(Prayer: This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to quash the award dated 14.11.2013 (Annexure-M) passed by the Industrial Tribunal, Bengaluru in ID No.134/2007.
This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying for direction to modify the award dated 14.11.2013 Annexure-A, passed by the Industrial Tribunal, Bangalore in I.D.No.134/2007 insofar as the grievance of the petitioner is concerned.)
1. Aggrieved by the award dated 14.11.2013 in I.D.No.134/2007 passed by the Industrial Tribunal, Bengaluru, the employer has preferred W.P.No.8674/2014 (L-TER) and the workman has preferred W.P.No.2137/2017 (L-TER). For the purpose of convenience, the parties will be referred to henceforth according to their ranks in W.P.No.8674/2014.
2. The petitioner is the Educational Institution. The petitioner is imparting education in Engineering since 1963. The petitioner appointed the respondent as Typist on 01.07.1979. The petitioner issued charge sheet cum show-cause notice dated 03.07.2003 as per Annexure-A imputing the following misconducts:
(i) On 07.03.2003, the respondent issued blank railway concession forms to a student by name Sohaib Akhtar without obtaining signature of the Principal which led to withdrawal of the railway concession to the college students;
(ii) On 22.03.2003 the respondent did not carry out ledger print out work assigned to him by Ganapathi Aithal the Account Superintendent. When questioned, the respondent behaved with him rudely and abused him in un-parliamentary language;
(iii) On 20.05.2003 taking exception for sending his service book to Rastreeya Shikshana Samithi Trust, the respondent threatened D.S.Raghavendra another staff of the institution if they fail to get back the book within 24 hours, assaulted and abused him and his parents in foul language.
3. The enquiry was initiated on the said charge sheet. Pending that enquiry, the petitioner issued another charge sheet dated 12.01.2005 as per Annexure-B imputing the following misconducts:
(i) On 21.07.2004, when an examination was being conducted, the respondent was required to submit the absentees statement in Form-A, but he did not submit the same within the required time with lame excuses. When K.N.Raja Rao, the Chief Superintendent of Examination questioned that, the respondent behaved rudely and arrogantly with him indulging in argumentation and shouting;
(ii) On 28.10.2004 the respondent was deployed to work in IEM Department under R.Shekar, Foreman. The respondent failed to locate the sanction papers relating to STTP on World Class Management Practices in professional institutions. When Mr.R.Shekar questioned that, without complying the work the respondent behaved arrogantly with Mr.R.Shekar.
(iii) The respondent without permission left the office at 12.30 noon on 08.11.2004 and remained absent from duty on 09.11.2004 unauthorizedly. On reporting to duty on 10.11.2004, the respondent tampered the attendance register entering as 'signed' against the entry dated for 08.11.2004 and 'CL' for 09.11.2004.
4. The petitioner alleged that by the above mentioned acts, the respondent committed the following misconducts:
(a) Willful insubordination or disobedience, whether alone or in combination with others to any lawful and reasonable order of his superior;
(b) Theft, fraud, or dishonesty in connection with the employer's business or property;
(c) Habitual absence without leave or absence without leave for more than ten days;
(d) Riotous or disorderly behaviour during working hours of the establishment or any act subversive of discipline;
(e) Habitual negligence or neglect or work; &
(f) Dereliction of duty.
5. The respondent submitted his reply to the above said charges. One H.S.Prasad was appointed as enquiry officer to conduct the enquiry in both charge sheets.
6. On conducting the enquiry, so far as charge sheet dated 03.07.2003, enquiry officer submitted report at Annexure-C. In Annexure-C the enquiry officer held that charge Nos.1 and 2 were proved and charge No.3 was not proved.
7. In the charge sheet dated 12.01.2005 after holding enquiry, the enquiry officer submitted report as per Annexure-D holding that charge No.1 is not proved and charge No.2 is proved. In both the enquiries, the respondent filed his defence statement. The respondent cross-examined the petitioner's witnesses and led his evidence.
8. After receipt of the enquiry reports, the petitioner issued second show cause notice to the respondent regarding acceptance of the enquiry reports and imposition of penalty. The respondent submitted his reply to the same. The petitioner by order Annexure-E dated 08.08.2006 rejected his reply, accepted the findings of the enquiry officer and imposed punishment of compulsory retirement against the respondent.
9. On the requisition of the respondent, the Government under Sections 10(1) (c) and (d) of the Industrial Disputes Act, 1947 ('the Act' for short) referred the dispute to the Industrial Tribunal, Bangalore to decide whether the petitioner was justified in imposing penalty of compulsory retirement against the respondent.
10. On reference both parties filed their claim statement, counter to claim statement, adduced the evidence on the issue regarding fairness and validity of the enquiry. On such enquiry, the labour Court vide order Annexure-J dated 30.07.2010 answered that issue in favour of the petitioner.
11. Then the Industrial Tribunal posted the matter 'for evidence on victimization'. The parties led evidence on victimization. Then the Tribunal by the award as per Annexure-M dated 14.11.2013 held that the petitioner is not justified in compulsorily retiring the respondent and he is entitled to all the consequential monetary and other benefits.
12. The petitioner has challenged the said award in W.P.No.8674/2014 (L-TER) on the ground that the award is perverse and contrary to the law and precedent. Whereas, the respondent has challenged the very same award in W.P.No.2137/2017 on the ground that the operative portion of the award lacks clarity and that the Tribunal should have in specific terms set aside the award and directed the petitioner for reinstatement of the respondent with full back wages, continuity of services and all other consequential benefits. Submissions of Sri K.R.Anand, learned counsel for the petitioner:
13. Section 11A of the Act applies only to the case of dismissal or discharge and not for compulsory retirement. The case of respondent was not expoused collectively. Therefore, the reference itself was not maintainable. The petitioner disputed that the respondent is member of any union and he did not prove that he was member of union. Once the enquiry is held fair and proper, the Labour Court has to decide only on the quantum of punishment unless there is allegation of victimization or unfair labour practices. There is no such allegation of victimization or unfair labour practices. The Tribunal exceeded its jurisdiction in re-appreciating the evidence and the findings of the Tribunal are perverse.
14. In support of his submissions he relies on the following judgments:
1. South Indian Cashew Factories Workers' Union Vs Kerala State Cashew Development Corp. Ltd ((2006) 5 SCC 201)
2. The Rajasthan State Road Transport Corp. & Anr, etc. etc. Vs Krishna Kant etc. etc. (1995 II LLJ SC 728)
3. Management of M/s Hotel Samrat Vs Government of NCT & Ors (2007 LLR 386)
4. T.M.Ramamoorthy Vs Union of India (2012 IV LLJ 700 (Mad))
5. Divisional Controller, KSRTC, Davanagere Division Vs Sri. H.G.Basavegowda (2013 SCC Online Kar 1998)
6. The workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt) Ltd. V. The Management and others ((1973) 1 SCC 813)
7. Lokmat Newspapers Pvt. Ltd Vs Shankarprasad (1999 II LLJ 600)
8. M.Ramanatha Pillai Vs The State of Kerala and Ors. (AIR 1973 SC 2641)
9. Shyam Lal Vs The State of Uttar Pradesh and Ors. (AIR 1954 SC 369)
10. Management of State Bank of India, New Delhi Vs J.D.Jain and Ors. (1979 LabIC 1041)
11. M/s Bharat Iron Works Vs Bhagubhai Balubhai Patel & Ors. ((1976) 1 SCC 518)
12. Bengaluru Water Supply and Sewerage Board Vs A.Rajappa and Ors. ((1978) 2 SCC 213)
Submissions of Sri.D.Nagaraja Reddy, learned counsel for the respondent:
15. The ground of maintainability of the reference under Section 11A of the Act or Section 2A of the Act was not raised before the Tribunal. For the first time the said ground is raised, therefore, that cannot be considered. Moreover compulsory retirement also amounts to termination. Therefore, it amounts to industrial dispute and individual workman can challenge that. The respondent has pleaded victimization in his claim statement as well as in his evidence. The award was based on the reference under Section 10 of the Act. The findings of the enquiry officer were perverse. In such cases, the Tribunal can set aside the punishment. The Tribunal ought to have passed the award in clear terms for reinstatement, back wages and continuity of service etc.
16. In support of his submissions, he relies on the following judgments:
1. Mahabir Vs K.D.Mittal (1980 0 PLRJ 162)
2. General Secretary, South Indian Cashew Factories Workers Union Vs Managing Director, Kerala State Cashew Development Corporation Ltd. and others (AIR 2006 SC 2208)
3. Union of India Vs Asraf Ali (2004 3 LLJ 908)
4. V.Varadarajan Vs The Management of Syndicate Bank ((2008) 5 KarLJ 691)
5. Tapash Kumar Paul Vs BSNL (Civil Appeal No.4980/2014 DD 28.01.2014)
17. The Tribunal reversed the findings of the enquiry officer and consequently the dismissal order basically on the ground that the findings on the charges were perverse and the punishment order was the outcome of victimization.
18. What are the powers of judicial review of the Court/Tribunal in the matter of domestic enquiry were dealt with by the larger bench of the Hon'ble Supreme Court in Deputy General Manager (Appellate Authority) and Ors Vs. Ajai Kumar Srivastava ((2021) 2 SCC 612) in detail. After referring to its several earlier larger bench judgments, in paras 22 to 25 of the said judgment the Hon'ble Supreme Court held that the disciplinary authority is the sole judge of facts and adequacy of evidence or reliability of the evidence cannot be permitted to be canvassed before the Court or Tribunal. It was further held that such interference is permissibly only if the conclusion upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of the record or is based on no evidence at all. It was further held that the Court/Tribunal cannot interfere with the findings on the questions of facts, if the conclusions are based on some evidence. This Court has to examine the correctness and legality of the findings of the Tribunal on perversity in the light of the above said judgment.
Reg. Charge Sheet dated 03.07.2003:
(a) Reg. Charge No.1
19. In this charge the allegations against the respondent was that he issued Exs.M3 and M4 the railway concession forms to student Sohaib Akhtar without obtaining signatures of the principal which led to withdrawal of railway concession facility to the petitioner's college.
20. To prove the said fact in the enquiry the petitioner relied on the evidence of M.W.1 its Office Superintendent and Exs.M1 to M7. Ex.M1 was the letter of the Senior Divisional Commercial Manager, Southern Railway, Bengaluru addressed to the petitioner stating that the institution has continued the issue of irregular concession forms despite inspection, therefore, student concession granted to the institution is withdrawn with immediate effect.
21. Ex.M2 is the copy of the letter dated 19.03.2003 addressed by the petitioner to the author of Ex.M6 stating that if the irregularity is specified, it will probe into such irregularity and take suitable action and request to continue the concession facility to the students to avoid hardship to them.
22. Ex.M5 was the letter said to have been addressed by Sohaib Akhtar to the Principal stating that while issuing Exs.M3 and M4 he was not asked to take the signature of the Principal. Exs.M8 and M9 are the correspondence of the railway department to show that concession facility to the students of the college was continued on receiving fine of Rs.1,000/- from the college with the warning that recurrence of such lapse will lead to withdrawal of concession permanently.
23. Except for Ex.M5 the respondent did not dispute any of the aforesaid documents. He tried to justify his action of issuing Exs.M3 and M4 without signature of the Principal on the ground that, he did so to help the student as the student was in a hurry to go to railway station. In Exs.M3 and M4 the railway department people have rounded the column meant for the signature of the head of the institution. Those documents bear only the seal of the Principal of the college and not the signatures of the Principal.
24. The respondent did not even dispute that the irregularity referred to by the railway department was issuance of unsigned railway concession form Exs.M3 and M4. Such being the facts the Tribunal says that there is no evidence to show that railway concession was withdrawn only on account of issuance of unsigned forms. Therefore, such finding of the Tribunal is perverse and contrary to the judgment of the Hon'ble Supreme Court in Ajai Kumar Srivatsava's case referred to supra.
25. Other ground for the Tribunal to reject findings of enquiry officer on the above said charge was that, to prove the lapses on the part of the respondent and Ex.M5 the petitioner should have examined Sohaib Akhtar. As already pointed out the respondent did not dispute issuance of unsigned railway concession forms (Exs.M3 and M4) to the said student and withdrawal of railway concession for such irregularity and restoration of the same on payment of fine. When the respondent tried to justify or explain his conduct of issuing unsigned forms, as per basic rule of evidence, burden was on him to prove the said fact. For that he should have examined that student and not the petitioner. Under the circumstances, the Tribunal's reasoning that the petitioner should have examined the said student is contrary to the basic rule of evidence and ultimately such finding on the said charge is perverse.
(b) Reg. Charge No.2
26. In this charge the allegation was that on 22.03.2003 the respondent refused to carryout instructions of Accounts Superintendent Ganapathi Aithal to take the ledger accounts' printout and abused him in foul language. To prove that charge the petitioner examined Mr.Ganapathi Aithal as M.W.6 and relied on his report Ex.M15. Petitioner also relied on the evidence of M.W.7 the Second Division Assistant in the accounts section.
27. M.Ws.6 and 7 spoke in support of the charge. According to them, initially respondent defied to carryout the instructions and only on M.W.6 reporting the matter to the Principal and the Principal in turn instructing the respondent he carried out the said work. The respondent did not dispute the positions of M.Ws.6 and 7 in the said branch, the instructions of M.W.6, that he initially declined to carryout the said work and did that later on principal's instruction. But he tried to justify that saying that he had to emergently go to the railway station to attend to the work relating to charge No.1, therefore he was not able to comply the instructions of M.W.6.
28. The burden was on the respondent to prove that he had some urgent work as alleged therefore he refused to comply the instructions of M.W.6. But he did not lead any evidence to substantiate his justification. It was not even his case that M.Ws.6 and 7 had any animosity against him to falsely implicate. Under such circumstances the respondent and the enquiry officer were justified in relying on the evidence of M.Ws.6 and 7. Despite that the Tribunal states that except the evidence of the said Ganapathi Aithal, there was no other evidence to prove the said charge. Such finding of the Tribunal is perverse and contrary to the aforesaid judgment of the Supreme Court in Ajai Kumar Srivastava's case referred to supra.
Reg. Charge Sheet dated 12.01.2005:
29. The enquiry officer himself exonerated the respondent of charge No.1.
Reg. Charge No.2:
30. Under this charge it was alleged that on 28.10.2004 the respondent disobeying the orders of R.Shekar, the foreman in IEM department misbehaved with him. The other part of the charge is that the respondent unauthorizedly absented from duty from 12.30 p.m. of 08.11.2004 to 09.11.2004 and on reporting back on 10.11.2004 he tampered the attendance register marking his signature for 08.11.2004 and marking 'CL' for 09.11.2004.
31. The Tribunal rejected the findings of the enquiry officer and the respondent on the above charge on the ground that by way of victimization the respondent was deputed to IEM department, since M.W.5 was the custodian of the file it could not have been possible for the respondent to locate the file misplaced by him.
32. So far as unauthorized absence, it was held that the respondent left the work place due to the death of his relative and on return on 10.11.2004 he submitted leave application and the petitioner without producing suppressed the leave application before the enquiry officer or the Court. To prove this charge the petitioner relied on the evidence of M.W.4 the in-charge Head of the Department of IEM department at the relevant time and M.W.5 Mr.R.Shekar the Foreman in the department.
33. M.Ws.4 and 5 speak about the respondent not carrying out the work of tracing the file in the department as instructed by M.W.4, remaining absent from duty from the afternoon of 08.11.2004 and on 09.11.2004 without leave of absence and tampering the attendance register. According to them the respondent applied leave on his return on 10.11.2004. M.W.5 further speaks about the respondent employing offensive language against him and behaving arrogantly with him.
34. The respondent did not dispute his deputation to IEM department and the position and presence of M.Ws.4 and 5 in the said department or the entrustment of the work to him or the report of M.W.4 as per Ex.M9 to the Principal about his absence in the department and the incident. He only suggested to M.W.4 that he was forced to submit the apology letter to their dictation. That itself goes to show that he submitted an apology letter for misbehaviour.
35. So far as the tracing of the file the respondent claimed that, M.W.5 himself was the custodian of the file therefore, he could not trace that. His further justification was that on account of death of his relative in Hubli, he was forced to leave the office in the afternoon. He claimed that though he sent the leave letter, the petitioner did not receive the same. Therefore, the burden was on him to establish his defence.
36. Except his interested testimony which was disputed by the petitioner, the respondent did not lead any other evidence. If the file was not traceable he could have at the least submitted a report accordingly to M.W.4. Under the circumstances the enquiry officer with detailed reasons held that said charge was proved.
37. In the light of the aforesaid facts and circumstances, it cannot be said that it was a case of the enquiry officer and the petitioner recording the finding on absolutely no evidence. Therefore, the findings of the Tribunal that the impugned order and the enquiry reports were perverse is contrary to the materials on record and the judgment of the Hon'ble Supreme Court in Ajai Kumar Srivatsava's case referred to supra. Reg. Section 11A of the Act:
38. For the first time before this Court learned counsel for the petitioner contends that since penalty of compulsory retirement is not included in Section 11A of the Act and the cause was not espoused by any union, the reference itself was not maintainable. Several judgments were relied to contend that compulsory retirement is not a penalty or dismissal.
39. So far as espousing the cause, the reference was made under Section 10(1)(d) of the Act. Section 10(1)(d) of the Act contemplates referring of "any Industrial Dispute" specified in Second or Third Schedule to the Tribunal. Relying on Section 2(k) of the Act, it was contended that only a cause espoused collectively amounts to Industrial Dispute. But Section 2A(1) of the Act c
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onfers the deemed status of industrial disputes in case of certain punishments which reads as follows: "2A. Dismissal, etc., an individual workman to be deemed to be an industrial dispute.-(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute." The above provision includes any kind of termination from service other than discharge or dismissal or retrenchment. Therefore there is no merit in the contention that the dispute was not an industrial dispute and the reference was bad. 40. So far as the bar of Section 11A of the Act, the penalty of compulsory retirement was imposed on imputation of misconduct on holding enquiry. Therefore, that carries stigma and that amounts to punishment. More over the reference was not challenged on that ground at the earliest. Such contention was raised for the first time before this Court. 41. The Division Bench of the Patna High Court in para 4 of the judgment in Mahabir's case referred to supra held that order of compulsory retirement amounts to termination by the employer of the services of the respondent and that will amount to retrenchment within the meaning of the Act. Having regard to the said judgment and the aforesaid circumstances, there is no merit in the said contention and the judgments relied on by learned Counsel for the petitioner cannot be justifiably applied to the facts of the case. The other judgments relied on by the learned Counsel for the respondent in no way advance his contentions. 42. In the light of the discussions made above, the impugned order of the Tribunal exonerating the respondent/workman is liable to be set aside. Therefore the petition of the petitioner/management succeeds and the petition of the respondent/workman fails. In the result, W.P.No.2137/2017 is hereby dismissed. W.P.No.8674/2014 is hereby allowed. The impugned order of the Tribunal is hereby quashed. The order of compulsory retirement passed by the petitioner/management is hereby restored.