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2023 DIGILAW 754 (KAR)

Yenkappa S/o Sayappa v. Rajashree Cements Factory

2023-06-08

SURAJ GOVINDARAJ

body2023
ORDER : 1. The petitioner is before this Court seeking for the following reliefs: “(a) Issue a Writ of Certiorari for setting aside the award of Labour Court Gulbarga passed in KID No. 157/2011 dated 12th day of June 2012 which is at Annexure-A and order for reinstatement of the Petitioner with full back wages, continuity of service and all other consequential benefits in the interest of justice. (b) Issue any other Writ or order as deemed fit by the Hon'ble Court in the interest of justice.” 2. The petitioner claims to be the land owner who was employed by the respondent-employer in its cement factory as a Mechanic Labour in lieu of the land belonging to the petitioner being acquired by the respondent as a part of such acquisition apart from making payment of sale consideration for the said property. 3. The petitioner was employed in the year 1991. In the year 2010, when the petitioner was unauthorizedly absent for a period of 89 days, a charge sheet came to be issued for unauthorized absence. Reply thereto not being acceptable, an Enquiry Officer was appointed who submitted a report stating that the delinquency of the petitioner has been proved. On the basis of the said report, the Disciplinary Authority dismissed the petitioner from service. 4. The petitioner filed a claim petition under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as 'ID Act') challenging the order of dismissal in KID No. 157/2011 before the Labour Court, Gulbarga. The said Labour Court vide its award dated 12.06.2012 dismissed the claim petition. It is aggrieved by the same, the petitioner is before this Court. 5. Sri.P.Vilaskumar, learned Senior Counsel appearing on behalf of Sri.Nitesh Padiyal, for the petitioner would submit that: 5.1. The petitioner being a land owner having lost the land, there was a promise of a job to be offered to the petitioner. The respondent over a period of time, having promised such jobs to similarly situated persons, has sought to get rid of them by one means or the other and by raising false issues and making false charges has dismissed all those land owners from service. 5.2. The respondent over a period of time, having promised such jobs to similarly situated persons, has sought to get rid of them by one means or the other and by raising false issues and making false charges has dismissed all those land owners from service. 5.2. That the Labour Court having come to a conclusion that the disciplinary enquiry was not fair and proper vide its order dated 29.02.2012, no evidence having been led by the employer to establish the guilt of the petitioner, there is in fact no evidence which could have been considered by the Labour Court to hold the guilt against the petitioner resulting in dismissal of the petitioner. 5.3. The submission is that the petitioner being unauthorizedly absent only for a period of 89 days, the punishment of dismissal which has been imposed is not proportionate to the delinquency alleged against the petitioner and as such, the Labour Court ought to have exercised power under the proviso to Section 11-A of the ID Act and ought to have interfered with the order of dismissal by awarding proportionate punishment even in the event of Labour Court having come to a conclusion that the delinquency against the workman is proved. This submission is made in the alternate to the other submissions. 5.4. Another alternate submission made is that on account of the enquiry being held to be not fair and proper, the dismissal order insofar as the petitioner is concerned would stand altered to that of suspension and as such, the petitioner would be entitled to subsistence wages from the date of dismissal till the date of award. In this regard, he relies on the decision of the Division Bench of this Court in The Divisional Controller vs. Ramachandra S/o Keshavarao, W.A. No. 10260/2011 dated 18.07.2012 more particularly, paragraph-2 thereto which is reproduced hereunder for easy reference: “2. In this case, it is an admitted position that vide order dated 18.12.2006 the Labour Court held that the departmental enquiry conducted against the respondent-employee was unfair and improper and in view thereof, allowed the parties to lead evidence before it. Accordingly, evidence was led and ultimately the Labour Court by the impugned award dismissed the petition filed by the respondent-employee challenging the order of dismissal. Accordingly, evidence was led and ultimately the Labour Court by the impugned award dismissed the petition filed by the respondent-employee challenging the order of dismissal. It is in this backdrop, we have perused the Judgment of this Court in Management of Mysore Cement Ltd. and B.R. Siddaramaiah, 1986 (52) FLR 144 relied upon by the respondent. It was submitted that the respondent-employee is entitled for subsistence allowance till the award was passed in view of the fact that the departmental enquiry held by the appellant was set aside being unfair and improper. The relevant paragraph in Mysore Cement Ltd. (supra) reads thus: “5. The learned counsel for the petitioner contended that there was no justification for granting interim relief. It is on record that on a preliminary issue, the Tribunal by its order dated 12.7.1984 (Annexure-E) held that the domestic inquiry held by the management was invalid. Once the domestic inquiry is held invalid, the Industrial Tribunal is required to hold a fresh inquiry. In other words, whether the workman is guilty or not has to be inquired into de novo by the Tribunal. The situation therefore is equal to the pendency of a de novo inquiry against a civil servant during which period he is deemed to have continued suspension and becomes entitled to receive subsistence allowance. Therefore, the awarding of interim relief which is really in the nature of granting subsistence allowance payable during the pendency of the inquiry, is justified. ........................... 6. Therefore, in every case, after the domestic inquiry is set aside and an inquiry into the truthfulness of the charges leveled against the workman is required to be held by the Labour Court/Tribunal, it could, if the workman concerned was not gainfully employed elsewhere, grant an interim relief. In doing so, the quantum of subsistence allowance fixed in Section 10-A provides the guidelines. Further even if the workman is found to be gainfully employed, but is earning a smaller amount, it is reasonable to direct payment of an amount as interim relief which together with the amount the workman is earning is approximately equal to the rate prescribed in Section 10-A.” 5.5. Further even if the workman is found to be gainfully employed, but is earning a smaller amount, it is reasonable to direct payment of an amount as interim relief which together with the amount the workman is earning is approximately equal to the rate prescribed in Section 10-A.” 5.5. On all the above basis, he submits that the impugned award passed by the Labour Court is required to be set aside or in the alternative, punishment which is awarded is required to be reduced to make it proportionate to the charges alleged as also subsistence allowance from the date of dismissal till the date of the award is required to be granted. 6. Sri.Sachin M.Mahajan., learned counsel for the respondent would submit that: 6.1. The charges which had been alleged against the petitioner being unauthorized absence for 89 days, the defence which had been taken up by the petitioner was that the petitioner was unwell and he was suffering from typhoid, inflammation and back pain, but no documents in support of the same has been produced. 6.2. The other excuse given being the marriage of his daughter, no details thereof have also been produced by the petitioner, inasmuch as, no details of bride and groom, date, time and place of wedding or even invitation card has been produced. 6.3. The submission is that except making such excuses and providing justifications, there is no evidence which was led by the petitioner to establish the cause of his absence so as to come within the purview of 'not being wantonly absent from service'. 6.4. As regards the evidence being led on the delinquency of the petitioner, he submits that the issue as regards properness and fairness of the enquiry had not been initially framed by the Labour Court. The same was framed only on 07.02.2012 and the finding was given on 29.02.2012, MW.3 was examined on 05.04.2012 and the evidence of MW.4 was recorded on 02.05.2012. The said evidence was led and recorded to establish the delinquency of the petitioner. 6.5. He further submits that any evidence which is already on record could also be considered to establish the delinquency of the petitioner. On the above basis, he submits that the Labour Court has rightly considered the matter. 6.6. The said evidence was led and recorded to establish the delinquency of the petitioner. 6.5. He further submits that any evidence which is already on record could also be considered to establish the delinquency of the petitioner. On the above basis, he submits that the Labour Court has rightly considered the matter. 6.6. Nature of the delinquency of the petitioner being absent without permission for a period of 89 days it had an impact on the working of the respondent-company and there being more than 71 earlier instances of unauthorized absence which had resulted in warning letters, suspension from duty, charge sheet being issued etc., would be required to be considered which would make the punishment of dismissal proportionate to the unauthorized absence on all those occasions. On the above grounds, he submits that the above Writ Petition is required to be dismissed. 7. Heard Sri.P.Vilaskumar, learned Senior Counsel for Sri.Nitesh Padiyal, for the petitioner and Sri.Sachin M.Mahajan, learned counsel for the respondent-employer. Perused the papers. 8. The points that would arise for determination are: (1) Whether after finding rendered on issue raised as regards enquiry being proper and fair in the negative would specific evidence be required to be led by the employer to establish the delinquency of the workman? (2) Whether in the present case the respondent has been able to establish the delinquency of the petitioner after finding having been rendered as regards enquiry being not proper and fair? (3) Whether the punishment of dismissal which has been imposed is proportionate to the delinquency alleged in the present case? (4) Whether the subsistence wages is required to be awarded to the petitioner from the time of dismissal till passing of the award on account of the enquiry being held to be not fair and proper? (5) What order? 9. I answer the above points as under. 10. Answer to Point No. 1: Whether after finding rendered on issue raised as regards enquiry being proper and fair in the negative would specific evidence be required to be led by the employer to establish the delinquency of the workman? 10.1. Though initially no issue had been framed as regards properness and fairness of the disciplinary enquiry, subsequently, on 07.02.2012 such issue was framed and a finding was given thereon on 29.02.2012 holding the enquiry to be not fair and proper. 10.1. Though initially no issue had been framed as regards properness and fairness of the disciplinary enquiry, subsequently, on 07.02.2012 such issue was framed and a finding was given thereon on 29.02.2012 holding the enquiry to be not fair and proper. Once an enquiry is held to be not fair and proper, then the evidence gathered during the enquiry cannot be looked into by the Labour Court. At such stage, it is then open for the employer to lead evidence to establish the delinquency if any, since all the evidence which had been gathered at the enquiry stage cannot be looked into on account of the enquiry not being fair and proper. The option then rests with the employer to lead further evidence to establish the delinquency since in the absence of such evidence, it cannot be held that there is any delinquency on the part of the workman. Thus, I answer point No. 1 by holding that once an enquiry is held to be not proper or fair, it is the option of the employer to lead further evidence to establish the delinquency of the workman unless such evidence has already been led before the Labour Court since otherwise, it would have to be held that delinquency is not proved. 11. Answer to Point No. 2: Whether in the present case the respondent has been able to establish the delinquency of the petitioner after finding having been rendered as regards enquiry being not proper and fair? 11.1. As pointed out above, the issue as regards properness and fairness of the enquiry having been framed on 07.02.2012, a finding thereon was rendered on 29.02.2012, it is only thereafter, MW.3 was examined on 05.04.2012 and cross-examined thereafter. The evidence of MW.4 was recorded on 02.05.2012 and cross-examined thereafter. 11.2. Having perused the evidence of MW.1 and MW.2 as also the evidence and cross-examination of MW.3 and MW.4, it is clearly seen that MW.3 and MW.4 have relied upon and produced several documents to evidence the delinquency on the part of the workman apart from making necessary averments in the affidavit in lieu of evidence. The evidence of MW.3 and MW.4 being led after finding as regards enquiry which was rendered on 29.02.2012, this evidence of MW.3 and MW.4 would have to be considered to be led by the employer to establish the delinquency of the workman. 11.3. The evidence of MW.3 and MW.4 being led after finding as regards enquiry which was rendered on 29.02.2012, this evidence of MW.3 and MW.4 would have to be considered to be led by the employer to establish the delinquency of the workman. 11.3. Be that as it may, even if any evidence was led prior to the finding as regards properness and fairness of the enquiry, and that evidence on record were independent of the domestic enquiry and establishes delinquency of the workman then even such evidence can be taken note of by the Labour Court along with the evidence led subsequent to the finding being given on the issue as regards properness and fairness of the enquiry. 11.4. In the present case, it is not in dispute that the petitioner was absent for a period of 89 days. The only issue is whether it was unauthorized and/or justifiable. 11.5. As regards the authorization though it is contended by the workman that he had informed his superior and taken his permission, there is absolutely nothing which is placed on record to indicate such communication and/or approval. Even during the oral evidence, the same has not been established by the workman. Thus, it is clear that the workman has not been able to establish that his absence was authorized. 11.6. As regards justifiability of absence and/or whether the absence was wanton, the contention of the workman was that the workman was suffering from typhoid, inflammation and back pain as also his daughter was getting married. In support of both these statements made, there is no evidence which has been produced. The workman has not produced any medical records, prescription or certification to establish that he was suffering from typhoid or back pain, was under treatment and/or that the doctor had advised him to take rest etc. 11.7. In respect of the marriage of the daughter, there is no oral or documentary evidence which has been produced to establish the date of marriage, place of marriage, details of bride or the groom and if at all, it is the workman's daughter who was getting married. 11.8. 11.7. In respect of the marriage of the daughter, there is no oral or documentary evidence which has been produced to establish the date of marriage, place of marriage, details of bride or the groom and if at all, it is the workman's daughter who was getting married. 11.8. Be that as it may, even if it were to be accepted that the workman was attending to the marriage of his daughter, then in such an event, if the workman could attend the marriage, he could have approached the employer and submitted a leave letter or sought for permission. Looked into from any angle, justification which has been made is not supported by any evidence nor is it believable. It is on the basis of the evidence of MW.3 and MW.4 and the above reasoning, I hold that the employer has been able to establish the delinquency of the workman and that the evidence led prior to a finding on the enquiry being not fair and proper as also evidence led subsequent thereto, can be looked into to arrive at a decision as regards the above issue. 12. Answer to Point No. 3: Whether the punishment of dismissal which has been imposed is proportionate to the delinquency alleged in the present case? 12.1. The evidence on record indicates that there were 71 earlier instances of unauthorized absence which resulted in warning letters, suspension from duty, charge sheet being issued etc. This evidence as regards past record being on record and the present absence also being accepted, the defence not being bona-fide, I am of the considered opinion that punishment of dismissal awarded is proper and correct and proportionate to the delinquency alleged. 12.2. Though the contention is raised that the employment of the workman was in lieu of land acquired and that the services of the workman could not be terminated, a perusal of the documents indicates that the acquisition having occurred long ago, the petitioner was employed in the year 1991 and it is only in the year 2010 after 19 years of service, that the termination occurred. Therefore, it cannot be said that the termination of the services of the petitioner is in order to get over the obligation agreed upon after acquisition. Further more, no malafides can be imputed on the employer after a period of 19 years of service. 12.3. Therefore, it cannot be said that the termination of the services of the petitioner is in order to get over the obligation agreed upon after acquisition. Further more, no malafides can be imputed on the employer after a period of 19 years of service. 12.3. The manner in which the various defences have been raised and the allegations made would also indicate the continued defaults on the part of the workman making the punishment awarded proportionate. 13. Answer to Point No. 4: Whether the subsistence wages is required to be awarded to the petitioner from the time of dismissal till passing of the award on account of the enquiry being held to be not fair and proper? 13.1. This issue is no longer res-integra. This Court in W.A.No. 10260/2011 has held that once the domestic enquiry is held to be not fair and proper, then the dismissal in furtherance of such enquiry has to be treated as suspension and subsistence wages would have to be paid from the date of dismissal till the award in the event of the award upholding the dismissal. 13.2. Applying the same to the present facts, the enquiry against the workman being held to be not fair and proper, termination of services would have be treated as suspension from the date of termination till the date of the award and the petitioner would be entitled for subsistence wages during the said period. 14. Answer to Point No. 5: What order? 14.1. In view of my answer to aforesaid points, I pass the following: ORDER: (i) The Writ Petition is partly allowed. (ii) The punishment of dismissal is not interfered with. However, the employer is directed to make payment of subsistence allowance from the date of dismissal till the date of the award passed by the Labour Court in KID No. 157/2011 within a period of eight weeks from the date of receipt of a copy of this order.