Karnataka High Court
The Management Of Nwkrtc Belgaum vs Babusab S/O Sattarsab Madlur on 20 August, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 20TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
W.P. No.31364/2008( L-K)
BETWEEN:
THE MANAGEMENT OF NWKRTC BELGAUM
R/B ITS DIVISIONAL CONTROLLER
BELGAUM DIVISION, BELGAUM
THE PETITIONER IS R/BY
ITS CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICE, HUBLI. ...PETITIONER
[BY SHRI SHIVAKUMAR S. BADAWADAGI, ADV.]
AND:
BABUSAB S/O SATTARSAB MADLUR
MAJOR, OCC NIL
R/O I. M. GIDDANNAVAR PLOT NO 77
SHIVANAND EXTENSION, DHARWAD.
DISTRICT DHARWAD. ...RESPONDENT
[BY SHRI RAVI HEGDE, ADV.]
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 20.03.2008 PASSED BY THE
PRESIDING OFFICER, ADDL. LABOUR COURT, HUBLI IN
REF. NO.27/2003 AND CONSEQEUNTLY BE PLEASED TO
DISMISS THE REF. NO.27/2003 FILED BY THE
RESPONDENT ON THE FILE OF PRESIDING OFFICER
ADDL. LABOUR COURT, HUBLI.
:2:
THIS WP COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING: -
ORDER
Respondent/workman was a driver in the petitioner - Corporation. He remained absent to duty without seeking leave. Disciplinary Enquiry was ordered against him, since he did not reported to duty, even after call notices were issued and served. Enquiry Officer having found the workman guilty of the alleged misconduct, having submitted a report, the Disciplinary Authority considering the record and the involvement of the workman in similar misconducts, dismissed the workman from service on 16.06.1998. Order of dismissal gave raise to an industrial dispute in Reference No.27/2003 on the file of Additional Labour Court at Hubli. Claim and counter statements having been filed by the parties, Labour Court raised issues and found that the Domestic Enquiry conducted by the Management against the workman as fair and proper. However, it found fault with the punishment imposed, :3: despite having noticed that the 'history sheet' shows that he was a habitual absentee. The reason for interference with the order of punishment was that the Disciplinary Authority ought to have imposed the punishment only with reference to the absence for the period from 28.05.1997 to 07.06.1997 and not in further. Since, Disciplinary Authority had taken into consideration, the period of absence beyond 07.06.1997, while imposing punishment, it was concluded that the action taken as irrational. Reference was accepted in part and the order of dismissal dated 15.06.1998 was set aside and the Management was directed to reinstate the workman into service, denying back wages. Assailing the said award, this writ petition has been filed by the Management.
2. On 24.11.2008, while issuing rule, interim stay of the implementation of the impugned award was passed. However, on 14.06.2010, while considering Miscellaneous Writ No.60226/2009, taking into consideration the submission made by the learned :4: advocate for the petitioner, that the petitioner may be permitted to reinstate the respondent and extract work and pay current wages subject to the result of the writ petition, Miscellaneous Writ No.60226/2009 was disposed of and as a result, the respondent/workman has been taken to duty subject to the result of this writ petition.
3. Heard the learned advocates on both sides and perused the writ record. There is no dispute that the respondent/workman has remained absent to duty from 28.05.1997 beyond 07.06.1997. However, the 'charge sheet' was issued for the period commencing from 28.05.1997 till 07.06.1997. Disciplinary Authority had taken note of the period of absence for the period even subsequent to 07.06.1997. The 'charge sheet' dated 23.07.1997 issued to the petitioner, as at Annexure - A, shows that the period of absence was with effect from 28.05.1997, till that date, which fact which has not been noticed and appreciated by the Labour Court. Even otherwise, for the period in respect :5: of which the domestic enquiry was not held, the Management can lead evidence and justify its action, as has been held in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management and others, AIR 1973 SC 1227. In the said judgment Apex Court has held as follows: -
"26. We have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge.
27. From those decisions, the following principles broadly emerge: -
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to :6: conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to :7: satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce the evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective :8: enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the :9: Tribunal has no power to refuse.
The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 = (AIR 1971 SC 2171) : 10 : within the judicial decision of a Labour Court or Tribunal.
28. The above was the law as laid down by this court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge."
4. Perusal of the impugned award shows that the findings are perverse. The jurisdiction vested with the Labour Court has not been exercised. Hence, the impugned award being vitiated, is unsustainable.
In the result, the writ petition is allowed and the impugned award is quashed. Reference No.27/2003 is restored to the Labour Court at Hubli for consideration and decision, in the light of the ratio of law in the decision, noticed supra.
Both the parties are directed to appear before the Labour Court on 07.10.2013 and receive further orders. Till the Labour Court decides the matter, the respondent-workman shall continue to be in service of : 11 : the petitioner - Corporation. However, the final decision in Reference No.27/2003, shall regulate the continuance or otherwise of the respondent - workman, in the service of the petitioner.
The parties are at liberty to adduce further evidence and contentions of both the parties are left open for consideration.
No costs.
SD/-
JUDGE Rsh