Karnataka High Court
K V Seetharam S/O Venkateshamurthy vs The Divisional Controller North ... on 13 July, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.15127/2006 (L-KSRTC)
BETWEEN:
K. V. Seetharam
S/o Venkateshamurthy
Aged about 51 years
R/a No.132C/1, Raghavendra Colony
Chamarajapet
Bangalore-560 018 ...PETITIONER
(By Sri. K. V. Seetharam, party-in-person)
AND:
The Divisional Controller
North-Division, B.T.S.
Now, the Management of B.M.T.C.
K. H. Road, Shanthinagar
Bangalore-560 027 ...RESPONDENT
(By Smt. H. R. Renuka, Adv.,)
This W.P. is filed under Articles 226 & 227 of the
Constitution of India praying to modifying the order of
the III Additional Labour Court, at Bangalore, dated
5.4.2006, passed in I.A.No.10/1998, vide Annexure-D,
in so far as denial of back-wages though the charges
leveled against the petitioner was not established and
further direct to allow the full back-wages with all the
2
consequential monetary benefits and to direct the
respondent to pay the amount in respect of back-wages
from the date of leave applied on 21.2.1991 till the date
of reinstatement within a short period of the time fixed
by this Hon'ble Court.
This W.P. coming on for hearing this day, the
Court made the following:
ORDER
Petitioner-workman is before this Court seeking quashing of the award of the III Addl.Labour Court, Bangalore, dated 05.04.2006 passed in REF.No.10/2008 at Annexure-D, whereunder reference is answered partially in his favour and respondent- Corporation has been directed to reinstate him into service to his original post with continuity of service but without back wages.
2. Heard Sri.K.V.Seetharam, party-in-person and Smt.H.R.Renuka, learned counsel appearing for the respondent-Corporation. Perused the impugned award.
3. On account of certain alleged misconduct, petitioner came to be dismissed from service by order 3 dated 03.06.1994 which was held to be proved in the domestic enquiry. The said order of dismissal came to be questioned by the petitioner by seeking reference and accordingly, the appropriate Government by order dated 29.1.1998 had referred the dispute for adjudication and by award dated 29.04.2004, Labour court had set aside the order of dismissal passed against the petitioner and directed reinstatement, continuity of service but denied back wages. Aggrieved by this award, both the petitioner and the respondent were before this court in W.P.Nos.46874/2005 and 7581/2005 respectively. This Court by order dated 06.06.2005, set aside the award passed by the Labour Court and remanded the matter back to the Labour Court for fresh disposal by reserving liberty to both the parties to lead evidence and also permitted them to amend the pleadings by producing documents if any. On such order of remand being made, the Labour Court passed fresh award on 05.04.2006 which is impugned in the present writ petition by answering the reference partly in favour of the petitioner and directed reinstatement to his original 4 post with continuity of service but without back wages. Denial of back wages is challenged.
4. It is the contention of Sri.K.V.Seetharam, party- in-person that charge of unauthorised absence levelled against him though not proved it has been held that petitioner is not entitled for back wages on the principle "no work no pay" and has failed to appreciate the prima facie case made out by the petitioner. He would submit that denial of back wages is arbitrary and illegal. He also contends that the charges levelled against him has not been proved and as such, the conclusion has been arrived at by the Labour court and contends that in view of the law laid down by the Apex Court in J.K.Synthetics Ltd. vs. K.P.Agarwal and another reported in (2007) 2 SCC 433, petitioner is entitled for award of back wages. On these grounds, he seeks for allowing the writ petition.
5. Per contra, Smt.H.R.Renuka, learned counsel appearing for the respondent-Corporation would support the award passed by the Labour Court and 5 contends that enquiry held against the petitioner was held to be fair and proper by Labour court and considering the fact that petitioner had unauthorisedly remained absent without taking permission from the authority and had absented himself from duties without valid order sanctioning leave to him, it cannot be held that the absenteeism is to be accepted and she further contends that in the enquiry, charges were held to be proved and even before the Labour court, the issue regarding domestic enquiry was held to be fair and proper and she relies upon the finding given by this Court in the earlier round of litigation at paragraph-5 and the finding given by the labour court at paragraphs- 22 and 23 of the impugned award to contend that petitioner is not entitled for grant of back wages.
6. Having heard the learned advocates appearing for the parties, I am of the considered view that following points arises for my consideration:-
(i) Whether petitioner is entitled for back wages. If so, to what extent?
(ii) To what order?6
7. On account of unauthorised absence, Articles of charges came to be issued to petitioner. Enquiry was conducted and in the said enquiry, charges were held to be proved. Thereafter, when the petitioner came to be dismissed from service, he questioned the same before the Labour court in REF.No.10/1998 and Labour Court by award dated 29.04.2004, set aside the order of dismissal and had directed the reinstatement of the petitioner by awarding continuity of service but had denied the back wages. Aggrieved by this award, both the petitioner and the respondent-Corporation were before this Court in W.P.Nos.46874/2004 and 7581/2005 respectively. After considering rival contentions canvassed by the parties, this Court concluded as under:-
"Mere giving leave application will not absolve the liability. It is only when leave application is given and it has been granted and thereafter if the petitioner remains absent, it could be excluded. No where it is stated by the petitioner that leave has been sanctioned to him. When the petitioner admittedly remained absent, his absence is unauthorized. This 7 aspect has been completed ignored by the Labour Court."
8. This Court by order dated 06.06.2005 had set aside the award of the Labour Court and remanded the matter back to the Labour Court for fresh adjudication and on such remand being made, Labour court has analysed the pleadings, scrutinised the evidence tendered and at paragraph-22, it has held as follows:-
"22. Therefore, from this admission it is crystal clear that the Ist party had submitted his leave letter, but it was submitted belatedly. It is necessary to note that in the leave rules of the II party establishment no leave can be claimed and availed by the workman as a matter of right. Rule 5 of the KSRTC employees Leave Rules read as thus:-
No claims as of right:-
Leave cannot be claimed as of right, discretion is reserved to the authority empowered to grant leave, to refuse or revoke leave at any time according to the exigencies of service."
9. After considering the contention of the workman that leave application had been submitted by him, Labour court has come to a conclusion that the discretion is reserved to the authority either to grant 8 leave or to refuse or revoke at any time leave if granted. It is clear from records that petitioner has not submitted his leave application well in time and had availed leave even before being granted. Hence, Labour court concluded that the misconduct alleged against the first party-petitioner is established. However, Labour Court has exercised its discretion vested under Section 11-A of I.D.Act to set aside the order of dismissal as being disproportionate and modified the award of punishment to denial of wages. The issue regarding grant of back wages and the entitlement to such claim is now clearly laid down in the judgment of the Hon'ble Apex Court in the case of J.K.Syhthetics Ltd. vs. K.P.Agarwal & another ((2007) 2 SCC 433), wherein it has been held as follows:-
"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 victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where 9 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 11-A 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 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 even, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is 10 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 benefits 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 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.
10. It has been held in the above judgment that when the order of dismissal is set aside, workmen would not be entitled automatic grant of back wages. Where reinstatement is a consequence of imposition of a lesser 11 punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement.
11. In the instant case, the misconduct has been held to be proved. However, the Labour Court found that the order of dismissal is shockingly disproportionate to the alleged misconduct and as such, it invoked the power vested in it namely, Section 11-A to interfere with the quantum of punishment and modified the same by denying the back wages. In this background, the Hon'ble Apex Court has held that the 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 a delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. The said principle would apply in all fours to the case on hand.
12. In the instant case, the misconduct alleged agaisnt the petitioner was unauthorised absence. In the 12 domestic enquiry, the charge was held to be proved. The fairness of the domestic enquiry was held to be fair and proper in view of the memo filed on 03.01.2000 by the petitioner conceding the fairness of the domestic enquiry. As such, the Labour court proceeded to examine as to whether the punishment imposed on the petitioner was disproportionate to the alleged misconduct and having found the said issue in favour of the petitioner, it has interfered with the quantum of punishment and modified the order of dismissal to that of denial of back wages. The said reasoning given by the Labour court cannot be held either to be contrary to the facts or contrary to the principles laid down in J.K.Synthetics case referred to supra. Hence, I do not find any good ground to interfere with the award of the Labour court.
13. Hence, writ petition stands rejected. No costs.
Sd/-
JUDGE.
Srl.