Hsbc Electonic Data Processing Vs Mr. Hemakumar

HSBC ELECTONIC DATA PROCESSING INDIA PRIVATE LIMITED, FUTURA NO.148/1, BILEKAHALLI, BANNERUGHATTA ROAD, BEGUR HOBLI, BENGALURU-560 076, REP BY ITS ROHITH SHOY, (DETAILS OF THE SIGNATORY).

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…PETITIONER

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(BY SRI GANAPATI N HEGDE, SENIOR COUNSEL FOR SMT PRIYA KALE, ADVOCATE)

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AND:

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Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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MR. HEMAKUMAR, AGED ABOUT 49 YEARS, S/O PALENETHRA, R/AT NO.27, 3^RD FLOOR, K JAYANNA LAYOUT, PATTANAGERE, RAJARAJESHWARINAGAR, BENGALURU-560 098.

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…RESPONDENT

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(BY SRI NAIK V S, ADVOCATE FOR C/R (CP NO.10756/19))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE AWARD DATED 14.05.2019 PASSED BY PRESIDING OFFICER, 3^RD ADDL. LABOUR COURT, BENGALURU IN

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REF.NO.58/2016 VIDE ANNEXURE-A; AWARD COST OF THE WRIT PETITON.

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IN WP NO. 49431/2019

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BETWEEN:

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SRI HEMA KUMAR, AGED ABOUT 50 YEARS, S/O SRI PHALANETRAPPA, R/A NO.27, 3^RD FLOOR, K JAYANNA LAYOUT, RAJARAJESHWARINAGAR, BENGALURU-560098.

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...PETITIONER

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(BY SRI NAIK V S,ADVOCATE)

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AND:

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M/S H.S.B.C. ELECTRONIC DATA PROCESSING INDIA PRIVATE LTD., FUTURA, NO.148/1, BILEKAHALLI, BEGURU HOBLI, BANNERGHATTA ROAD, BENGALURU-565 076, REPRESENTED BY H R VICE PRESIDENT.

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...RESPONDENT

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(BY SRI GANAPATI N HEGDE, SENIOR COUNSEL FOR SMT PRIYA KALE, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS FROM THE THIRD ADDL. LABOUR COURT BENGALURU PERTAINING TO ANNEX.A QUASH THE AWARD DTD.14.5.2019 PASSED BY THE THIRD ADDL. LABOUR COURT BENGALURU IN REF.NO.58.2016 THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED AS ANNEXURE.A TO THE EXTENT THE PETITIONER IS AGGRIEVED SINCE THE LABOUR COURT HAS COMMITTED ERRORS WHICH ARE APPARENT ON THE FACE OF THE RECORDSDIRECT THE RESPONDENT TO REINSTATE THE PETITIONER WORKMAN IN HIS ORIGINAL POST WITH FULL BACK WAGES CONTINUITY OF SERVICE AND ALL OTHER CONSEQUENTIAL BENEFITS INCLUDING FULL BACK WAGES.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10^TH MARCH, 2026 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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CAV JUDGMENT

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Writ Petition No. 43700 of 2019 is filed by the employer challenging the award passed in Reference No. 58 of 2016. In terms of the impugned award dated 14.05.2019, the Labour Court has set aside the order of termination dated 23.05.2016 and directed the petitioner-employer to reinstate the employee with continuity of service and all other consequential benefits, while denying back wages.

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Writ Petition No. 49431 of 2019 is filed by the employee challenging the very same award dated 14.05.2019 to the extent of denial of back wages. Since both writ petitions challenge the same award, both petitions are clubbed, heard together and disposed of by this common order.

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For the sake of convenience, the employer is referred to as the petitioner and the employee is referred to as the respondent in both petitions.

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The respondent joined the petitioner as a Customer

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Service Executive on 15.10.2007. The records indicate that the respondent had raised certain issues relating to Deferred Cash Incentive, to which the petitioner claims to have responded with appropriate clarification and justification.

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It is noticed from the records that the respondent had addressed emails to superior officers in the company, and the petitioner claims that the two emails were in violation of specific instructions issued to the respondent, as he was not supposed to address emails directly to higher officers by bypassing the intermediate officers whom the respondent was required to approach in case of any grievance.

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In addition, it is alleged that the emails addressed

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by the respondent related to issues or matters not connected with the petitioner or with the respondent’s work.

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It is further alleged that the respondent remained unauthorisedly absent for 38 days during the calendar year 2016. On these allegations of misconduct, the petitioner initiated disciplinary proceedings against the respondent and thereafter passed the order of termination dated 23.05.2016.

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Aggrieved by the order of termination, the respondent raised an industrial dispute. The appropriate Government referred the matter for adjudication. The respondent filed a claim statement before the Labour Court seeking reinstatement with full back wages, continuity of service, and all consequential benefits.

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The petitioner filed its statement of objections, disputing inter alia , the status of the respondent as a workman and contended that the Labour Court had no jurisdiction to adjudicate the dispute.

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In addition, the petitioner contended that the respondent had not performed his duties satisfactorily, had exhibited insubordination, had remained unauthorisedly absent, and was guilty of misconduct, and the respondent’s employment was terminated after holding a valid domestic enquiry.

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The respondent filed a rejoinder to the statement of objections and reiterated his position as a workman. Respondent also furnished the hierarchy in the establishment and claimed that he was placed at the lowest rung in the hierarchy of his department.

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The Labour Court, on consideration of the materials placed before it, held that the domestic enquiry conducted by the petitioner was not fair and proper. Consequently, both parties were permitted to lead evidence on the merits of the matter.

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After considering the evidence, the Labour Court concluded that the misconducts relating to insubordination, lack of confidence, and violation of the Rules and Regulations of the establishment were not established. The Labour Court also came to the conclusion that the unauthorised absence for a few days was established and took a view that such unauthorised absence could have been treated as leave without pay. Accordingly, it held that the penalty of termination from service was disproportionate to the misconduct alleged and directed reinstatement with continuity of service and consequential benefits; however, it denied back wages in toto.

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Aggrieved by the aforementioned award, the petitioner is before this Court challenging the award insofar as it directs reinstatement, continuity of service, and other consequential benefits. The respondent is before this Court challenging the award to the extent of denial of back wages.

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Assailing the award, the learned Senior Counsel appearing for the petitioner contends that the Labour Court has erred in holding that the respondent was a workman. It is submitted that the burden of proving such status lies on the respondent and in the absence of requisite pleading and evidence regarding the nature of duties discharged, the Labour Court could not have returned a finding that the respondent is a workman.

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It is further urged that the petitioner had specifically pleaded the role and responsibilities of the respondent in the organisation, which would indicate that he was holding an administrative position, and that there was no effective rebuttal to the same.

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The learned Senior Counsel also contends that the Labour Court failed to properly appreciate the evidence on record. Reference is made to the emails addressed by the respondent to his superior officers in violation of express instructions, which, according to the petitioner, constituted acts of insubordination and gross violation of the Rules and Regulations.

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It is also urged that the respondent had remained unauthorisedly absent for an unreasonably long period and such absence is duly established. It is therefore submitted that the misconducts stood clearly established and that the Labour Court could not have passed the impugned award.

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Learned Senior counsel for the petitioner elaborating his submission would urge that the law in this regard is well settled. The view that, in case, the employee is not working in a managerial capacity, administrative capacity or supervisory capacity then it is to be deemed that employee is a workman is held to be bad in law by the Apex Court in H.R. Adhyanthaya and others v. Sandoz (India) Ltd. and others¹ and the respondent was required to adduce positive evidence relating to the nature of work to establish that he was a workman. Merely, because the respondent is working in the lowest rung in the hierarchy, does not mean that the respondent was a workman at the time of his termination.

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On the other hand, the petitioner has made a categorical statement that the respondent was independently discharging his duties and he applied his skills and he was

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1 (1994) 5 SCC 737

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earning around Rs.3 lakhs per month and at no stretch of imagination, given the nature of work done by the respondent, he cannot be termed as a workman.

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Learned Senior Counsel to substantiate the contention that the respondent was not a workman, would also refer to the appointment order, which defined the nature of the work which the respondent was required to discharge as Customer Service Executive.

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Learned Senior Counsel, in support of his contention, would also place reliance on the judgment of the Apex Court in Mukund Staff and Officers Association v. Mukund Limited² and Mukesh K. Tripathi v. Senior Divisional Manager LIC and others³ .

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Learned counsel appearing for the respondent would urge that the respondent had clearly stated in his claim statement before the Labour Court that he was working in the lowest rung in the hierarchy and nobody reported to him. The respondent pleaded that he did not have any administrative control, he was only required to perform the duties assigned by

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2 2008 (2) Maharashtra Law Journal 416

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3 2004 (8) SCC 387

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the manager and at any stretch of imagination, the work discharged by the respondent can be termed as managerial, administrative, or supervisory.

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In addition, it is also urged that the respondent has filed a rejoinder to the statement of objection filed by the petitioner before the Labour Court and in the said rejoinder, he has again reiterated the fact that he was working as a workman and he did not discharge any managerial, administrative or supervisory work.

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It is also submitted that the petitioner has not produced any documentary evidence to show the nature of the work assigned to the respondent from which one can conclude that the respondent was not working as a workman.

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The Court has considered the contentions raised at the Bar and perused the records. The Court has also considered the ratio laid down in the judgments cited above.

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It is true that the burden lies on the respondent, to establish that he was a workman. There can be no dispute that the burden to establish the status of a workman lies on the

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person who asserts such status. It is required to be examined whether the respondent has discharged this burden.

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The respondent, in his rejoinder, has set out the organisational hierarchy. It is stated that he was working as a Customer Service Executive and that his immediate superior was the Assistant Manager – Operations, followed by the Manager – Operations, or the Assistant Vice President, followed by Vice President, and thereafter the Centre Head, who was placed at the highest level in the hierarchy.

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It is specifically asserted that the respondent had no subordinates under him and that he was not exercising any supervisory or managerial powers. The respondent has further stated that his duties were limited to reporting to work at the designated time, processing the work assigned by his superiors, and adhering to the prescribed schedules.

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It is a settled principle of law that designation and salary are not determinative factors in deciding whether an employee is a workman.

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There is no difficulty in accepting the contention of the learned Senior counsel for the petitioner that, merely

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because the respondent did not discharge the work of a manager or an administrative officer or a supervisor, one cannot by default conclude that the respondent was a workman. The burden indeed lies on the workman to establish the contention that he is a workman.

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The question whether the respondent was a workman or not, has to be considered in the light of the nature of the duties assigned to the respondent. The Court has perused the appointment order which vaguely described the nature of the duties assigned to the respondent. The respondent was appointed as a Customer Service Executive. His salary was around Rs.2,20,000 per annum.

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As already noticed, it is well settled position of law that the designation or the salary are not the criteria to determine the question as to whether an employee is a workman or not. The question has to be decided based on the nature of the work.

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The respondent in his claim statement as well as in the rejoinder has stated that he was the lowest in the hierarchy and nobody reported to him and he did not exercise any

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administrative control over any employee. The fact that he was lowest in the hierarchy is not disputed.

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The question is, "whether the respondent was discharging any skilled work or any manual work or semi-skilled work"?

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Given the nature of work he was required to do, it is possible to take a view that the respondent was broadly doing either manual or semi-skilled work, being a Customer Service Executive.

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Though it is urged before the Court that the respondent was required to discharge the burden and he was required to summon the documents from the petitioner/establishment to establish the nature of the work, the Court is of the view that nothing prevented the petitioner from producing the documents which would have clearly revealed the role of the respondent in the organization at the time of his termination. The documents relating the nature of work entrusted to the respondent were with the petitioner. Thus, the Court has to hold an adverse inference against the petitioner for not producing the documents relating to the

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nature of the work assigned to the respondent at the time of termination.

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The Court takes such a view as the appointment order placed before the Court does not conclusively support the petitioner’s contention or that of the respondent relating to the status of the respondent is a workman or not. The fact that none reported to the respondent is not in dispute and none was working under the respondent. Evidence on record would indicate that the respondent was required to discharge the duties assigned to him by the manager. This being the evidence on record, the petitioner should have produced the records disclosing the nature of the duty assigned to the respondent. That is not done. The contention that the respondent ought to have summoned the records from the petitioner is not tenable given the fact that even before the High Court, the petitioner could have produced the records to show that the respondent was entrusted with the responsibilities which would place the respondent out of the definition of workman as defined under the Industrial Disputes Act, 1947, (Act, 1947).

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In the facts and circumstances of the case, the burden was discharged by the respondent and the onus was shifted on the petitioner to place relevant documentary evidence before the Court to show the nature of the work assigned and discharged by the respondent.

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Since, the burden was discharged by the respondent and the onus shifted on the petitioner, the Court has to draw adverse inference on the petitioner for not producing records to show that respondent was working in some other capacity than as a workman.

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The Labour Court has taken into consideration the materials placed on record and has come to the conclusion that the respondent was a workman at the time of his termination.

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This Court does not find any perversity in the said view taken by the Labour Court and the reason assigned by the Labour Court in arriving at such a conclusion. Hence, the Court is of the view that the respondent was a workman at the time of his termination.

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Now the question is, "whether the charges levelled against the respondent are proved or not?"

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The charge memo issued to the respondent on 10.05.2016 referred to seven distinct charges numbered as 1, 2, 2.1, 2.2, 2.3, 3 and 4.

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The charge No. 1 is relating to insubordination wherein the petitioner alleged that respondent continuously kept writing letters to senior management on the issues which are satisfactorily closed.

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Charge No.2 is relating to lack of respect towards organizational policies/practices/management decisions and thereby creating non-conducive work environment affecting normal functioning of the business.

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Charge No.2.1 relates to lack of confidence on performance evaluation process adopted by the organization and this charge is framed with reference to email dated 08.07.2015.

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Charge No.2.2 is relating to the questioning of “work hours” definition by the respondent, referring to emails dated 05.01.2016 and 19.01.2016 addressed by the respondent.

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Charge No.2.3 is relating to unwarranted display of angst, protest on air conditioning not working in the office, and unauthorized leave taken on 26.04.2016.

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Charge No.3 is relating to unruly behaviour and disrespect towards senior personnel of the organization, which has reference to the discussion dated 27.11.2015, 31.12.2015, 12.01.2016, 21.03.2016, 22.03.2016, 28.03.2016.

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Charge No.4 is relating to repeated instances of unauthorized leave on 04.02.2016, 05.02.2016, 23.03.2016, 24.03.2016, 29.03.2016, 06.04.2016, and 26.04.2016.

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The petitioner/management alleges that aforesaid acts and omissions on the part of the respondent amounts to:

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(i) disobedience/insubordination in carrying out lawful orders of the manager/management of the organization;

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(ii) amounts to committing an act which is subversive to discipline or good behaviour or behaviour consistent with the values of the organisation;

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(iii) amounts to unauthorised absence from work.

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The respondent to the show-cause notice dated 10.05.2016, has responded requesting the details and

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particulars of the incidents referred to in the show-cause notice/charge memo to enable him to reply.

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It appears that such details are not furnished. The petitioner thereafter, conducted a domestic inquiry and held that all the charges are proved and the respondent was terminated from service after issuing the second show-cause notice.

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The respondent raised the industrial dispute. The Labour Court found that the domestic inquiry was not fair and proper, as such, the evidence on alleged misconduct was led before the Labour Court.

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The Labour Court has recorded a finding that the domestic inquiry was not fair and proper. Said finding has attained finality as the petitioner has accepted the said finding. Thus, the Court need not look into the evidence led in the domestic inquiry. The Court will only consider the evidence led before the Labour Court.

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The Labour Court, on appreciation of the evidence, has come to the conclusion that the charges relating to

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insubordination, lack of confidence, and disrespectful behaviour to the organization are not established.

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On the charge of unauthorised absence, the Labour Court has come to the conclusion that the respondent could have informed about his leave and the petitioner/organization could have treated the absence without leave as a leave without pay and accordingly, held that the order of termination is disproportionate and has set aside the same and directed reinstatement without back wages.

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Learned Senior Counsel appearing for the petitioner submitted that even a single day's absence without prior permission, amounts to misconduct and that will seriously affect the day-to-day work in the organization and more particularly, in an organization like the petitioner, where the customer service plays a significant role. And the repeated unauthorized absence on the part of the respondent cannot be termed as a minor misconduct and the Rules enabled the petitioner organization to terminate the services and accordingly, the services are rightly terminated and the Labour Court could not have interfered with the penalty imposed by the employer.

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In addition, it is also urged that the misconducts on the part of the respondent in addressing letters to the heads of the institution, bypassing the hierarchy, on a matter which is not concerned with the petitioner establishment or the respondent’s work, would also amount to serious misconducts. Despite, the petitioner/establishment informing the respondent not to indulge in such kind of activities, the respondent has not changed his behaviour and has asserted his intention to raise the issue over certain matters which are not concerned with the organisation. Thus, it is urged that the misconducts stand established and the Labour Court was in error in holding that the misconducts relating to insubordination, misconduct relating to disrespectful behaviour are not established.

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Learned counsel appearing for the respondent would urge that the charges relating to insubordination, disrespectful behaviour are vague and not specific and no acceptable evidence is led to establish the said charges and Labour Court is justified in holding that the said charges are not proved.

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In addition, the learned counsel appearing for the respondent would urge that the charge memo would refer to

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unauthorised absence on 04.02.2016, 05.02.2016, 23.03.2016, 24.03.2016, 29.03.2016, 06.04.2016 and 26.04.2016. However, the documents produced by the petitioner/Organisation would only refer to three days of unauthorised absence and not beyond. Thus, the petitioner could not have issued a show cause notice alleging unauthorised absence on seven days.

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Learned counsel for the respondent would refer to the document marked at Annexure-P to contend that, at the most the respondent can be accused of availing three days of unauthorised leave and even if it held to be proved, the penalty of termination from employment is disproportionately harsh and same has to be set-aside and rightly set-aside by the Labour Court.

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In addition, it is also urged that the act of sending emails to the higher officers raising an issue relating to a matter not concerned with the organisation or the employment has been condoned by warning the respondent and that being the position, the respondent cannot be subjected to domestic enquiry on the issue of addressing the email.

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In addition, it is also urged that the witnesses examined on behalf of the petitioner/establishment has categorically admitted that show-cause notices were not issued on the alleged unauthorised absence on the dates mentioned in the charge memo and the document marked at Annexure - P would only reflect three days of unauthorised absence on 31.03.2016, 06.04.2016 and 12.04.2016. The document marked at Annexure-P produced by the petitioner/establishment would reveal that on 06.04.2016 the respondent had gone to meet the Doctor and on 12.04.2016 the respondent had gone to the school to pay his son's fee. Thus, it is alleged that on two dates the valid reasons are assigned and for the unauthorised absence on 31.03.2016, the reason is not forth coming. Thus, the learned counsel for the respondent would urge that at the most there is only one day's unauthorised absence without proper explanation and for the remaining two days, there are valid reasons for remaining absent.

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66. Learned Senior counsel appearing for the petitioner by way of reply would urge that, even if it is three days unauthorised absence, that itself amounts to serious misconduct and it has disrupted the functioning of the

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organisation in the branch where the respondent was working as the alternative arrangement had to be made at the last minute and such an exercise is also not easy given the nature of business in which the petitioner/establishment is involved.

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Learned Senior counsel would also refer to the judgment of the Apex Court in L & T Komatsu Limited vs N Udayakumar⁴ to contend that absenteeism without permission is a gross violation of discipline and would also refer to the judgment of the Apex Court in Delhi Transport Corporation vs Sardar Singh⁵ .

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The Labour Court has come to the conclusion that the charges relating to insubordination and disrespectful behaviour and lack of interest in the work are not established.

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This Court has noticed that the respondent has addressed an email to the higher officers of the petitioner/establishment by-passing the hierarchy on a matter which is not concerned with the establishment or not concerned with the work of the respondent. And to this letter, the concerned officer of the Organisation has responded to the

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4 (2008) 1 SCC 224

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5 (2004) 7 SCC 574

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respondent stating that the respondent is not supposed to address such letters to the higher officers in the organisation and the respondent has to strictly adhere to the Rules and Policies of the Organisation and issue if any has to be brought to the notice of the immediate superior officer.

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It is also noticed that the petitioner/organisation has issued a letter to the respondent stating that the respondent shall not repeat such activities and in case, such activities are repeated, appropriate disciplinary enquiry will be initiated against the respondent.

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From the records placed before the Court, it is evident that the respondent has not addressed further letter to the higher officers in the organisation bypassing the hierarchy. That being the position, the Court is of the view that the charge relating to insubordination, (other than the incident discussed above, for which warning was issued by way of punishment) is not established and the view taken by the Labour Court appears to be a plausible view and does not call for interference on the ground of perversity.

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In addition to that the charge relating to lack of confidence in work is also not established and the respondent

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has received appreciation from the petitioner relating to his work. Assuming that the respondent did lack in confidence in discharging the work it cannot be termed as misconduct.

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As far as the unauthorised absence is concerned, though the charge memo would indicate that the respondent was charged for unauthorised absence for seven days, the document marked at Annexure–P, the document produced by the petitioner/organisation which is not disputed by the respondent, would indicate that the respondent was unauthorisedly absent only for three days. Those three days are 31.03.2016, 06.04.2016 and 12.04.2016 and very interestingly, the charge memo issued does not indicate the aforementioned three dates as the dates of unauthorised absence. Nevertheless, the Court is of the view that the unauthorised absence for these three days is very much established given the fact that the respondent has not produced any records to show that he had applied leave on those three days.

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Though it is possible for the respondent to urge that had the charge been framed against the respondent alleging unauthorised absence on three dates, he would have produced

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the records, admittedly, even as of today no records are produced even before this Court to show that on or any time before 31.03.2016, 06.04.2016 and 12.04.2016, the respondent had applied for leave on those three days.

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Under these circumstances, the Court is of the view that unauthorised absence stands established on 31.03.2016, 06.04.2016 and 12.04.2016. That being the position, the finding of the Court that unauthorised absence is not established is not a correct view in substance, though technically a correct view as the charge memo does not reflect unauthorised absence on 31.03.2016, 06.04.2016 and 12.04.2016.

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The respondent was unauthorisedly absent for three days. It is not his case that he was denied opportunity of establishing the defense that he did apply for leave on three days viz., 31.03.2016, 06.04.2016 and 12.04.2016.

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Though it is technically permissible to hold that the penalty of dismissal for three days of unauthorised absence is permitted under the terms and conditions of employment between the petitioner and the respondent, the Court is of the view that, in the facts of the present case where there is no

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charge for unauthorised absence on the aforementioned three dates, and the charges of unauthorised absence levelled against the respondent refer to unauthorised absence on some other dates, and those charges are not established, the penalty of dismissal is disproportionate to the misconduct. Hence, the Labour Court is justified in directing reinstatement.

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At the same time, the Court is also of the view that at least 60% backwages should have been awarded to the respondent given the fact that it is not established that the respondent was gainfully employed during the said period of termination. Though there is a claim for awarding 100% backwages, the Court is of the view that 100% backwages is not justified in the present case as unauthorised absence for three days is established as noticed above. The Court is also of the view that the respondent given his qualification and experience might have done some work, to earn something which may not be the earning which could be equated with the earning he would have had, if he was not removed from service.

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Though the learned Senior Counsel urged that the order terminating the services of the respondent could not be

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termed as stigmatic, what is to be seen is respondent’s relationship as an employee of the petitioner is terminated post domestic enquiry and even before this Court, charges of misconduct are urged against the respondent. That being the position the one cannot hold that the termination is not stigmatic, and on that score the petitioner is not entitled to any relief.

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80. Hence the following:

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ORDER

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