At, High Court of Karnataka
By, THE HONOURABLE CHIEF JUSTICE MR. RITU RAJ AWASTHI & THE HONOURABLE MR. JUSTICE SACHIN SHANKAR MAGADUM
For the Appellant: Subba Rao, Senior Advocate, K.N. Satheesha, Advocate. For the Respondent: Syed Kashif Ali, Pradeep S. Sawkar, Advocates.
(Prayer: This Writ Appeal filed under Section 4 of the Karnataka High Court Act praying to (a) Set aside the Order of the learned Single Judge dated 5.1.2021 in W.P. No.19906 of 2016 and consequently allow the Writ Petition; and (b) issue any other Order of Orders including the Costs of this Writ Petition)
Sachin Shankar Magadum, J.
1.The captioned Appeal is filed questioning the impugned Order, dated 5.1.2021 passed by the learned Single Judge in W.P.19906/2016.
2.The Appellant-Union assailing the Circular No.2661, dated 30.3.2016 issued by the Respondent-Bharat Electronics Limited (BEL) deducting two days Wages on the principle of 'No Work No Pay' and as a penal action, another day of wage for having gone on strike approached the learned Single Judge of this Court. The learned Single Judge having examined the rival contentions of the parties was not inclined to accept the contention of the Appellant herein that the impugned Circular, dated 30.3.2016 was issued in gross violation of the Principles of Natural Justice.
3.The learned Single Judge having examined the material on record has recorded a finding that the strike notice was issued by the Appellant-Union on 11.2.2016 to which the Respondent-Management replied on 16.2.2016 requesting the Appellant-Union, not to go on strike. The learned Single Judge was of the view that pending conciliation proceedings, the Respondent-Management had issued notice and a request was made on 16.2.2016, not to go on strike as there was a notice issued by a Competent Authority to both the Union and the BEL that amicable settlement would be arrived at by conciliation proceedings slated to be held on the very next dayi.e.on 17.2.2016. The learned Single Judge was of the view that the Respondent-Management had clearly indicated that if the Employees go on strike, Section 9 of the Payment of Wages Act, 1936 (for short “Act, 1936”) would be invoked. On these set of grounds, the learned Single Judge was of the view that not once, thrice the Appellant was informed about the consequences and therefore, the Appellant-Union was fully aware of the consequences that would follow in the event of strike as indicated in the reply given by the Respondent-Management.
4.The Learned Senior Counsel Sri. Subba Rao, would vehemently argue and contend before us that the impugned Circular was issued by Respondent-Management without prior notice and warning and the same is issued in the absence of any hearing or Disciplinary procedure. He would also contend before us that the Respondent-Management has not only deducted the Wages for 'No Work no Pay' but has also consequently deducted two days Wages as penalty for participating in strike and therefore, would contend that the proposed punitive deduction in Wages for two additional days excluding the day of the strike, is grossly arbitrary,mala fide, and is in gross violation of Principles of Natural Justice. He would also contend that the reply issued by the Respondent-Management cannot be construed as a notice for proposed action. He would submit to this Court that the Respondent-Management was required to issue individual notices before penalizing the workmen and since the Respondent-Management has not adhered to the Principles of Natural Justice, the impugned circular isex facieillegal, tainted withmala fidesand therefore the order under challenge warrants interference at the hands of this Court. The learned Senior Counsel for the first time has also argued that the Respondent-Management has no power to invoke Section 9 of Payment of Wages Act which has no application to the present lis between the Appellant-Union and the Respondent-Management.
5.Per contra, learned Counsel appearing for the Respondent-Management repelling the contentions urged by the learned Senior Counsel appearing for the Appellant-Union, would submit to this Court that the Conciliation proceedings were going on and meeting was held on 19.2.2016 to discuss the implementation of Pension scheme and therefore, there was a request to drop the ongoing agitation and to call off the strike. He would submit to this Court that vide Circular No.2656 dated 20.2.2016, the Respondent-Management had in fact notified all the Employees that the matter is under conciliation and therefore, the proposed action of the Union to go on strike is illegal and therefore a request was made to call off the strike. He would further counter the grounds urged in the Writ Appeal and contend that the Employees and the Appellant-Union were clearly notified and a warning was given not to participate in the proposed strike and a clear indication was given that they would be liable for a disciplinary action on the principles of 'No Work No Pay'. On these set of grounds, he would support the order under challenge and would submit that the same would not warrant interference at the hands of this Court.
6.Heard the learned Senior Counsel appearing of the Appellant and the learned Counsel for the Respondent-Management. We have perused the records.
7.What emerges from the records is that Conciliation proceedings were going on between the Appellant-Union and the Respondent-Management. However, the Appellant-Union under the garb of breakdown in the Conciliation proceedings served a notice of proposed one day strike on the Respondent-Management under Section 22 of the Industrial Disputes Act, 1947. The material on record also indicates that the Respondent-Management issued a Circular No.2656, dated 20.2.2016 appealing to the members of the Appellant-Union to call of the proposed strike. The said Circular indicated a warning to the Workers that one day would be deducted in the event the workers go on strike which was scheduled on 2.3.2016. The Respondent-Management by way of second notice under Circular No.2659 dated 1.3.2016 again appealed to the Appellant-Union to call of the proposed strike. Inspite of notice, one day strike was held by the Workers of the Respondent to protest non-implementation of the Pension scheme. If three notices were served by the Respondent-Management calling upon the Appellant-Union and Workers to call off the strike failing which consequences were indicated, we are of the view that the impugned Circular cannot be termed as arbitrary. We are also not inclined to accede to the argument that the impugned Circular was issued without any hearing as alleged by the Appellant-Union. The Respondent-Management had in unequivocal terms notified the Appellant-Union and Workers to call off the strike and therefore the contention of the Appellant-Union that the Respondent-Management had unilaterally decided that the strike is illegal cannot be acceded to.
8.The learned Single J
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udge has dealt with the matter and has come to the conclusion that the impugned Circular deducting wages for one day and consequent deduction of two days' wages as penalty does not suffer from any arbitrariness and has accordingly, proceeded to dismiss the Writ Petition. The question as to whether the Respondent-Management had power to invoke Section 9 of the Act, 1936 was neither pleaded nor argued before the learned Single Judge. Even in Writ Petition, we would find that the said ground is not at all urged. Therefore, we are not inclined to examine the said ground in the present Writ Appeal. We do not find any infirmity in the order under challenge. 9.Consequently, the Writ Appeal is devoid of merits and the same stands is dismissed.