Karnataka High Court
Sri. Udaya Shankar vs The Management Of Bharat Electronics ... on 16 October, 2012
Author: N.Kumar
Bench: N.Kumar
1
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.3967/2010 C/W
W.A.Nos.3499-3500/2009 (L-TER)
W.A.NO.3967/2010
BETWEEN:
SRI UDAYA SHANKAR
SON OF LATE K.NANJUNDAPPA
AGED ABOUT 63 YEARS
OPERATOR, TOKEN NO.118165
SILICON SEMI CONDUCTORS
BHARAT ELECTRONICS LIMITED
(NOW ILLEGALLY DISMISSED FROM SERVICE)
AND RESIDING AT HOUSE NO.29
BUILDING NO.150, 2ND FLOOR,
KHB FLATS, SERKI, KENGERI
BANGALORE-560 060.
... APPELLANT
(BY SRI SUBRAHMANYA BHAT, ADV., FOR
M/S SUBBA RAO AND CO., ADVS.,)
AND:
THE MANAGEMENT OF
BHARAT ELECTRONICS LIMITED
REP.BY ITS EXECUTIVE DIRECTOR
JALAHALLI (POST)
BANGALORE.
...RESPONDENT
(BY SRI P.D.VISHWANATH, ADV., FOR
M/S A.G.H.ASSOCIATES, ADVS.,)
2
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.20938/2004 DATED
12.8.2009 AND ETC.,
W.A.NO.3499/2009
BETWEEN:
M/S BHARAT ELECTRONICS LIMITED
JALAHALLI POST, BANGALORE-560013
BY ITS GENERAL MANAGER (HR)
... APPELLANT
(BY SRI P.D.VISHWANATH, ADV., FOR
M/S A.G.H.ASSOCIATES, ADVS.,)
AND:
SRI UDAYSHANKAR
SON OF LATE SRI K.NANJUNDAPPA
AGED ABOUT 62 YEARS
NO.933, 3RD CROSS,
1ST BLOCK, KALYANNAGAR
BANGALORE-560043.
...RESPONDENT
(BY SRI SUBRAHMANYA BHAT, ADV., FOR
M/S SUBBA RAO AND CO., ADVS.,)
W.A.NO.3500/2009
BETWEEN:
THE MANAGEMENT OF
BHARAT ELECTRONICS LIMITED
JALAHALLI POST, BANGALORE-560013
BY ITS GENERAL MANAGER (HR)
... APPELLANT
(BY SRI P.D.VISHWANATH, ADV., FOR
M/S A.G.H.ASSOCIATES, ADVS.,)
AND:
SRI UDAYSHANKAR
SON OF LATE SRI K.NANJUNDAPPA
AGED ABOUT 62 YEARS
OPERATOR, TOKEN NO.118165
3
SILICON SEMI CONDUCTORS
BEL & R/AT C/O K.PREM KUMAR
NO.933, 3RD CROSS,
1ST BLOCK, KALYANNAGAR
BANGALORE-560043.
...RESPONDENT
(BY SRI SUBRAHMANYA BHAT, ADV., FOR
M/S SUBBA RAO AND CO., ADVS.,)
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION NO.17716/2005
C/W 20938/2004 DATED 12.8.2009 AND ETC.,
THESE APPEALS COMING ON FOR ORDERS THIS DAY,
N.KUMAR J., DELIVERED THE FOLLOWING:-
JUDGMENT
Writ Appeal Nos.3499-3500/2009 and Writ Appeal No.3967/2010 arise out of the same order. Therefore, they are taken up for consideration together and disposed of by this common order.
2. For the purpose of convenience, the parties are referred to as they are referred to before the labour Court.
3. There is a delay of 419 days in preferring this appeal. Objections are filed opposing the condonation of delay. As we are hearing the connected matters, we deem it proper to condone the delay of 419 days in filing 4 the appeal. Accordingly, Misc.W.No.10727/2010 for condonation of delay is allowed.
4. The workman Sri Udaya Shankar was working in the Bharat Electronics Limited and was appointed as a Mazdoor and he was promoted as Operator "B" on or about during 1981. On 2.7.1983 as per Annexure-B, he was served with a charge sheet accusing him of unauthorizedly hiding 5 items belonging to the Company in his first locker and another eight items in the second locker, which were jointly held by him along with Sri V.D.Bojan. As the reply given to the said show cause notice was not satisfactory, an enquiry was initiated. He participated in the enquiry. The Enquiry Officer submitted a report stating that the misconduct alleged against the workman is proved. Thereafter, the Management accepting the said report imposed a penalty of dismissal from service. They also filed an application under Section 33(2)(b) of the Industrial Disputes Act seeking permission for such approval, which was also granted. Aggrieved by the said order of dismissal, he raised an industrial dispute before the 5 Additional Industrial Tribunal, Bangalore, contending that the domestic enquiry conducted is not fair and proper, the misconduct is not proved and the punishment imposed is grossly disproportionate to the misconduct proved. The Tribunal held an enquiry on the preliminary issue regarding validity of the domestic enquiry. After enquiry, it was held that the domestic enquiry conducted is fair and proper. Thereafter, the labour Court appreciated the entire material on record and recorded a finding that the finding of misconduct is legal and valid. However, it found fault with the punishment imposed on the workman, as V.D.Bojan co- accused was not dismissed from service. As he retired from service, he was given all terminal benefits and therefore, the labour Court was of the view that there is a discrimination between the workman and V.D.Bojan and therefore, it interfered with the punishment of dismissal and imposed the punishment of compulsory retirement granting all consequential benefits to the workman. Aggrieved by the said order of the labour 6 Court, both the Management and the workman preferred writ petitions before this Court.
5. The workman challenging the finding of the labour Court on merits and the management contended that in the standing orders the compulsory retirement is not an enumerated punishment and therefore, the Tribunal could not have imposed the said punishment, which is no punishment at all. They contended that so far as V.D.Bohan is concerned, after the articles were found in the locker, which was brought to his notice, immediately he returned the same to the management. Therefore, returning of those articles to the management may was the basis for not imposing the punishment of dismissal. The learned Single Judge heard all those writ petitions together and was of the view that what the authority should have examined was whether the workman had an intention to smuggle the articles belonging to the 2nd respondent. The said articles were not recovered neither from the pocket of the workman nor it was found in his possession while he was going out of the factory premises. Therefore, the finding of the 7 Enquiry Officer is unsustainable and therefore, it interfered with the order of dismissal and directed payment of terminal benefits till the date of award of the labour Court without any back wages and without consequential benefits in modification of the award of the labour Court. Aggrieved by the said order of the learned Single Judge, again both the Management as well as the workman have preferred these writ appeals.
6. The learned counsel for the Management assailing the impugned order contends that there is a concurrent finding that the domestic enquiry conducted is fair and proper as well as on the question of proof of misconduct, the learned Single Judge in exercise of writ jurisdiction under Article 226 of the Constitution of India interfered with the said findings of the fact based on legal evidence. They further contended that the question before the Authorities was whether the workman had kept the property belonging to the Company in his locker without the authority. It is not a case of smuggling or theft, however the nature of enquiry and the standard of proof that is required in the 8 domestic enquiry is not the same as in the case of criminal case, where mens rea is to be proved and charges has to be proved, is beyond reasonable doubt. Therefore, he submits a case for interference is made out.
7. Per contra, learned counsel appearing for the workman submits that though in the locker these properties belonging to the company were found, there was no intention to take it out of the company premises and they were about to be returned to the company. Without giving such an opportunity, enquiry was initiated and the learned Single Judge has rightly interfered with the said findings of fact and therefore, he submits a case for interference is made out.
8. From the aforesaid facts and the rival contentions, it is clear that the workman had kept 5 items in the first locker, which are as under:
I. Gold plated Diode Element concealed in Maroon colour pen-qty 3 Grams II. Gold plated Diode Element concealed in Green colour pen-qty 3.5 Grams 9 III. Gold plated Diode Element concealed in a paper packet-qty 8 Nos.
IV. Shining cloth-qty 3 Nos V. Gold plated wire-qty 1 No. (Approx.1inch)
9. In the second locker, which is jointly held by Sri V.D.Bojan, there were 8 items. They are:
I. TO-5 headers-Qty 262 Nos (Basic Raw Material) II. Rejected TO-60 headers -Qty 4 Nos.
III. TO-5 (Qty 1+1) (opp only)
IV. Rejected TO-5 Device-Qty 123 Nos (Long
Lead)
V. TO-60 cans-Qty 127 Nos
VI. Silver copper perform-Qty 1 No
VII. Devices in TO-5-Qty 29 Nos. Short Lead VIII. Lead Tin Strip-Qty 15 Nos.-Weight 539 grams.
10. The fact that these items were found in the locker of the workman is not in dispute. The dispute is the intention behind keeping the said items in the locker. An employee had no right to keep the property belonging to the company in his locker assuming that as they were found in the office premises, that should 10 have collected and given back to the Company. The Enquiry Officer by cogent reason has recorded a finding holding that the misconduct has been proved and the Management re-appreciating the entire material on record imposed the punishment of dismissal. The labour Court after holding that the enquiry is fair and proper and re-appreciating the entire material on record concurred with the findings of the Enquiry Officer. The question of proving the intention for having found those articles either in the pocket of the workman or being seized at the time of his crossing the barriers of the factory does not arise. Therefore, the learned Single Judge is not justified in interfering with the findings of the fact based on legal evidence. Having regard to the nature of charges levelled against the workman and the fact that it is proved, the punishment of dismissal imposed by the management was just and proper. The labour Court committed a serious error in interfering with the punishment imposed and imposing compulsory retirement, which is not a punishment. Even otherwise, in view of the judgments of the Supreme Court where it 11 is held that in the case of breach of trust, such person should not be allowed to continue in service. As the management has lost the confidence in such person, the labour Court was not justified in imposing the punishment of compulsory retirement.
Hence, we pass the following ORDER I. Writ Appeal Nos.3499-3500/2009 is allowed.
Writ Appeal No.3967/2010 is dismissed. II. The order of dismissal passed by the management is restored.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE PB