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2010 DIGILAW 464 (KAR)

Shivankari Gowda v. Alpas Granite Private Limited

2010-04-01

H.N.NAGAMOHAN DAS

body2010
ORDER H.N. Nagmohan Das, J.— This writ petition is filed calling in question the Award dated October 15, 2008 in I.D. No. 33/2004 passed by the Labour Court, Bangalore. 2. Petitioner was an employee of the respondent. Respondent issued articles of charges stating that on August 1, 2003 the petitioner instigated other workmen to stop the work in connection with certain demands made by the workers' union. Since the explanation of the petitioner was not satisfactory, enquiry proceedings were initiated. The enquiry officer submitted a report stating that the charges levelled against the petitioner as proved. The disciplinary authority by accepting the enquiry report passed an order of penalty dismissing the petitioner from service. Aggrieved by this order of penalty the petitioner raised a dispute in I.D. No. 33/2004 under Section 10(4-A) of the Industrial Disputes Act, 1947. On the basis of pleadings, the Labour Court framed the following 3 issues for its consideration: (1) Whether the domestic enquiry held against the first party workman is fair, proper and valid? (2) Whether the second party management is justified in dismissing the first party workman from service? (3) What relief?, 3. Before the Labour Court the counsel for the petitioner made a submission, that the enquiry proceedings are just and proper. Thereafter on the question of the victimisation, petitioner himself examined as W.W.I and respondent examined one witness as M.W.I and got marked from M-1 to M-11. The Labour Court on appreciation of the entire material on record passed the impugned award dismissing the reference. Hence this writ petition. 4. Heard arguments on the side of the petitioner and perused the entire writ papers. 5. The material on record discloses that before the enquiry officer, respondents examined 7 witnesses and petitioner examined 10 witnesses. But the Labour Court has only appreciated and taken into consideration the evidence of witnesses examined on behalf of the management but failed to take into consideration the oral evidence of the witnesses examined on behalf of the petitioner. The non-consideration of the evidence on the side of the petitioner resulted in failure of justice. 6. Further it is seen from the record that the Labour Court noticed the fact that there is no direct evidence with regard to the charges levelled against the petitioner stating that he went Section to Section instigating the workers to stop the work. The non-consideration of the evidence on the side of the petitioner resulted in failure of justice. 6. Further it is seen from the record that the Labour Court noticed the fact that there is no direct evidence with regard to the charges levelled against the petitioner stating that he went Section to Section instigating the workers to stop the work. But the Labour Court on preponderance of probabilities concludes that the charge levelled against the petitioner as proved. Again this finding is illegal. The material on record discloses that the respondents have recognised a trade union in their establishment. The respondents have also entered into memorandum of settlement with the recognised trade union. It is collective decision of the trade union in placing demands before the respondent-management. Since the respondent-management failed to consider the demands placed by the union, the workers union resorted to stoppage of work in the process of collective bargaining. No doubt at the relevant point of time, petitioner was one of the office bearer in the trade union but he alone is not responsible for the collective decision. Targeting the petitioner alone by the respondents amounts to victimisation. The Labour Court without noticing this aspect of the matter committed an error in not exercising its discretion under Section 11A of the Industrial Disputes Act. 7. The material on record discloses that petitioner participated in the strike called by the workers union. Participation of the petitioner in stoppage of work is a misconduct. But the extreme penalty of dismissal from service is shockingly disproportionate. But then the petitioner shall not go unpunished since a part of the charge is proved against him. Now learned Counsel for the petitioner brought to my notice that respondent-establishment is now closed and therefore, the question of reinstatement into service will not arise. From the date of dismissal till now the petitioner has not worked in the establishment and there is contribution by him. In the circumstances, the following: (i) Writ petition is partly allowed. (ii) The impugned award dated October 15, 2008 passed by the Labour Court, Bangalore is hereby set aside. (iii) Respondents are hereby directed to pay the closure/VRS benefits to the petitioner as though he continued in service and similar to other workman. (iv) Petitioner is not entitled for back wages.