Shri D Venkatesh vs M/S Priyadarshini Handloom House
2022 Latest Caselaw 531 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2022

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     WRIT PETITION NO.14939 OF 2007 (L-RES)

BETWEEN:

SHRI. D. VENKATESH
S/O.P. DASAPPA
AGED ABOUT 51 YEARS,
R/O NO 635, 2ND CROSS, 7TH MAIN ROAD,
MUNESWARA EXTENSION, LAGGERE
BANGALORE-560 058.
                                    ... PETITIONER
(BY SRI.VIJAY KUMAR, ADVOCATE)

AND:

1.     M/S PRIYADARSHINI HANDLOOM HOUSE
       11TH CROSS, SAMPIGE ROAD,
       MALLESWARAM
       BANGALORE-560003.

2.     THE KARNATAKA HANDLOOM DEVELOPMENT
       CORPORATION,
       NO.1, TANK BUND
       NEAR MEG CENTRE, ULSOOR
       BANGALORE REPRESENTED
       BY ITS MANAGING DIRECTOR
                                 ... RESPONDENTS

(BY SRI.VASUKI, ADVOCATE FOR
    SRI.B.C.PRABHAKAR, ADV.,)
                                 2




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


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

                          ORDER

Sri.Vijay Kumar, learned counsel for petitioner and

Sri.Vasuki, learned counsel on behalf of Sri.B.C.Prabhakar,

learned counsel for respondents have appeared through

video conferencing.

2. The facts are simply stated as under:-

It is stated that the petitioner was working in the

first respondent Organization as an Accounts Assistant.

Joint departmental proceedings were initiated against him

and four others by communicating an articles of charges. It

is stated that in the common proceedings the specific

misconduct alleged to have been committed by the

petitioner was not specified.

The petitioner denied the charges and the Inquiry

Officer was appointed to hold the joint Inquiry and send

the report of inquiry to the respondents. The inquiry was

held by the Inquiring Authority and submitted the report

holding that the charge framed against the petitioner and

others were proved. No notice was issued to the petitioner

enclosing a copy of the report of the Inquiring Authority

and giving an opportunity to the petitioner to submit his

representation on the report of the Inquiring Authority.

However, an order was issued on 05.08.2003 for

compulsory retirement from service as a measure of

penalty.

The petitioner questioned the validity of the order

dated 05.08.2003 before the Labour Court and the Court

passed an award on 20.11.2006 and modified the order

dated 05.08.2003 and directed the second respondent to

pay the compensation in lumpsum equivalent to his last

drawn salary multiplied by six; there shall not be any

further steps from the second party to recover

Rs.76,000.00 (Rupees Seventy-Six Thousand only) from

him.

Under these circumstances, petitioner having left

with no other alternative and efficacious remedy has filed

this writ petition under Articles 226 & 227 of the

Constitution of India.

3. Sri.Vijay Kumar, learned counsel for petitioner

submits that the award of the Labour Court is

unsustainable in law.

Next, he submitted that the Labour Court having

recorded the finding that the charges framed against the

petitioner are perverse. The Labour Court has also

observed that the transaction with the agent (the coal

supplier) is still the subject matter before the Criminal

Court, hence it is too premature to hold that the

Corporation has suffered a loss of Rs.8,68,845.65/-

(Rupees Eight Lakhs Sixty-Eight Thousand Eight Hundred

and Forty-Five and Sixty-Five paise only), the Court ought

to have ordered for reinstatement.

A further submission was made that the petitioner

had still 8 years of service as on the date of passing the

order dated 05.08.2003.

Counsel further contended that the award of

compensation of 6 months pay is too meager since the

petitioner had already completed 22 years of service.

Lastly, he submitted that viewed from any angle, the

award of the Labour Court is illegal and arbitrary. Hence,

he submitted that the writ petition may be allowed.

4. Sri. Vasuki, learned counsel for respondents

justified the order of the Labour Court.

Next, he submitted the petitioner was working as a

Storekeeper at Priyadarshini Textile Process House at

Peenya 2nd Stage Bangalore; during his service, he

colluded with other four employees by violating the

procedure relating to transaction; he caused financial loss

to the Corporation.

A further submission was made that a domestic

inquiry was initiated by appointing Inquiry Officer. A joint

inquiry was conducted and the petitioner participated in

the inquiry. The explanation offered by the petitioner was

not satisfactory; the inquiry was held in a fair and proper

manner. Considering the seriousness of the proved

charges, the order was passed for compulsory retirement

and it was also ordered that a sum of Rs.73,805.00

(Rupees Seventy-Three Thousand Eight Hundred and Five

only) to be recovered from the petitioner.

Counsel strenuously urged that the Labour Court has

exercised the power under Section 11-A of the Industrial

Dispute Act, 1947. The petitioner has not made out any

good grounds for setting aside the order of the Labour

Court. Accordingly, he submitted that the writ petition may

be dismissed.

5. Heard the contentions urged on behalf of

parties and perused the Annexures with care.

The short point which arises for consideration is

whether the Labour Court has properly exercised the

power vested under Section 11-A of the Industrial Disputes

Act, 1947?

It is not in dispute that the petitioner D.Venkatesh

was working as Accounts Assistant in the respondent

corporation. He was charged with the following acts of

misconduct.

1. Willful violation of the procedure relating to the transaction of the company.

2. Willful and gross negligence in discharging of official duties.

3. Causing loss to the Corporation.

4. Breach of Trust and confidence.

5. Acts subversive of Discipline.

The Inquiry Officer on a detailed Inquiry held that

the charges are proved. The order was passed on

05.08.2003 for compulsory retirement and it was also

ordered that a sum of Rs.73,805.00 (Rupees Seventy-

Three Thousand Eight Hundred and Five only) to be

recovered from the petitioner. The petitioner sought for

reference. The Government of Karnataka by its order

No.LD:718:IDG:2004 dated 25.01.2005 referred the

following points of dispute to the Labour Court.

(1) DqÀ½vÀªÀUÀðzÀªÀgÁzÀ ªÀiÁå£ÉÃdjUÉ qÉÊgÉPÀÖgï, PÀ£ÁðlPÀ ºÁåAqï®ÆA qɪÀ®¥ïªÉÄAmï PÁ¥ÉÆðgÉõÀ£ï, ¨ÉAUÀ¼ÀÆgÀÄ, EªÀgÀÄ ²æà r.ªÉAPÀmÉñï, EªÀgÀ£ÀÄß ¸ÉêÉAiÀÄ ¤ªÀÈwÛ ªÀAiÀĹì£ÀªÀgÉUÀÆ ªÀÄÄAzÀĪÀgɸÀzÉà vÀªÀÄä DzÉñÀ ¸ÀASÉå: PÉJZïr¹:JrJA: 23-01:03-04:2432 gÀ ¢£ÁAPÀ: 5.8.2003 jAzÀ eÁjUÉ §gÀĪÀAvÉ PÀqÁØAiÀÄ ¤ªÀÈwÛUÉƽ¸ÀĪÀ ªÀÄÆ®PÀ PÉ®¸À ¤gÁPÀj¹gÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?

(2) ºÁV®è¢zÀÝ ¥ÀPÀëzÀ°è, ¸ÀzÀj PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?

The Labour Court after a detailed consideration has

held that the domestic inquiry is fair and proper and

modified the order dated 05.08.2003 passed by the second

respondent in No.KHDC:ADM:23-01:03-04:2432 directing

second respondent to pay the compensation in lumpsum

equivalent to his last drawn salary multiplied by six; there

shall not be any further steps from the second party to

recover Rs.76,000.00 (Rupees Seventy-Six Thousand only)

from him. It is this order which is challenged in the present

writ petition on various grounds as set out in the

memorandum of writ petition.

While addressing argument, learned counsel

Sri. Vijay Kumar submitted that the Labour Court has not

properly exercised the power under Section 11-A of the

Act.

In reply, Sri. Vasuki, learned counsel for respondents

vehemently urged that the Labour Court in extenso

referred to the material on record and has properly

exercised the powers vested in it under Section 11-A of the

Act.

I have heard the rival submissions urged on behalf of

respective parties. It would be relevant to refer to Section

11-A of the Industrial Disputes Act 1947 which reads as

under.

"11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."

It is relevant to note that in Firestone's case, the

Supreme Court interpreted the provisions of Section 11-A

in the light of the law emerging out of its earlier dicta prior

to its insertion has summed up the law and adumbrated

the guidelines.

One of the guidelines is that when a proper inquiry

has been held by an employer, and the finding of

misconduct is a plausible conclusion flowing from the

evidence adduced at the said inquiry, the Tribunal has no

jurisdiction to sit in judgment over the decision of the

employer as an appellate body. The interference with the

decision of the employer will be justified only when the

findings arrived at in the inquiry are perverse or the

management is guilty of victimization, unfair labour

practice or mala fides.

The other guideline also states that once the

misconduct is proved either in the inquiry conducted by an

employer or by the evidence placed before a Tribunal for

the first time, punishment imposed cannot be interfered

with by the Tribunal except in cases where the punishment

is so harsh as to suggest victimization.

In the present case, the Labour Court in extenso

referred to the material on record and modified the order

of the Inquiry Officer and minimized the proportionality of

punishment and directed the second respondent not to

recover a sum of Rs.76,000/- (Rupees Seventy-Six

Thousand only) and affirmed the order of punishment in so

far as compulsory retirement. The findings recorded by the

Labour Court is just and proper. I find no justification to

interfere with the award passed by the Labour Court. The

exercise of power under Section 11-A is just and proper.

I may venture to say that the findings of fact even if

they are said to be improper would hardly justify this Court

to re-appreciate the evidence to hold otherwise.

It is needless to say that the powers of High Court

under Articles 226 & 227 are discretionary and supervisory

in nature. In the exercise of the discretionary jurisdiction,

the High Court should not act as Court of appeal or

revision over the actions of Subordinate Authorities or

Tribunals. The jurisdiction is supervisory in nature. In

general, a disputed question of fact is not investigated in

a proceeding under Article 226 of the Constitution of India.

In the result, the writ petition is dismissed.

Sri.Vasuki, learned counsel for respondents on

instruction from respondent-1 submits that three months

time may be granted to pay the compensation to the

petitioner in lumpsum equivalent to his last drawn salary

multiplied by six as ordered by the Labour Court.

Submission is noted and three months' time is

granted.

Sd/-

JUDGE

VMB