Karnataka High Court
The Vice President vs Sri K M Devaiah on 25 January, 2018
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO. 788 OF 2018 (L-RES)
BETWEEN:
THE VICE PRESIDENT & SECRETARY,
HITACHI KOKI INIDA LTD.,
PLOT NO.9-A, 1ST PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU - 560058
... PETITIONER
(BY SRI. C. K. SUBRAMANYA, ADV. FOR
SRI. B C PRABHAKAR, ADV.)
AND
SRI K M DEVAIAH
AGED ABOUT 51 YEARS
S/O LATE K.M.PONNAPPA
NO.1422, 1ST CROSS,
BEHIND MUTHURAJ TEMPLE,
PRASHANT NAGAR, T.DASARAHALLI,
BENGALURU - 560057
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS LEADING TO THE PASSING OF THE AWARD DATED
9.10.2017 PASSED BY THE FIRST ADDL. LABOUR COURT,
BENGALURU IN I.D.7/2015 AT ANNEX-J; QUASH THE AWARD
DATED 9.10.2017 PASSED BY FIRST ADDL. LABOUR COURT,
BENGALURU IN I.D.7/2015 VIDE ANNEX-J.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Aggrieved by the order dated 09.10.2017, passed by the I Addl. Labour Court, Bengaluru, the petitioner- Company has approached this Court.
2. Briefly the facts of the case are that on 01.04.1999, the respondent-workman, Mr. K. M. Devaiah, who is an ex-serviceman, had joined the services of the petitioner-Company on the post of driver. He was on probation for a period of one year. Eventually, on 01.04.2001, he was confirmed. Allegedly, on 03.08.2013, around 3.00 P.M., the respondent-workman had misbehaved with one Mr. Ananthanarayan Hegde, who was stationed at the work station for collecting cash against the dispatch of bills. For such misbehaviour, and for having used abusive language, on 07.09.2013, the petitioner issued a show-cause notice calling upon the respondent for his explanation. On 16.09.2013, the respondent submitted his explanation. Since the same was found to be -3- unsatisfactory, on 05.10.2013, a charge-sheet was furnished to the respondent. Subsequently, the disciplinary authority appointed an enquiry officer. On 03.02.2014, the enquiry officer submitted his report and found the respondent guilty of all the charges leveled against him. Therefore, on 25.03.2014, the disciplinary authority issued a second show-cause notice. The respondent replied to the same. Eventually, by order dated 13.05.2014, the respondent was dismissed from his service.
3. Since the respondent was aggrieved by the said order, he filed a claim statement under the Industrial Disputes Act, 1947 ("the Act", for short). The learned Labour Court framed three issues. With regard to the fairness, and propriety of the domestic enquiry, it answered the issue in the affirmative. However, by award dated 09.10.2017, the learned Labour Court not only set aside the dismissal order, but also directed the -4- petitioner to pay 30% backwages, and to give continuity of service, and all other consequential benefits to the respondent. Hence this petition before this Court.
4. Mr. B. C. Prabhakar, the learned counsel for the petitioner, has raised the following contentions before this Court: firstly, once the learned Labour Court has concluded that the enquiry was fair one, the learned Labour Court could not have re-assessed the evidence, and could not have given a finding in favour of the respondent.
Secondly, in case the enquiry is held to be fair and just, the employer need not produce any witness to establish its case against the employee. Hence, there was no need for the petitioner to examine Mr. Ananthanarayan Hegde.
Thirdly, the respondent was in the habit of committing misconduct. Even in the year 2000, he had manhandled a casual labourer in the Company's -5- premises. Therefore, considering his lack of discipline, the petitioner was justified in dismissing the respondent from service.
Fourthly, even if the punishment of dismissal is disproportionate to the alleged misconduct, the learned Labour Court should not have let the respondent to go scot-free, but should have reduced the punishment. Moreover, the learned Labour Court is not justified in granting backwages to the respondent.
Lastly, the learned Labour Court should have gone through the evidence collected by the enquiry officer, and should have considered whether the finding given by the enquiry officer is perverse or not?
Thus, the impugned award deserves to be set aside by this Court.
5. Heard the learned counsel for the petitioner, and perused the impugned award.
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6. The function of the learned Labour Court is not merely to see whether the enquiry conducted by the Management is fair or not; the duty of the learned Labour Court is to further go into the assessment of the evidence, and to examine the issue whether the punishment imposed upon a delinquent employee commensurates with the alleged misconduct or not? In order to consider these issues, the learned Labour Court is required to give ample opportunities to the parties to submit their evidence. It is only after assessing the evidence, so produced by the parties, that the learned Labour Court is required to pass its award. Therefore, the first contention raised by the learned counsel that merely because the learned Labour Court has held the enquiry to be a fair one, hence it could not have proceeded further, is clearly unacceptable.
7. In the case of MAVJIA C. LAKUM V. CENTRAL BANK OF INDIA, [2008 AIR SCW 3460], the Hon'ble Supreme -7- Court has dealt with the scope and ambit of the power of the learned Labour Court while dealing with a departmental enquiry and a punishment order. The Hon'ble Supreme Court has observed as under:
"The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Labour Court cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Labour Court comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Labour Court would still be justified in re-appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be -8- exercised judiciously and the interference is possible only when the Labour Court is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned.
(c) The Labour Court was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of discharge. Here was the typical example where the evidence was of a most general nature and the charges were also not such as would have invited the extreme punishment. It was not as if the appellant had abused or had done any physical altercation with his superiors or colleagues. What was complained was of his absence on some days and his argumentative nature. Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the doctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case."-9-
Therefore, the first contention raised by the learned counsel that in case the enquiry is found to be a fair one, the learned Labour Court is precluded from re- assessing the evidence, is clearly untenable.
8. A finding that the enquiry is a fair one merely implies that the principles of natural justice have been complied with and ample opportunity of hearing was given to the employee. Such a finding does not absolve the employer from establishing a prima-facie case against the delinquent employee before the learned Labour Court. The employer is still required to make out a sufficient case against the delinquent employee in order to justify the dismissal order. Therefore, the second contention raised by the learned counsel that the petitioner need not have examined Mr. Ananthnarayan Hegde is clearly unacceptable.
9. The allegation against the respondent is that on 03.08.2013, he had used abusive language against
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Mr. Ananthanarayan Hegde. Yet, surprisingly, Mr. Ananthanarayan Hegde was not even produced as a witness before the learned Labour Court. During the enquiry, the Management had examined five witnesses, namely, Mr. Ananthanarayan Hegde, Mr. Chandrashekar Gowda, who is allegedly an eye-witness of the misconduct committed by the respondent, Mr. Balakrishna H. Choudhary, who is the alleged second eye-witness of the misconduct, Mr. Malayadri, and Mr. T. S. Srinivasa Murthy. Yet, despite the fact that Mr. Hegde is the star witness, and Mr. Chandrashekar Gowda and Mr. Balakrishna H. Choudhary, had allegedly witnessed the incident, none of the three witnesses were produced before the learned Labour Court. Therefore the three star witnesses are conspicuously missing before the learned Labour Court.
10. The Management chose to examine Mr. Praveen Chandra, the Assistant Manager, Human
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Resources. In his cross-examination, this witness clearly admits that the respondent had worked for the Company for twelve long years, that the respondent was a leader in the Trade Union of the Company, and yet this witness is not even in a position to tell the learned Labour Court as to what abusive language was used. Thus, the Management has miserably failed to establish the fact that the respondent had, indeed, used any abusive language against Mr. Hegde. The learned counsel for the petitioner is certainly justified in pleading that the record of the enquiry officer should have been considered by the learned Labour Court. While considering the record of the enquiry officer, Mr. Hegde, Mr. Chandrashekar Gowda - MW.2 and Mr. Balakrishan - MW.3, before the enquiry officer, had spelt out the words allegedly used by the respondent. However, the ultimate issue before the learned Labour Court is that even if the alleged incident is said to have taken place, whether the imposition of the punishment
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of dismissal is proportionate to the alleged misconduct, or not?
11. In the case of RAMKISHAN V. UNION OF INDIA & ORS. [1996 (I) LLJ 982], the Hon'ble Supreme Court has clearly opined that even if the allegation is that an abusive language has been used against a superior officer, no straightjacket formula can be evolved as to when an abusive language would warrant dismissal from service. While assessing abusive language, and its impact, one has to see the circumstances in which it may have been uttered, the character of the person, and the other circumstances surrounding the alleged incident. In the case of VED PRAKASH GUPTA V. M/S. DELTON CABLE INDIA (P) LTD. [AIR 1984 SC 914], the Hon'ble Supreme Court has also held that in case there was no previous misconduct committed by the delinquent employee, mere use of abusive language could not entail dismissal from service.
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12. Although the learned counsel for the petitioner has claimed that even in 2000, the petitioner had manhandled a labourer, thus there was a series of misconduct committed by him, but the fact remains that admittedly after issuing a notice to the respondent, and after receiving his reply, no departmental enquiry was held against the delinquent officer on the basis of the said allegation. Moreover, the said incident is not part of the present charge-sheet furnished to the respondent. Therefore, the alleged previous misconduct could not even be considered against the respondent.
13. In catena of cases the Hon'ble Supreme Court has opined that before imposing the harshest punishment of dismissal, the employer has to see whether the case falls within the scope of "rarest of the rare case". Merely because an employee abuses his superior officer, that too only once in his service career, it cannot be said that the case suddenly falls within the
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category of "rarest of the rare case". Thus, the dismissal order is, certainly, shockingly disproportionate to the alleged misconduct.
14. Since the petitioner has not examined the star witnesses, since the petitioner has failed to establish the fact that the alleged incident had actually taken place, the learned Labour Court was also justified in drawing an adverse inference, as material witnesses had been withheld. Therefore, the learned Labour Court was justified in setting aside the dismissal order.
15. As far as the grant of backwages is concerned, the respondent-workman had claimed that due to his dismissal he had no means of livelihood to eke out. On the other hand, the petitioner had claimed that he has certain information that the respondent-workman was working after his dismissal. In order to buttress the plea that the respondent was working as a contractor, his visiting card had been submitted as Ex.M-28.
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However, the learned Labour Court is justified in noticing that the said visiting card was not even shown to the respondent during the course of his cross- examination, and there was no suggestion made during the cross-examination that he is working as a contractor. Thus, according to the learned Labour Court, the petitioner had failed to establish the fact that the respondent was, indeed, working after his dismissal.
16. Moreover, after considering all the facts and circumstances of the case, the learned Labour Court has not directed that 100% of backwages should be paid. While setting aside the dismissal order, it has merely directed that 30% of backwages need to be paid to the respondent. The payment of 30% of backwages seems to be reasonable amount considering the fact that the respondent was dismissed from service in 2014, and the award was passed in the year 2017.
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17. For the reasons stated above, this Court does not find any merit in the present writ petition. It is, hereby, dismissed.
SD/-
JUDGE RD