Karnataka High Court
M/S Minerva Mills vs Sri D Srinivas Murthy on 28 October, 2009
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGAI.ORE
DATED THIS THE 28?" DAY OF 0CT0B!'3l1x....2__'4{jV3'V:fVV)'§:'~Ve.~ H
PRESENT _
I-i0N'BLE Mr. JUSTICE V.
Am! I . -T I
HON'BLE
WRIT APPEAL z1\To.:36.€.V':V:,./2--O'(}.9_(L.-"1'I'<31'£)
BETWEEN: ._ 1 .
M/S MINERVAMILLS ._ :
P.B.NO.20lO,MAGAD1"ROAD,
BANGALORE 23 _. 2 - __ .
REP., BY ITS MANAGER A_cce.UN'r$-- '=_..;APPELLANT
V """ = £153? S1-Vi 'M R RAVI,
AND: ' V V 'V V '
SR1 D SRINIVAS 1\}iU.R"'rIeIY" . 4' _
H.NO.21. 71:»: CROSS, ._5TH "
L.N,PURA, ~2,1_ _ RESPONDENT
Al5'1'h':ET1\VuI;"FILED U/ S 4 OF THE KARNATAKA HIGH COURT
AcT*«..PR.AYINg}vv._Tt:,>_'sE"$_ASIDE THE ORDER PASSED IN THE WRIT
PE'I'1T1~QN«.ez{;9«[email protected]/rzvooij -DATED 21 .1().2008.
coming on for preliminary hearing before
v$e.7the'Court th.1'.s"'daay, Gopala Gowda, J delivered the f0}1owing:-
JUDGMENT
%\«/ JUDGMENT The correctness of the order of the learned Single Judge dated 21.10.2008 in WP No.49307/2003 connected No.1 i269/2005{L--TER} declining to interfere ~ of reinstatement, modifying the wages vfrorn it 0' 23.4.1990 till the date of reinstatement.Vis1.--l_lchVallenge.d writ appeal by the appellant--l\v/iarlagementg 0' grounds.
2 The ground ofrattack-'of..the and the order of the learned ijthatillthe learned Single Judge erredg' in ' conclusion that prior to 23.4.1990, the "'r.espon'd_elnt "rei.nained unauthorisedly absent duegto villi.' lhealthn he remained absent without autl1o'l'iZedV1e_ave'..zifi?.e_.f. 5.3.1990 to 28.8.1990 in the first 'Vflginstance 24 'jcientinuously for which even after raising a _f_igclisp1.1ate before «the Labour Court also respondent had neither any. explanation nor produced any documents his claim. Further, the Presiding Officer of the V Labour Court has not noticed the fact that Management has not condoned the misconduct of 24days continuous a.bsence of the respondent--workman from his work in _ Medical Certificate EX.W.3 is only in respect of "
the period from 14.4.1990 to 22.4.1990 au4ma~gc¢:st;iey' said certificate was not examined,_v"l?.urther_it _isv.Vst§atcd.. that r C' respondent was an ESIV l--coveredVViernp--loyee "'and_.f§was in Bangalore. All modern the ESI Corporation is V'respondent. If he is a member of Chet' only with medical benefits availing of the such facilities by prove that he was not in fact not suffering sickness since only a sick person can get tiaose facilitiies,
3. hltiiis contended by the learned counsel for the Appellant thlat that above points have not been considered by ':._'_VV'both"'leai*'ned Presiding Officer of the Labour Court as well as h leéarned Single Judge. Therefore, they have erred in l\«/ 4 coming to the conclusion that the respondent was sick and he had produced medical certificate which are erroneous and contrary to the facts and law, therefore the order learned single judge is liable to be set aside and _ award of the labour Court.
4. It is further contended that, the sp'eeil'ie'eohteritionp the appellant was that the resporident worlLrner1:"'»%,§as..,r1eVer refused employment nor was he iss1._i§'d_%jth ar1y.:terrriination order. On the other hand, appe1la§.1t."'ha.d's-ent a letter on 7.4.1990 in which respfjhdejat to report for duty asifithe' remained unauthroizedly absent from his.__4worl{ 1990 continuously as per Clause 1v_'£;~l..Q'VI"V'the CVei'tii"ive_dp.Standing Orders of the Mills any worlgmari' .wi1o"re'rn'ains absent continuously for 8 days is to treatehdasl h'axfir';éieft the services of the appellants Mill. _jll_ipTherefore,l'the*learned counsel has requested this Court to set "the"order impugned in this appeal and quash the award '_ V'V:of.._tlhe Irabour Court. V 5
5. Further it is contended by him that learned Single Judge without noticing the factual position narrated above has modified the award of the Labour Court with rega'i'Td"eto baekwages from 50% to 30%, which amounts _ bonus to the workman, who has unauthorize~d'1y._ifremainedL_u «. '' absence from his duties in the Mills. ':Fhe1jef.. set aside that portion of the order"Vo'£_theV"1e.arried* in modifiring the backwages from 3_Q°/0 'him. award of the labour court. .
6. With referenceto the-above 's-aid urged on behalf of the:;Appe1lAVari1;;:'~we h'a\_Ee'v---eareful1y examined the award passed by the Laioour basis of pleadings of the parties, the following issues:
'* I party proves that the 11 party A .;re'fused"eri1p'i~oyInent to him'?
2. To what reiiei'?"
he first point is answered by the Labour Court in 'faVour--.,o'f.th'e respondent workman after adverting to the facts 'N[ and legal evidence on record particularly Ex.Wl to W10. The workman has been examined as WW.1 who has stated _4th_a~t_:fhe was appointed as a weaver in weaving department__of . and subsequently he was asked to go pworkll'i'n::lR§;"'Derpt;-V_V ll"
as a spinner in the year 1987 for a lesse-»rgs'alary_§" No was issued to him and no enqui_ry~.V_pwas" c_on.dnct"e.d"'"before " V refusing employment to C)fficer"?§ of the Labour Court has extracted llrelevant' Ex.W--4 at Paragraph-8 of the ettidence of };VIW.1 at Paragraph-9 claim made by the respondent ianldl: ha_s""rendered 240 days of continuous year. Refusal of employment after he the appe11ant--ernp1oyer vide A cefrect address to it they have not a letter and therefore held that Vlre1":_1sa1 of._err;p1oyInent to the respondent comes within the l of £~3ec.2(oo) of the I.D. Act. Hence the action of the 'amounts to retrenchment. The Labour Court after re-:ferI'in:g to the facts and legai evidence on record has held M] that refusal of employment to the respondent is not in compliance with the mandatory provisions of Sec.2{5FV_l'-rea_d with Sec.25N of the ID Act, in not obtaining . of the State Government and neither»iss_ued"'thr'ee;p.fr1onthsV_ ft"
notice nor pay retrenchment compensationtl *
8. The said finding of the Presiding Officer of the Ex.W3 the medical certificate issued by Stating that the respondent' and as such he could not attend ~. 1990 is reasonable and therefore he document and explanation Qvftgthe his absence from work. Further the__Fresiding".C)ftice_r of the Labour Court has categorically If"s..__rpecorded""la of fact holding that this refusal of _IM-.ernployInen_t;ato the Workman amounts to termination. MW.1 evidence has stated that the notice sent to the h returned unserved and he stated that the address \\-/ 8 shown in Ex.M3 is the address furnished by the workman to the Management. Further it has been held by the Labour Court that even if it is so, there was no impediment4.foi=.4¢'_the management to issue another notice to the . workman after the receipt of Ex.W.4- to theaddress' 'ogllyen:i:1Vit.. " "
On these relevant consideration of :le.ga':f evidence on record, the Labour has "held = L' has not abandoned the services but the management alone it to the respondent retrenchment.
Further it thvelllliabour Court that the workman has of Appellant's Mills in the year 1981:,and hasttcwoaea continuously 911 13.4.1990 and therefore 3-could' notvvwhtave refused employment to the respondent/' without following the mandatory l"Vv::'firoeedure«... as.__v'con'templated under Section 25N (37. 25F of ..(a} of I.D.Act. Therefore, the Labour Court has respondent/workman is entitled for reinstatement q I V _ 50% backwages. V ll learned counsel for the appellant that the workman is not entitled for backwages is Wholly untenable in law. Thoj.3,gh:the workman has not filed writ appeal before this _ Court can examine the correctness of the ,order"oi" the letarned "
single Judge in reducing backwages;"1«fronr1*~ 'CV5O%'"'to' exercise of its power under order of CPC. Keeping in View of thecatenaVofdecisions-rendered by the I-Iorfble Apex Court principle laid down by the Apex.» 1979 in the case of ,_'I:?'Ef?oi-flc.'£' Pvt.Ltd., v. The Employees C 'Works Pvt.Ltd. , reported in AIR 1979 Apex Court has held that the workrnatn a sacrificial goat by denying ordermovf termination is found to be invalid and "i1leg_ al" in :'layv.fj - V V .3 1 1. the reasons stated supra, we are of the View that it "not"a_.fit case for our interference with either the award or ' olrdergfof the labour Court or learned single Judge. The appeal \\~/ is devoid of merit. Hence the appeal is dismissed without costs.
12. The appeal is dismissed.
Sk/ck