Karnataka High Court
The Management Of Express ... vs G Dinesh Babu on 24 February, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION No.39947 OF 2017 (L-RES)
C/W
WRIT PETITION NO.20186 OF 2016 (L-RES)
IN WP No.39947/2017
BETWEEN
THE MANGEMENT OF EXPRESS
PUBLICATION MADURAI LTD
THE NEW INDIAN EXPRESS GROUP,
EXPRESS BUILDING,
NO.1, QUEENS ROAD,
BENGALURU-560001
REP BY ITS GENERAL MANAGER
...PETITIONER
(BY SRI K KASTURI, SENIOR COUNSEL FOR
SRI GOVINDRAJ K, ADVOCATE)
AND
1. BANGALORE NEWSPAPER EMPLOYEES UNION
NO.75, M.G.ROAD,
BANGALORE-560001
2. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT
LABOUR DEPARTMENT
VIKASA SOUDHA,
BANGALORE- 560001.
...RESPONDENTS
2
(BY SRI K B NARAYANA SWAMY, ADVOCATE FOR R1
SRI BHOJEGOUDA KOLLER, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE AWARD IN I.D.NO.77/2009 DT 28.4.2017 PASSED BY THE
INDUSTRIAL TRIBUNAL, BANGALORE AS PER ANNEXURE-F AND
ETC.
IN WP NO.20186/2016
BETWEEN
THE MANAGEMENT OF EXPRESS
PUBLICATION(MADURAI) LTD
THE NEW INDIAN EXPRESS GROUP,
EXPRESS BUILDING,
NO.1, QUEENS ROAD, BENGALURU-560001.
REP. BY ITS GENERAL MANAGER,
SRI VINOD T.
...PETITIONER
(BY SRI K KASTURI, SENIOR COUNSEL FOR
SRI GOVINDRAJ K, ADVOCATE)
AND
1. G DINESH BABU
S/O P GOVINDARAJULU NAIDU,
AGED ABOUT 41 YEARS,
NO.125, 5TH CROSS,
ADI KABIR ASHRAM ROAD,
MOTI NAGAR, R.T.NAGAR POST,
BENGALURU-32.
2. B MUNISWAMY
S/O. B SUBRAMANIAM,
AGED ABOUT 49 YEARS,
NO.39, 7TH CROSS, MARKET ROAD,
LAKSHMINARAYANAPURAM,
SRIRAMPURAM,
3
BENGALURU-21.
3. V S JAGADEESH
S/O SIDDALINGAIAH,
AGED ABOUT 44 YEARS,
SIDDALINGESHWARA NILAYA,
NO.40, 4TH CROSS, 5TH MAIN,
BHUVANESHWARINGAR,
T.DASARAHALLI,
BENGALURU-57.
4. D S VENAKTESH MURTHY
S/O D SHANKARA NARAYANA RAO,
AGED ABOUT 54 YEARS,
C/O SUBBALAKSHMAMMA,
NO.11, FORT DEVANAHALLI,
BENGALURU-562110.
5. R CHAKRAVARTHI
S/O RANGASWAMY NAIDU,
AGED ABOUT 50 YEARS,
NO.49, THE GRAND FIELDS,
HOMMADEVANAHALLI,
GOTTIGERE POST,
BANNERGHATTA ROAD,
BENGALURU-83.
6. D VENKATESULU
S/O VENKATARAMAIAH SASTRY,
AGED ABOUT 58 YEARS,
NO.98, 10TH MAIN,
KURUBARAHALLI,
BENGALURU-560086.
7. B BABU
S/O LATE BALU,
AGED ABOUT 47 YEARS,
NO.35/1, 7TH CROSS,
CHIKKATHAYAPPA ROAD,
AMBEDKAR COLONY,
VASANTHNAGAR,
4
BENGALURU-560052.
8. S LAKSHMAIAH
S/O LATE SAMPANGI RAMAIAH,
AGED ABOUT 56 YEARS,
NO.12, "H" STREET,
10TH CROSS, MAGADI ROAD,
BENGALURU-560023.
9. R THANDAVA MURTHY
S/O LATE RAMACHANDRAN,
AGED ABOUT 56 YEARS,
NO.4, CHINAPPA GARDEN,
BENSON TOWN PO,
BENGALURU-560046.
10 . A LAKSHMANA MURTHY
S/O APPAIYANNA,
AGED ABOUT 41 YEARS,
NO.316, ASWATHNAGAR,
THANISANDRA MAIN ROAD,
ARABIC COLLEGE POST,
BENGALURU-560005.
11 . K SURYANARAYANA RAJU
S/O K.KRISHNAM RAJU,
AGED ABOUT 51 YEARS,
NO.4046, 19TH MAIN ROAD,
H.A.L. 2ND STAGE,
BENGALURU-560008.
12 . M SRINATH
S/O M.MUNUVENKATAPPA,
AGED ABOUT 40 YEARS,
NO.1015, 8TH MAIN ROAD,
JUDICIAL LAYOUT,
G.K.V.K. POST,
BENGALURU-45.
13 . P VIVEKANANDAN
S/O PARASURAM,
5
AGED ABOUT 43 YARS,
NO.26/13TH CROSS,
J.C.NAGAR, KURBARAHALLI,
MAHALAKSHMIPURAM POST,
BENGALURU-560086.
14 . A NARAYANA RAO
14 (a) SMT LAKSHMI BAI M
W/O LATE A NARAYANA RAO,
AGED ABOUT 47 YEARS,
14(b) DIVYA BHARATHI BAI N
D/O LATE A NARAYANA RAO,
AGED ABOUT 24 YEARS,
14(c) NAVEEN RAO N
S/O LATE A NARAYANA RAO,
AGED ABOUT 14 YEARS
(BEING MINOR, REPRESENTED BY HIS MOTHER
AND NATURA GUARDIAN RESPONDENT nO.4(A))
15 . M NAGARAJU
S/O RAMACHANDRAIAH,
AGED ABOUT 44 YEARS,
NO.844, F BLOCK,
NEAR ESCORTS AND GOETZE LAYOUT,
NR.OM SHAKTHI TEMPLE,
ATTUR LAYOUT, ATTUR MAIN ROAD,
YELAHANKA POST,
BENGALURU-560064.
16 . P RAVI
S/O PARASURAM,
AGED ABOUT 45 YEARS,
NO.26, 13TH CROSS,
J.C.NAGAR, KURBARAHALLI,
MAHALAKSHMIPURAM POST,
BENGALURU-560086.
17 . K RAMALINGAM
6
S/O M.KANDASWAMY,
AGED ABOUT 54 YEARS,
NO.5, KRISHNAPPA LAND,
KADUGODI, WHITEFIELD,
BENGALURU-560067.
18 . B S NAGARAJ
S/O SRIKANTAIAH,
AGED ABOUT 54 YEARS,
NO.15, SRINIVASA NILAYA,
5TH CROSS, SUBANNA GARDEN,
VIJAYANAGAR, BENGALURU-560040.
19 . R MURTHY
S/O RATHNAM,
AGED ABOUT 57 YEARS,
NO.312, 9TH CROSS,
6TH MAIN, 3RD STAGE,
PILLANNA GARDEN,
BENGALURU-560045.
20 . S RAMSINGH
S/O SARDAR SINGH,
AGED ABOUT 46 YEARS,
NO.1/1, 2ND CROSS, 2ND MAIN,
AZAD NAGAR, CHAMARAJPET POST,
BENGALURU-560018.
21 . P PANJAMANI
S/O PERUMAL,
AGED ABOUT 54 YEARS,
NO.673, NR.MUNESHWARA TEMPLE,
KRISHNAPPA LAYOUT,
SUBBANNA PALYA,
BENGALURU-560033.
22 . P BABU
S/O LATE B M PERUMAL,
AGED ABOUT 50 YEARS,
NO. 16/13 B BLOCK,
DGQA RESIDENTIAL QTRS,
GUNATHA VIHAR, R.T.NAGAR,
7
BENGALURU - 560 006.
23 . DHARAM RAJ V
VASUDEVAN R,
AGED ABOUT YEARS,
NO. 7, 10TH CROSS,
BHAGYA JYOTHI PALYA,
MAHALAKSHMIPURM,
BENGALURU - 10.
24 . M HARIBABU
S/O MOHAN,
AGED ABOUT 41 YEARS,
NO. 51/2, 7TH CROSS,
CHIKKATHAYAPPA STREET,
VASANTHNAGAR,
BENGALURU - 52.
25 . P VENKATESH
S/O PARTHASARATHY NAIDU,
AGED ABOUT 53 YEARS,
NO. 343, 5TH MAIN, 3RD PHASE,
MANJUNATH NAGAR,
WEST OF CHORD ROAD,
BENGALURU - 10.
26 . DAIVEGAN R
S/O RAJENDRAN,
AGED ABOUT 50 YEARS,
NO. 1/7 RANGAMMA GARDEN,
PSK NAIDU ROAD, DODDIGUNTA,
COX TOWN, BENGALURU - 05.
27 . GERALD HUGGINS
S/O JEERY HUGGINS,
AGED ABOUT 47 YEARS,
KRISHNAPPA BUILDING, 2ND CROSS,
PEMME GOWDA ROAD, J.C.NAGAR,
BENGALURU - 06.
28 . G JAYAPRAKASH
8
S/O GOVINDASWAMY CHETTY,
AGED ABOUT 47 YEARS,
NO. 11, 2ND CROSS, MVR BLOCK,
J.C.NAGAR, BENGALURU - 06.
29 . R ELUMALAI
S/O LATE RAMASWAMY,
AGED ABOUT 55 YEARS,
NO. 14-A, 65/2,
GANGAPPA LYT, BEHIND TTK,
SHAKTHINAGAR, BENGALURU - 16.
30 . N SURENDRA SINGH
S/O B H NARAYANA SINGH,
AGED ABOUT 44 YEARS,
C/O SANJU, SHREYAS NILAYA,
11TH CROSS, VISHWANATH
NAGENAHALLI, R.T.NAGAR POST,
BENGALURU - 32.
31 . JAVARAIAH S
S/O S SIDDAIAH,
AGED ABOUT 52 YEARS,
NO. 877, 3RD MAIN ROAD,
GOKULA EXTN, DIVANARAPALYA,
BENGALURU - 55.
32 . C VELU
S/O CHINNAPPA,
AGED ABOUT 42 YEARS,
NO. 114, 27TH CROSS,
TANNERY ROAD, OLD BAGALUR LAYOUT,
BENGALURU - 84.
33 . JOTHIRAJAN S
S/O LATE SWAMY IYA,
AGED ABOUT 52 YEARS,
NO. 32, NR JAYALAKSHMI SCHOOL,
RAMASWAMY PALYAM,
BENGALURU - 33.
DEAD BY LRs
9
SMT BEENA
W/O LATE S JYOTHIRAJAN S
R/AT ADELIZA VILLA,
II FLOOR, KOSA RAJU STREET
RS PALYAM, M S NAGAR POST
BANGALORE - 560033.
34 . B JAYARAM
S/O LATE B DORAISWAMY,
AGED ABOUT 55 YEARS,
NO. 81, RAGHAVENDRA NILAYA,
2ND CROSS, BALAJI LAYOUT,
BSK 3RD STAGE, BENGALURU - 85.
35 . B NAGESH
S/O LATE D VIJENDRA RAO,
AGED ABOUT 56 YEARS,
NO. 18/1, L.D.BLOCK,
1ST MAIN, 7TH CROSS,
GANGANAGAR, R.T.NAGAR POST,
BENGALURU - 32.
36 . K KUMAR RAO
KRISHNOJI RAO,
AGED ABOUT 40 YEARS,
NO. 32, 4TH CROSS,
JAIJAWAN NAGAR,
M.S.NAGAR POST, BENGALURU - 33.
37 . PADMANABHA POOJARY
S/O JARU POOJARY,
AGED ABOUT 45 YEARS,
NO. 65, 1ST FLOOR,
CHIKKABAZAR ROAD,
SHIVAJINAGAR, BENGALURU - 51.
38 . B VENUGOPAL
S/O LATE BHOOPATHI CHETTAIR,
AGED ABOUT 57 YEARS,
NO. 317, 6TH CROSS,
10
MARUTHI NAGAR,
NR. BALAJI MEDICALS,
HEGGANAHALLI,
ANDHARAHALLI MAIN ROAD,
VISWANEEDAM POST, BENGALURU - 91.
39 . M BALAKRISHNA
S/O L NARSIMHA MURTHY,
AGED ABOUT 65 YEARS,
NO. 38-31-143/3, GREEN GARDEN,
MARRIPALYAM,
VISHAKAPATNAM - 500018
ANDHRA PRADESH.
40 . BASAVARAJ C
S/O CHANNACHARI,
AGED ABOUT 45 YEARS,
NO.11, CHANDRASHEKAR LAYOUT,
SRIGANDHA KAVAL,
SUNKADAKATTE, BENGALURU - 91.
41 . V LAKSHMAN RAO
S/O APPALA NAIDU,
AGED ABOUT YEARS,
NO. 39-21-26/1, MADHAVADHARA,
VIDYANAGAR, VISHAKAPATNAM,
ANDHRA PRADESH - 530 037.
...RESPONDENTS
(BY SRI K B NARAYANA SWAMY AND
SRI MURALIDHAR, ADVOCATES FOR R1 TO R111, R13,
R14(A-C) & R15 TO R41 AND ALSO FOR LR'S OF R33
NOTICE TO R12 IS DISPENSED WITH V/O DATED
25.1.2017)
THIS WRIT PETITION IS FILED UNDER THE ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE AWARD PASSED BY THE II ADDL. LABOUR COURT
IN I.D.11/2009 AND CONNECTED MATTERS DATED 27.11.2015
AT ANNEX-A INSOFAR AS ORDERING FOR CONSEQUENTIAL
BENEFITS, SUCH AS CONTINUITY OF SERVICE FULL BACK
WAGES, ETC., TO THE RESPONDENT WORKMEN AND ETC.
11
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 30.11.2022, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
WP.No.20186/2016 is filed by the Management challenging the common Award dated 27.11.2015 passed by the II Additional Labour Court, Bengaluru, in ID No.11/2009 and 42 other connected claim petitions. The said claim petitions were filed by the individual workmen under Section 2A read with Section 10(4-A) of the (Karnataka Amendment) of the Industrial Disputes Act, 1947. WP.No.39947/2017 is filed by the Management challenging the Award dated 28.4.2017 passed by the Industrial Tribunal, Bengaluru, in ID No.77/2009.
2. The said ID No.77/2009 arose out of a reference made by the Government of Karnataka under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act') vide reference No.LD-237-IDM-2009, dated 7.3.2009 for adjudication of 12 the dispute between the Union of the Workmen and the Management.
3. Since both the matters pertain to the same incident, both the aforementioned writ petitions were heard together and are disposed off by this common order.
4. It is the case of the workmen in ID No.11/2009 and 42 other connected claim petitions filed before the Labour Court that, the Management is engaged in printing and publishing of newspaper called "The New Indian Express', 'Kannada Prabha', 'Dinamani', etc., and has its Corporate and Registered office at Chennai and has printing and publishing Centres at various places including Bengaluru. It is the specific case of the workmen that they became the members of the Bangalore Newspaper Employees Union (hereinafter referred to as the 'Union/BNEU'), which is a Trade Union of Journalists and non-Journalists under the Trade Unions Act, 1926 (hereinafter referred to as 'the Act, 1926') operating in various newspaper establishments. That the wages of the 13 newspaper employees are determined by the National Wage Board set up by the Central Government from time to time.
5. That the Wage Board had recommended paying 30% of the basic wage as interim relief to the newspaper employees and on the basis of which, the Government had issued a Gazette Notification on 24.10.2008 granting the interim relief. Accordingly, the Union had requested the Management to implement the directions of the Government. That even though the Management had given assurance to consider the demands of the workmen sympathetically, it did not honour its promise. One Sampath Kumar, who was the Assistant Secretary of the Union sought implementation of the Government Notification w.e.f., 7.1.2009, due to which he was suspended. When all the workmen approached the Management to know the reason for suspension of Sampath Kumar, they were forcibly sent out of the work place on and from 7.1.2009.
14
6. It is the further case of the workmen that though they made repeated attempts to convince the Management that they are ready and willing to work, the same went in vain. However, the Management insisted upon each of the workmen giving an undertaking expressing regret and agreeing to withdraw Membership from the Union. Hence, the Union approached the Assistant Labour Commissioner on 9.1.2009 seeking his intervention and accordingly, conciliation proceedings were held on various dates.
7. It is the further case of the workmen that when the Assistant Labour Commissioner contacted the Management on 22.1.2009, the representative of the Management asked the workmen to report for work. However, when the workmen went to report for work, the Management insisted that it would permit only a few workmen, that too, after obtaining an undertaking as decided by the Management, which was unacceptable to the workmen. The Management refused employment to 15 the workmen inspite of their willingness and readiness to work from that day itself. Thereafter, the Management issued termination orders in various batches on 16.1.2009, 6.2.2009 and 3.3.2009 to all the workmen.
8. Being aggrieved, the workmen filed the claim petitions before the Labour Court under Section 10(4-A) of the ID Act to set aside the order of termination and for a direction to the Management to reinstate them with continuity of service, full backwages and other consequential benefits.
9. The Management entered appearance before the Labour Court and filed its statement of objections and contested the claim of the workmen. It is the case of the Management that it had recognized the workers' right of the Union, entertained them for bargaining and the said Union is the Express Publication (Madurai) Limited Employees' Union (hereinafter referred to as 'EMPL'), Employees Union, Karnataka. That Sampath Kumar had committed several misconducts for which the Management 16 has issued a charge memo and initiated disciplinary enquiry proceedings and hence, the case of Sampath Kumar cannot be connected to the workmen. The Management denied that all the workmen were sent out from the factory premises on and from 7.1.2009 but, the workmen had gone away on their own. Notices were sent informing the workmen that they have abandoned the employment and have lost their lien. That instead of reporting for employment they wrote letters with false contentions. Hence, they have deliberately and intentionally failed to report for duty and abandoned the work on their own. It is also denied that they had never asked the workmen to given an undertaking to withdraw their Membership from the Union. The Management justified the termination orders dated 16.1.2009, 6.2.2009 and 3.3.2009.
10. The Labour Court had framed 4 issues. Each of the workmen who had filed claim petitions examined themselves as WW.1 and Exs.W1 to W11 were marked in 17 the evidence. In two claim petitions Exs.W1 to W12 were marked. The Management examined MW.1 -
T.P.Sasidharan in all the cases. However in ID No.11/2009 the Management examined MWs.1 to 8 and marked Exs.M1 to M51 for all the cases. The Labour Court, vide its Award dated 27.11.2015 allowed the claim petitions in respect of all the permanent employees of the Management, set-aside the termination orders and directed the Management to reinstate the workmen into service within 30 days with continuity of service, full backwages and all other consequential benefits to the workmen. It further ordered that the workmen who had attained the age of superannuation during the pendency of the proceedings are to be treated as retired from service and entitled to get service benefits including backwages till date of retirement as per the rules. The Claim Petitions filed in ID No.29/2009 by Sameer Khan and ID No.32/2009 filed by Earnest have been rejected, as not maintainable since Sameer Khan was not a permanent employee and was a contract worker and the termination 18 is in pursuance of the contract and Earnest was a probationer.
11. In the proceedings before the Industrial Tribunal in ID No.77/2009 it is contended by the Union that the workmen of the Management had approached the Union in the later part of 2008 with certain grievances that the Management was not implementing the order of the Government pertaining to the Wage Board recommendations and that the Union wrote a letter dated 3.11.2008 to the General Manager of the Management on behalf of the workmen working in the said establishment. Although the General Manager had assured that the Management would consider the same, since he left the services the new incumbent took a negative and hostile attitude and refused to continue talks with the BNEU and kept Sampath Kumar under suspension on 7.1.2009 who was the Branch Secretary of the Union. The workers agitated and wanted restoration of the services of 19 Sampath Kumar back to duty and protested the suspension.
12. That they were told by the Management to resume their duties, but when they went back to work, they were asked by the Management to sign an undertaking not to continue the membership with the BNEU, which was not agreeable to the workmen. Since their effort to get back to work was not positively responded to by the Management, they approached the Assistant Labour Commissioner. However, the Management refused the conciliation proceedings and wrote a letter that there is no dispute and hence, the conciliation failed. Since refusal of work would amount to a lockdown under the ID act, the Management subsequently issued termination orders on various dates. The said termination orders having taken place during the conciliation proceedings, no formal approval of the conciliation under Section 33 of the ID Act has taken place. The workmen were refused work from 7.1.2009 onwards 20 till they were terminated from service later. The workmen did not resort to any strike or other actions and they proceeded peacefully without causing any hurt to the business interest of the Management. That there was no justification for the Management to demand an undertaking and refuse employment from 7.1.2009.
13. The Management resisted the claim of the Union before the Industrial Tribunal and filed its counter statement, inter alia¸ contending that the very reference itself is illegal, invalid and without jurisdiction. The Union is a Trade Union representing the workmen/workers of an establishment which is a contemporary rival of the Management and the BNEU/Union is set up only to create hurdles and obstacles in the smooth functioning of the Management. The workmen working with the Management had set up a separate Union called the "Express Publication (Madurai) Limited Employees' Union (EPML)" and the workmen have got a check off system with the Management and accordingly, the Management is 21 deducting monthly subscription of its members and is issuing a cheque in favour of the EPML.
14. That the Management has entered into several agreements/settlements with the said Union. The Management had not recognized the BNEU and the said Union/BNEU is interfering with the day-to-day working of the Management. With regard to the claim of the Union to implement the Wage Board directions, the Management has said that the said demands are frivolous and are being done to get a "foot hold" in the functioning of the Management. That there are various events leading to the suspension of Sampath Kumar and the other workers were brain washed by the Union not to report for work. However an attempt by the Management asking the workers to resume their duties itself shows that there was no refusal of work.
15. With regard to the case of Sampath Kumar, it is specifically contended that on the night on 7.1.2009 since he committed certain misconducts by misbehaving 22 with the superiors and disobeyed the orders and obstructed production for trivial reasons, a preliminary enquiry was conducted and since said Sampath Kumar is prima facie involved in misconduct, the order of suspension was passed on 7.1.2009. That a few workmen protested the order of suspension and obstructed the other workmen from discharging their duties. Ultimately some of the workers attended regular work on their own and few others remained absent. It is under these circumstances that the Management asked the workmen to report for duty. Some of the workers who did not obey the directions have approached the Assistant Labour Commissioner.
16. That the Management received notice dated 13.1.2009 intimating the conciliation to be held on 15.1.2009 and the Management submitted its reply dated 17.1.2009 stating that they have nothing to do with the BNEU and they do not have any dispute among its workmen. Despite the same, the Assistant Labour 23 Commissioner issued one more notice dated 22.1.2009 fixing the meeting on 29.1.2009. That the Assistant Labour Commissioner abruptly concluded the conciliation proceedings and sent the report to the Labour Commissioner. It is pleaded by the Management that it had issued individual letters to the workmen to report for duty. However since they refused on their own conduct, they lost the lien and the workmen responded to the letter by stating that they will wait for adjudication of their individual disputes before the Labour Court. In the said proceedings the Management also filed an additional counter statement and sought for rejection of the claim petition.
17. The Union examined 3 witnesses as WW.1 to WW.3 and got marked Exs.W.1 to W.20. The Management examined 3 witnesses as MW.1 to MW.3 and got marked Exs.M1 to M24. The Industrial Tribunal after hearing both the sides, by its Award dated 28.4.2017 held as follows:
"First party is justified in contending that the Management of second party were illegally refused work to 24 53 workmen listed in the Annexure to the order of reference.
In respect of 43 workmen, no further relief can be granted as there is parallel proceedings.
First party six workmen namely, Sri John Edverd, Sri Balaji Singh, Sri Rajegowda, Sri Govindaraju, Sri Jayaram Anchai and Sri Chandrappa at Sl.Nos.24, 2, 20, 32, 30 and 36 respectively, are entitled for reinstatement with all consequential benefits, including backwages.
The second party is directed to reinstate the said six workmen and pay the arrears of salary to the first party workmen for the period from 07.01.2009 till their reinstatement; within one month from the date of pulbication of this award, failing which, it shall carry interest @ 18% per annum from 07.03.2009, the date of reference till realization.
Point No.2 of the reference does not survive for consideration as not pressed.
There is no order as to costs."
18. It is contended by the learned Senior Counsel Sri K.Kasturi appearing on behalf of the Management that:
(a) there was no refusal of work by the Management and there are correspondences where they have asked the workmen to report for work, despite which they have refused to report for work and that the findings of the Labour Court and Industrial Tribunal are contrary to the said material on record;25
(b) that the officials of the BNEU were attempting to interfere with the work of the Management and the Management is under no obligation to maintain the members of the BNEU since they had their own Union;
(c) that the Labour Court and the Industrial Tribunal were required to reframe the issues as per the order dated 17.8.2010 passed in WA No.2216/2010 which has not been done.
19. Learned Senior Counsel Sri K.Kasturi appearing for the Union, in the course of his submissions referred to various findings of the Award passed by the Labour Court and the Industrial Tribunal to demonstrate that they were erroneous. Hence, he seeks for allowing of the writ petitions and setting aside the Awards passed by the Labour Court and Industrial Tribunal respectively. In support of his contentions, the learned Senior Counsel referred to the following judgments:
26
i) Workmen of Indian Express Newspaper Private Ltd., v. The Management of Indian Express Private Ltd.,1;
ii) Bombay Union of Working Journalists and ors., v. "Hindu" Bombay and Anr.,2 ;
iii) Management of M/s Pradip Lamp Works v.
Pradip Lamp Workers' Karmachari Sangh and Anr.,3;
iv) Buckingham and Carnatic Company Ltd., v.
Venkatayya and Anr., 4;
v) Escorts Ltd., v. Presiding Officer and Anr., 5;
vi) Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr.,6;
vii) The Management of M/s. Le Meridien Bangalore v. The State of Karnataka and Ors., 7 ;
viii) M/s Express Publications Ltd., (Madurai) v.
The State of Karnataka and ors., 8
20. Per contra, Sri K.B.Narayanaswamy, learned Counsel appearing for the workmen contended that:
a) BNEU is not the Union of the employees working with the Deccan Herald and that the said Union 1 SC 1970(2) LLJ 132 2 SC 1961 62 Vol XXI FJR 207 3 SC 1971 (1) LLJ 538 4 1963(2) LLJ 638 5 SC 1997(3) LLN 65 6 2000(1) LLJ 1630 7 WP No.51095/2015, DD 16.11.2017 8 WA 2216/2010, DD 17.8.2010 27 represented all the workmen who were working in the newspaper establishments in Bengaluru and hence refuted the submission of the Management that the members of the Union were interfering with the business of the Management;
b) The Branch Secretary of the Union Sampath Kumar was seeking implementation of the Wage Board directions, due to which he was placed under suspension which was protested by other employees;
c) The offer of the Management asking the workmen to come back to work was only to escape from the conciliation and they never intended to take back the workmen to duty;
d) at no point of time, the workmen refused employment and it is the Management who had insisted on signing of an undertaking which the workmen had refused to do resulting in the termination orders being issued;28
21. Learned Counsel in the course of his submissions referred to various findings in the Awards passed by the Labour Court and the Industrial Tribunal to demonstrate that categorical findings of fact have been recorded after proper appreciation of the material on record and the same do not warrant interference by this court in the present writ petitions and seeks for rejection of the writ petitions. In support of his submissions, the learned Counsel relied upon the following judgments:
i) GT Lad and others v. Chemicals & Fibres India Ltd., 9;
ii) Scooters India Ltd., v. M.Mohammad Yaqub & Anr., 10;
iii) Director of Fisheries Terminal Department. v.
Bhikubhail Megaji Bhai Chavda11;
iv) Deepali Gundu Sarwase v. Kranti Junior Adhyapak Maha Vidyalaya and others12;
v) Jasmer Singh v. State of Haryana and Anr.,13;
vi) Gauri shanker v. State of Rajasthan14; 9 (1979) 1 SCC 590 10 (2001) 1 SCC 61 11 (2010) (1) SCC 47 12 (2013) 10 SCC 324 13 (2015) 4 SCC 458 14 (2015) 12 SCC 754 29
vii) Tapash Kumar Paul v. Bharat Sanchar Nigam Limited and Anr15;
viii) Syed Yakoob v. K.S.Radhakrishnan & Ors., 16.
22. I have considered the contentions putforth by the learned Senior Counsel for the Management and learned Counsel for the Union and perused the material on record. The questions that arise for consideration are:
i) Whether the Award dated 27.11.2015 passed by the II Additional Labour Court, Bengaluru, in ID No.11/2009 and 42 other connected claim petitions is required to be interfered with?
ii) Whether the Award dated 28.4.2017 passed by the Industrial Tribunal, Bengaluru, in ID No.77/2009, is liable to be interfered with?
23. It is undisputed that various workmen have initiated proceedings before the Labour Court who are the employees of the Management. The events leading to their alleged refusal of work are a matter on record. The proceedings before the Labour Court were initiated by the 15 (2014) 15 SCC 313 16 AIR 1964 SC 477 30 individual workmen and the proceedings before the Industrial Tribunal were initiated by the Union representing the workmen. Both the Labour Court as well as the Industrial Tribunal have appreciated the same fact situation and recorded their findings. Hence, it is necessary to note the findings recorded by the Labour Court and the Industrial Tribunal.
24. The Labour Court vide its Award dated 27.11.2015 has recorded the following findings:
i) When the Assistant Labour Commissioner issued notice to the Management to the Conciliation proceedings along with the list of workmen, it is the duty of the Management to participate in the Conciliation proceedings. Instead they have denied the dispute and refused to participate, which is sufficient to draw inference that on 7.1.2019 the Management has sent out the workmen from the premises when they approached the Management;31
ii) The Management has not disclosed the reasons for suspension of Sampath Kumar;
iii) There is no unconditional offer of reinstatement by the Management;
iv) The Management has not placed positive, cogent and satisfactory evidence to satisfy that they have issued call letters to the workmen for reporting to duty;
v) The conduct and attitude of the Management clearly demonstrates that there is refusal of employment;
vi) The Management has not pleaded in the counter statement that as on the date of filing of the counter statement also they were ready and willing to take back the workmen to duty;
vii) The admission of MW.1 disproves the contention of the Management that because of the attitude of the workmen there was delay in printing and publishing of newspapers on day-to-day basis;
viii) MW.1 has admitted that the Management has not participated in the conciliation proceedings before the Labour Commissioner;32
ix) There is no material placed on record on behalf of the Management to prove that the Management has made efforts to pursue the workers to join duties;
x) There is evidence of the witnesses examined on behalf of the Management which establishes that the workers were present in the factory premises on regular basis;
xi) There is no abandonment of employment as pleaded by the Management;
xii) Since there was non compliance of the provisions of Section 25F of the ID Act, termination of the service was not legally sustainable;
xiii) The Management has failed to prove that the workers were absent and they have lost their lien over the employment;
25. The Industrial Tribunal, vide its Award dated 28.4.2017 has recorded the following findings:
i) The claim of the Management that they made a request and persuaded the workmen to resume duties 33 but the workmen themselves abandoned the work, does not appear to be acceptable;
ii) Though it is contended that the workmen did abstain from their work for certain hours on 7.1.2009 in the morning that itself cannot be termed as an act of abandonment of work from 7.1.2009;
iii) There is nothing on record to show that animus absentee on the part of the workmen to abandon the work when they were very much present physically present in the premises;
iv) The attitude of the Management establishes that they have flatly refused employment and thus refused to participate in the conciliation and even to the extent of questioning the conciliation proceedings on technical grounds;
v) There is no explanation from the Management for not accepting the workmen to duty after the clear intention of the workmen to work. Hence, there is refusal of employment;34
vi) The Management has a definite mind to refuse employment and therefore, has taken an unilateral decision under the guise of absenteeism and hence, wisely coined the words like 'loss of lien' of employment;
vii) There is lack of genuine intention on the part of the Management to call the workmen to resume duties;
viii) The Management re-coursed to avoid participation in the conciliation proceedings under flimsy grounds questioning the locus standi.
26. It is clear from the aforementioned that both the Labour Court as well as the Industrial Tribunal have held that there is no refusal to work by the workmen and it is the Management which has refused the employment to the workers.
27. The learned Senior Counsel for the Petitioner contended that the workmen had their own Trade Union called EMPL and the BNEU representing the workmen working in the Petitioner - Company/establishment does not arise. In support of his contentions, he relied on the 35 judgment in the case of Workmen of Indian Express Newspaper Private Ltd., (supra) and Bombay Union of Working Journalists (supra).
28. In the case of Workmen of Indian Express Newspaper Private Ltd., (supra) the Hon'ble Supreme Court was considering a question as to whether a dispute was an individual dispute or an industrial dispute and also "whether the cause of a workman in a particular establishment can be sponsored by a union which is not of workmen of that establishment but is one of which membership is open to workmen of other establishments in that industry." While considering the said question, the Hon'ble Supreme Court noticed its earlier judgments in the case of The Newspapers Ltd., v. The State Industrial Tribunal, U.P17 and in the case of Bombay Union of Working Journalists (supra). However, having regard to its judgment in the case of The 17 1957 - S.C.R. 754 36 18 Workmen v. M/s. Dharampal Premchand , the Hon'ble Supreme Court has held as under:
" 7...... this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay, and held that notwithstanding the width of the words used in S 2(k) of the Act a dispute raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment, that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same, industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute."
28.1 In the facts of the case arising in Workmen of Indian Express Newspaper Private Ltd., it was noticed that the number of workmen in the said case employed in the company was 25% who were members of the Union and hence, gave a representative 18 1965-3 SCR 394 37 character to the Union. It was also noticed in the said case that at the material time there was no union of working journalists employed by the company.
28.2 The case of the Workmen of Indian Express Newspaper Private Ltd. (supra) will not aid the case of the Petitioner since in the present case, action against the workmen has not only been challenged by the Union in ID No.77/2009 before the Industrial Tribunal, but the individual workmen have also filed individual claim petitions before the Labour Court. It is also not in dispute that the workmen were also members of the BNEU. Further, the case of the Workmen of Indian Express Newspaper Private Ltd. (supra) does not lay down a proposition of law that if there is a union in respect of a particular company, another union which has amongst its members a representative character of employees working in the company, a dispute cannot be raised by the said union.
38
29. The learned Senior Counsel for the Petitioner contended that some of the workmen, responding to the call letter of the Management reported for duty without any alleged undertaking/apology. Reliance is placed on the cross-examination of WW.1 in WP No.20186/2016 for the said purpose. The said fact would not ennure to the benefit of the Petitioner since, the main question that arose for consideration before the Labour Court and the Industrial Tribunal is, "whether there was refusal of employment by the Petitioner on 7.1.2009", which has been adequately answered as noticed herein.
30. The learned Senior Counsel for the Petitioner contended that even in the event of termination, since the workmen were called back to work and some of them have reported to work without giving any undertaking/apology, the question of awarding full backwages as a consequential relief to reinstatement does not arise since the workmen have already been reinstated. In furtherance of the said submission, it is 39 contended on behalf of the Petitioner that the Labour Court ought to have, before awarding full backwages and all consequential benefits, considered the aspect of apportionment of blame. Reliance is placed on the case of the Management of M/s.Pradeep Lamp Workers (supra) in support of the said submission. The aspect regarding apportionment also would not come to the aid of the Petitioner, inasmuch as, the primary question that arose for consideration is, "whether on 7.1.2009 there was refusal of employment by the Petitioner" and the Labour Court having held that there was refusal of employment by the Petitioner, the consequences there from would follow inasmuch as, the workmen are not to be blamed for not being taken for employment. Hence, for no fault of the workmen, they cannot be deprived of their employment and the financial benefits of the said employment up to the subsequent date of reinstatement.
31. In the case of Buckingham and Carnatic Co.Ltd., (supra), it was held by the Hon'ble Supreme 40 Court that abandonment or relinquishment of service is always a question of intention which is required to be appreciated having regard to the evidence in that behalf.
32. In the case of Escorts Ltd., (supra) it was held by the Hon'ble Supreme Court that the termination of service fell within the ambit of Section 2(oo) of the ID Act and did not constitute retrenchment.
33. In the case of Syndicate Bank (supra) the Hon'ble Supreme Court was considering a case where the employee was notified regarding the enquiry and since he offered no explanation of his absence and did not report for duty within 30 days, he was treated as voluntarily having abandoned his services by placing reliance on a clause in the bipartite settlement. In the said case, the Tribunal held that the workman has not been served with the notice and ordered his reinstatement subject to certain conditions which order was upheld by a Co- ordinate Bench of this Court as well as by the Division Bench. However, the Hon'ble Supreme Court set aside 41 the said order/judgment and upheld the order of dismissal treating the workman as having voluntarily abandoned his services.
34. The learned Counsel for the workmen relied on the case of GT Lad (supra), wherein the Hon'ble Supreme Court considering the true meaning of the expression "abandonment of office" has held as follows:
"5a. .......... It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an abandonment of office' ".
35. In the case of Syed Yakoob (supra) the Hon'ble Supreme Court while considering the scope of power under Article 227 of the Constitution of India vis-à- vis orders of Courts and Tribunals has held as follows:
"7. .............. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had 42 erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and 43 the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
36. The learned Counsel for the Respondents - workmen has relied on the judgments in the case of Director of Fisheries Terminal Dept., (supra), Dipali Gundu Sarwate (supra), Jasmer Singh (supra), Gaurishanker (supra) and Tapash Kumar Paul (supra) in support of the proposition that termination of service of workman without complying with Section 25F of the ID Act is illegal. A detailed examination of the said judgments are not necessary having regard to the findings recorded herein.
44
37. In the case of Scooters India Ltd., (supra) relied on by the learned Counsel for the workmen, the Hon'ble Supreme Court was dealing with a clause in the Standing Orders which stipulated automatic termination of the employment of the workman if he remains absent from duty without leave, in excess of the period of leave originally sanctioned or subsequently extended for more than 10 days.
38. The learned Senior Counsel for the Petitioner - Management has vehemently contended that the Labour Court was required to frame an issue as ordered by the Division Bench of this Court in the case of M/s. Express Publications Limited (Madurai) (supra). It is forthcoming from a perusal of the said judgment dated 17.8.2010 passed by the Division Bench that point/question No.1 for consideration was amended as follows:
"1. Whether the workmen listed in the annexure are justified in contending that the management of Express Publications (Madhurai) Limited were illegally refused work?"45
39. It is forthcoming from the first issue framed for consideration by the Labour Court that it pertains to the same aspect as to whether the Management illegally refused work. The said question regarding refusal of work by the Management has been considered in detail by the Labour Court as well as the Industrial Tribunal. The Labour Court and the Industrial Tribunal have appreciated the correspondence between the parties as well as the various facts and circumstances and has recorded finding in that regard which has been noticed earlier in this order. Hence, the said contention on behalf of the Petitioner is liable to be rejected.
40. It is forthcoming from a re-appreciation of the entire material on record in both the present Writ Petitions that consequent to the incident that occurred on 7.1.2009 the workmen were sent out of the work place. The contention of the workmen that they tried to report for duty but the Management did not permit them to report for duty and the response of the Management that despite 46 the fact that they were always ready and willing to take the workman back into employment the workmen did not report for duty, but however took a stand that they would wait for adjudication of the dispute that was referred for adjudication, consequent to which the workmen were terminated by various orders dated 16.1.2009, 6.2.2009 and 3.2.2009, has been adequately appreciated by both the Labour Court and the Industrial Tribunal by considering the entire material on record pertaining to the said situation and have recorded finding of fact that it was not a case of abandonment of employment by the workmen but it was a case of refusal of work by the Management. As noticed by the Labour Court, the Petitioner in the counter filed before the Labour Court has merely narrated the sequence of events and contended that the workmen were putting forth untenable and false contentions and they deliberately and intentionally failed to report for duty and hence, it was a case of abandonment of service. The Petitioner has not placed on record any material as also any averment in its statement 47 of objections filed before the Labour Court to justify its contentions that it was always willing to take the workmen back into employment.
41. It is clear that there is no material on record to demonstrate that the workmen abandoned or relinquished their employment and no such intention is forthcoming from their acts or conduct. The findings of fact recorded by the Labour Court and the Industrial Tribunal are that the Management refused employment to the workmen and there is no ground made out to interfere with the same.
42. In the course of his submissions, the learned Senior Counsel for the Petitioner has placed on record a list containing details of the names of workmen, their designation, the case number before the Labour Court and the details as to their status of employment as on date i.e., whether they have been reinstated/retired/resigned/ expired.
48
43. With regard to the individual petitions filed before the Labour Court, it is to be noticed that the proceedings before the Labour Court have been disposed off vide Award dated 27.11.2015. Subsequent to the said date, the aspects with regard to the status of the employment of the workmen would be consequential to the Award passed. Hence, it is not necessary to go into individual details as to whether the workmen have retired or subsequently been reinstated into service since if the Award of the Labour Court is upheld, the workmen would be entitled to all benefits as a consequence of the said Award. It is also not necessary to go into the individual dates of the status of their employment since the said aspect has already been dealt with by the Labour Court and the financial consequences of the same would follow.
44. Although, with regard to the same incident two sets of proceedings were initiated i.e., one by the individual workmen and another by the Union before the Industrial Tribunal, it is to be noticed that the Labour 49 Court vide its Award dated 27.11.2015 while ordering reinstatement of the workmen has awarded specific relief in respect of each of the workmen as already noticed hereinabove. The Industrial Tribunal, vide its Award dated 28.4.2017 after recording a finding that the Management had illegally refused work to the workmen, noticing that in respect of 43 workmen, in view of the parallel proceedings no relief was granted, and only in respect of the other workmen the relief has been granted by the Industrial Tribunal.
45. Hence, the Labour Court and the Industrial Tribunal have considered all aspects of the matter, also the individual cases of the respective workmen wherever any separate or different relief was required to be granted and has passed suitable orders in accordance with law.
46. In view of the aforementioned and having regard to the settled proposition of law with regard to the limited scope of interference by this Court under Article 226 of the Constitution of India with the orders passed by 50 the Tribunals, the Petitioner - Management has not made out any ground to warrant interference in the finding of the fact recorded by the Labour Court and the Industrial Tribunal. Accordingly, the questions framed for consideration are answered in the negative.
47. Hence, both the Writ Petitions are dismissed as being devoid of merits.
No costs.
SD/-
JUDGE nd