Partly allowed

The Management of M/S the Printers v. Sri Prakash S

Karnataka HC21 Feb 2024WP/24661/2016

Case brief

AI extract

What is this about?

The High Court upheld the dismissal of a workman for habitual absenteeism, rejecting the Labour Court's order for reinstatement. The Court held that the demand for a clean record regarding past misconduct precluded relief, yet awarded monetary compensation for the hardship faced.

What did the court decide?

Confirmation of dismissal order with a compensation award of Rs. 3,50,000 plus applicable gratuity.

The Management of M/S the Printers Vs Sri… — Labour and Industrial Disputes | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 24661 OF 2016 (L-TER)

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BETWEEN:

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THE MANAGEMENT OF M/S THE PRINTERS (MYSORE) PVT.LTD., NO.75,M G ROAD, BENGALURU - 560 001, REPRESENTED BY ITS DEPUTY GENERAL MANAGER-(HR), SRI. M.S. GIRISH.

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…PETITIONER

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(BY SRI. S.N. MURTHY, SENIOR ADVOCATE A/W SRI. SOMASHEKAR, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SRI PRAKASH S, S/O MASTHURAPPA, AGED ABOUT 50 YEARS, R/AT NO.137,2ND CROSS, SRINIVASA ROAD, T.R.NAGAR, BENGALURU - 560 028.

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…RESPONDENT

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(BY SRI. M.B. RAJASHEKAR, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE AWARD OF THE 2ND ADDL. LABOUR COURT, BANGALORE IN INDUSTRIAL DISPUTE NO.28 OF 2010 DTD.26.02.2016 VIDE ANNEXURE-G AND HOLD THAT THE MANAGEMENT IS JUSTIFIED IN IMPOSING THE PUNISHMENT OF DISMISSAL FROM SERVICE w.e.f.24.6.2010 AND ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The Petitioner – Management assails the impugned award of the Labour Court, whereby, the order of dismissal from service of the respondent-workman was set aside, directing to reinstate the respondent-workman into service with 50% back wages, continuity of service and other consequential benefits.

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Petitioner is a Newspaper Establishment

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publishing Newspapers and Magazines viz., Deccan Herald, Prajavani, Sudha and Mayura, the respondent-workman was appointed in the year 1993 as a Machine Cleaner, for his unauthorised absence, while he was working as a Rotary Assistant/Assistant Machine Man, directly involved in production activity was issued with a charge sheet. Disciplinary proceedings was conducted, the disciplinary authority proceeded to impose punishment of dismissal from service. The action was assailed before the Labour Court by filing claim petition under Section 10(4-A) of the

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Industrial Disputes (Karnataka Amendment) Act, 1987 read with Section 2A of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act” for short).

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Respondent-workman pleaded in his claim statement that he was remained absent from duties only for seventeen days between October to December, 2009, though the leave letters along with medical certificate were produced to show his wife’s and son’s ill-health and his absence was not willful, the explanation offered by the workman was not accepted and the dismissal order of the management is illegal, arbitrary and unsustainable.

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The management disputed the contention of the workman by filing counter statement, inter alia, contending that the misconduct of the workman fell under Clause 19.6 of the Certified Standing Orders of the company, relating to habitual absence without leave for more than eight consequent days, it was for the said reason, the management imposed the order of dismissal. It was contended that the workman was in the habit of

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remaining absent without intimation or permission resulting in a serious dislocation of work and in fact, he was unauthorisedly absent on fourteen occasions from 11.01.2000 to 28.10.2008 and the workman was imposed with punishments ranging from advise, warning, reduction in basic pay by one, two and three steps and in spite of the management giving sufficient opportunity, the workman did not show any improvement and subsequently, on his absence for seventeen days between October and December, 2009, the disciplinary authority has rightly passed an order of dismissal against the workman.

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The Labour Court on the question about the fairness of the domestic enquiry, held that the domestic enquiry conducted by the management is fair and proper and the findings are not perverse. On the question of victimisation and perversity of the order of the disciplinary authority, the workman examined himself and the petitioner-Management examined one M S Girish as MW.2

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and produced 20 documents relating to the past record which was taken on record marked at Exs.M20 to M39. The Labour Court proceeded to hear the arguments and by the impugned award, directed reinstatement of the workman with 50% back wages and continuity of service, as also consequential benefits.

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The Labour Court reasoning for allowing the dispute is on the following grounds:

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(i) That the absence of 17 days during the period of October 2009 to December 2009 the order of dismissal is not justified.

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(ii) That though the workman has produced the certificate to prove his absence was not willful, as his wife and son were ill, besides the workman producing sufficient material, the order of dismissal is not proportionate to the proved misconduct of absence of 17 days.

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(iii) That the management has failed to prove that the absence of the workman was willful, intentional and

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unauthorised and the dismissal of the workman only for the absence of seventeen days without having any past history of absence, dismissal is disproportionate to the proved misconduct.

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Heard Sri S.N.Murthy, learned senior counsel

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appearing for the petitioner and Sri M.B. Rajashekar, learned counsel appearing for the respondent.

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Learned senior counsel would urge the following

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grounds:

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(a) That the enquiry having been held to be fair and proper and the management has produced adequate evidence for enquiry officer to record a finding of guilt against the workman. It was not once again open for the Labour Court to reopen the issue regarding proof of misconduct and hold the charge itself is not established. Learned senior counsel would submit that the entire approach of the Labour Court and the finding thereon is erroneous and contrary to the material on record.

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(b) That the Labour Court assigning the reason that

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the workman is absent only for seventeen days without having any past history of absence, is contrary to the material on record, which is evident from the order of the disciplinary authority, wherein, it has categorically recorded the past absence of the workman.

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According to the learned Senior counsel, the Labour Court has totally overlooked the entire aspect and has totally erred in re-examining the findings and replacing the order of punishment imposed by the disciplinary authority in place of its punishment.

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Learned Senior counsel would contend that the Labour Court has failed to consider that the charge of misconduct was under clause 19.6 of the Standing Orders of Habitual Absence without Leave or Absence for more than 8 consecutive days and the entire past record of service though was brought on record at Ex.M-8 to M-29, the Labour Court has totally lost sight of all these aspects

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and directed the order of dismissal to be set aside and the

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said order warrants interference by this Court.

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11 . Per contra, learned counsel appearing for the respondent justified the order of the Labour Court and would contend that the Labour Court has rightly taken into consideration holding that the absence is only for seventeen days and the said absence cannot be a misconduct for punishment of dismissal and the Labour Court, having found that the punishment imposed is highly disproportionate to the misconduct, has rightly reinstated the workman into service with 50% backwages and the same does not warrant any interference by this Court.

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Having heard learned counsel for the parties, the only point that arises for consideration is,

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"whether the Labour Court was justified in setting aside the order of disciplinary authority and directing reinstatement with 50% back wages in the present facts and circumstances of the case?"

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The workman was issued with a charge sheet for his unauthorised absence for a period of seventeen days between October and December, 2009, the workman did not submit reply to the charge sheet, enquiry was conducted, the workman produced 11 certificates issued by Bouring and Ladycurzen Hospital, which was taken on record as Exhibit.2 and the medical certificates were produced covering for certain period. The defence of the workman was that he was ill, whereas, the certificate produced was regarding the illness of his wife. The presenting officer pointed out the aforesaid discrepancy and about the medical certificates having not matched with the dates of absence covered under the charge sheet and also produced the letter issued by the medical superintendent of Bouring and Ladycurzen Hospital which was taken on record at Ex.W-4 which revealed that the medical certificates produced by the workman were not issued by the said hospital.

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The enquiry officer by carefully analyzing the evidence and material on record, held that the workman is guilty of charges in the charge sheet. The enquiry report was submitted and thereafter, the workman submitted reply seeking leniency assuring that he would not be absent and would mend his ways. The disciplinary authority, considering all these aspects and taking into consideration the entire past records and the various punishments that were imposed other than the termination issued an order of dismissal. The details of the past records and the memo issued to the workman finds place in the office order, which reads as under:

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i. Memo issued to CSE vide PL:03:312(01):97, dated 24 June 1997 for unauthorised absence from 04 June 1997 to 23 June 1997.

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ii. Memo issued to CSE vide PL:03:312:(03):98, dated 28 March 1998 for unauthorized absence from 26 February 1998 to 28 March 1998.

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iii. Memo issued to CSE vide PL:03:312:(04):98, dated 16 May 1998 for unauthorized absence from 01 May 1998 to 16 May 1998.

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iv. Charge sheet issued to CSE vide PL:02:03:00, dated 11 January 2000 for unauthorized absence of 141.5 days between 01 January 1999 to December 1999. For this CSE's basic was reduced by two steps vide letter PL:03:312:00 dated 24 May 2000 after completion of enquiry.

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v. Charge sheet issued to CSE vide PL:02:03:00, dated 25 August 2000 for unauthorized absence of 92 days between 01 January 2000 to 24 August 2000. For this a Warning letter vide PL:02:03:2000 dated 15 December 2000 was issued.

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vi. Advise letter issued to CSE vide PL:02:07:2003, dated 22 July 2003 for unauthorised absence of 16 days between April to May 2003.

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vii. Advise letter issued to CSE vide PL:02:05:2004, dated 18 May 2004 for remaining unauthorised absence of 3 days in April 2004.

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viii. Charge sheet issued to CSE vide PL:02:07:2004 dated 14 July 2004 for unauthorized absence of 16.5 days between February 2004 to July 2004. For this a warning letter vide PL:02:10:2004 dated 06 October 2004 was issued.

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ix. Advise letter issued to CSE vide PL:02:10:2004 dated 21 October 2004 for unauthorized absence of 7 days between July 2004 to September 2004.

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x. Letter of Abandonment issued to CSE vide PL:02:312:06:112 dated 17 January 2006 for unauthorized absence from 06 January 2006 to 17 January 2006.

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xi. Charge sheet issued to CSE vide PL:03:312:06:2006 dated 08 February 2006 for unauthorized absence of 55 days between 01 January 2005 to 31 December 2005. For this CSE's basic reduced by two steps vide letter PL:03:312:06:251 dated 25 May 2006 after completion of enquiry.

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xii. Charge sheet issued to CSE vide PL:03:312:06:254f dated 12 July 2006 for unauthorized absence of 76 days between February 2006 to July 2006. For this CSE's basic reduced by three steps vide letter PL:03:312:06:440 dated 31 August 2006.

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xiii. Advise letter issued to CSE vide PL:02:312:07:960 dated 27 January 2007 for unauthorized absence of 13 days between from 01 October 2006 to 31 December 2006.

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xiv. Charge sheet issued to CSE vide PL:03:312:07:1440 dated 16 May 2007 for unauthorized absence of 26 days between from 01 January 2007 to 31 March 2007. For this CSE's basic was reduced by one step vide PL:03:312:07:1620 dated 30 June 2007.

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xv. Charge sheet issued to CSE vide PL:03:312:08:3013 dated 28 July 2008 for unauthorised absence of 14 days between April 2008 to June 2008.

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xvi. Charge sheet issued to CSE vide PL:03:312:08:3287 dated 28 October 2008 for unauthorized absence of 23 days between July 2008 to September 2008. For this a warning letter vide PL:02:312:08:3434 dated 13 December 2008 was issued.

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xvii. Charge sheet issued to CSE vide PL:03:312:09:4346 dated 29 Oct 2009 for unauthorized absence of 17 days between July 2009 to September 2009. For this CSE's basic was reduced by one step vide PL:03:312:09:4535 dated 28 December 2009.

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The respondent was an habitual absentee. In spite of several opportunity having been given to the workman, he has not shown any improvement of his past record and the past record of the workman revealed that he was always in the habit of remaining absent without leave of intimation, thereby, causing dislocation of work. The details of the 17 occasions in the past, the workman

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was dealt with by the department for his unauthorised absence.

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The disciplinary authority, taking into

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consideration the material produced in the enquiry, having regard to the gravity of charge proved and past service record, arrived at a conclusion that no further lenience was required and hence, decided to impose punishment of dismissal from service, application under Section 33(2)(b) of the Act application filed by the petitioner management seeking to approve its action of imposing punishment of dismissal from service was dismissed by the Labour Court. Aggrieved by which, Writ Petition No.27126/2018 was preferred before this Court. This Court, for the reasons stated therein, allowed the said petition and accorded permission to the petitioner approved of its action of imposing punishment of dismissal under Section 33(2)(b) of the Act.

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The Labour Court, having held that the enquiry conducted by the management is fair and proper and that

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the management had produced adequate evidence for the enquiry officer to record a finding of guilt against the workman, it was not once again available for the Labour Court to reopen the issue regarding the proof of misconduct and hold the charge itself is not established. The Labour Court has totally lost sight of the previous misconduct and the absence on various occasions and in spite of sufficient opportunity been given to the workman to improve his conduct, despite imposing minor punishment, the workman was not entitled for any relief. The Labour Court goes on the assumption that there is no past history about the absence of the workman from duty and the absence of only 17 days cannot be a ground for the management to issue a dismissal order and the order of dismissal is disproportionate to the proved misconduct. As stated supra, the workman has remained absent unauthorisedly on 17 occasions for which departmental enquiry was held and various punishment imposed earlier for similar absentism as stated supra, other than the termination, was given with the hope that the workman

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would improve. The workman having not improved and no material was placed before the enquiry officer to justify his absence not being wilful, the disciplinary authority was justified in imposing the punishment of dismissal, and viewed from any angle the misconduct on the part of the workman is habitual absentism and the disciplinary authority was justified in imposing the punishment of dismissal from service and the interference of the Labour Court under Section 11A of the ID Act would arise only when there is perversity and victimisation on the part of the management, while looking into the past record of service and the relevant facts, the Labour Court was not justified in invoking Section 11A and replacing its judgment in place of punishment of dismissal.

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For the foregoing reasons, this Court is of the considered view that the point framed for consideration needs to be answered in favour of the petitionermanagement.

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The Labour Court has failed to consider the critical factors that has to be borne by the Labour Court:

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(a) That strict rules of evidence are not applicable to the domestic enquiry and even hearsay evidence is admissible so long as it has nexus – as held in the case of J.D. Jain Vs State Bank of India¹ (J D Jain).

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(b) That a charge in the domestic enquiry need not be proved beyond reasonable doubts as in the case of criminal trial and the test of proof is one of preponderance of probabilities. As the Apex Court in the case of FCI Workers Union vs. FCI² (FCI Workers Union).

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(c) That the Labour Court ought not to have interfered with the findings in the domestic enquiry, even if it is possible to re-appreciate the evidence and come to a different conclusion than that arrived at by the Enquiry

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Officer as held by the Apex Court in the case of Banaras

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1 AIR 1982 SC 673

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2 AIR 1996 SC 2412

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Electric Light and Power OF Company Ltd Vs Labour

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Court and others³ (Banaras Electric Light).

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(d) That it is only when the findings in the domestic enquiry are totally opposed to evidence on record or when such findings are on the basis of extraneous material, not being part of evidence in the enquiry, that the said findings can be interfered with by the Labour Court characterizing it as perverse as held by the Apex Court in the case of Usha Breco Mazdur Sangh Vs Management of Usha Breco Ltd.,⁴ (Usha Breco Mazdur).

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The charge of misconduct of unauthorised

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absence was not only for 17 days, but in light of the habitual absence without any leave or permission for several occasions and the entire past records of service brought on record which clearly indicates the habitual absence on the part of the workman to be wilful. However, the fact remains that, the workman has put in service for

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3 1972 Lab IC 939

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4 (2008) 2 LLJ 945

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more than 30 years and with the circumstances that prevailed upon the workman to seek absence from service can be taken little sympathetically, in the light of the family disturbance in the respondent-workman’s life and taking this approach, this Court is of the considered view that some compensation needs to be awarded to the respondent-workman in monetary terms and this Court deems appropriate to award Rs.3,50,000/as compensation to the respondent-workman and in addition to the gratuity which is applicable to the respondentworkman in accordance with law.

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