fall of the stocks valued at Rs.40,288.50 ps. He was proceeded against with the disciplinary action and was held liable for loss caused to the employer-Corporation. The earlier punishment order at Annexure-C, dated 27.7.1996 came to be passed dismissing him from service. The workman challenged the same before the learned Labour Court, Bijapur, which allowed the case of the workman vide Annexure-K, dated 21.07.2003, in KID No.78/1996, directing the reinstatement of the workman into service without backwages but with continuity of service and other consequential benefits.
3. Both the workman and the Management challenged the said Award before this Court by way of WP Nos.31271/2004 C/W 44307/2004(L-TER), which came to be disposed of by the learned Single Judge, vide order dated 3.10.2017.
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4. On the basis of the alleged admission on the part of the workman owing the responsibility to pay the aforesaid short fall of amount found in the audit report, the learned Single Judge was pleased to remand the case back to the learned Labour Court, Bijapur, with a direction to give an opportunity to both the parties to adduce their evidence and thereafter, to arrive at a just conclusion in accordance with law.
5. The para-5 of the impugned order dated 3.10.2007 passed by the learned Single Judge of this Court is quoted below for ready reference:
" 5. It appears the labour Court has acted mechanically in recording such a finding ignoring certain of the documents produced by the Management. When there is a clear admission on the part of the claimant owing the responsibility to pay the amount, although he sought for further verification of the documents, there is no reason as to why in a passing reference the labour Court has come to the conclusion that Management has failed to prove the charges leveled against the claimant. Under such circumstances, the impugned order passed by the labour Court is quashed and the matter is remitted back to Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 6 the labour Court with a direction to give an opportunity to both the parties once against to adduce their evidence and thereafter, to come to a just conclusion in accordance with law. "
6. Upon the remand, the learned Labour Court, Bijapur, however, took a U-turn and dismissed the claim petition of the workman altogether, but he died during this second round of litigation. At that point of time, the legal representatives of the deceased workman were brought on record. Thus, KID No.78/1996 came to be dismissed by the learned Labour Court on 5.1.2010, giving the following reasons:
" 10. Neither the petitioner nor the respondents challenged the order passed by this court, dated 2.6.2000 having answered the Issue No.1 in the Negative i.e. enquiry held is not fair and proper, this order holds good as on today. Hence issue No. 1 is answered in the negative.
11. Issue No. 2 & 3:- The deceased V.S. Basutkar was working as Messenger in the respondents Corporation at Ilkal is not disputed. It is the specific case of the respondents that, the deceased Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 7 workman transacted the business at Ilkal Kendra committed irregularities, misappropriated the funds, misused the stock worth of Rs. 40,288-50 Paise, the detailed Urea, Vijay, MOP and other products are shown in the written statement. Further contended that, petitioner has remitted shortage of amount to the extent of Rs. 10,759-25 Paise misused the money and again he misappropriated the amount of Rs. 1,500/- towards interest, the deceased workman has cheated by fraud, misappropriated the funds of the corporation and caused the loss, this is nothing but misconduct. Hence enquiry was held, and during enquiry misconduct was proved, as this misconduct is, grave petitioner was dismissed from service.
12. Whereas, petitioner contended that he is innocent, he has not committed any misappropriation, misuse of amount as shown in the written statement. He was kept under suspension and the subsistence allowance was not paid to him. Respondents have deducted the some amount in the subsistence allowance this is illegal and dismissal of service is also not proper. Hence prayed to set aside the dismissal order.
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13. The learned Adv. for petitioners submitted written arguments narrating in detail facts and circumstances of the case, material evidence on record and suit filed by the respondents was dismissed, the Regular Appeal was also dismissed and he relied upon a decision reported in, 1987 Karnataka Law Journal page 722 in case of Khadi Gramodyog Sangh V/s Labour Court, Gulbarga and another wherein it is held that;
Back wages- Labour Court awarding reinstatement of workman with full back wages-Writ Petition by employer pleading financial stringent circumstances and inability to pay back wages- High Court held, has no discretion to interfere with award of Labour Court- Discretion is vested only in Labour Court or Tribunal under S.11A of Industrial Dispute Act 1947, reliable to material on record- Constitution of India, Art.227.
How far this authority is applicable to the present case on hand is to be seen. Moreover this authority is regarding award of back wages U/s 11A of Industrial Disputes Act.
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14. Further MW-1 is the Senior Auditor, who deposed regarding audit of Agro Kendra Ilkal from 18.8.1993 to 31.12.1993 and noticed misappropriation of the amount to the extent of Rs. 10,759-25 Paise during the period of service of petitioner. Again MW-2 the District Manager of respondent corporation who deposed regarding transfer of petitioner to Ilkal Kendra and he received the stock for the year 1993-94, during audit there were irregularities found in the functions of the petitioner and petitioner is having sufficient experience of work for more than 20 years. He has misappropriated and misused the amount and stock of the respondent corporation. Whereas, WW-1 deposed that, he was working as Messenger in Ilkal Kendra, he was not trained in the work, he was only working at Ilkal and looking after the entire work, the superior officers from Bijapur use to came and inspect the office work. No panchanama was drawn, he has not misappropriated the amount nor misused the stock. The charges leveled against him are false. Further Ex. M.1 to 18 are enquiry papers i.e. evidence of witnesses, documents marked during Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 10 enquiry, office orders, audit copy and letter submitted by petitioner.
15. Further petitioner was working as Messenger at Ilkal Kendra and he was dismissed from service after enquiry is not disputed. Whether petitioner/deceased employee misappropriated and misused the stock of respondent corporation at Ilkal, whether his act amounts to misconduct or not is to be seen. To that effect, WW-1 deposed in his cross- examination that, he worked as Messenger at Ilkal, previously he was working at Bagalkot as Messenger and he was looking after the entire affairs of Ilkal Kendra. When he came to Hunagund the entire stock came from Bagalkot, he received the same and took entry in the register and submitted the report to Bagalkot as well as Bijapur office every month. He was looking after the cash book of the corporation, same stock was continued. Further he deposed in the cross-examination itself that he served for 3 months at Ilkal, he was looking after the stock register, accounts register and maintaining them. So, by going through the cross-examination of WW-1 it can be said that it is WW-1 who was looking after the entire affairs of Ilkal Kendra, no Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 11 other person was assisting him. It was suggested that, he misappropriated the amount of Rs. 10,759- 25 Paise again Rs.1,500/- is denied. Further deposed in the cross-examination that his signature was obtained on Ex. M-17 & 18 stating that police case will be booked against him. MW- 1 & 2 were cross-examined at length in the cross-examination of MW-1 he deposed that, he used to sign on the withdrawal slip after perusing the same. The petitioner has not signed in his presence and it is not necessary also. The withdrawal slip was produced in the court it is not available in the file. He has audited the corporation records at Bijapur intimation was not given to petitioner, it is not necessary. Whereas, MW-2 deposed in O.S. NO. 157/96 before the Civil Judge Court, Bagalkot. The petitioner was transferred to Ilkal as a Messenger, he was kept as in-charge of the Ilkal Kendra. So, nothing is elicited in the cross-examination of MW- 1 & 2 to disprove that petitioner misappropriated the amount of Rs. 40,288-50 paise and Rs. 10,759- 25 Paise. Ex.17 & 18 are copy of letters submitted by petitioner, these two documents are crucial documents. The petitioner contended that, his signature was obtained stating that, a police case Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 12 will be booked against him. Ex.M. 17 discloses that, deceased petitioner/workman written this letter stating that, after verification of entire records he is responsible for the shortage of entire amount of the corporation and he will continue to work properly and honestly and prayed for permission to continue in his office. This letter is signed by deceased employee on 8.3.1994 again Ex.M-18 is dated 19.3.1994 this letter is also written by deceased employee stating that, during his service there may be difference in amount he will verify the records, verifying the same subsidy amount was paid to him up to February and he admitted to deduct his salary to the extent of Rs.800/- p.m. and adjust the amount of difference and remaining amount may be paid out of his salary. If any of the officials of the Respondent/Corporation has threatened and took signature on Exs.M-17 & 18 the petitioner ought to have filed a complaint before police or before superior officers of respondents. These two letters are dated 8.3.1994 and 19.3.1994. There is gap of about 11 days between writing of these letters from one to another. So, nothing but admission on the part of deceased employee, why these two documents shall not be believed. There are no Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 13 reasons and nothing is explained in the cross- examination of MW-1 & 2 or in the evidence of WW-1 and LRs of the deceased employee also not entered the witness box to verify regarding misappropriation admission made by the petitioner. Hence this amounts to misconduct, as deceased employee has misappropriated and misused the funds and stock of the corporation took undue advantage of his single post at Ilkal Kendra that to within 3 months, after due enquiry respondents dismissed the services of petitioner which is just and proper. Hence I am of the opinion that the dismissal of deceased employee from the service is just and proper. Hence, I answer the Issue No. 2 in the Affirmative and proceed to pass the following:
ORDER The petition filed by the petitioner is Dismissed. "
Sd/-
(M.S.Kanti) District Judge & Presiding Officer, Labour Court, Bijapur.
Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 14
7. Aggrieved by the same, the legal representatives of the deceased workman have filed this writ petition before this Court.
8. Mr. Anant P. Savadi, the learned counsel appearing for the petitioner-workman urged before this Court that there was no admission of the alleged guilt on the part of the workman, who was having a minimum educational qualification of 8th standard pass only and the alleged admission in the form of Ex.M-17 and M-18, dated 8.3.1994 and 19.3.1994 were obtained by him under coercion in the presence of the Manager and Deputy Manager, admitting the so called guilt. Whereas, neither Closure Report of the Hungund depot showing the nil stocks of certain commodities were prepared in his presence nor he was supplied any such documents during the course of enquiry including the audit report, which was the basic document and on the basis of which, the respondent-employer based its disciplinary case. Therefore, the dismissal was directed only on the basis of this procured confession and admission of guilt. When the matter was remanded by this Court to the learned Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 15 Labour Court, the learned Labour Court on the basis of same set of material, which was available before it at the time of earlier decision in favour of the workman, took a diagonally opposite view dismissing the claim petition itself. He further submits that this Court had remanded the case back to the learned Labour Court only for a just conclusion after giving a reasonable opportunity to both the parties to adduce their further evidence in accordance with law. Despite the fact that no further evidence came from the side of the employer, the learned Labour Court took an opposite view of the matter and dismissed the entire claim of the petitioner-workman.
9. On the other hand, Mr. M.B. Kanavi, the learned counsel appearing for the respondent-Corporation has heavily relied upon the admission of the guilt by the workman in the form of Ex.M-17 and M-18 and submitted that the learned Labour Court was justified in dismissing the claim of the workman.
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10. I have heard the learned counsels at length and perused the relevant records.
11. This Court is constrained to hold that the workman was illegally and unduly punished in the present case. The so called admission of the guilt in the form of Exs.M-17 and M-18 were perused by this Court, which were recorded even prior to service of the charge sheet and his confession was a procured document under the undue influence of the three Senior Managers, who have countersigned the confession of the workman. The translated copies of the same produced before the Court during the course of arguments, clearly shows that the person concerned, who is a lowly paid and not fully qualified, being 8th standard pass person has simply given in and surrendered to the dictates of these senior officers to procure the statement of his confession.
12. The translated version of the Ex.M-17 and M-18 are quoted below for ready reference:
Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 17 Ex.M-17:
To, 8.3.1994
The Manager,
KAIC Ltd., Bijapur.
Respected Sir,
I, V.S. Basutkar working as Messenger at Ilkal incharge. In the audit an amount of Rs.51,085.75/- was found misappropriated and directed me to pay the same.
I submit that, the amount should be deducted from my monthly salary since after the verification of all the documents any shortfall are misappropriation of the corporation amount is my responsibility. Here afterwards I attend the duties properly.
I submit to yourself that I will verify all the documents for which permission is requested.
This request I have submitted on my own will today.
1. G.B. Teggi, manager Sd/-
2. A.D. Gorpade, Deputy Manager Sd/-
3. K.N. Kulkarni, Manager Sd/-
8.3.1994.
Bagalkot.
Ex.M-18 To, The Manager, KAIC Ltd. Bijapur.
Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 18 Respected Sir, Ref:M/BP/APM/VSB/93-94/4493 dated 7.16-93-94 With reference to the above, I write to submit as under, since I was not well aware the misappropriation has happened and I will rectify the same. I have given the subsidy bills to concerned department. My pay and leave from September to February to be adjusted towards the shortfall amount without paying me.
And the balance shortfall amount is to be deducted at the rate of 800/- per month as consented in writing earlier till the recovery of the entire amount. Further my surrender, loans and other benefits also to be adjusted towards recovery.
Yours sincerely, 19.3.1994 Sd/-
Bijapur. (V.S. Basutkar)
Manager, Bijapur
13. In the absence of any corroborative evidence with the relevant documents adduced by the prosecution/employer before the Enquiry Officer at the time of the enquiry and the copies of these documents having been given to the workman, which indisputably were never supplied to him, such alleged admission or confession could not be held to be sufficient to Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 19 impose any punishment on the workman. They ex-facie appear to be procured and dictated documents and the workman was just asked to sign them.
14. The said audit report was prepared at Bijapur, but he was working at Hungund Unit and both are different places and the said Unit was closed by the respondent-employer without his consent. Neither the Closure Report or Audit Report nor any Survey Report showing the nil stocks of the certain commodities, on the basis of which, the petitioner was charged were ever supplied to the workman. Even the allegations made in the charge sheet cannot be held to be precise and supported with any document and they are not sufficient to hold that the person in- charge of the Unit was the only responsible person for vanishing of all these stocks. The respondent-Organization is at Bijapur and which is, now reported to have been closed. The entire process of the stocks taking and transfer of all the stocks from one place to another cannot be in the domain of one person, a lowly paid employee, like the present petitioner-the deceased workman. The Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 20 self-serving confession procured from him was a gross misuse of the higher position of the concerned Managers who so obtained it from this poor man. It is indeed unfortunate that these documents formed the very basis for not only remanding the matter by the learned Single Judge of this Court, but misled the learned Labour Court in the second round. The learned Labour Court obviously fell into an error and grossly erred in reversing the earlier decision upon a remand and dismissing the claim petition filed by the petitioner workman.
15. The question is now how that injustice caused to the workman, who died in the process of this litigation, while second round of litigation was pending in the Labour Court can it be redressed atleast to some extent, by giving some relief to the legal representatives of the deceased workman? The reinstatement of the workman into service is not possible. Firstly, the said workman has died and secondly, the organization has also been closed, as reported by the learned counsel for the respondent-Corporation, who submitted that only one Company Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 21 Secretary is running the affairs of the said organization, mainly dealing with the pending litigations but the said Marketing Organization is a State Government Undertaking and which is funded and supported by the State Government itself.
16. The award of the compensation in such case only appears to be the way out to this Court, to redress the grievance of the family at this stage, whose breadwinner not only lost the legal battle, on the basis of unfounded so called confession, but also lost his life while being in the process of long labyrinth of litigation in the Labour Court and this Court. The charge sheet is of the year 1994 and the workman died in the year 2008 and this case is being decided now in the year 2017.
17. The compensation amount to the extent of Rs.7.50 Lakhs is considered appropriate, which would be approximate to the backwages which the man would have got, if the reinstatement into his service as directed by the learned Labour Court in the first instance could have been maintained and implemented by the employer in true letter and spirit.
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18. Accordingly, the writ petition of the LRs. of the deceased workman is allowed, and setting-aside the impugned order of the learned Labour Court, in KID No.78/1996, dated 5.1.2010 vide Annexure-M, the respondent-Corporation as well as the concerned Department of the State are directed to pay the said compensation amount of Rs.7.5 Lakhs(Rupees Seven Lakhs and Fifty Thousand Only) to the legal representatives of the deceased workman by three separate cheques in a sum of Rs.1.25 Lakhs each in favour of sons (Raju S/o Late Vijaykumar Basuktar and Kishore S/o Late Vijaykumar Basutkar) and Rs.5 Lakhs in favour of Smt. Shanta W/o Late Vijaykumar Basutkar, within a period of three months from today.
If the respondents-Management and State fail to pay the said compensation amount to the legal representatives of the deceased workman as directed within the aforesaid period of three months, the said compensation amount will bear simple interest at 9% p.a. from 1.9.2017 till the actual payment is made Date of Order: 01.06.2017 in WP No.68570.2010(L-TER) Vijaykumar S/o Shankar Rao Basutkar Since dead by his LRs Vs. The Management of the Karnataka Agro Industries Corporation Ltd. & Another 23 and the responsible persons and officers will be liable to face contempt action. No order as to costs.
Sd/-
JUDGE JTR