Karnataka High Court
Bagalkot Cement Company vs The Management Of Kanoria Industrial ... on 20 March, 2006
Equivalent citations: 2006(4)KARLJ141, (2006)IIILLJ656KANT
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
ORDER H.N. Nagamohan Das, J.
1. The petitioner has called in question the award dated 22.10.2001 in AID No. 1/1995 passed by the Additional Industrial Tribunal at Bangalore upholding the dismissal of two workmen.
2. The respondent management is a company engaged in the manufacture of cement and its factory is situated at Bagalkot. In the year 1995, the respondent-Managment had on its rolls about 450 workmen. The petitioner is the trade union representing the workmen in the respondent-company. In the month of March 1994, the petitioner - Union submitted charter of demands relating to the contract workers, their wages, service conditions etc. Since the respondent managment failed to consider the charter of demands, petitioner-Union started agitation on 04.09.1994 and 05.09.1994. The respondent-management reacted to this agitation by issuing charge-sheets to the office bearers of the petitioner-Union by name Sri. K. Sudhakar, Sri. M.R. Mallapur, Sri. H. Y. Roli and Sri. M.M. Quazi, alleging misconduct such as unauthorised absence from work-spot, instigating the workers, riotous, disorderly and indecent behaviour. It is further alleged, that the Union has held meeting inside the factory premises without previous permission from the management. Since the explanation offered by the aforesaid workmen was not satisfactory, disciplinary proceedings came to be initiated. At that stage, the respondent-management, by accepting apology letters given by two workmen, namely, Sri. H.Y. Roli and Sri. M.M. Quasi, dropped the proceedings against them. But, disciplinary proceedings were continued against the other two workmen, namely, Sri. K. Sudhakar and Sri. M.R. Mallapur hereinafter referred to as workmen. The Enquiry Officer submitted a report stating that the charges levelled against these two workmen as proved. The disciplinary Authority, by accepting the report of the Enquiry Officer, dismissed the two workmen from service vide order dated 07.02.1995. Aggrieved by this order of dismissal, the petitioner-Union approached the Government to refer the dispute for adjudiction to the Tribunal. The Government, vide order dated 30.06.1995, referred the dispute to the Tribunal for adjudication. The Tribunal, vide its order dated 22.10.2001, held the disciplinary enquiry as fair and proper. Thereafter, the Tribunal gave opportunity to both the parties to lead evidence on the issues relating to victimisation and unfair labour practice. Accordingly, the petitioner-Union examined two witnesses as W.W.1 and W.W.2. The respondent-management examined one witness as M.W.1 On appreciation of the pleadings, oral and documentary evidence on record, the Tribunal passed the impugned award upholding the order of dismissal of the two workmen. Hence, this writ petition.
3. Sri. M.C. Narasimhan, Learned Senior counsel for the petitioner-Union contends, that the two workmen are the office-bearers of the Union and they are protected workmen and as such action of the respondent-managment in dismissing them is contrary to Section 33(3) of the Industrial Disputes Act, ('the Act' for short). He contends, that similarly charge-sheeted workmen by name Sri. H.Y. Roli and Sri. M.M. Quazi are not proceeded with any domestic enquiry. On the other hand, the respondent-management discriminated in proceeding against the two workmen with an intention to victimise them and this action of the respondent-management is anti-labour. He further contends, that the Tribunal committed an illegality in not properly appreciating and assessing the evidence on record. He contends, that the Tribunal failed to exercise the discretion vested in it under Section 11A of the Act. Reliance is placed on the following decisions.
1. B.R. Singh and Ors. v. Union of India and Ors.
2. Syndicate Bank and Anr. v. K. Umesh Nayak, Canara Bank and Ors. v. R. Jambunathan and Ors., State Bank of India and Ors. and State Bank Staff Union 1994 (2) LLJ 836
3. Jaipur Zila Sahakari Bhoomi vikas Bank Limited v. Shri ram Gopal Sharma and Ors.
4. Indian Telephone Industries Limited v. Prabhakar H. Manjare and Anr. 2002 (3) LLJ 1134
4. Per contra, Sri. C.K. Subramanya, learned Counsel for the respondent contends, that the charge-sheet issued against the two workmen specifies the nature of misconduct committed by them. He contends, that the Tribunal, by appreciating the material on record, has rightly rejected the claim of the petitioner-Union, he justifies the impugned award. Reliance is placed on the following decisions.
1. Sasa Musa Sugar Works Private Limited v. Shobrati Khan and Ors. FJR Volume XV11-1959-60 page 1
2. Bharat Sugar Mils Limited v. Jaishingh and Ors. FJR Volume XXI 1961 page 118
3. Hind Construction and Engineering Co. Limited v. Their workmen 1965 (1) LLJ 462
4. Bengal Bhatdee Coal Co. v. Ram Prabesh Singh and Ors. 1963 (1) LLJ 291
5. Dayal Kuswaha v. State of Uttra Pradesh and Ors. 2003 (II) CLR 150
6. H.M.T. Limited v. Chaya Srivatsa 2003 (3) LLJ 729
7. B.C. Chaturvedi v. Union of India
8. R.S. Saini v. State of Punjab and Ors. AIR 1999 SC 3578
5. Heard arguments on both the sides and perused the entire writ papers. The following points will arise for my consideration.
i) Whether the action of respondent in dismissing the workmen is contrary to Section 33(3) of the I.D. Act?
ii) whether the impugned award is perverse?
iii) Whether the respondents victimised the workmen?ON POINT NO. 1
6. Section 33(3) of the Act reads as under:
33. Conditions of service etc., to remain unchanged under certain circumstances during pendency of proceedings:
(i) XXX
(ii) XXX
iii) Notwithstanding anything contained in Sub-section (2), no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-
a) by altering, to the prejudice of such protected workmen, the conditions of service applicable to him immediately before the commencement of such proceeding; or
b) by discharging or punishing whether by dismissal or otherwise, such protected workmen, save with the express permission in writing of the authority before which the proceeding is pending.
7. For application of Section 33(3) of the Act there shall be an industrial dispute pending and the workman shall be protected workman. The employer has to seek prior permission in writing from the concerned authority for taking any action against the workman affecting his condition of service. The object of Sub-section (3) of Section 33 of the Act is two fold. Firstly, to prevent the unwarranted victimisation of workman by the employer; secondly, to ensure healthy growth and development of trade union movement.
8. Now let me examine whether the three conditions as stated above are present in the present case. It is not in dispute that on 18.01.1994 new officer-bearers were elected to the petitioner-Union. On 24.01.1994 the petitioner-Union submitted a list of protected workmen to the respondent. As required under Rule 62(2) of Industrial Disputes (Karnataka) Rules, 1957, the respondent-Management did not respond within fifteen (15) days. Since the respondent-Management failed to communicate its decision in the matter, the petitioner-Union approached the Assistant Labour Commissioner at Belgaum. The Assistant Labour Commissioner by his order dated 12.10.1994 extended the status of 'protected workers' to the two workmen in this case and two others. Again the Assistant Labour Commissioner reiterated the extension of status of protected workers to the two workers by his endorsement dated 31.12.1994. The respondent-Management questioned the order extending status of protected workers to the two workmen and others in W.RNo. 1420/1995. The Learned Single Judge of this Court rejected W.P. No. 1420/1995 vide order dated 13.07.1995 and the same has become final. Therefore, the two workmen in the instant case were the protected workmen' as required under Section 33(3) of the Act.
9. It is not in dispute that the petitioner-Union raised certain charter of demands on 11.03.1994 relating to engaging contract workers, the wages of workers, their service conditions etc. Since the respondent Management failed to react to the charter of demands, the petitioner Union approached the Assistant Labour Commissioner at Belgaum on 22.04.1994. The assistant Labour Commissioner, Belgaum, issued notice to both the parties and initiated conciliation proceedings and the same was pending. When the dispute was pending before the Conciliation Officer, the respondent-Management suspended the protected workmen by order dated 20.09.1994. Admittedly the order of supspension and subsequent initiation of enquiry proceedings and dismissal of protected workmen are without the express permission in writing from the Assistant Labour Commissioner before whom the dispute was pending. Thus in violation of Section 33(3) of the Act, the respondent-Management supspended and later dismissed the protected workmen and the same is bad in law. Hence, point No. 1 is answered in affirmative.
ON POINT NO. II
10. Section 2(q) of the Act defines the word 'strike' strike means, cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment. Section 22 and 23 of the Act prohibits the commencement of strike in certain circumstances. Section 24 of the Act renders the strikes commenced or continued in contravention of certain provisions as illegal. Clause 24 of the standing Orders of the respondent-Company specifies the acts and omissions on the part of the workmen amounting to misconduct. According to respondent-Management the following are the relevant clauses in the Standing Orders under which the workmen in question are charged:
24(c) instigating thereof alone or in combination with others.
24(k) riotous, disorderly or indecent behaviour on the premises of the establishment.
24(1) commission of any act subversive of discipline or good behaviour on the premises of the company.
25(m) threatening of intimidating any employee of the company.
24(n) holding meeting inside the premises of the establishment without the previous permission of the management.
11. The summary of charges against the workmen are that on 04.09.1994 to 09.09.1994 they instigated the other workers not to work as per the instruction given by the Department Heads, threatend the workers with dire consequences in the event of not following the instructions, addressed the workers to delay the work, shouted defamatory slogans in Kannada against the Management and behaved disorderly, unruly and unbecoming of workmen. Held the meetings inside the factory premises without prior permission from the Management.
12. At this stage it is necessary to notice the law on the judicial review powers of this Court in matters of domestic enquiry. The Supreme Court in the case of B.C. Chaturvedi v. Union of India Air 1996 SC 484 held:
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel , this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
A Division Bench of this Court in the case of HMT Limited Chaya Srivatsa (2003 (3) LLJ 729) held:
It is true, as rightly contended by Sri. Kasturi, Learned Counsel for the appellant, that by a catena of decisions of the Apex Court and High Courts the scope of Judicial review of disciplinary action has been circumscribed and limited. It is now well settled that while reviewing disciplinary proceedings initiated and action taken by an employer against a delinquent employee, the Court cannot go into the question of adequacy or sufficiency of evidence on the basis of which findings are rerecorded by an enquiry officer and/or disciplinary authority. If the findings are based on some legal evidence, the reviewing Courts are not entitled to interfere with the findings. The finding of fact recorded by the enquiry officer/disciplinary authority cannot be reserved on re-appreciation of evidence on record. The judicial review is not akin to adjudication of the case on merit. The High Court in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct the error of law or procedural errors leading to manifest injustice or violation of prinicples of natural justice as held by the Apex Court in Rae Bareli Kshatriya Gramin Bank v. Bhola Nath Singh . The High Court cannot sit over the judgment of the disciplinary authority while exercising discretion under Article 226, but it has duty to see that conclusions reached by the disciplinary authority are based on some legal evidence and they do not suffer from any patent error. Though the High Court cannot sit over the findings recorded by the enquiry officer/ disciplinary authority, while exercising the writ jurisdiction, it has a legal duty to see that the findings/ conclusions recorded by the enquiry officer/disciplinary authority are based on some substantive legal evidence and they are not perverse and they do not suffer from any patent errors on the face of the record.
13. In view of the decisions referred to above settled legal position is that this Court in exercise of its judicial review power will not interfere with the findings of enquiry and the order of Disciplinary Authority except under the following three circumstances:
i) If there is violation of principles of natural justice.
ii) If the findings of enquiry are not supported by legally acceptable evidence.
iii) If the punishment shocks the consciousness of the Court.
14. Keeping these principles in view the fact situation in this case is to be examined. There is force in the submission of the Learned Senior Counsel Sri. M.C. Narasimhan that the findings of the enquiry are not supported by any legal evidence and the punishment is shockingly disproportionate. A perusal of the impugned award discloses that without reference to the misconduct as stated in the standing Orders the Tribunal holds, that the workmen committed misconduct. This approach of the Tribunal is bad in law. Clause 2q(b) of the Standing Orders defines misconduct as going for an illegal strike or abetting inciting, instigating or acting in furtherance thereof. But a reading of the charge against the workmen discloses that it is only a preparation for strike and actual strike much less illegal strike had not taken place between 04.09.1994 and 09.09.1994. Therefore the findings of the Tribunal and the enquiry are contrary to the Standing Orders and liable to be quashed.
15. The Charge against the workmen i s that they conducted the meeting on 04.09.1999 and 07.09.1994 inside factory premises without prior permission from the Management. The Management witness, M.W.5 in his evidence states:
At 4.00 PM the workers were going inside and some workers after their work going outside the gate. By that time Sri. Sudhakar and Sri. Mallapur told them to assemble at the gate. The employees were talking at the gate. 60 to 70 persons assembled opposite to the gate. The employees were talking at the gate. I told them to go away, accordingly, they went outside the gate.
16. One another charge against the workmen was that they instigated the workers to show down the work, to stop the work and threatened the workers of dire consequences in the event of they not following the instructions. In support of this charge, the relevant evidence of MW5 reads as under:
I could not hear the talks between the workers and these two employees. I do not know the names of the workers with whom these two employees have discussed, because they are contract workers. I cannot say the name of the workers working under the contractor who told me that Sri. Sudhakar and Sri. Mallapur asked them to stop work. The said workers have not given complaint in writing. Not true to say that Sri. Mallapur and Sri. Sudhakar have not gone to kiln and cooler sections and also not told the workers to stop the work. It is true that I told sri. Mallapur and Sri. Sudhakar to go outside the gate and talk. They did not oppose my advice to go away from the gate.
17. The Tribunal without considering the admissions of Management Witness has passed the impugned award and holds that the Management has proved the charges. The non-consideration of material evidence on record by theTribunal results in perversity of the award. The findings of the Tribunal are not supported by legal evidence on record. Therefore point No. II is answered in affirmative.
VICTIMISATION
18. Section 25T of the Act prohibits unfair labour practice. The Section reads that no employer or workman or a trade union, Whether registered under the Trade Unions, Act, 1926, or not, shall commit any unfair labour practice. Section 2(ra) of the Act defines the word 'unfair labour practice' means any of the practices specified in fifth schedule. In the fifth schedule the list of acts on the part of employer and the list of acts on the part of amounting to unfair labour practices are mentioned. In the instant case, the workmen contend that they are victimised by the respondent-Management by unfair labour practice. Though the expression Victimisation' is not defined in the Act through several judicial pronouncement it has acquired a meaning in the industrial law and connotes a person who became victim of the employer's wreath by reason of his trade union activities. It is not in dispute that the two workmen are the elected office bearers of the trade union representing the workmen of the respondent-Company. These two workmen are the protected workers under Section 33(3) of the Act. In breach of Section 33(3) of the Act the respondent-Company initiated disciplinary enquiry proceedings against the workmen and dismissed them from service. Though the acts of workmen do not amount to misconduct in terms of the standing Orders, they are falsely charged. The respondent-Company charged four workmen on identical charges. But the respondent-Company dropped charges against two workers and proceeded againt the two workmen. This act on the part of respondent-Company is a clear case of unfair labour practice. Hence, Point No. III is answered in affirmative.
19. For the reasons stated above, the following;
ORDER I. Writ petition is allowed.
II. The impugned award dated 25.01.2002 passed by the Industrial Tribunal at Bangalore and the order of Disciplinary Authority dated 07.02.1995 dismissing the workmen by name Sri. K. Sudhakar and Sri. M.R. Mallapur are hereby quashed.
III The respondent company shall reinstate the two workmen, Sri. K. Sudhakar and Sri. M.R. Mallapur into service with backwages, continuity of service and all consequential benefits.
IV. Ordered accordingly with no order as to costs.