Karnataka High Court
M/S Skf India Limited vs Sri. A V Nagabhushana on 14 July, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.6359/2018 (L-TER)
BETWEEN:
M/S. SKF INDIA LIMITED
NO.2, BOMMASANDRA INDUSTRIAL AREA,
HOSUR ROAD,
BENGALURU - 560 099
REPRESENTED BY ITS DEPUTY MANAGER-HR
SRI JAGANMOHAN RAI. ... PETITIONER
(BY SRI S.N. MURTHY, SENIOR COUNSEL FOR
SRI SOMASHEKAR, ADVOCATE)
AND:
SRI A.V. NAGABHUSHANA
S/O. SRI VENKATARAMAIAH,
AGED ABOUT 43 YEARS,
NO.201, GAYATHRI NILAYA
1ST 'A' CROSS, 4TH BLOCK,
II PHASE, BANAHASNKARI II STAGE,
BENGALURU - 560 085. ... RESPONDENT
(BY SRI B.R. VISWANATH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
AWARD DATED 20.12.2017 PASSED BY THE LABOUR COURT IN
I.D. NO.49/2012 AT ANNEXURE-N TO THIS WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 12/06/2023 FOR ORDERS AND COMING FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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ORDER
The present petition by the Company assailing the award dated 20.12.2017 in ID No. 49/2012 passed by the Second Additional Labour Court, Bangalore vide Annexure-N.
2. The brief facts of the case are that, the workman was employed with the company from 15.07.1991 and had served in the company for more than twenty years. Show-cause notice was issued by the company for the unauthorised absence from July 2009 to December 2009 for a period of 21 days, from 21.05.2010 to 04.08.2010 for a period of 76 days and between 01.01.2010 to 20.05.2010 for a period of 74 days. The domestic enquiry was held against the three charges levelled against the workman and the enquiry officer submitted the report and findings in respect of all the three charges on different dates, totally the date of unauthorized absence as stated by the Management was -3- 150 days. The Disciplinary Authority accepted the report and findings of the enquiry officer and issued the second show-cause notice to the workman in respect of all the three charges and the workman submitted his explanation to the second show-cause notice. The Disciplinary Authority by its impugned order accepting the report of the enquiry officer had dismissed the workman from the service. The claim statement was filed by the workman under Section 10(4-A) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act' for short) against the order of dismissal.
3. The management appeared and filed its counter stating that the workman was irregular in attending the duty and he remained absent during the year 2010 for 21 days and show-cause notice was issued. Subsequently, he remained absent on two other occasions and three charge sheets dated 30.03.2010, 20.05.2010 and 04.08.2010 were issued. The -4- Management stated that the enquiry conducted was fair and proper.
4. On the basis of the pleadings, the Labour Court framed the following:
ISSUES
1. Whether the domestic enquiry conducted by the second party against the first party is fair and proper?
2. Whether the second party is justified in dismissing the first party from the service in pursuance of the impugned order dated:
14.3.2012?
3. Whether the first party is entitled to the relief which he has claimed?
5. The Labour Court answered issue No.1 in favour of the management. Thereafter, workman examined himself on the question of victimisation and unfair labour practice, during the course of his cross- examination, he has produced documents, which were -5- marked on behalf of the management as Exs.M-24 to M-
26. The management did not lead any evidence regarding victimization. The Tribunal, by its award held that the order of dismissal is not justified, since the unauthorised absence stated by the Management was not willful and intentional on the part of the workman and set aside the order of dismissal and directed to reinstate the workman into service with continuity of service with all consequential benefits but without back wages. Aggrieved by the said order, the present petition by the management.
6. Heard learned senior counsel, Sri S.N.Murthy for the petitioner and the learned counsel, Sri B.R. Vishwanath appearing for the respondent and perused the entire material on record.
7. Learned senior counsel for the petitioner would contend that the award dated 20.12.2017 passed -6- by the Labour Court would indicate that the Labour Court has restricted its finding in respect of the charge sheet dated 30.03.2010, which was an unauthorised absence of the workman for the period of 21 days and completely lost track of the charge sheet dated 20.05.2010 and 04.08.2010, which were pertaining to the unauthorised absence of the workman for a period of 74 days from 01.01.2010 to 20.05.2010 and for a period of 76 days from 21.05.2010 to 04.08.2010 and there being no finding on two charge sheets nor was there any discussion regarding the unauthorised absence arising out of the two charge sheets, which shows the non- application of judicial mind by the Labour Court and on the sole ground, the order of the Labour Court needs to be set aside. Learned senior counsel would contend that though the absence of the workman was for a period of more than 171 days, the Labour Court has diluted the unauthorised absence to 21 days without referring to the -7- two other charge sheets. The award of the Labour Court does not consider the fact of unauthorised absence referred to in the two charge sheets by exercising its power under Section 11-A of the ID Act. The entire order of the Labour Court is mechanical and proceeded on the assumption that the unauthorised absence was only for 21 days. The absence without sanctioned leave for a long period establishes the amount of habitual negligence/dereliction of duty and lack of interest in work, which constitute misconduct. Stating these grounds, learned senior counsel sought to allow the petition by confirming the order of dismissal passed by the Disciplinary Authority.
8. Per contra, learned counsel for the respondent, while justifying the order of the Labour Court would contend that even assuming that the enquiry was held to be fair and proper, the Tribunal has taken into consideration the perverse finding of the -8- Labour Court in awarding quantum of punishment of dismissal for an unauthorised absence, which was genuine and bona fide due to medical reasons and this aspect having not been considered by the Disciplinary Authority, the Tribunal on re-assessing and exercising the discretionary power under Section 11-A of the ID Act and considering that the quantum of punishment is disproportionate to the misconduct, has rightly set aside the dismissal order and the same does not call for any interference in the hands of this Court.
9. Having heard learned counsel for the parties, the only point that arises for consideration is:
"whether the absence of the workman for the period of unauthorised absence as alleged by the management can be construed as misconduct and for order of punishment by dismissal?" -9-
10. This Court has considered the rival contentions urged by learned counsel for the parties and perused the entire material placed before the Court.
11. The fact that the workman was employed with the petitioner since 15.07.1991 is not in dispute and it is also not in dispute that the workman had served for more than 20 years in the petitioner - company and it is relevant to state that for the 21 days absence, the workman was issued with the show-cause notice and the other show-cause notices dated 20.05.2010 and 04.08.2010 was for the unauthorised absence of 74 days and 76 days. The reason assigned by the workman for his absence was his sickness and medical certificate was produced before the Disciplinary Authority and the same having not been considered by the management, the unauthorised absence was held to be misconduct.
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12. In order to substantiate that there is victimisation on the part of the management, the workman examined himself as WW.1, no rebuttable evidence is led by the management. The workman has produced numerous documents before the Labour Court to evidence that there were number of communications between the workman and the petitioner, which was accompanied with the medical certificate issued by the doctor and the leave was sanctioned by the superior from 03.07.2009 to 07.07.2009 to the workman and it is also categorically stated by the workman about his absence and having produced the medical certificate before the management, the Tribunal taking note of the medical records produced by the workman at the time of enquiry and the medical records produced by the workman pertaining to him, his wife and his father and about the medical reasons were assigned. The Disciplinary Authority, having not considered the medical
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records produced by the workman, could not have ordered for dismissal of the workman.
13. Though the learned senior counsel would contend, that the reasons assigned for his absence is his family reasons, which cannot be considered by the management and that, if such a contention would be considered, each and every person would come forward and give a reason for his absence and if these reasons are accepted, it would be difficult for the management to run the company, this contention of the learned senior counsel would not find place, numerous medical records pertaining to the ill-health of the workman and his family members are produced before the authority to substantiate his absence needs to be considered and material placed evidence that absence of workman to be not willful, but bona fide, the same having not been considered by Disciplinary Authority has resulted in injustice to the workman.
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14. The other contention of learned senior counsel is with regard to the absence taken by the Tribunal for only 21 days in the year 2009. Though the Labour Court at para No.1 of the order held, that the absence was only for 21 days, but the perusal of the entire judgment of the Labour Court would evidence that the Labour Court has taken into consideration the service rendered by the workman for 20 years and all the three charges, which were levelled against the workman and the reasons assigned by the workman for his absence during the said period. Where the workman was charged for unauthorised absence, apart from certain other consequential charges such as failure to take interest in the work and disobedience, the punishment of dismissal of the workman would be appropriate. However, in the present case, the absence of the workman was on three occasions and the workman has produced medical certificates before the Authority at the time of enquiry,
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the same having not been considered while passing the impugned order of punishment by the Disciplinary Authority and the Labour Court exercising the power under Section 11A found that the punishment imposed is disproportionate to degree of guilt of the misconduct.
15. It is settled proposition that, even when the enquiry is held to be fair and proper, the Tribunal while adjudicating the dispute can go into the question of quantum of punishment. In the instant case, when the workman had put in 20 years of service, the punishment of dismissal for unauthorised absence though may be under three different charges, since the same was due to medical reasons, the punishment of dismissal for the unauthorised absence and his argumentative nature is disproportionate. The order of the Tribunal substituting dismissal with denial of back wages is justified. The Apex Court in the case of Mavisi Lakhum vs. Central Bank of India [AIR 2008 SC Supp. 1817] (Mavisi
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Lakhum) has held that the Labour Court exercising the power under Section 11A of the ID Act can substitute the dismissal, if it finds that the quantum of punishment is disproportionate to the misconduct.
16. In the present case, the Tribunal having found that the unauthorised absence on the part of the workman was due to medical reasons and the said medical certificate having forwarded to the management, the management having not considered the said aspect, the order of punishment was not justified and the absence of workman cannot be construed as unauthorised or intentional or willful and the order of dismissal was held to be not sustainable. The manner in which, the Labour Court has considered the entire material on record and holding disciplinary authority order being perverse, exercising its discretion under Section 11A, the award of Labour Court not vitiated by any fundamental flaw, this Court is of the considered
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view that, the impugned order does not call for any interference and the point framed for consideration is answered in favour of the workman. Accordingly, this Court pass the following:
ORDER
(i) Writ petition is hereby dismissed.
(ii) The impugned award dated 20.12.2017 in ID.No.49/2012 passed by II Additional Labour Court, Bangalore at Annexure-N is hereby confirmed.
SD/-
JUDGE S*