Karnataka High Court
M/S Bharat Electronics Ltd vs Sri L Venkateshappa, on 16 October, 2012
Author: N.Kumar
Bench: N.Kumar
1
W.A. No. 2795/2009 C/w
W.A. No. 4300/2009 (L-TER)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF OCTOBER 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
W.A. No.2795/2009 C/w W.A. No. 4300/2009 (L-TER)
IN W.A. NO.2795/2009 :
BETWEEN :
M/S BHARAT ELECTRONICS LTD
JALAHALLI POST, BANGALORE-560 013
BY ITS GENERAL MANAGER (HR). ...APPELLANT
(By SRI. P D VISHWANATH, ADV M/S. AGH ASSOCIATES)
AND :
SRI. L VENKATESHAPPA,
S/O LAKAPPA, AGED ABOUT 57 YEARS,
R/A MYLAPPENAHALLI VILLAGE,
HESARAGHATTA HOBLI, SHIVAKOTE POST,
BANGALORE NORTH. ...RESPONDENT
(By SRI. A J SRINIVASAN, ADV.)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, prays that this Hon'ble Court be pleased to set aside
the order dated 01.07.2009 passed by the learned Single Judge in
W.P. No.17816/2005 and may dismiss the writ petition
No.17816/2005.
IN W.A. NO. 4300/2009 :
BETWEEN :
SRI. L VENKATESHAPPA,
S/O LAKAPPA, AGED ABOUT 57 YEARS,
2
W.A. No. 2795/2009 C/w
W.A. No. 4300/2009 (L-TER)
R/A MYLAPPENAHALLI VILLAGE,
HESARAGHATTA HOBLI, SHIVAKOTE POST,
BANGALORE NORTH. ...APPELLANT
(By SRI. A J SRINIVASAN, ADV.)
AND:
THE MANAGEMENT OF
BHARAT ELECTRONICS LTD
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE MANAGER,
JALAHALLI POST
BANGALORE-560 013. ...RESPONDENT
(By SRI. P D VISHWANATH, ADV. M/S. AGH ASSOCIATES)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, prays that this Hon'ble Court be pleased to set aside
that portion of the order of the learned Single Judge dated 1 st July
2009 in W.P. No.17816/2005 only to the extent of granting the full
relief of reinstatement of the appellant in their original post with all
other consequential benefits including full backwages, continuity of
service, etc., from the date of dismissal i.e. 10.04.1985 till the date of
reinstatement.
These Writ Appeals coming on for Preliminary Hearing this
day, N. KUMAR. J., delivered the following :
JUDGMENT
Writ Appeal No. 2795/2009 is preferred by the Management whereas Writ Appeal No.4300/2009 is preferred by the Workman against the very same order passed by the learned Single Judge. Therefore, they are taken up together and disposed of by this 3 W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) common order.
2. For the purpose of convenience, the parties are referred as they are referred to before the Labour Court.
3. The workman joined the services of the respondent in the year 1979 as a helper. On 02.07.1983 he was issued with a charge sheet alleging that when the locker allotted to the petitioner was checked, material belonging to the company was found that he has kept the same with an intention of smuggling out the said material for pecuniary gain. The workman gave reply on 08.07.1983 denying the charges. Not being satisfied with the said reply, they issued a charge sheet and ordered for enquiry. The workman participated in the enquiry. The Enquiry Officer on consideration of the entire material on record held that the charges levelled against the workman stands proved and thereafter he submitted a report to the Management. After considering the entire material on record, accepting the finding of the Enquiry Officer, imposed punishment of dismissal for the proved misconduct. The Management also filed an application under Section 33(2)(b) of the Industrial Disputes Act for grant of permission to remove the workman from service which was granted. 4
W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER)
4. The workman challenged the order of dismissal by raising a dispute before the Principal Labour Court, Bangalore. He contended that the enquiry conducted is not fair and proper and charges levelled against him are not proved. Even otherwise, the punishment imposed is not proportionate to the gravity of the charges that are proved. The Tribunal held preliminary enquiry regarding the validity of domestic enquiry. After such enquiry it held that the domestic enquiry conducted is fair and proper. Thereafter, it considered the entire material on record and held that the misconduct alleged against the workman is proved by legal evidence and a case for interference is not made out. It was of the view that the punishment of dismissal is proportionate to the gravity of the charges proved and therefore, it rejected the reference.
5. Aggrieved by the said order, the workman preferred a Writ Petition before this Court. The learned Single Judge was of the view that the articles which were found in the locker was very much inside the premises of the factory. It is not the case of the Management that he was caught while going out of the Factory with articles. In those circumstances, he was of the view that the order of dismissal is harsh. 5
W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) He was of the view ordering reinstatement would not be appropriate but he modified the order of punishment and ordered that the petitioner be treated as on duty till the date only for the purpose of terminal benefits. Aggrieved by the said order, both the Management as well as the workman have preferred these two appeals.
6. Learned Counsel for the Management assailing the impugned order, contends when the Labour Court has recorded a categorical finding that the domestic enquiry conducted is fair and proper, misconduct is proved and the punishment of dismissal is just and proper for the proved misconduct and the learned Judge also recorded a finding that the finding of misconduct cannot be found fault with, he was not justified in interfering with the punishment and therefore, he submits that the impugned order requires to be set aside.
7. Per contra, the learned Counsel appearing for the workman submitted that the articles which were found in the locker no doubt belonged to the Factory and the workman was about to hand over the same to the factory. Before that could happen, they were seized in his absence and enquiry is ordered and as there was no intention to smuggle them and it was not found in his possession at the time of 6 W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) going out of the factory, the finding recorded by the Enquiry Officer as well as the Labour Court is unjustified and therefore he submits the order of Tribunal requires to be interfered with.
8. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is :
"Whether a case is made out to interfere with the order passed by the learned Single Judge" ?
9. The Articles which are found in the locker of the petitioner are ten in number, which are as under :
1. Hybrid Microcircuit header with assembly qty. 1 No.
2. To-3 Power Transistors - Qty 27 Nos.
3. Resistors - qty - 2 Nos.
4. A Device in TP-5 packages - 1 No.
5. Gold plated TP-5 headers - qty - 2 Nos.
6. Gold plated pins used in Hybrid micro circuits - Qty 50 gms.
7. 212219 Small signal devises - Qty - 1 No.
8. 23501 devises of small signal devices - qty - 5 Nos.
9. White petrol concealed in a stainless steel horlicks jar - qty - 250 ml.
10.Godrej Navtal padlock 7 levers No.718214 with key No.718214 - qty - 1 No. All those articles belonged to the factory. The explanation offered by 7 W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) the workman for keeping those articles belonging to the factory in his locker is not accepted by the Enquiry Officer as well as the Labour Court. He has no right to keep those articles in his locker. It is in those circumstances, the Enquiry Officer has held that the alleged misconduct against the workman stands proved. The Management has accepted the said finding and imposed punishment of dismissal.
The Labour Court after holding that the domestic enquiry is fair and proper on appreciation of the entire material on record has affirmed the said order and also did not find any justification to exercise the discretion under Section 11-A of the Industrial Disputes Act to modify the punishment of dismissal. Under these circumstances, the learned Single Judge was not justified in interfering with the award passed by the Labour Court. The reasons given by him namely., that all the articles were found in the locker and the recovery is very much inside the premises of the factory and it is not the case of the Management that he was caught while going out of the factory premises with the articles and therefore, the order of dismissal appears to be little harsh do not stands to reason. When the locker is kept within the factory premises, if the property belonging to the 8 W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) factory are kept in the locker, merely because it was found before it is taken out of the factory premises would not in any way diminish the gravity of the charge. The workman cannot keep the property belonging to the factory in the locker, where he was expected to keep his personal belongings. He has kept the belongings of the factory in that locker. The only inference that can be drawn is, it was kept to be removed, when he was going out of the factory premises. It is a domestic enquiry and not a criminal case. Once the workman losses confidence of the employer, kept the articles belonging to the factory in his private locker, he losses his right to continue in the employment. It is clear case of misconduct.
10. In that view of the matter, the order passed by the Management as well as the Labour Court was legal and valid and based on legal evidence keeping in mind the law laid down by the Apex Court. The learned Single Judge has committed a serious error in interfering with the well considered order passed by the Labour Court. As such, it requires to be set aside.
11. Hence, we pass the following :
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W.A. No. 2795/2009 C/w W.A. No. 4300/2009 (L-TER) ORDER Writ Appeal No. 4300/2009 is dismissed. Writ Appeal No. 2795/2009 is allowed. The order passed by the learned Single Judge is hereby set aside. The award passed by the Labour Court and the order of dismissal passed by the Management are restored.
Parties to bear their own costs.
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JUDGE.
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JUDGE.
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