Karnataka High Court
The Management Of Century Club vs Sri K Shivkumar on 20 November, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION No.7210/2007 (L-TER)
BETWEEN :
THE MANAGEMENT OF CENTURY CLUB,
NO.1, SHESHADRI ROAD,
BANGALORE-560 001,
REP BY ITS HONORARY SECRETARY. ...PETITIONER
(BY SRI.RAMACHANDRAN, ADV.
FOR SRI.M R C RAVI, ADV. )
AND :
SRI K SHIVKUMAR,
MAJOR,
NO.116, 3RD CROSS,
GOUTHAM NAGAR,
SIRAMPURAM,
BANGALORE-560 021. ...RESPONDENT
(BY SMT. H MANGALAMBA RAO, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYIN TO QUASH THE AWARD
DT.26.12.2006 IN D.D.NO.90/2004 PASSED BY THE LABOUR COURT,
BANGALORE DIRECTING THE PETITIONER TO REINSTATE THE
RESPONDENT TO HIS ORIGINAL POST WITH CONTINUITY OF
SERVICE, 50% OF BACKWAGES AT ANNEXURE-A AND ETC.
2
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner - Management has called in question the award dated 26th December 2006 in I.D.No.90/2004 on the file of Principal Labour Court, Bangalore.
2. Respondent - workman raised a dispute against the order of dismissal. Case of the respondent was that, he was appointed as a Telephone Operator with the salary of Rs.4,000/- per month. However, on 12.07.2004, he was served with the charge sheet interalia alleging that, (i) on 22.11.2000 he along with other employees of the club, left the premises un-authorisedly with ulterior motive to scuttle the activities of the club; (ii) on 18.05.2004, he had violated the shift timings and (iii) on 27.05.2004, he had used bad language against the Management and the Manager.
3. Though the enquiry was held and charges were held to be 3 proved and order of dismissal was passed by the Management on 16/17th September, 2004, however, the Labour Court held that, the enquiry is not fair and proper. In this regard, the Management in order to support the order of punishment examined MW-1 to MW-
3. The Labour Court on appreciation of the evidence held that, the charges are not proved and accordingly, set aside the order of dismissal and directed the reinstatement with 50% back wages and without consequential benefits.
4. Sri Ramachandran, learned Counsel appearing for the petitioner submitted that, three serious charges were levelled against the petitioner. Petitioner had used foul language against the Management and he had violated the shift hours. Further had left the premises of the club scuttling the club activities. To support the same, the witnesses have been examined. From amongst them, MW-2 one C.M.Uthappa, Assistant Manager, has stated that the respondent - workman raised his voice loudly in a rough manner and has used filthy language against the Management. This 4 evidence proves the charge of using foul and filthy language against the Management. Use of foul and filthy language against the Management is a serious mis-conduct and once it is proved, it results in the order of dismissal. However, the Labour Court though has found that, the words used are uncivilized and foul, but holds that the charges are not proved on the ground that, the incident had occurred within the premises, but not within the duty hours, as such, it does not violate the service conditions. He also submitted that, not taking action against the employees does not mean that the respondent is not guilty of the mis-conduct and submitted that, when the respondent is found of having used the filthy and foul language against the Management, the Labour Court should not have interfered with the order of dismissal.
5. On the other hand, learned Counsel for the respondent - workman submitted that, as far as the first charge is concerned, the petitioner has punished the respondent by suspending him for a period for 7 days with issue of show cause notice and it is after 5 four years, the very same charge is levelled against the petitioner. Apart from this, the charge of using foul and filthy language against the Management is not proved, as it was in a strike and incident had occurred, however, though there were several other employees, only respondent was targeted on the ground that, he was the office bearer of the union.
6. As far as the shifts are concerned, learned Counsel submitted that, though the shift is adjusted between all the three operators, only the respondent is charge sheeted and enquiry was held, as such, the Labour Court has found that the charges are not proved and accordingly, has set aside the order of punishment.
7. Insofar as incident of 1998 is concerned, what appears from the award itself that, the respondent was issued with show cause notice, treating seven days as suspension and it is after four years i.e., in 2004, charge sheet is issued in respect of the said charge also. As far as shift is concerned, it is not in dispute that, 6 three operators were working on telephone and all the three persons were to work on shift basis, but it has come in the cross- examination that, earlier there was no shift system and shifts were adjusted amongst the operators. This has been accepted by the Labour Court on the ground that, there is violation of shift timings, it is not only the respondent, but also two other operators, however, no action is taken against two other operators.
8. As far the incident of using filthy language is concerned, the Labour Court has found that, the evidence is insufficient to prove that, the respondent had used filthy language against the Management.
9. The Labour Court has discussed the entire evidence elaborately and has given a finding. In view of the same, it is held that the charges are not proved and accordingly, order is passed. Even assuming that, the charges are not proved, what appears is that, there were earlier warnings against the respondent and taking 7 into consideration these circumstances, under which the Management had initiated enquiry, even though the order of punishment could be set aside, under the facts and circumstances of the case, I find that, awarding backwages is not justified. Only to this extent, the award of the Labour Court requires to be modified.
Accordingly, the writ petition is partly allowed. The award of reinstatement with continuity of service is confirmed. Insofar as back wages is concerned, the impugned award is hereby set aside.
However, the Management cannot make any recovery of any wages paid in terms of the order passed by the Labour Court or this Court.
Sd/-
JUDGE KNM/DP