Karnataka High Court
The Management Of Mysore Breweries Ltd vs Sri Chikkagangaiah on 7 March, 2024
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NC: 2024:KHC:9635
WP No. 1503 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.1503 OF 2013 (L-TER)
BETWEEN:
THE MANAGEMENT OF MYSORE BREWERIES LTD.,
A UNIT OF SKOL BREWERIES LTD.,
JALAHALLI CAMP ROAD, YESHWANTHPUR,
BANGALORE - 560 022
REP. BY ITS MANAGER (HR).
... PETITIONER
(BY SRI B.C. PRABHAKAR, ADVOCATE)
AND:
SRI CHIKKAGANGAIAH
S/O. BAJJAIAH
AGED ABOUT 48 YEARS,
R/AT BYCHENAHALLI,
KANAKUPPE POST, HEBBURU POST,
TUMKUR DISTRICT - 572 120.
... RESPONDENT
Digitally signed (BY SRI K. SRINIVASA, ADVOCATE)
by SHYAMALA
Location: HIGH
COURT OF THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
KARNATAKA CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
LEADING TO THE PASSING OF THE AWARD DATED 25.08.2012 BY
THE PRINCIPAL LABOUR COURT, BANGALORE IN I.D. NO.30/2010;
QUASH THE AWARD DATED 25.08.2012 PASSED BY THE PRINCIPAL
LABOUR COURT, BANGALORE IN I.D.NO.30/2010 VIDE ANNEXURE-U.
THIS WRIT PETITION COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 1503 of 2013
ORDER
Management is in this writ petition assailing the impugned award, whereby, the Labour Court allowed the petition under Section 10(4-A) of the Industrial Disputes Act, 1947 ('the ID Act' for short) directing the management reinstate the workman into service with consequential benefit.
2. Respondent was employed in the petitioner- management as a trainee helper on regular basis. For the unauthorized absence from 10.09.2009, charge-sheet- cum-show cause notice was issued to the respondent. The respondent was kept under suspension from 14.12.2009, enquiry was conducted, the enquiry officer submitted the report and held that the charges leveled against the respondent-workman were proved. The disciplinary authority, on considering the report and the material placed before it, dismissed the respondent-workman from service.
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3. Dispute was raised under Section 10(4-A) of the ID Act, contending that the absence on part of the workman was not willful one but for the reason that he was suffering from jaundice, and the order of dismissal dismissing the workman from service was shockingly disproportionate to the misconduct.
4. The management appeared and filed counter statement, inter alia, contending that the respondent- workman was in habit of misconduct for one or the other reasons from the beginning and in spite of giving warning memos, the respondent-workman has remained willfully absent from his services and would justify the order of dismissal passed by the Disciplinary Authority. The Labour Court on the basis of the pleadings framed the necessary issues, on the issue of conduct of domestic enquiry held that the enquiry conducted by the management by following the principles of natural justice. On question of victimization and other aspect, the workman examined himself as W.W.1 and on behalf of the management, -4- NC: 2024:KHC:9635 WP No. 1503 of 2013 M.W.2-the Executive HR was examined and got marked documents at Ex.M.1 to M.33.
5. The Labour Court by the impugned order held that the order of dismissal against the workman is perverse and is disproportionate to the proved misconduct, by invoking Section 11A of the ID Act, the Labour court set aside the order of dismissal and directed the management to reinstate the workman into service with continuity of service and consequential benefits except for terminal benefits.
6. Heard Sri C.K. Subrahmanya, learned counsel for the petitioner and Sri K. Srinivas, learned counsel for the respondent.
7. The material on record would indicate that the warning memo issued to the respondent-workman was for several other reasons other than the absenteeism, the workman remained absent from 10.09.2009 to 25.09.2009 by obtaining oral permission for leave from the Head of -5- NC: 2024:KHC:9635 WP No. 1503 of 2013 the Department (HOD), which fact is not in dispute, he had to report to duty on 26.09.2009, notice was issued to the workman by the management seeking explanation for his absence and to report to duty. The respondent- workman submitted letter to the notice stating that he is suffering from jaundice and stomach ache and he is getting treatment, the management asked the workman to get treated with the company doctor and appear before the company doctor on 10.11.2009 with all the medical reports. It appears that the workman did not appear and charge-sheet-cum show-cause notice was issued on 19.11.2009 stating the misconduct of his unauthorized absence for 70 days under the company's certified Standing Orders: "Willful insubordination or disobedience whether alone or in combination with other to any lawful and reasonable order or instructions of a superior instigation or abatement or incitement thereof" and "absence without leave on any day or habitual absenteeism without leave".
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8. The misconduct as per the management was taking leave by adducing false ground and act of subversive of discipline. The Disciplinary Authority, taking note of his past record of misconduct, dismissed the workman from service. The Labour Court having held the domestic enquiry to be fair and proper, the limited scope before the Labour Court was to whether there was perversity in the order, whether the imposing of punishment amounts to victimization and is shockingly disproportionate to the alleged misconduct.
9. The misconduct on part of the workman is for having remained unauthorizedly absent for a period of 70 days. The absence is to be willful for the employer to remove/dismiss the workman from service. An employee is under an obligation not to be absent himself from work without good cause during the time at which he is required to be at work by the terms of his contract of service, however, where the absence of the workman on account of sudden or serious illness, as in the instant case, that -7- NC: 2024:KHC:9635 WP No. 1503 of 2013 would be an extenuating circumstance, which the employer will have to take into consideration and whether the workman was, in fact, ill or not, is a question of fact which has to be considered by the enquiry officer on basis of the evidence produced before him, the absence of the petitioner was due to his suffering from jaundice. The Disciplinary Authority relies upon the past acts of misconduct which were not the misconduct of absenteeism, but for various other reasons. The Labour Court by considering the entire aspect held that the misconduct of the absenteeism is not habitual and in the entire service of 27 years, the absenteeism on hand was first of its kind and by giving reasons the Labour Court held that the imposition of punishment of dismissal is shockingly disproportionate to the misconduct.
10. The order of dismissal by the management in the instant case for the absence which is not willful, but for extenuating circumstances, the Labour Court was justified in directing reinstatement without backwages, -8- NC: 2024:KHC:9635 WP No. 1503 of 2013 and the impugned order does not warrant any interference by this Court.
11. At this stage, it is brought to the notice of this Court that the workman has attained the age of superannuation and the establishment has been closed. In light of the said circumstances, considering the employment of the workman for several years, directing reinstatement needs to be substituted by awarding appropriate compensation to the workman and it would be appropriate to award compensation of Rs.5.00 lakh in lumpsum in addition to the gratuity which the workman is entitled to under the Payment of Gratuity Act, 1972. Workman's counsel submits that the management has not paid 17-B wages in compliance of the order dated 21.02.2013, if the 17-B wages as contended by the workman's counsel are not complied with, management to quantify and pay 17-B wages in accordance with law. The management to pay the compensation of Rs.5.00 lakh and the 17-B wages entitlement of the workman if not paid -9- NC: 2024:KHC:9635 WP No. 1503 of 2013 within an outer limit of four weeks from the date of receipt of this order.
12. With the said observation, the writ petition stands disposed of.
Sd/-
JUDGE S*