Karnataka High Court
Sri. N S Dattatreya vs Management Of Bosch Ltd on 25 July, 2023
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NC: 2023:KHC:27450
WP No. 5497 of 2019
C/W WP No. 9550 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.5497 OF 2019 (L-TER)
C/W
WRIT PETITION NO.9550 OF 2013 (L-RES)
IN W.P. NO.5497 OF 2019
BETWEEN:
SRI N.S. DATTATREYA
AGED ABOUT 53 YEARS,
S/O. SRI S.G.N. SWAMY RAO,
EARLIER WORKING AT MICO,
INDUSTRIES CO LTD.,
SINCE DISMISSED FROM SERVICE
R/AT NO.163, T.D.LANE, COTTONPET
BENGALURU - 560 053.
... PETITIONER
Digitally signed (BY SRI K. SRINIVASA, ADVOCATE)
by SHYAMALA
Location: HIGH AND:
COURT OF
KARNATAKA MANAGEMENT OF BOSCH LTD.,
(EARLIER KNOWN AS MANAGEMENT OF
MOTOR INDUSTRIES CO. LTD.,)
REGD. OFFICE: HOSUR ROAD
AUDUGODI, P.B.NO.3000
BENGALURU - 560 030
REPRESENTED BY ITS VICE PRESIDENT
PLANT COMMERCIAL MANAGEMENT.
... RESPONDENT
(BY SRI. K. KASTURI, SENIOR COUNSEL FOR
SMT. K. SUBHA ANANTHI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR ENTIRE
RECORDS FROM THE THIRD ADDL. LABOUR COURT, BENGALURU,
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WP No. 5497 of 2019
C/W WP No. 9550 of 2013
PERTAINING TO ANNEXURE-A; QUASH THE AWARD DATED
20.09.2012 PASSED BY THE THIRD ADDL. LABOUR COURT,
BENGALURU, IN I.D.NO.18/2007 THE CERTIFIED COPY OF WHICH IS
PRODUCED AND MARKED AS ANNEXURE-A, TO THE EXTENT THE
PETITIONER IS AGGRIEVED.
IN W.P. NO.9550 OF 2013
BETWEEN:
MANAGEMENT OF BOSCH LTD.,
(EARLIER KNOWN AS MANAGEMENT OF
MOTOR INDUSTRIES CO. LTD.,)
REGD. OFFICE HOSUR ROAD,
ADUGODI, P.B.NO.3000,
BANGALORE - 560 030,
REPRESENTED BY ITS FACTORY MANAGER,
MR. HEGDE S.M.
... PETITIONER
(BY K. KASTURI, SENIOR COUNSEL FOR
SMT. K. SUBHA ANANTHI, ADVOCATE)
AND:
SRI N.S. DATTATREYA
S/O. SRI. S.G.N. SWAMY RAO,
AGED ABOUT 47 YEARS,
EARLIER WORKING AT MICO
INDUSTRIES CO. LTD.,
SINCE DISMISSED FROM SERVICE,
R/AT NO.163, T.D. LANE,
COTTONPET, BANGALORE.
... RESPONDENT
(BY SRI K. SRINIVASA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS IN ID.NO.18/2007, ON THE FILE OF THE III ADDL.
LABOUR COURT, BANGALORE; QUASH THE AWARD DATED
20.09.2012, PASSED BY THE III ADDL. LABOUR COURT, BANGALORE
IN ID.NO.18/07 AT ANNEXURE-J.
THESE WRIT PETITIONS COMING ON FOR DICTATING
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 5497 of 2019
C/W WP No. 9550 of 2013
ORDER
Both the management and workmen have called in question the award passed by the Labour Court in ID No.18/2007 on 20.09.2012, whereby, the Labour Court set aside the order of dismissal granting relief of reinstatement with 25% back wages with continuity of service and consequential benefits are granted only for terminal benefits.
2. W.P. No.9550/2013 is preferred by the management being aggrieved by the order of reinstatement with 25% back wages and W.P.No.5497/2019 is preferred by the workman against the denial of full back wages and granting of consequential benefits only for terminal benefits.
3. The parties herein are referred as the 'management' and the 'workman' for the sake of convenience.
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4. Facts of the case are that the respondent- workman was appointed as a Grade-II Operator in the Calibration Department, on the basis of an allegation that the workman had refused to accept the work allotted to him on two occasions and for making derogatory, defamatory remarks and threatened the department head one H. N. Prabhakar of dire consequences, since this was a serious misconduct, another charge-sheet-cum-suspension order dated 10.11.2004 apart from the earlier charge- sheet dated 29.10.2004 was issued.
5. The Enquiry Officer submitted the report stating that the charges leveled against the workman has been proved, the Disciplinary Authority on evaluating the material placed before it, accepted the enquiry report and passed an order of dismissal of the workman from service. The workman raised a dispute under Section 10(4-A) of the ID Act contending that the order of dismissal is not justified.
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6. The management appeared and filed statement of objections inter alia contending that the workman was issued with the charge sheet stating that there was willful insubordination, disorderly behavior and the management stated that the Enquiry Officer conducted the enquiry in fair and proper manner adhering to the principles of natural justice and the charges leveled against the workman has held to be proved and that the order of dismissal is justified.
7. The preliminary issue of fairness of domestic enquiry, the Tribunal answered in the affirmative in favour of the management and against the workman.
8. On the aspect of victimization, the parties have led their evidence. The Tribunal, exercising the power under Section 11A of the ID Act, held that the order of the Disciplinary Authority punishing the workman for the misconduct by imposing an order of dismissal, is disproportionate to the misconduct levelled against the workman and set aside the order of dismissal directing -6- NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 reinstatement of the workman into service with 25% of back wages and continuity of service and consequential benefit was held only for the terminal benefits, affirming the misconduct leveled against the workman.
9. Heard learned senior counsel Sri K.Kasturi appearing for Smt. K. Subha Ananthi, learned counsel for the management and Sri K.Srinivasa, learned counsel for the workman.
10. Learned senior counsel has addressed this Court on the following points:
(i) That the Labour Court has wrongly exercised its power under Section 11A of the ID Act while deciding the proportionality of punishment.
(ii) The Labour Court having held that the misconduct was proved and that the workman had a lengthy past record of misconduct, the Labour Court could not have come to the conclusion that the misconduct on hand is first of this kind during the span of 16 years and -7- NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 therefore, the punishment imposed is shockingly disproportionate, was not justified by the Labour Court.
(iii) That the workman was an habitual late attendance and was advised for habitual absence, inspite of several advise given by the management, the workman has not mend his way and the Labour Court was not justified in coming to the conclusion that there was a confusion between the workman and the management which led to the workman committing the misconduct.
(iv) That the workman is a chronic offender, habitual absentee and dismissal from service is on the basis of the past record of the workman.
(v) That the workman on 25.10.2004, 26.10.2004 and 27.10.2004 did not report for duty in third shift, which was a scheduled shift for the workman and a charge memo was issued on 29.10.2004, when the workman was issued with the charge memo, the workman refused to accept the same.
(vi) Further on 10.11.2004 on the serious misconduct on part of the workman for making derogatory -8- NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 and defamatory remarks against the head of the department one H.N. Prabhakar, charge-sheet-cum-
suspension order was issued to the workman and the said aspect was not considered by the Labour Court while setting aside the impugned order of dismissal.
(vii) When the Tribunal found misconduct on part of the workman, it was obligatory for the Tribunal to impose punishment, which the Tribunal failed to do so and the order of the Labour Court holding punishment is disproportionate, is not justified and that the Labour Court could not have interfered with the findings of the Enquiry Officer only because it is lawful to do so.
11. In support of his contention, learned senior counsel has relied upon the following judgments:
(a) Hombe Gowda Educational Trust & another vs. State of Karnataka & others [(2006) 1 SCC 430)] (Hombe Gowda Educational Trust) para Nos.26 and 30 -9- NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013
(b) J.K. Synhetics Ltd. vs. K.P.Agrawal & another [(2007) 2 SCC 433] (J.K. Synhetics Ltd.) para Nos.22 and 25
(c) LIC of India vs. R.Dhandapani [(2006) 13 SCC 613] (R.Dhandapani) para No.10
12. Per contra, learned counsel appearing for the respondent - workman would urge the following contentions:
(i) That the order of the Labour Court holding that there is no perversity being found in the findings of the Enquiry Officer has held that the management has proved the misconduct alleged against the workman, is not justifiable since the documents at Ex.W.1 to W.3 coupled with the oral evidence of the workman is clear that the workman was ready and willing to attend the work and due to the confusion regarding the shift, the misconduct has occurred.
(ii) The Labour Court while moulding the relief having held that the order of dismissal is shockingly
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 disproportionate to the charge leveled against the workman, has fell in error by denying full back wages and granting relief of continuity of service and consequential benefits only for terminal benefits.
(iii) The Management having not led any evidence on the aspect of victimization and unfair labour practice, the order of the Labour Court in denying the relief to the workman is liable to be set-aside.
13. Having heard learned counsel for the parties, the point that arises for consideration is, "whether the exercise of power under Section 11A of the ID Act by the Labour Court is justified in the facts and circumstances of the case?"
14. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record.
15. The charge sheet was issued by the management on 29.10.2004 and the charges leveled against the workman was as follows:
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 "a) Willful insubordination or disobedience whether alone or in combination with another or others of any lawful and reasonable order of a superior.
b) .................. riotous or disorderly behavior within or immediately adjoining the Company's premises or properties or any act subversive of discipline or efficiency.
c) Disobedience of any order expressly given or any rule expressly framed for the maintenance and running of any department efficiently ........
d) Intimidating or interfering or attempting to intimidate and or interfere in any way with any workman of the Company in the discharge of his work."
And again the workman was issued charge-sheet- cum-suspension order dated 10.11.2004 for serious misconduct of gheraov of the Departmental Head H.N. Prabhakar and by using derogatory and defamatory and threatening the departmental head of dire consequences.
16. Before an employee can be charged of misconduct or non-observance, beach or dereliction of
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 duty, the employer has to show that the employee had duty to do the act alleged to have been omitted or to refrain from doing the said act alleged to have been conducted in light of the misconduct relating to the duty. In other words, an ascertainable duty is owed by the employee towards the employer in connection with the employment which should have been breached by the employee, such duties may be expressed or implied.
17. In this backdrop, the facts that needs to be considered are:
"Whether the workman has mis-conducted himself by willful insubordination, disobedience of lawful reasonable order of the superior, derogatory and defamatory remarks against H.N. Prabhakar by gheraoving."
18. The Labour Court has come to the conclusion that misconduct on hand is the outcome of confusion as to which shift the workman has to work and heavily relies on Ex.W.1 to W.3, the said documents does not in any way disclose as to why the workman refused to obey the
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 reasonable orders of the superior, on the other hand, the said exhibits evidence that the workman is required to report for a particular shift allotted to the workman. The Labour Court while exercising its power under Section 11A of the Act has trivialized the misconduct committed by the workman inspite of the workman having past record, earlier punishment imposed for insubordination and similar misconducts on several occasions was imposed with punishment of suspension.
19. It is the duty of every employee to behave himself in such a manner so as to not to damage or prejudice interest or reputation of his master, whether be a sphere of activity or work of the employees. The aspect that the workman had sought for shift of duty, the aspect that the workman was deployed in third shift has been proved by the management and the workman was to act as per the duty for which, he is deployed by the employer, having omitted and refrained from doing so, the said act is assumed to have been committed. The Labour Court held
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 that the charges levelled against the workman has been proved, however, while exercising the power under Section 11A of the ID Act, the Labour Court observed that the punishment imposed by the management is disproportionate to the charges levelled and there being no past records, the workman was entitled for lesser punishment and held that the order of dismissal to be substituted by way of reinstatement. Having held that there was a misconduct on the part of the workman, the Labour Court was not justified in awarding 25% back wages.
20. The Apex Court in the case of J.K. Synthetics Ltd. stated supra held that reinstatement in cases of proved and affirmed misconduct, where punishment of dismissal is substituted by lesser punishment "misconduct reinstatement" and the Apex Court distinguished from "reinstatement on illegal termination". In the present facts of the case, it is a "misconduct reinstatement". The Apex Court at paragraph No.19 has held as under:
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 "19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back- wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc."
(Emphasis supplied)
21. The Apex Court held that reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement and awarding of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employees and also held that if the Court finds it necessary to award back wages, the question will to be looked into is, whether the back wages should be awarded fully or only partially and the said aspect would depend upon the facts and circumstances of each case. The Apex Court held, that any income received by the employee during their relevant period on account of alternative
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 employment or business is a relevant factor to be taken note of while awarding back wages in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey and held that it is necessary for the employee to plead that he was not gainfully employed from the date of termination.
22. At this stage, it is relevant to mention that the learned senior counsel for the petitioner has brought to the notice of this Court that the workman is aged about 57 years and under Section 17(b) of the ID Act, wages have been paid and the order of the Labour Court awarding 25% back wages is unsustainable. It is also relevant to note that the impugned order of the Labour Court was passed in the year 2012 and the present petition by the workman seeking full back wages is filed only in the year 2019. The said petition needs to be dismissed on the ground of delay.
23. Learned counsel for the workman though contended that the workman is entitled for full back wages
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NC: 2023:KHC:27450 WP No. 5497 of 2019 C/W WP No. 9550 of 2013 and consequential benefits, the said contention is not acceptable for the simple reason that the misconduct on the part of the workman has been proved by the management. Thus, this Court is of the considered view that the workman is not entitled for back wages and the point framed for consideration is answered partly in favour of the management.
24. The punishment of dismissal is disproportionate to the misconduct of the workman as held by the Labour Court, however, awarding of 25% of back wages by the Labour Court is not justified.
Accordingly, this Court pass the following:
ORDER
(i) Writ Petition No.9550/2013 preferred by the management is hereby allowed-in-part and Writ Petition No.5497/2019 is hereby dismissed.
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(ii) The awarding of 25% back wages is hereby set aside and the reinstatement with continuity of service and consequential benefit is only for terminal benefits.
Sd/-
JUDGE s*