Karnataka High Court

Sri H M Nagesh vs The Management Of Ksic on 7 March, 2022

Bench: K.S.Mudagal

                                          W.P.No.36902/2011

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

        THE HON'BLE MRS.JUSTICE K.S. MUDAGAL

         WRIT PETITION No.36902/2011 (L-TER)

BETWEEN:

SRI H.M. NAGESH
S/O SRI NAGENDRA
AGED ABOUT 45 YEARS
R/A NO.2656, 3RD CROSS,
K.G. KOPPAL,
MYSORE.                                ... PETITIONER

(BY SRI V.S. NAIK, ADVOCATE)

AND:

1.     THE MANAGEMENT OF KSIC
       CENTRAL OFFICE
       M.G. ROAD
       BANGALORE - 560 001
       REPRESENTED BY ITS
       MANAGING DIRECTOR

2.     THE GENERAL MANAGER
       KSIC, SILK WEAVING FACTORY
       MANDNAWADI ROAD
       MYSORE.                          ... RESPONDENTS

(BY SRI SATYANARAYANA, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
AWARD DATED 1.12.2010, PASSED BY THE LABOUR COURT,
MYSORE, IN I.I.D. NO.107/2006 THE CERTIFIED COPY OF WHICH
IS PRODUCED & MARKED AS ANNEXURE-G BY WHICH THE
PETITIONER IS DENIED FULL BACKWAGES AND OTHER
CONSEQUENTIAL BENEFITS APART FROM WITH HOLDING 3
                                                          W.P.No.36902/2011

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ANNUAL INCREMENTS WITH CUMULATIVE EFFECT, SINCE THE
SAME IS AGAINST THE PROVISIONS OF I.D. ACT.

     THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE
FOLLOWING:

                               ORDER

Respondent No.1 is a Corporation owned by

Government of Karnataka engaged in manufacturing of silk

sarees. In 1983, respondent No.1 appointed the petitioner as

weaver in its factory. Under the Voluntary Retirement

Scheme introduced by the respondent on 29.07.2004, the

petitioner submitted his resignation for voluntary retirement

on 09.08.2004. The respondent received the said application.

2. However, on 27.09.2004, the 1st respondent

issued charge sheet as per Annexure-B against the petitioner

on the ground that the petitioner remained unauthorisedly

absent for duty from 28.02.2004 to 23.03.2004. The

petitioner submitted his reply as per Annexure-C to the

charge sheet claiming that between 28.02.2004 and

23.03.2004 he was suffering from jaundice, therefore, he

could not attend to the duty. An enquiry was conducted on

the said charges. On 02.09.2006, respondent No.2 -

W.P.No.36902/2011

Disciplinary Authority passed the order holding that charge is

proved. In the said order, respondent No.2 imposed penalty

of termination of petitioner's service.

3. Petitioner challenged the said order before the

Labour Court, Mysore, in I.I.D. No.107/2006. The Labour

Court by the impugned award dated 01.12.2010 held that the

charge of unauthorised absence is proved. However, the

Labour Court held that the punishment of termination from

service is disproportionate and modified the order of the

Disciplinary Authority by withholding 3 annual increments

with cumulative effect and respondent No.2 was directed to

reinstate the petitioner. An option was given to the

respondent - Management either to reinstate the petitioner

into service or to consider the question of giving voluntary

retirement as per the application already submitted by the

petitioner. The award was notified in the Karnataka Gazette

on 10.03.2011.

4. On 23.04.2011, the respondents issued a

communication as per Annexure-H stating that in view of the

award, they have accepted the resignation of the petitioner W.P.No.36902/2011

for voluntary retirement and relieved him from duty with

effect from 06.09.2006. Followed by the said communication,

the respondents issued a letter at Annexure-J dated

03.05.2011 along with a cheque for Rs.3,26,357/- as

settlement of benefits due to him under the voluntary

retirement scheme.

5. The petitioner submitted letter vide Annexure-K

dated 10.05.2011 to respondent No.1 informing that the

award giving option to the management to entertain the

application for voluntary retirement and punishment of

withholding 3 annual increments are unacceptable to him and

he is intending to challenge the said award and therefore, he

is returning the cheque issued by the respondents.

Ultimately, the petitioner returned the said cheque.

Thereafter, he has preferred the above petition.

6. The management has not challenged the award

of the Labour Court setting aside the order of termination.

Therefore, that portion of the award has attained finality.

7. The issues before the Labour Court were whether

the respondent was justified in holding that misconduct of W.P.No.36902/2011

unauthorized absence is proved and whether the punishment

imposed is justifiable. The question of consideration of the

application of the petitioner under the voluntary retirement

scheme was not at all an issue before the Labour Court.

8. Apart from that, Annexure-R1 itself shows that

the said voluntary retirement scheme was notified on

20.07.2006. Annexure-R1 further shows that prior to that,

respondent had introduced two voluntary retirement schemes

dated 28.08.2003 and 29.07.2004. Annexure-R1 further

shows that under the voluntary retirement scheme dated

28.08.2003 and 29.07.2004, the respondent terminated 229

and 265 workmen respectively.

9. The application of the petitioner dated

09.08.2004 for voluntary retirement was under the scheme

dated 29.07.2004. That scheme lapsed by the moment the

new scheme dated 20.07.2006 under Annexure-R1 was

introduced. Therefore, it cannot be said that the application

dated 09.08.2004 could be accepted under Annexure-R1

dated 20.07.2006. The respondent by initiating the

disciplinary enquiry against the petitioner deemed to have W.P.No.36902/2011

rejected the application of the petitioner for voluntary

retirement. If at all they had accepted the voluntary

retirement, then there was no reason or occasion for them to

initiate disciplinary proceedings.

10. Under the aforesaid circumstances and when the

issue between the parties in a dispute before the Labour

Court was not with regard to the acceptance of application for

voluntary retirement, the Labour Court should not have

ventured into giving an option to the respondents to consider

the application of the petitioner for voluntary retirement that

too under a scheme which had already lapsed. Such order of

the Labour Court is extraneous to the matter in issue and

therefore, unsustainable.

11. Then, the question is, whether the Labour Court

was justified in upholding the order of the Disciplinary

Authority regarding misconduct and penalty? The petitioner

admitted his absence from 28.02.2004 to 23.03.2004.

Admittedly, he had not applied for leave for the said period.

According to him, he was ill during the said period. To

substantiate the said admission, he did not examine the W.P.No.36902/2011

authority who issued the medical certificate. Therefore, the

Labour Court was justified in holding that the period of

absence was unauthorised.

12. It is contended that the petitioner was in the

habit of remaining absent from duty and out of 181 working

days, it is said that the petitioner was absent for 60.5 days,

therefore, the Labour Court was justified in accepting the

unauthorised absence of the petitioner for the period from

28.02.2004 to 23.03.2004. The workman's explanation of

medical ground urged for his unauthorised absence covered a

period of 25 days. Having regard to the same, the trial Court

rightly held that the punishment of termination from service

was disproportionate.

13. Then, the question is whether the imposition of

withholding of 3 annual increments with cumulative effect is

disproportionate? Though the Labour Court's order did not

specifically state about the continuity of service and

consequential benefits, having regard to the fact that once it

is held that petitioner is entitled for reinstatement, naturally

the right to continuity of service flows. Withholding of 3 W.P.No.36902/2011

annual increments was justified but that should not have

been with cumulative effect.

14. Sri. V. S. Naik, learned Senior counsel appearing

for the petitioner relied on the judgment of the Supreme

Court in the case of Colour Chem vs. A.L.Alaspurkar

reported in (1998) 3 SCC 192.

15. In the case of Colour Chem (supra), the Hon'ble

Supreme Court has awarded 40% of the backwages.

Admittedly, in this case from the date of termination of

service till this day, the petitioner has not worked in the

respondent - Organization. The respondent is a Government

owned organisation and public money is involved. Having

regard to the aforesaid judgment of the Hon'ble Supreme

Court and the facts and circumstances stated above, the ends

of justice will be met by awarding 40% of the backwages to

the petitioner from the date of termination till the date of

reinstatement.

ORDER

The petition is partly allowed. The award of the Labour

Court vide Annexure-G insofar as it relates to the option W.P.No.36902/2011

given to the respondent - Management either to reinstate the

petitioner into service or to consider the question of giving

voluntary retirement as per the application already submitted

by the petitioner, is hereby quashed.

The penalty imposed by the Labour Court is modified as

follows:

(a) For the unauthorised absence, the petitioner is

imposed with penalty of withholding 3 annual

increments.

(b) The respondent shall reinstate the petitioner

within four weeks from the date of receipt of a copy of

this order, with continuity of service and 40% of

backwages from the date of his termination till the

date of his reinstatement.