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2013 DIGILAW 1037 (KAR)

Kuduma Fasteners Private Limited v. Mathias A.

2013-09-03

RAM MOHAN REDDY

body2013
ORDER Ram Mohan Reddy, J.—Since common questions of fact and that of law arise for consideration in these petitions, with the consent of the learned Counsel petitions are clubbed together, finally heard and disposed of by this order. In these petitions preferred by the industrial undertaking having filed serial applications invoking Section 33(1)(b) of the Industrial Disputes Act, 1947 (for short, 'Act'), in Ref. No. 48 of 2007, seeking permission of the II Additional Labour Court, Bangalore to terminate the services of the respondent-workmen on proof of unauthorised absence, the respondent-workmen filed a memo dated 22-12-2011, in each of the serial applications, to direct the petitioner to pay monthly wages during the pendency of the serial applications, on the promise that the workmen are starving and despite efforts and repeated requests to report to work did not yield result and hence petitioner is guilty of arbitrary action in refusing employment with effect from 23-2-2007. That memo was opposed by filing statement of objections dated 20-6-2012, inter alia contending that though the workmen were called upon to report to duty nevertheless did not do so and that the proceeding in the serial applications is protracted by the workmen by not filing statement of objections. In addition, it is contended that the workmen are not starving since gainfully employed, amongst other contentions. The cause of action for termination of service is due to unauthorised absence of the workmen, it is said, there are no bona fides in the claim for wages. 2. The Labour Court by order dated 1-3-2013 on each of the memos allowed the same and directed payment of 75% of last drawn wage from 22-12-2011 until disposal of the serial applications and to pay the said arrears upto 22-2-2013 on or before the next date of hearing i.e. 19-3-2013. 3. Learned Counsel for the petitioner submits that the petitioner has always been ready and willing to permit the respondents to report to duty, while it is the respondent-workmen who even during the pendency of the conciliation proceeding did not agree to report to duty unless the management undertakes not to impose a major punishment on the other workman against whom allegations of misconduct are subject-matter of charges. According to the learned Counsel it is the respondent-workmen who have not reported to duty which aspect of the matter is not considered by the Labour Court. According to the learned Counsel it is the respondent-workmen who have not reported to duty which aspect of the matter is not considered by the Labour Court. In addition, it is submitted that the various correspondence addressed to the workmen before issuing the charge-sheet alleging unauthorised absence, is relevant material to substantiate the claim of the petitioner that the respondents deliberately remained absent and did not report to duty, 4. Per contra, learned Counsel for the respondent-workmen submits that while it is true that before the Conciliation Officer no agreement was arrived at over the respondent-workmen to report to duty since the workmen had insisted that the petitioner must agree not to impose major punishment of dismissal from service in respect of other workmen on whom charge-sheets were issued, nevertheless, were ready and willing to report to duty. Learned Counsel submits that the workmen are willing to report to duty on 10-9-2013 and that the petitioner-Management must not refuse employment as done during the enquiry proceeding. 5. In reply learned Counsel for the petitioner assures the Court that if the respondent-workmen were to give an undertaking to maintain discipline at the place of work and also effect normal production, the petitioner would have no objection for the workman to report to duty on 10-9-2013. 6. The answer to the question as to whether it was the petitioner-Management which did not permit the respondents' to report to duty or whether it was the workmen who did not report to duty, is not forthcoming from the order impugned. That dispute should have weighed in the mind of the Court before directing payment of 75% of back wages. The Labour Court, in my considered opinion fell in error in not extending reasonable opportunity of hearing to the parties to lead evidence on the memo and objections to sustain their respective claims which were pure disputed question of fact. Ex facie the order impugned suffers from an error apparent on the face of the record. In my opinion, the order directing payment of 75% of back wages appears to be based on sympathy and not by judicial application of mind to the dispute between the parties as reflected in the memo and objection statement. 7. Ex facie the order impugned suffers from an error apparent on the face of the record. In my opinion, the order directing payment of 75% of back wages appears to be based on sympathy and not by judicial application of mind to the dispute between the parties as reflected in the memo and objection statement. 7. There can be no doubt that the respondents could not have led a life without a minimum income, but that cannot be the sole ground to automatically entitle the workmen to 75% of wages. Even otherwise there is no reasoning forthcoming as to why it should be 75% of wages. It was therefore, incumbent on the Labour Court to have assigned reasons to direct 75% of arrears of back wages. The order impugned bristles from several infirmities occasioning grave injustice to the parties. In the result, these petitions are allowed. Orders impugned are quashed and the proceeding remitted for consideration afresh after extending reasonable opportunity of hearing to the parties concerned including adducing evidence, both oral and documentary on the memo and objections. It is needless to state that the respondent-workmen are directed to report to duty on 10th September, 2013 at 8.30 a.m. and discharge duties attached to the post held by them without giving room for any displeasure either to the officials superior or at the working place. Learned Counsel for the respondent assures the Court that the workmen would show good conduct and behaviour on reporting to duty on 10-9-2013. Officers and official superiors of the workmen shall also ensure disciplined behaviour and in no way harass the workmen. In the meanwhile in order to obviate the difficulties in which the workmen are placed, ends of justice would be met by directing disbursement of Rs. 3,38,000/-, in deposit, before the Labour Court to the workmen at the rate of Rs. 26,000/- each, forthwith, subject to the orders on the memo.