Margolly Estate vs Sri B R Manohar S/O.B C Rajagopal
2022 Latest Caselaw 5062 Kant

                                    W.P.NO.12274/2011
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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF MARCH 2022

                        BEFORE

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

         WRIT PETITION No.12274/2011 (L-RES)

BETWEEN:

MARGOLLY ESTATE
M/S.TATA COFFEE LTD.
POLLIBETTA-571 215
KODAGU DISTRICT
BY ITS MANAGER (IR)                    ...PETITIONER

(BY SRI P.D.VISHWANATH, ADVOCATE)

AND:

1.     SRI B.R.MANOHAR
       S/O. SRI B.C.RAJAGOPAL
       AGED ABOUT 39 YEARS

2.     SRI K.A.MONNAPPA
       S/O. LATE SRI K.D.APPANNA
       AGED ABOUT 43 YEARS

       BOTH ARE R/AT
       C/O. SRI M.G.AIYAPPA
       GENERAL SECRETARY
       KARNATAKA INDUSTRIAL & PLANTATION
       LABOUR UNION (KIPLU)
       DR.S.RADHAKRISHNA LAYOUT
       4TH BLOCK, KUSHALNAGAR- 571 234
       KODAGU DISTRICT                 ...RESPONDENTS

(BY SRI M.A.APPAIAH, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH   THE   COMMON     AWARD    DATED  25.09.2010
(ANNEXURE-V) PASSED BY THE PRESIDING OFFICER,
                                             W.P.NO.12274/2011
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LABOUR COURT, KODAGU, MADIKERI IN IDA NOS.1 & 2 OF
2008.

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

                          ORDER

Aggrieved by the award Annexure-V passed by

the Labour Court, Kodagu, Madikeri rejecting the

application of the petitioner under Section 33(2) of the

Industrial Disputes Act, 1947 (for short 'I.D. Act') and

allowing the claim petition of the respondents, the

employer has preferred the above petition.

2. Petitioner is engaged in growing pepper and

coffee beans. During the year 2007 respondent Nos.1

and 2 were working in the estate of the petitioner as

Assistant Field Officer and Field Officer respectively. On

the basis of a report/complaint allegedly made by one

Shivayya, Labour Contractor as per Annexure-A,

petitioner issued show cause notice to respondent Nos.1

and 2 Annexures-B and C on 30.04.2007.

with an intention to make wrongful gain in the business

of the petitioner, between 06.04.2007 and 12.04.2007, W.P.NO.12274/2011

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created false voucher Nos.1097, 1098, 17603 and

17604 to project that eleven labourers worked for

robusta gleaning and pepper picking, collected

Rs.7,291.50 on the head of payment to the said labours

and misappropriated the same.

4. It was further alleged that in the similar

manner between 13.04.2007 and 19.04.2007,

respondent Nos.1 and 2 issued false pepper picking

voucher No.017612 and pepper gleaning voucher

Nos.017616 and 017617 in the name of eleven

labourers and misappropriated the same. It was alleged

that thereby respondent Nos.1 and 2 have committed

misconduct as contemplated under clause 22(d) and

22(l) of the Karnataka Industrial Employment (Standing

Orders) Rules, 1961.

5. Respondent Nos.1 and 2 issued reply

Annexures-D and E dated 04.05.2007 disputing the said

allegations. Petitioner issued articles of charges against

respondent Nos.1 and 2 as per Annexure-F dated

19.06.2007. On conducting the enquiry, Enquiry Officer W.P.NO.12274/2011

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submitted report as per Annexure-J dated 29.08.2007

holding that the charges against respondent Nos.1 and

2 were proved.

6. Petitioner issued show cause notice to

respondent Nos.1 and 2 regarding acceptance of the

enquiry report and imposition of major penalty.

Respondents submitted their reply to the same.

Ultimately, as per Annexures-K and L dated 13.11.2007,

petitioner dismissed respondent Nos.1 and 2 from

service.

7. Respondent Nos.1 and 2 raised the dispute

questioning the said dismissal order before Labour

Court, Kodagu in I.D.Nos.1 and 2/2008. Respondents

filed their claim statements claiming that dismissal

order was illegal. Petitioner filed its statement of

objections to both the claim petitions. The Labour Court

held that enquiry held against respondent Nos.1 and 2

was fair and proper.

8. Labour Court recorded the evidence of the

parties on merits also. Ultimately, by the impugned W.P.NO.12274/2011

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order Annexure-V, labour Court set aside the dismissal

order and directed the petitioner to reinstate the

respondents and pay 50% of back wages from the date

of dismissal along with other service benefits.

9. The order of the Labour Court was based on

the following reasons:

(i) Respondent Nos.1 and 2 are only Field

Officers. Manager had to pay the wages to Shivayya,

the contractor and he in turn was paying the same to

the labourers. Therefore, respondent Nos.1 and 2 had

no direct nexus with the labourers.

(ii) Domestic Enquiry was initiated on Ex.M.23,

alleged complaint of Shivayya, the contractor. During

course of the evidence, he himself disowned that and

says that one Shashikala had written the said

complaint. That Shashikala was not examined.

(iii) Shivayya allegedly said that respondent

Nos.1 and 2 collected a sum of Rs.7500/- from him on

the basis of false vouchers. The act of payment of

Rs.7500/- by Shivayya to respondent Nos.1 and 2 was

not proved.

W.P.NO.12274/2011

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(iv) None of the said eleven labourers were

examined. If at all Shivayya collected the money on

the basis of false vouchers, first he will be guilty.

Petitioner did not take any action against him.

Therefore, its case is unsustainable.

(v) Wages to Shivayya was paid based on the

weight of coffee and pepper packed on those days. As

per stock report, said weight of the coffee and pepper

were matching with the register. Therefore, there was

no loss to the employer.

Submission of Sri P.D.Vishwanath, learned Counsel for the petitioner:

10. The Enquiry Officer on conducting thorough

enquiry had held that respondent Nos.1 and 2 were

guilty of charges. Once the Labour Court holds that the

enquiry was fair and proper, the scope of interference

by the Labour Court is minimal. The Labour Court has

to examine only proportion of the punishment. But the

Labour Court ventured into examination of the evidence

which is illegal. Therefore, impugned award is liable to

be set aside.

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11. In support of his submissions, he relied on

the following judgments:

1. Management of Bharat Heavy Electricals Ltd Vs. M.Mani Management of Bharat Heavy Electricals Ltd Vs. T.A.Mathivanan (D) Thr.L.Rs1

2. Usha Berco Mazdoor Sangh Vs. Management of Usha Berco Limited and Another2

3. Workmen of Balmadies Estates Vs. Management of Balmadies Estates and Others3

4. West Bokaro Colliery (Tisco Ltd) Vs. Ram Pravesh Singh4

Submissions of Sri.M.A.Appaiah, learned counsel for respondent Nos.1 and 2:

12. Respondent Nos.1 and 2 were implicated in

the domestic enquiry on the basis of the alleged

complaint of Shivayya. He himself did not support the

management version. Author of Ex.M.23 was not

examined. Therefore, Ex.M.23 was not proved. If there

was any misappropriation or dishonesty, Shivayya was

AIR 2018 SC 384

(2008) 5 SCC 554

(2008) 4 SCC 517

(2008) 3 SCC 729 W.P.NO.12274/2011

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also party to that. But he was not dealt with by the

Management. None of the eleven labourers allegedly

shown to have worked were examined. Even if the

scope of interference by the Labour Court in the enquiry

report is limited, if the findings of the enquiry officer are

shown to be perverse, then the Labour Court can

interfere with the said order. In the facts and

circumstances, judgments relied on by the learned

counsel for the petitioners are not applicable.

Analysis:

13. In the judgments of Usha Berco Mazdoor

Sangh and Management of Bharat Heavy Electricals

Ltd's cases referred to supra though it was held that

scope of interference of the Labour Court in the enquiry

report is limited, in the very judgments it was held that

if findings of the enquiry are perverse or extraneous to

the evidence, the Labour Court can come to a different

conclusion.

14. It was the specific allegation of the

petitioner that respondent Nos.1 and 2 created false W.P.NO.12274/2011

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vouchers in the name of eleven workmen paid that

amount to Shivayya, the contractor and collected that

amount from Shivayya. If that to be so, said Shivayya

himself is a party to the alleged dishonesty. As observed

by the Labour Court, management did not proceed

against him.

15. The very initiation of the enquiry was based

on Ex.M.23 his alleged complaint. But in his evidence

and in his cross-examination, he said that some of the

amount was paid to him and rest of the amount was

paid to the workers directly. He said Ex.M.23 was not

written by him and written by one Shashikala. As

rightly pointed out by the Labour Court she was not

examined. Still Ex.M.23 was held proved.

16. As contended there was no proof of

Shivayya paying money to respondent Nos.1 and 2.

The eleven labourers in whose name false vouchers

were allegedly created were not examined. Taking into

consideration all such facts and circumstances, the

Labour Court rightly held that the finding of the enquiry W.P.NO.12274/2011

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officer was perverse and set aside the same and

consequent dismissal order.

17. This being a petition under Articles 226 and

227 of Constitution of India, evidence cannot be

appreciated or re-appreciated as an Appellate Court.

This Court has to examine whether the Labour Court

committed any jurisdictional error. Since Labour Court

examined only whether the findings of the Enquiry

Officer were perverse to reach different conclusion, this

Court does not find any jurisdictional error in the order

of the Labour Court.

18. Under the circumstances, the other

judgments relied on by the learned counsel for the

petitioner cannot be justifiably applied to the facts of

the case. There are no grounds to interfere with the

impugned order. Therefore, the petition is dismissed.

The petitioner is directed to reinstate the

respondents within one month from the date of receipt

of copy of this order.

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It is submitted that during pendency of this case,

petitioner has paid 50% of the back wages under

Section 17B of I.D. Act.

It is made clear that petitioner is entitled to adjust

the wages paid during pendency of this proceeding

against the amount payable to the respondents.

Sd/-

JUDGE pgg