Allowed

M/S. Eastern Silk Industries Ltd. v. Shri Shafiulla

Karnataka HC1 Aug 2023WP/53859/2014

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award granting reinstatement and back wages to an employee terminated for unauthorized absence after availing medical leave. The High Court quashed the award regarding back wages as the employee did not report to duty and concluded the termination was not retrenchment.

What did the court decide?

The award dated 04.07.2013 granting 75% back wages and the subsequent order permitting prosecution for non-implementation are quashed.

M/S. Eastern Silk Industries Ltd. Vs Shri Shafiulla — Service and Employment | Karnataka HC (2023)

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NC: 2023:KHC:26820 WP No. 53859 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.53859 OF 2014 (L-TER)

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BETWEEN:

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M/S. EASTERN SILK INDUSTRIES LTD, NO.411, TELUGARAHALLI ROAD, ANEKAL TALUK, BANGALORE - 562 106, REPRESENTED BY ITS PRESIDENT SRI DILIP KUMAR SHAH.

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…PETITIONER

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(BY SRI.SOMASHEKAR., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SHRI SHAFIULLA, MAJOR, S/O SRI ABDUL RAZAK, C/O SRI MOHAMMAD BASHEER AHMED, 11/12, POST OFFICE ROAD, NEAR ASHOKA HOTEL, ANEKAL, BANGALORE DISTRICT - 562 106.

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THE COMMISSIONER OF LABOUR, GOVERNMENT OF KARNATAKA, LABOUR DEPARTMENT, KARMIKA BHAVANA, BANNERGHATTA ROAD, BANGALORE - 560 029.

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…RESPONDENTS

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(BY SMT.RASHMI.M.RAO., ADVOCATE FOR R1 SMT.ANITHA.N., ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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NC: 2023:KHC:26820 WP No. 53859 of 2014

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THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.Somashekar., learned counsel for the petitioner has appeared through video conferencing.

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Smt.Rashmi M.Rao., learned counsel for respondent No.1 and Smt.Anitha.N., learned HCGP for respondent No.2 have appeared in person.

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The award dated 04.07.2013 passed by the II Addl. Labour Court, Bengaluru in Ref.No.9/2012 as far as granting 75% back wages (Annexure-M) is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

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The brief facts are these:

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M/s.Stella Silks Limited was amalgamated with the petitioner Company M/s.Eastern Silk Industries Limited. The standing order of M/s.Stella Silks Limited was certified on 14.07.1998. The name of the Company in the standing orders

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was amended by Order dated 09.02.2009 by the Deputy Labour Commissioner & Certifying Officer.

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3 - NC: 2023:KHC:26820 WP No. 53859 of 2014

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The first respondent - Shafiulla was appointed on 21.12.1999 and his services were confirmed by Letter dated 02.11.2007. He had availed a loan of Rs.75,000/- (Rupees Seventy Five Thousand only) from Subramnaya Co-Operative Bank Ltd., on 20.08.2010. The first respondent applied for four months' leave from 11.04.2011 to 10.08.2011 on the ground that he was suffering from asthma seriously and was under medical treatment. Dr.S.Shetty issued a Medical Certificate dated:13.03.2011 indicating that he was suffering from asthma and was advised to rest at home for the next four months.

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The petitioner came to know that the first respondent had obtained leave for four months on false grounds of asthma, but he went on pilgrimage to various mosques in India called "Imiyas" which means the group of Muslims goes from one mosque to another mosque in the country. The petitioner contends that the first respondent misused the four months' leave sanctioned to him. It is said that after the completion of four months, the first respondent was required to report to duty on 11.08.2011, but he did not report to duty on that day. The petitioner waited for 70 days till 19.10.2011, but the first respondent neither reported to duty nor was informed about his

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inability to report for duty. Therefore, the petitioner terminated the services of the first respondent by giving one month's salary in lieu of notice. The petitioner prepared a full and final settlement of the first respondent which came to about Rs.1,11,220/- (Rupees One Lakh Eleven Thousand Two Hundred and Twenty only). After deducting the bank loan amount of Rs.80,000/ (Rupees Eighty Thousand only) and the PF deduction of Rs.316/- (Rupees Three Hundred and Sixteen only), the net amount payable was Rs.30,904/- (Rupees Thirty Thousand Nine Hundred and Four only). The first respondent though collected the termination order, did not collect the final settlement cheque. The first respondent requested payment of terminal dues but never demanded reinstatement.

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Thus, the first respondent raised a Dispute before the II Addl. Labour Court, Bengaluru which was registered as Ref.No.9/2012. The Labor Court passed the award directing reinstatement along with 75% back wages. On the request of the first respondent, the Commissioner of Labour, Government of Karnataka, Labour Department - the second respondent vide order dated 30.01.2014 granted permission to prosecute the petitioner for non-implementation of the award.

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5 - NC: 2023:KHC:26820 WP No. 53859 of 2014

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Learned counsel for the petitioner and respondents have urged several contentions. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers with utmost care.

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The issue revolves around the grant of 75% of back wages to the first respondent.

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Learned counsel Sri.Somashekar., in presenting his arguments vehemently contended that the first respondent availed leave from 11.04.2011 to 10.08.2011 on medical grounds. He was required to report to duty on 11.08.2011, but he did not do so. He argued by saying that the first respondent misused the leave sanctioned to him. The Labour Court has failed to appreciate the facts involved in the case and has erroneously proceeded to award 75% of the back wages. He, therefore, submits that the Award of back wages is unsustainable.

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In reply, Smt.Rashmi M.Rao., learned counsel appearing on behalf of the first respondent denied the allegation about the misuse of leave. She argued by saying that the first respondent reported to duty on 11.08.2011 and orally

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requested the petitioner to allow him to work but the Management refused to take him back and he was forced to give his resignation. Hence, she contended that the award of back wages is just and proper.

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The first respondent contended that he reported to duty on 11.08.2011. Even in this Court also he has adhered to the said contention. A good deal of argument is addressed about the misuse of leave and reporting and non-reporting to duty. An attempt is made on behalf of the first respondent that he reported to duty on 11.08.2011. It is not in dispute that the first respondent availed leave from 11.04.2011 till 10.08.2011, and he was required to report to duty on 11.08.2011, but he did not do so. There is nothing on record to show that after the completion of the leave, he reported to duty. In my view, placing reliance on termination letters issued by different establishments and award of back wages is unsustainable in law. The reason is apparent. What is required to be considered is whether the first respondent reported to duty or not. I may venture to say that the Labour Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the Award passed by the Labour Court

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is unsustainable in law. Hence, this Court deems it appropriate to quash the award as far as granting 75% back wages.

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Suffice it to note that the Labour Court has set-aside the termination order solely on the ground that no enquiry was held and termination amounts to retrenchment. In my opinion, these conclusions are contrary to the law laid down by the Apex Court.

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It is pivotal to note that when the workmen are terminated for misconduct of unauthorized absence and obtaining leave on false pretext, the same cannot be termed as retrenchment and does not attract Section 25-F of the I.D Act. Hence, the contention of the workmen about Section 25-G is also untenable.

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The Writ of Certiorari is ordered. The Award dated:04.07.2013 in Ref.No.9/2012 passed by the II Addl. Labour Court, Bengaluru vide Annexure-M in so far as grant of 75% of backwages is quashed. Consequently, the order dated:30.01.2014 passed by the Commissioner of Labour, Government of Karnataka, Labour Department - the second

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NC: 2023:KHC:26820 WP No. 53859 of 2014

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respondent in No.IAA-1/CR-45/2013-14 vide Annexure-N is also quashed.

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Resultantly, the Writ Petition is allowed .

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 39

M/S. Eastern Silk Industries Ltd. v. Shri Shafiulla

Case brief

What is this about?

What did the court decide?

M/S. Eastern Silk Industries Ltd. v. Shri Shafiulla

Case brief

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