Karnataka High Court
M/S Zenith Textiles vs Sri Jagadeesh D R on 24 July, 2024
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2024:KHC:28940
WP No. 14223 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO. 14223 OF 2020 (L-TER)
BETWEEN:
M/S ZENITH TEXTILES,
THE MANAGEMENT OF 13/A TO 13/C,
NANJANGUD INDUSTRIAL AREA,
NANJANGUD,
REPRESENTED BY ITS MILL MANAGER.
...PETITIONER
(BY SRI.SUBRAHMANYA., ADVOCATE FOR
SRI.B.C.PRABHAKAR., ADVOCATE)
AND:
SRI.JAGADEESH.D.R.
AGED ABOUT 42 YEARS,
S/O SRI. RANGASWAMY,
DEVARASANAYHALLI,
NANJANGUD TALUK,
Digitally signed by
PREMCHANDRA MYSURU DISTRICT.
MR ...RESPONDENT
Location: High (BY SRI.L.MURALIDHAR PESHWA., ADVOCATE)
Court of
Karnataka THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
THIS WRIT PETITION IS LISTED FOR DICTATING
ORDERS. THIS DAY, AN ORDER IS MADE AS UNDER:
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NC: 2024:KHC:28940
WP No. 14223 of 2020
ORAL ORDER
(PER: HON'BLE MS. JUSTICE JYOTI MULIMANI) Sri.Subrahmanya., learned counsel on behalf of Sri.B.C.Prabhakar., for the petitioner, and Sri.L.Muralidhar Peshwa., learned counsel for the respondent appeared in person.
2. The short facts are these:
The petitioner is a Textile Manufacturing Industry engaged in the manufacture of silk fabrics and allied products.
The service conditions of the workman working in the petitioner factory are governed by the certified standing orders of the Company. The respondent - Jagadeesh.D.R was working as an Operator in the petitioner's Company. It is stated that he had indulged in various acts of misconduct on various dates commencing from 13.07.2005 to 14.11.2005. Therefore, he was served with a charge sheet dated 19.11.2005 leveling the following charges against him.
(a)Insubordination or disobedience whether alone or in combination with others to lawful and reasonable orders of superiors.
(b)Absence from the workplace during hours. -3-
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(c)Theft, fraud, or dishonesty in connection with the business or property of the company or co- workers' property whether inside or outside the premises of the company.
(d)Habitual breach in Law applicable to the establishment or rule of the establishment or any Standing Orders.
(e)Gross negligence or habitual neglect of work or interference with the work of others.
(f) Deliberate slowing down of work or inciting, intimidating, or forcing others to slow down work.
(g)Refusal to accept any charge sheet, notice, suspension letter, warning letter, show cause notice, or any other communication offered for service by the company.
(h)Wrongful restraint or wrongful confinement of any Officer of the Company, surrounding or forcibly detaining Officers or other workman in the premises of the establishment or outside the establishment.
(i) Slow down or inciting workman to slow down in performance of work.
(j) Tampering or sabotage of company's property. -4-
NC: 2024:KHC:28940 WP No. 14223 of 2020
(k)Loitering inside the premises of the company after or before authorized hours of work. The respondent refused to receive the charge sheet when it was tendered to him, hence, it was displayed on the Notice Board. Despite displaying on the Notice Board, the respondent did not choose to submit his explanation. Therefore, the disciplinary authority ordered for conduct domestic inquiry by appointing an inquiry officer to inquire into the charges leveled against him. The inquiry officer conducted a full-fledged inquiry by affording full opportunity to the respondent to defend the charges leveled against him. Before the inquiry officer, as many as three witnesses were examined as MW1 to MW3. However, on behalf of the defense, no witness was examined. The respondent did not give his statement before the inquiry officer. After the conclusion of the inquiry, the inquiry officer submitted his report and finding on 12.06.2006 holding that the charges leveled against him are proved and established. He was furnished with a copy of the report and finding of the inquiry officer along with the Memo dated:20.06.2006 calling upon him to make his submissions if any on the finding of the inquiry officer and on the proposed punishment of dismissal from the -5- NC: 2024:KHC:28940 WP No. 14223 of 2020 services of the Company for the proved misconduct. In turn, the respondent sent his representation contesting the finding of the inquiry officer and alleging that the inquiry was conducted in a biased manner without providing him reasonable opportunity to defend the charges. The disciplinary authority after considering the representation dated 17.06.2006, concluded that there is no merit in the allegations made by the respondent against the inquiry officer and hence, rejected the allegations made by the respondent. Taking note of the magnitude of the proven misconduct against the respondent, the disciplinary authority passed the order on 27.06.2006 dismissing the respondent from the services of the Company. Since the common dispute in respect of the workmen was pending before the Industrial Tribunal, Mysuru in Ref. No.111/2004 and the respondent was also a concerned workman to the said dispute, an application under Section 33(2)(b) of the I.D Act was filed on the same day seeking approval of the action taken against the respondent in dismissing him from the services of the Company. Further, he was also paid Rs.4,797/- (Rupees Four Thousand Seven -6- NC: 2024:KHC:28940 WP No. 14223 of 2020 Hundred and Ninety-Seven only) towards one month's salary as contemplated under Section 33(2)(b) of I.D Act.
The Industrial Tribunal, Mysore vide order dated 12.04.2013 allowed the application filed under Section 33(2)(b) of the I.D Act, and approval was accorded to the action of the Management in dismissing the respondent from the services of the Company. At the time of accord of approval, the Labor Court held that the action of the Management was bonafide and the inquiry conducted against the respondent was fair and proper. The Labor Court also observed that no material has been furnished to show that there was neither victimization nor that the Management had indulged in Unfair Labor practices.
As the matter stood thus, after a lapse of almost ten years, the respondent raised a dispute challenging the order of dismissal, which resulted in referring the matter to the Labor Court, Mysuru for adjudication on the following points of dispute:
(a) Whether the respondent is justified in raising the dispute questioning the order of -7- NC: 2024:KHC:28940 WP No. 14223 of 2020 dismissal from 27.06.2006 after the delay of ten years.
(b) If justified whether the Management is justified in dismissing the respondent from the services of the Company from 27.06.2006.
On receipt of the Order of reference, the Labor Court registered the same as Reference No.11/2017 and ordered notice to both sides. The Management filed a detailed counterstatement by resisting the claim made by the respondent. On the Preliminary issue, the Labor Court held that the domestic inquiry conducted by the Management was fair and proper. On the merits of the case, the Labor Court vide award dated 27.01.2020 allowed the reference in part. It is this award that is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.
3. Learned counsel for the respective parties urged several contentions.
Sri.Subramanya., learned counsel for the petitioner in presenting his arguments strenuously urged that the respondent raised the dispute after a lapse of almost ten years. -8-
NC: 2024:KHC:28940 WP No. 14223 of 2020 There is an inordinate delay in raising the dispute. The Labor Court ought to have rejected the reference on the grounds of delay and laches. He argued by saying that the Labor Court upholds that act of misconduct, however, on an erroneous approach proceeded further in the matter and concluded that the order of punishment is disproportionate to the misconduct. Therefore, he submitted that an appropriate order may be passed.
By way of reply, counsel Sri.L.Muralidhar Peshwa., submits that it was a clear case of victimization since the respondent has expressed dissatisfaction with the Management. He argued by saying that the Management has issued a charge sheet cum notice of inquiry. There is no reference to the misconduct and there is no specification about the charges. Learned counsel vehemently contended that there was strike on 16.02.2006 and the respondent being a President of the Union was victimized. Lastly, he submits that it is a clear unfair labor practice. He justified the award of the Labor Court and submits that the Writ Petition is devoid of merits and the same may be dismissed.
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NC: 2024:KHC:28940 WP No. 14223 of 2020 To substantiate his contention learned counsel Sri.L.Muralidhar Peshwa., placed reliance on the following decisions:
1. AJAIB SINGH VS SIRHIND CO-OPERATIVE MARKETING CUM-PROCESSING SERVICES SOCIETY LIMITED AND ANOTHER - (1999) 6 SCC 82.
2. JASMER SINGH VS. STATE OF HARYANA AND ANOTHER - (2015) 4 SCC 458.
3. JOHN D'SOUZA VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION - (2019) 18 SCC 47.
4. BLUE STAR EMPLOYEES' UNION VS EX. OFF.
PRINCIPAL SECRETARY TO GOVERNMENT AND
OTHERS - (2000) 8 SCC 94.
5. COLOUR CHEM LTD., VS. A.L. ALASPURKAR AND OTHERS - (1998) 3 SCC 192.
6. MAVJI C. LAKUM VS. CENTRAL BANK OF INDIA -
(2008) 12 SCC 726.
Heard, the contentions urged on behalf of the respective parties and perused the Writ papers with utmost care.
4. The following points would arise for consideration:
1. Whether the Labor Court is justified in concluding that there is no delay and the dispute is not stale.
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2. Whether the award of the Labor Court require interference by this Court.
5. The facts are sufficiently stated and do not require reiteration. Suffice it to note that the respondent came under disciplinary proceedings and he was visited with an order of punishment i.e., he was removed from service on 27.06.2006. Strangely, after a lapse of almost ten years, he raised the dispute and questioned the order of dismissal.
The issue revolves around delay and laches. It is not in dispute that he came under disciplinary inquiry proceedings and he was visited with an order of punishment i.e., he was removed from service. As already noted above. He raised the dispute in the year 2017 and one of the points for reference is about delay and laches. The Labor Court while answering the issue regarding delay and laches concludes that since the Government has referred the matter for adjudication and due to the pendency of continued disputes, it cannot be stated that there is a delay on the part of the workman to raise the dispute. The Labor Court also observes that the Limitation Act does not apply to the Industrial Dispute. The findings recorded
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NC: 2024:KHC:28940 WP No. 14223 of 2020 by the Labor Court on the delay and laches are incorrect. The reason is apparent. The Labor Court ought to have considered whether the workman was able to substantiate sufficient reasons to condone the delay. Furthermore, the reasons accorded to condone the delay are contrary to the law laid down by the Apex Court in PRABHAKAR's case.
It is pivotal to note that the Apex Court in PRABHAKAR V/S. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in (2015) 15 SCC page 1 has laid down the law about delay and laches. In paragraphs 42.1 to 42.6 and 44, the Apex Court has held as under:
"42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labor Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that "any industrial dispute exists or is apprehended". The words "industrial dispute exists" are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for referring. No doubt, at the
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NC: 2024:KHC:28940 WP No. 14223 of 2020 time of deciding whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute.
42.2. Dispute or difference arises when one party makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.
42.3. Since there is no period of limitation, it gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this
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NC: 2024:KHC:28940 WP No. 14223 of 2020 purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-existent dispute which cannot be referred.
42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labor Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of
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NC: 2024:KHC:28940 WP No. 14223 of 2020 his termination and rejection thereof by the Management and acquiesced into the said rejection.
42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute." In such circumstances, the appropriate Government can refuse to refer. In the alternative, the Labor Court/ Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.
44. To summarize, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any
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NC: 2024:KHC:28940 WP No. 14223 of 2020 limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed in as much as unless there is a satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."
6. Reverting to the facts of the case, it is not in dispute that the order of punishment was passed on 27.06.2006. However, the respondent chose to challenge the order of punishment after a lapse of almost ten years. There is an inordinate delay in raising the dispute. The dispute had become stale as of the date of the adjudication. Furthermore, the workman failed to substantiate that there were continued disputes. The Labor Court has overlooked this aspect of the matter and erroneously proceeded and condoned the delay. The Labor Court ought to have rejected the dispute on the grounds of delay and laches.
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7. On the merits of the case, under section 33(2)(b) proceedings, the Labor Court has upheld the act of misconduct and the order has attained finality. The respondent has not questioned the order of approval before the appropriate forum. On the contrary, he makes a complaint against the Management. This is untenable. When the charge is proved and the act of misconduct is upheld, what is required to be considered is victimization. Learned counsel Sri.L.Muralidhar Peshwa., argued much on victimization. However, there is nothing on record to show that he has been victimized. Hence, the contention about the same is satisfactorily hopeless. Taking note of the material evidence on record, the Disciplinary authority imposed the order of punishment i.e., dismissal from service. In my view, the action taken by the management is just and proper.
Learned counsel for the respondent placed reliance on decisions referred to supra, but I do not think that the law is in doubt. Each decision turns on its facts. In AJAIB SINGH's case, the Apex Court has held that in case there is a delay, the Labor Court/ Tribunal can mould the relief by declining the grant of back wages. Therefore, moulding of relief is restricted
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NC: 2024:KHC:28940 WP No. 14223 of 2020 to denial of back wages only and not setting aside the order of punishment. The other decisions do not apply to the facts and circumstances of the case.
The Labor Court ought to have rejected the dispute on the grounds of delay and laches. On the merits of the case also, the reasons accorded by the Labor Court are unsustainable in law. In any view of the matter, the award of the Labor Court cannot be sustained. Therefore, the award of the Labor Court is liable to be set aside. Accordingly, it is set aside.
8. The Writ of Certiorari is ordered. The award dated 27.01.2020 passed by the Labor Court, Mysuru in Reference No.11/2017 vide Annexure-J is quashed. The order of termination dated 27.06.2006 is confirmed.
9. Resultantly, the Writ Petition is allowed. Because of confirmation of the order of dismissal, the interim order granted if any stands discharged and the pending interlocutory applications if any are disposed of.
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(JYOTI MULIMANI) JUDGE MRP List No.: 1 Sl No.: 12