Karnataka High Court
The Management Of Express vs Sri V Ananda Rao on 30 November, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.28962 OF 2019 (L-TER)
C/W
WRIT PETITION No.53343 OF 2017 (L-TER)
IN WP.28962 OF 2019
BETWEEN:
SRI. ANANDA RAO
AGED ABOUT 46 YEARS
S/O SRI. D. VIJYENDRA RAO
R/AT NO.139, 4TH CROSS
1ST MAIN, MUNINANJAPPA GARDEN
R.T. NAGAR POST
KAVAL BAIRASANDRA
BENGALURU - 560 032.
...PETITIONER
(BY SRI. V.S. NAIK, ADVOCATE)
AND:
THE MANAGEMENT OF
M/S. EXPRESS PUBLICATIONS (MADURAI) LTD.,
REPRESENTED BY ITS MANAGER
NO.1, QUEENS ROAD
BENGALURU - 560 001
REP. BY ITS GENERAL MANAGER.
... RESPONDENT
(BY SRI. K. KASTURI, SR. ADVOCATE FOR
SRI. K. GOVINDARAJ, ADVOCATE FOR RESPONDENT)
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THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR ENTIRE RECORDS FROM THE THIRD ADDITIONAL
LABOUR COURT, BENGALURU VIDE ANNX-A QUASH THE
AWARD DATED:12.08.2017 PASSED BY THE SECOND
ADDITIONAL LABOUR COURT, BENGALURU, IN
I.D.NO.1/2012 THE CERTIFIED COPY OF WHICH IS
PRODUCED & MARKED AS VIDE ANNX-A, TO THE EXTENT
THE PETITIONER IS AGGRIEVED SINCE THE LABOUR
COURT HAS COMMITTED ERRORS WHICH ARE APPARENT
ON THE FACE OF THE RECORDS AND ETC.
IN WP. 53343 OF 2017
BETWEEN:
THE MANAGEMENT OF EXPRESS
PUBLICATIONS (MADURAI) LTD.,
REGIONAL OFFICE, EXPRESS BUILDINGS
NO.1, QUEEN'S ROAD
BANGALORE - 560 001
REPRESENTED BY ITS
GENERAL MANAGER KARANATAKA
SRI. P. SURESH KUMAR.
...PETITIONER
(BY SRI. K. KASTURI, SR. ADVOCATE FOR
SRI. K. GOVINDARAJ, ADVOCATE)
AND:
SRI. V. ANANDA RAO
D.NO.139, 1ST MAIN
4TH CROSS, MUNINANJAPPA GARDEN
R.T. NAGAR POST
KAVALE BAIRASANDRA
BANGALORE - 560 032.
... RESPONDENT
(BY SRI. V.S. NAIK, ADVOCATE)
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THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE AWARD IN I.D.NO.1/2012 DATED 12TH AUGUST, 2017
PASSED BY THE 2ND ADDITIONAL LABOUR COURT,
BANGALORE AS PER ANNEXURE-A AND ETC.
THESE PETITIONS BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Present petition in W.P.No.53343/2017 is filed by the petitioner -Management challenging the order dated 12.08.2017 passed by the II Additional Labour Court, Bengaluru in I.D.No.1/2012 in and by which the Labour Court while partly allowing the claim statement of the respondent set aside the order of the dismissal dated 17.09.2011 and directed the petitioner -Management to reinstate the respondent within 30 days from the date of publication of award with 50% back wages, continuity of service and also consequential benefits.
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2. Writ petition in W.P.No.28962/2019 is filed by the respondent-workman partly aggrieved by the aforesaid order passed by the Labour court awarding 50% of back wages.
3. Brief facts of the case are that;
3.1. The petitioner- the Management namely, Express Publications (Madurai) Ltd., is a limited company engaged in the activities of printing and publishing news papers. That the respondent- workman is the son of one Sri. D.Vijayendra Rao, who was working in the petitioner-Management as a driver and died in harness. Upon demise of Sri.D.Vijayendra Rao, respondent-workman was given employment on compassionate grounds. Accordingly, the respondent- workman joined as an apprentice in terms of order dated 25.06.1988 with the petitioner-Management at Bengaluru. On completion of training, he was issued 5 with an order dated 26.06.1989 appointing him as a unskilled baler.
3.2. The petitioner-Management was maintaining its own transport department for effective distribution of news papers throughout the State, which was closed down due to the business exigencies. The respondent-workman along with two co-employees were transferred to Shivamogga vide order dated 30.12.1999. The respondent-workman failed to report to his duties at Shivamogga without any justification. consequently, the petitioner- Management relying on the provisions of the Standing Orders providing for "loss of lien" on employment terminated the services of the respondent-workman vide order dated 13.05.2004. The order of said termination was challenged by the respondent- workman under Section 10(4-A) of the Industrial Disputes Act, (Karnataka Amendment) Act, 1987 6 before the II Additional Labour Court, Bengaluru in I.D.No.123/2001. The Labour Court on 16.03.2007 passed an award holding that the respondent- workman was entitled for reinstatement with 50% back wages and continuity of service. The said order was challenged by the petitioner -Management in W.P.No.14533/2007 c/w W.P.No.14067/2008 and same was dismissed confirming the award passed by the Labour Court.
3.3. Thereafter, respondent-workman who was thus working in Shivamogga during the course of his employment committed several serious misconducts during October, 2008, such as remaining unauthorisedly absent for longer duration, tampering with attendance register etc., That the respondent - workman was kept under suspension, pending enquiry. The respondent-workman was issued with show cause notice-cum -charge sheet dated 7 15.11.2008. An explanation was furnished by the respondent-workman to the articles of charges, which were not satisfactory. The petitioner- Management had ordered for domestic enquiry into the charges leveled against the respondent-workman by appointing an enquiry officer at Shivamogga. After due notice enquiry was held on 24.02.2009. Enquiry officer on the basis of material on record and considering the rival contentions held that the respondent-workman was guilty of charges in terms of the following clauses of the certified standing orders of the petitioner -Management;
"i) Clause 16.2(1) willful insubordination or disobedience whether alone or in combination with others to any lawful and reasonable orders of the Superior.
ii) Clause 16.2(ii) Theft, fraud, dishonestly or willful damage in connection with the management business or property.
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iii) Clause 16.2(xxi) Riotous or disorderly behaviour, use of abuse or disrespectful language or any act subservise of discipline and efficiently.
iv) Clause 16.2(xxv) Committing, aiding or abating other to commit any act prejudicial to the reputation or financial interest of the undertaking". 3.4. On conclusion of enquiry, the Enquiry officer submitted findings dated 25.05.2011 to the petitioner-Management based on which, a second show cause notice was issued to the respondent- workman on 05.07.2011 along with copy of the findings of the enquiry dated 25.05.2011 and called upon the respondent-workman to offer his explanation to the same.
3.5. Since the explanation given by the respondent-workman was not satisfactory, respondent-workman was discharged/terminated from the services with effect from 17.09.2011. The 9 petitioner-Management disbursed gratuity benefit of the respondent vide demand draft No.739115 dated 15.04.2013 for a sum of Rs.73,554/-.
3.6. Thereafter, the respondent-workman filed a claim petition in I.D.No.1/2012 under Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act 1987 before the II Additional Labour Court, Bengaluru, challenging the order of discharge and sought for direction to the petitioner- Management to reinstate him in his original post with all consequential benefits. A detailed counter statement was filed by the petitioner-Management.
3.7. Based on the pleadings, the Labour Court framed the following points for its consideration.;
"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 10 from the service in pursuance of the impugned order date:17.09.2011?
3. Whether the first party is entitled to the relief which he has claimed in the claim statement?".
3.8. The petitioner-Management examined enquiry officer as MW.1 and got exhibited 73 documents as Ex.M1 to M73. The respondent- workman examined himself as WW1. On consideration of the pleading and material evidence, Labour Court vide order dated 26.11.2013 on issue No.1 which was treated as preliminary issue, held that the enquiry was fair and proper. Thereafter, the matter was heard on the issue whether action of the petitioner- Management amounted to victimization and whether the punishment imposed was disproportionate. The Labour Court passed the impugned order setting aside the order of dismissal of respondent and directed the petitioner management to reinstate the respondent with 50% back wages and continuity of services and 11 consequential benefits, which order is challenged in this petition.
4. Sri.K.Kasturi, learned Senior counsel appearing for Sri.K.Govindaraj learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submitted that;
4.1. There was no pleading and there was no issue framed by the Labour Court as to whether the action of petitioner-Management was a case of victimization or not and that in the absence of pleading and a specific issue to that effect, the Labour Court ought not to have proceeded in the matter;
4.2. That once the Labour Court having found the enquiry to be fair and proper ought not have interfered with the findings of the enquiry and that if the Labour Court was in disagreement with the findings of the enquiry officer it ought to have 12 afforded an opportunity to the petitioner to lead fresh evidence by framing proper issue;
4.3. With regard to the serious allegation of forging the attendance register by the respondent- workman, the Labour Court ought not to have taken upon itself role of hand writing expert, particularly when there was no allegation or pleading by the respondent-workman regarding his signature having been forged in the attendance register;
4.4. That Labour Court further erred in holding that the order of dismissal passed by the petitioner- Management was without authority while it was nobody's case that the dismissal of the respondent- workman was without authority. The Labour Court ought to have framed issue in this regard as well. 13
4.5. Labour Court not having framed the issue has thus grossly erred in interfering with the finding of the enquiry officer in setting aside the same warranting interference by this Court;
4.6. Learned Senior counsel for the petitioner has relied upon the following authorities in support of his submission;
1. LAWS (SC)-1962-10-19- Hamdard Dawakhana Wakf Vs. Its workmen.
2. (1981)3 SCC 451- Firestone Tyre & Rubber Company of India (P) Ltd., Vs. Workmen Employed, represented by Firestone Tyre Employee's Union.
3. AIR 1976 SC 98- Bharat Iron works Vs. Bhagubai Balubhai Patel and others.
4. AIR 1979 SC 1652 -
Shankar Chakravarti Vs. Britannia Biscuit Co., Ltd & another.
5. 2018 (7) SCC 646 -
Shyam Narayan Prasad Vs. Krishna Prasad and others
6. 2005-I-LLJ 865- Bharat Heavy Electricals Ltd., vs. M.Chandrasekhar Reddy and Others. 14
7. 2005-I-LLJ 1129- Mahindra and Mahindra Ltd., vs. N.B.Naravade.
8. 2008-II-LLJ 945- Usha Breco Mazdoor Sangh vs. Management of Usha Breco Ltd., and Another.
5. On the other hand Sri.V.S.Naik, learned counsel appearing for the respondent -workman justifying the order to the extent of setting aside the order of dismissal submitted that;
5.1. Parties were clear as to the scope of the dispute namely, victimization. That the parties being completely aware of this aspect of the matter had gone into trial and filed their affidavits and counter affidavits and conducted the cross-examination. As such, the contention raised by the petitioner- Managment requiring framing of issue on victimization cannot be accepted;
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5.2. He further submits that as evident from the daily order sheet, the Labour Court after treating the issue No.1 as a preliminary issue and answering the same in the affirmative had posted the matter for leading evidence on the question of victimization. Thus, parties were put on sufficient notice in this regard;
5.3. That in any event issue No.2 framed by the Labour Court would cover the entire scope of this matter. As regards the allegation of forgery and the Labour Court comparing the signatures is concerned, he submits that Labour Court was well within its authority and jurisdiction to compare the signatures of respondent-workman available on record and pass appropriate orders.
5.4. As regards the ground requiring authority to terminate the service of respondent-workman, 16 learned counsel submits that the Labour Court came to the said conclusion of termination of the respondent-workman being one without authority on the basis of the finding in earlier proceedings in W.P.No.14533/2007 c/w W.P.No.14067/2008 wherein this Court had upheld the contention of the respondent-workman that the order of termination was issued by a person without authority and in this background, the finding of the Labour Court cannot be faulted with;
5.5. While reiterating the grounds urged in the W.P.No.28962/2019 filed by the respondent- workman, learned counsel submits that once the Labour Court having held that respondent-workman was subjected to victimization and dismissal of service was result of victimization there was no justification in awarding only 50% back wages the Labour Court ought to have awarded full back wages; 17
5.6. Learned counsel for the respondent- workman relies upon the following judgments in support of his case;
1. (1982) 1 SCC 117- Workmen Vs. M/S Williamson Magor & Co.Ltd.,
2. (1998) 3 SCC 192 -
Colour Chem Ltd. Vs. A.L. Alaspurkar & Others,
3. (1957) V12 FJR 279- Kaleswarar Mills Ltd. Vs. Sakthivelu & Others
4. (1976) 2 LLJ 324- Management of NGEF Ltd., Bangalore Vs. their Workmen
5. (1978) 2 SCC 42 -
The K.C.P Employees' Association, Madaras Vs. The Management of K.C.P. Ltd., Madaras.
6. (2000) 4 SCC 245 -
Indian Overseas Bank Vs. I.O.B Staff Canteen Workers' Union and another.
6. Heard learned counsel for the parties and perused the records.
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7. That point that arise for consideration by this court is ;
"Whether in the facts and circumstances of the case, the Labour Court is justified in passing the impugned order setting aside the order of dismissal".?
8. The case of the petitioner-Management is that the Labour Court without there being any pleading by the respondent -workman on victimization or with regard to dismissal by a person without authority and without even framing an issue on the question of victimization as well as on the question of the authority of the Branch Manager who dismissed the respondent-workman from the service, ought not to have allowed the petition of the workman- respondent more so, when the Labour Court itself had held in the affirmative that the domestic enquiry that was conducted by the petitioner-Management was fair 19 and proper. On the other hand, it is the case of the respondent-workman that the parties had well understood the scope of the dispute and had lead evidence by filing affidavits specifically referring to "Victimization" therefore, there was no need of framing any issue.
9. The Labour Court based on the pleadings of the parties had framed the following issues;
(i) The domestic enquiry conducted by the second party against the first party is fair and proper.
(ii) Whether the second party is justified in dismissing the first party from the service in pursuance of the impugned order dated 19.7.2011.
(iii) Whether the first party is entitled to the relief which he claimed in the claim statement?.
10. By its order dated 26.11.2013 the Labour Court treated the issue No.1 as preliminary issue and after hearing the arguments of the learned counsel for 20 the parties answered issue No.1 in affirmative holding that the enquiry conducted by the petitioner- Management (second party) against the respondent- workman (first party) as just and proper and thereafter posted the matter for evidence of the respondent-workman (first party) on victimization.
11. In the aforesaid background of the contentions raised by the parties it is appropriate to refer to the position of law governing the case between the parties.
12. In the case of Bharat Iron Works vs. Bhagubhai and Bhalubhai Patel and others the Apex Court dealing with the jurisdiction of the tribunal under Section 33 of the ID Act, has held as under;
"When an application under Section 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only 21 when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then, will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an , event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits.
There is a two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the Tribunal can interfere with an order of dismissal on one or other of the following conditions:-
(1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge levelled against the employee on the evidence recorded against him in the domestic enquiry.
This is what is known as a perverse finding. 22 (2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis that the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No.1 above. A prima facie case is not, as in a criminal case, a case proved to the hilt.
It must be made clear in following the above principles, one or the other, as may be applicable in a particular case, the Tribunal does not sit as a court of appeal, weighing or re-appreciating the evidence for itself but only examines the finding of the enquiry officer on the evidence in the domestic enquiry as it is, in order to find out either whether there is prima facie case or if the findings are perverse.
Secondly, in the same case i.e., where there is no failure of the principles of natural justice in the course of domestic enquiry, if the Tribunal finds that dismissal of an employee is by way of victimization or unfair labour practice, it will then have complete jurisdiction to interfere with the order of dismissal passed in the domestic enquiry. In that event the fact that there is no violation of the principles of natural justice in the course of the domestic enquiry will absolutely lose its importance or efficacy.
Whether and under what facts and circumstances a Tribunal will accept the plea of victimization against the employer will depend upon its judicial discretion". 23
13. The Apex court in the same judgment while further dealing with the term victimization has held as under;
What is victimisation is again a multi- headed monster to tackle with. The word 'victimisation' is not defined in the Industrial Disputes Act. An attempt to describe 'unfair practices by employers' by a deeming definition was made under section 28K in Chapter III B of the Indian Trade Unions (Amendment) Act 1947 (Act XLV of 1947) but we understand, it has not yet been brought into force. The concept of victimization is to a large extent brought out under section 28K of that un-enforced law and it may be worthwhile to quote the same as it throws sufficient light on the topic and will offer guidance to Tribunals in adjudicating a ticklish issue of this nature :
Section 28K. "Unfair practices by employers.- The following shall be deemed to be unfair practices on the part of employer, namely-
(a) to interfere with, restrain or coerce his workmen in the exercise of their rights to organize, form, join or assist a Trade Union and to engage in concerted activities for the purpose of mutual aid or protection;
(b) to interfere with the formation or administration of any Trade Union or to contribute financial or other support to it;24
(c) to discharge or otherwise discriminate against, any officer of a recognised Trade Union because of his being such officer;
(d) to discharge or otherwise discriminate against any workman because he has made allegations or given evidence in an enquiry or proceeding relating to any matter such as is referred to in sub-section (1) of section 28-F;
(e) to fail to comply with the provisions of section 28-F;
Provided that the refusal of an employer to permit his workmen to engage in Trade Union activities during their hours of work shall not be deemed to be an unfair practice on his part".
Section 28-F provides for rights of recognised Trade Unions.
Ordinarily a person is victimised, if he is made a victim or a scapegoat and is subjected to persecution, prosecution or punishment for no real fault or guilt of his own, in the manner, as it were, of a sacrificial victim. It is, therefore, manifest that if actual fault or guilt meriting the punishment is established, such action will be rid of the taint of victimisation.
It is apparent that victimisation may partake of various types, to cite one or two only, for example, pressurising an employee to leave the union or union activities; treating an employee unequally or in an obviously discriminatory manner for the sole reason of his connection with union or his particular 25 union activity; inflicting a grossly monstrous punishment which no rational person would impose upon an employee and the like".
14. In the very same judgment while emphasizing the requirement of the pleading of allegation of victimization the Apex Court has held as under;
"A word of caution is necessary.
Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare state, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best 26 interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.
The onus of establishing a plea of victimisation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.
Again victimisation must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked : Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer ? To take an example, suppose there is a tense atmosphere prevailing in a company because of a strike consequent upon raising of certain demands by the union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimisation as answer to a gross misconduct even when an employee, be he an active office beal earer of the union, commits assault, let us say, 27 upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimisation as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the Tribunal on merits, the plea of victimisation will not carry the case of the employee any further. A proved misconduct is antithesis of victimisation as understood in industrial relations. This is not to say that the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimisation".
15. The Apex Court in the case of Shankar Chakravarti (supra) emphasizing the requirement of pleading even in the proceedings before the Labour Court at para 32 has held as under;
"32. If such be the duties' and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make claim or demur the claim of the other side and when there is a burden upon it to prove or establish the facts so as to invite a decision in its favour, if it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it 28 should do or omit to do. Obligation to lead evidence or establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. v. Industrial Tribunal, commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary.29
16. Learned counsel for the respondent- workman on the other hand relied upon the judgment of the Apex Court in the case of Workmen vs. M/s Williamson Magor and Company limited and other (supra) wherein the Apex Court at Para 12 had held as under;
"12. Mr. Pai, learned counsel appearing for the management, xxxx should not be disturbed. The word 'victimisation' has not been defined in the statute. The term was considered by the Court in the case of Bharat Bank Ltd. v. Employees. This Court observed, 'It (victimization) is an ordinary English word which means that a certain persons has become a victim, in other words, that he has been unjustly dealt with" A submission was made on behalf of the management in the case that 'victimisation' had acquired a special meaning in industrial disputes and connoted a person who become the victim of the employer's wrath by reason of his trade union activities and that the word could not relate to a person who was merely unjustly dismissed. This submission, however, was not considered by the Court. When, however, the word 'victimisation; can be interpreted in two different ways, the interpretation which is in favour of the labour should be accepted as they are the poorer section of the people compared to the management".30
17. He also relied upon the judgment in the case of Colour Chem Ltd., (supra) wherein at paragraph 13 the Apex Court has held as under;
13. The term "victimisation" is not defined by the present Act. Sub-section (18) of Section 3 of the Act which is the definition section lays down that:
"Words and expressions used in this Act and not defined therein, but defined in the Bombay Act, shall, in relation to any industry to which the provisions of the Bombay Act apply, have the meanings assigned to them by the Bombay Act; and in any other case, shall have the meanings assigned to them by the Central Act". Bombay Act is the Bombay Industrial Relations Act, 1946 and the Central Act is the Industrial Disputes Act, 1947 as laid down by definition Sections 3(1) and 3(2) of the Act. The term "victimisation"
is defined neither by the Central Act nor by the Bombay Act. Therefore, the term "victimisation" has to be given general dictionary meaning. In Concise Oxford Dictionary, 7th Edn., the term "victimisation" is defined at p.1197 as follows:
"make a victim: cheat; make suffer by dismissal or other exceptional treatments".
Thus if a person is made to suffer by some exceptional treatment it would amount to victimisation. The term "victimisation" is of 31 comprehensive import. It may be victimisation in fact or in law. Factual victimisation may consist of diverse acts of employers who are out to drive out and punish an employee for no real reason and for extraneous reasons. As for example a militant trade union leader who is a thorn in the side of the management may be discharged or dismissed for that very reason camouflaged by another ostensibly different reason. Such instances amount to unfair labour practices on account of factual victimisation. Once that happens clause (a) of Item I of Schedule IV of the Act would get attracted, even apart from the very same act being covered by unfair labour practices envisaged by clauses (b), (c), (d) and (e) of the very same Item 1 of Schedule IV. But it cannot be said that clause (a) of Item 1 which deals with victimisation covers only factual victimisation. There can be in addition legal victimisation and it is this type of victimisation which is contemplated by the decision of this Court in Hind Construction. It must, therefore, be held that if the punishment of dismissal or discharge is found shockingly disproportionate by the Court regard being had to the particular major misconduct and the past service record of the delinquent or is such as no reasonable employer could ever impose in like circumstances, it would be unfair labour practice by itself being an instance of victimisation in law or legal victimisation independent of factual victimisation, if any. Such an unfair labour practice is covered by the present Act by enactment of clause (a) of Item 1 of Schedule IV of the Act as it would be an act of victimisation in law as 32 clearly ruled by this Court in the aforesaid decision."
18. Relying upon the aforesaid judgment learned counsel submitted that the respondent- workman should be given benefit of reasonable doubt as he belongs to weaker section of labour class and strict interpretation of term "victimization" and requirement of pleading have to be over looked.
19. As regards the requirement of framing of specific issue learned counsel for the respondent relied upon the judgment of the Apex Court in the case of Kaleswarar Mills limited (supra) wherein, the Madras High Court has held as under;
" The omission to frame formal issues cannot by itself vitiate the order of the Tribunal if it appears - and it does appear to us that the Tribunal did deal with the contentions raised by the parties before it."33
20. He also refers to the judgment in the case of Management of NGEF Limited, Bangalore (supra ) wherein this Court at para 26 has held as under;
"26. ............. This claim for deduction has been raised in I.A.2. It is quite clear from the evidence that the claim is proved as a fact and in view of the statement of law in Shri Ambica Mills case (supra) the claim of the II party is leqally sustainable. No issue is, however, framed. But the parties were permitted to educe evidence in connection with this mater. In this connection Sri. P.P. Bopanna relied on a decision of the Madras High Court in Kaleswarar Mills Limited v. Sakthivelu and others reported in 12 F.J.R. 279, where it is held that where the Industrial Tribunal has ascertained the real dispute between the parties and has examined the details of the dispute the omission to frame formal issues cannot by itself vitiate the order of the Tribunal if the Tribunal has dealt with all the contentions raised by the parties before it. Following this decision I am of the view that the omission to frame the issue does not prejudice the parties. In any event the parties did not ask for the framing of an issue. Further when the matter has reference to statutory provisions it is necessary to examine whether the deduction sought comes within the purview of Schedule I-item 6(g) of to Payment of Bonus Act. If it does it must necessarily be excluded. This view is supported by ruling of the Madras High Court in Premier Printers, Coimbatore v. Labour 34 Court, Coimbatore and others, reported in (1970-II L.L.J. 88). When this inclusion of cash assistance in the current year in the profit and loss account is a patent error in view of the clear ruling of the Supreme Court in Sri. Ambica Mills case (supra) it must be rectified".
21. Thus relying upon the aforesaid judgment learned counsel submits that order dated 26.11.2013 whereby the Labour Court after giving its finding on issue no.1 in the affirmative posted the matter for evidence on victimization and also referring to the affidavits filed by the respondent-workman as well as the petitioner-Management the titled "evidence by way of affidavit on victimization", submitted that the parties were fully aware as to the scope of the dispute and had thus lead evidence in that regard complying all the requirements. Therefore, he submits that non framing of the issue shall not be a ground to interfere with the order passed by the Labour Court. 35
22. Viewed from the aforesaid settled principles of law, in the instant case as noted above, the Labour Court while answering the issue No.1 had held that the domestic enquiry conducted was fair and proper. Tribunal could have interfered only if there was perversity or there was no prima face case made out during the domestic enquiry. In other words, there was no need or requirement for the Labour Court to have sit on appeal to re-appreciate the evidence of misconduct lead in by the petitioner -Management during the domestic enquiry unless the finding recorded by the domestic enquiry was perverse. The Labour Court having opted to take upon itself the task of determining and adjudicating the issue of victimization ought to have called upon the Petitioner- Management to lead evidence.
23. This Court has gone through the enquiry report produced before the Labour Court at Ex.M4 36 which deals with the allegations /charges levelled against the respondent-workman in detail. From the reasoning given by the Labour Court while answering issue No. 1 there is no inference of any perversity committed during the domestic enquiry. There is no finding given by the Labour Court even while dealing with the issue Nos. 2 and 3. It is also not the case that there are no legal evidence made available in the enquiry report. However, the Labour Court despite having held that the domestic enquiry was fair and proper proceeded to record the evidence "on victimization". This being a serious charge the Labour Court ought to have seen that the allegation of victimization are properly and in detail pleaded by the respondent -workman and an issue in this regard ought to have been framed.
24. Relevant now to refer to contents of the claim application filed under Section 10(4-A) of ID Act, 37 by the respondent-workman; paragraph 2 of the Application refers to appointment of the respondent- workman; and order of dismissal dated 17.09.2011; Para 3 refers to charge sheet dated 15.11.2008 issued to the respondent-workman under Clause 162 (i), 162 (ii), 162(xx) and 162(xxv) of the Standing orders and submission of explanation by the respondent- workman to the same; Paragraph 4 refers to initiation of domestic enquiry by the petitioner-Management; Para 5 refers to the averments regarding procedure of domestic enquiry and report and finding of the enquiry officer being bad in law; Para 6 refers to respondent- workman not having been given fair opportunity during domestic enquiry; Paragraphs 7 and 8 refers to examination of witnesses and production of documents; Para 9 refers to petitioner-Management accepting the enquiry report and dismissing the respondent-workman from services; Para 10 refers to 38 denial of the allegation of respondent-workman being unauthorisedly absent and also denying the allegation of respondent-workman tampering the attendance records and abusing the representative of the Management; Para 11 refers to the harassment by the petitioner-Management to the respondent- workman and allegation of victimization; Para 12 refers to punishment being disproportionate to the alleged allegations leveled against him; Para 13 refers to the act of dismissal of the respondent-workman one being victimization and act of unfair labour practice; Para 14 refers to hardship being faced by the respondent-workman; Para 15 refers to un- sustainability of the order of dismissal.
25. Since, the respondent-workman has referred to "victimization" at paragraph 11 and 13 of the claim Application it may be appropriate to extract the said paragraphs in their entirety to examine if the 39 same satisfy the requirement of law laid down by the Apex Court in the aforesaid judgment in the case of Bharat Iron Works (supra). The contents of paragraphs 11 and 13 of claim Application are as under;
"11. It is submitted that the 1st party workman has not committed the act of misconduct as alleged which warrant the show-cause notice against him and it seems that the said allegations are made against the 1st party workman with a mollified intention to harass him, he has reported to duties as per the award of Hon'ble Labour Court and orders of Hon'ble High Court of Karnataka passed in W.P.No. 14067/2008 c/w W.P.No.14533/2007 (1) . The 2nd party
-management has not allowed him to report for duties , even though he has produced the court order, only with a view to harass and humiliate him. After a week's time the 1st party workman was allowed to report to duties. Since the 1st party workman has got orders from the Court for his re-instatement, the 2nd party management was after him and waiting for an opportunity for sack him from the services hence, with a view to victimize him the present charge sheet has been issued to the 1st party workman, though he was discharging his duties most honestly, diligently, sincerely with at most satisfaction his official superiors hence the order of dismissal is liable to be set aside.40
12. xxxx
13. The action of 2nd party management in dismissing the 1st party workman from service is clear case of victimization and an act of unfair labour practice as defined under Section- 2(ra) to the 1982 Amended Industrial Disputes Act which are enumerated under V schedule to the said act."
26. Above paragraphs are in petition a pleaded by the Respondent-workman (2nd party) in justification of his allegation of victimization. However no issues and framed on the same;
27. The reasoning of the Labour Court is equally cryptic and bereft of any details. It is only at paragraph 13 of the impugned award the Labour Court referring to Ex.W2 being the order passed by this Court in W.P.No.14067/2008 c/w W.P.No.14533/2007 and Ex.W3- a letter given by the workman -respondent to the inspector , Shivamogga alleging unfair labour practice and non payment of 10 41 months salary and requesting the Labour officer to visit the branch, the Labour Court has come to the conclusion that the said documents demonstrate that the petitioner-Management has 'victimized' the respondent-workman because of his complaints to the Labour department and also due to the litigation. There is no reference to the evidence of the petitioner-Management in that regard.
28. The approach adopted by the Labour Court as already noted being erroneous, the reasoning assigned at paragraph 13 of the impugned order also unsustainable as the same does not meet the requirement of law laid down by the Apex court as noted hereinabove.
29. With regard to the contentions urged by the petitioner -Management about the Labour Court comparing the signatures of the respondent-workman 42 with the alleged fabricated signature learned counsel for the respondent submits that the Labour Court is well within its jurisdiction in terms of Section 73 of the Evidence Act, to compare the signature and same therefore, cannot be found fault with. It is to be noted here that though Section 73 of the Evidence Act, 1872 provides power to the Courts to compare the admitted signature with the disputed one if made available on record, it has been the consistently held that such exercise of power must be made only in the cases where the admitted signatures are made available and there is no ambiguity therein. However, Rule of prudence has always insisted that in the case of serious dispute involving allegation of forgery and fabrication having serious consequences it is desirable that opinion of the expert be obtained instead of straight away exercising the power under Section 73 of the Evidence Act. Even otherwise perusal of the 43 impugned order and the reasoning given by the Labour Court while answering issue No.2 at paragraph 10, page 9 and 10 of the impugned order wherein the Labour Court has apparently compared the signature of the respondent-workman found in the vakalath and the claim statement with that of the signature found at attendance register, in the light of serious allegation was not justified. More so, when in the domestic enquiry which has been found to be fair and proper by the Labour Court, the allegation of tampering of register has been proved by the petitioner-Management. The Tribunal without any further evidence and following the procedure prescribed ought not to have compared the disputed signature as done in the instant case.
30. With regard to the reasoning given by the Labour Court that the order of dismissal was passed by the Manager without any authority, learned counsel 44 for the respondent -workman submits that the said reasoning of the Labour Court was under the basis of finding given by the Labour Court in the earlier proceedings in I.D.No.123/2001 and by this Court between the same parties. This Court in its earlier order passed in W.P.No.14067/2008 clubbed with W.P.No.14533/2007 (L-TER) dated 25.02.2009 at para 9 had held the order of termination was not passed by the competent authority. Thus, he submits that the finding of the Labour Court at paragraph 12 of the impugned judgment that the Branch Manager Shivamogga who issued the termination order did not have authority to do the same. As rightly contended by the learned Senior counsel for the petitioner- Manager the said finding at para 12 of the impugned order of the Labour Court is unsustainable as it has never been the case of the respondent-workman the order of dismissal was one without authority. There 45 is no pleading and no issues framed in this regard. In any event even as submitted by the learned counsel for the respondent-workman the said finding was given by this Court in the previous proceedings between the same parties as noted above. In that view of the matter, the Labour Court was in error in giving similar finding in the impugned order without any basis as it is nobody's case that the order of dismissal from service of the respondent-workman was passed is one without authority.
31. For the aforesaid reasons and analysis, this Court is of the considered view that the approach adopted by the Labour Court in the light of above facts and circumstances of the case is in correct and cannot be sustained. The points raised above are answered accordingly. Consequently, following ;
ORDER
(i) W.P.No.28962/2019 is dismissed. 46
(ii) W.P.No.53343/2017 is allowed.
The award in I.D.No.1/2012 dated 12.08.2017 passed by the II Additional Labour Court as per Annexure-A is quashed.
(iii) Matter is remitted to the II Additional Labour Court to frame specific issues and after affording opportunity to the parties to lead evidence, pass appropriate order without being influenced by the observation made hereinabove within an outer limit of six months from the date of receipt of certified copy of this order.
(iv) Since the parties are represented by their respective counsel, they shall appear before the II Additional Labour 47 Court on 15.12.2022 without waiting for any notice and shall extend co-operation in expeditious disposal of the matter within the time mentioned above.
(v) No order as to costs.
Sd/-
JUDGE RU