Sri Vijaya Ganapathi vs M/S Intuit Technology Services ...
2022 Latest Caselaw 7250 Kant

                                         W.P.No.874/2020
                                   C/w W.P.No.10902/2020
                         1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF MAY 2022

                      BEFORE

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

        WRIT PETITION No.874/2020 (L-TER)
                      C/W
       WRIT PETITION No.10902/2020 (L-TER)

W.P.No.874/2020:

BETWEEN:

SRI VIJAYA GANAPATHI
S/O SRI RANGAPATHI
AGED ABOUT 50 YEARS
R/AT NO.46, ALKAPUR TOWNSHIP
SECTOR 2 B, POPPALAGUDA
HYDERABAD - 500 075                       ...PETITIONER

(BY SRI K.SUBBA RAO, SENIOR COUNSEL FOR
     SMT.MAITREYI KRISHNAN, ADVOCATE)

AND:

M/S. INTUIT TECHNOLOGY SERVICES PVT. LTD.,
CAMPUS: 4A, PRINCIPAL TECH PARK
ECO SPACE, 7TH FLOOR
BELLANDUR VILLAGE, VARTHUR HOBLI
BENGALURU EAST TALUK - 560 103
REP. BY ITS MANAGING DIRECTOR          ...RESPONDENT

(BY SRI AJESH KUMAR S, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE AWARD DATED 25.11.2019 (ANNEXURE-A) PASSED BY
THE II ADDITIONAL LABOUR COURT, BENGALURU IN I.D.
NO.21/2013 INSOFAR AS THE FINDING RECORDED ON
ISSUE NO.3 IS CONCERNED ETC.
                                          W.P.No.874/2020
                                   C/w W.P.No.10902/2020
                         2




W.P.No.10902/2020:

BETWEEN:

M/S. INTUIT TECHNOLOGY SERVICES PVT. LTD.,
CAMPUS: 4A, PRINCIPAL TECH PARK
ECO SPACE, 7TH FLOOR
BELLANDUR VILLAGE, VARTHUR HOBLI
BENGALURU - 560 103
REP. BY ITS AUTHORISED
REPRESENTATIVE MR.SUNDAR V              ...PETITIONER
(BY SRI AJESH KUMAR S, ADVOCATE)

AND:

SRI VIJAYA GANAPATHI
S/O SRI RANGAPATHI
AGED ABOUT 47 YEARS
R/AT NO.46, ALKAPOOR TOWNSHIP
SECTOR 2 B, POPPALAGUDA
HYDERABAD - 500 075
TELANGANA                                ...RESPONDENT

(BY SRI K.SUBBA RAO, SENIOR COUNSEL FOR
     SMT.MAITREYI KRISHNAN, ADVOCATE)
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE AWARD DATED 25.11.2019 (ANNEXURE-A)
PASSED BY THE PRESIDING OFFICER, II ADDITIONAL
LABOUR COURT, BENGALURU AGAINST THE FINDINGS ON
ISSUE NO.1 ETC.

     THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12TH APRIL 2022, COMING ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:


                     ORDER

Aggrieved by the award dated 25.11.2019 in

Industrial Dispute No.21/2013 passed by the Second W.P.No.874/2020 C/w W.P.No.10902/2020

Additional Labour Court, Bengaluru the workman has

preferred Writ Petition No.874/2020 and the

Management has preferred Writ Petition

No.10902/2020.

2. For the purpose of convenience the parties

will be referred to henceforth as Management and

Workman respectively. So also for clarity the documents

produced in W.P.No.10902/2020 will be referred to.

3. M/s. Intuit Technology Private Limited is a

company incorporated under the companies Act. The

said company is engaged in development of Software

and financial accounting under the tax preparation

software. The Management appointed the workman on

01.03.2011 under the letter Annexure-B as Staff

Software Engineer. He reported to work on 23.03.2011.

The annual pay package was Rs.28 lakhs. Annexure-

B(1) was the employment agreement. As per clause-II

of the Employment agreement, the employment was

terminable by either parties with one month notice and W.P.No.874/2020 C/w W.P.No.10902/2020

in case of termination by the management one month

notice with one month wages.

4. On 02.08.2012 the Management sent

Separation Terms and General Release Agreement as

per Annexure-C to the workman. As per the said

document the Management was proposing to terminate

his service with payment of Rs.2,33,324/- in lieu of one

month's wages and notice period and called upon him to

return the company's properties.

5. On 30.08.2012 the workman filed

O.S.No.5885/2012 against the Management before the

XXIV Additional City Civil Court, Bengaluru City

(C.C.H-6) seeking permanent injunction to restrain the

management from terminating his employment and

forcing him to tender his resignation. He claimed that

the Management is illegally forcing him to tender his

resignation.

6. On 16.08.2012 the Management appeared

in the said suit. On 29.09.2012 the Management filed

memo as per Annexure-E in the said suit claiming that W.P.No.874/2020 C/w W.P.No.10902/2020

the parties have entered into settlement and according

to the said settlement the Management will issue a

letter of termination of the employment to the workman

with effect from 16.08.2012. It was further stated in the

memo that on the workman returning the company's

laptop it is agreeable to pay Rs.4,24,355/- which

included 30 days salary in lieu of notice period, the

salary upto 16th August 2012 and leave encashment

amount. The management also requested to record the

said memo. On 03.10.2012 the workman delivered the

laptop to the management.

7. The order sheet in OS.No.5885/2012 which

is produced at Annexure-E shows that on 29.09.2012

the workman offered to return the laptop. However, the

management's Counsel submitted that the Management

will collect the same on 03.10.2012 on one of its

employees verifying the same. The said order sheet

bears the signature of both Counsels for the workman

and the management. The order sheet in the said suit W.P.No.874/2020 C/w W.P.No.10902/2020

further reveals that on 03.10.2012 the workman

returned the laptop to the management.

8. In the said suit on 08.10.2012 the

workman filed memo reporting the receipt of Demand

Draft for a sum of Rs.4,24,315/- and the matter was

adjourned to 18.10.2012 for plaintiff furnishing filled up

P.F form. The order sheet dated 03.10.2012 as well as

08.10.2012 both bear the signatures of counsel for both

parties. The order sheet dated 08.10.2012 even bears

signature of Workman having received demand draft.

9. On 18.10.2012 the workman apart from

furnishing the P.F form submitted affidavit as per

Annexure-J resiling from settlement. In the affidavit he

claimed that his memo before the Court was involuntary

and forced one and therefore that cannot be called as

acceptance of settlement. Though he admitted his

signature, he claimed that, that was passive and

involuntary acknowledgment of his advocate and he

reserves his right to seek remedy before appropriate

forum.

W.P.No.874/2020 C/w W.P.No.10902/2020

10. Before that the management had filed

I.A.No.2 on 18.08.2012 itself under Order VII Rule 11 of

CPC for rejection of plaint on the ground that the

dispute being Industrial dispute the Civil Court has no

jurisdiction. The Court heard that application. On

hearing by order Annexure-L dated 10.01.2013 the

Court rejected the plaint in OS.No.5885/2012 on the

ground of bar of jurisdiction.

11. On rejection of plaint the workman raised a

dispute before the Labour Court in I.D.No.21/2013. He

filed claim settlement as per Annexure-M claiming that

his termination was illegal. He sought relief of

reinstatement with full back wages, continuity of

service, compensation etc. By way of amendment he

introduced another prayer for declaration that the

management has violated the provisions of Section 25,

25-F, 25-N and Chapter 5-P of the Industrial Dispute

Act and he was entitled to three months' notice and

wages in lieu of such notice.

W.P.No.874/2020 C/w W.P.No.10902/2020

12. The management filed its statement of

objection as per Annexure-N disputing the illegal

termination. The management claimed that the

workman was not able to satisfactorily perform his

work and on 08.03.2012 @ 12.15 p.m. he indulged in

violence against the staff of management in the

premises of the management. Under the circumstances

and in terms of employment contract the management

terminated his service. The management claimed that

the workman on entering into the settlement accepting

sum of Rs.4,24,355/- before the Court has resiled from

the terms of settlement. Therefore he is unfair and not

entitled to any relief.

13. The Management filed I.A.No.1 before the

Labour Court for rejection of I.D.No.21/2013 on the

ground that the claim petition was not maintainable as

the workman was terminated by way of settlement

before the Civil Court. The Labour Court by order dated

30.10.2013 rejected the said application. The

Management challenged that order before this Court in W.P.No.874/2020 C/w W.P.No.10902/2020

W.P.No.55007/2013(L-TER). This Court by order

Annexure-T dated 27.01.2013 dismissed the Writ

Petition holding that the management can urge the said

question during the hearing of the main matter itself,

that cannot be decided as a preliminary issue. This

Court reserved the liberty to the management to

question that order if aggrieved after disposal of the

I.D.No.21/2013.

14. The Labour Court by order Annexure-P

dated 16.09.2016 rejected the claim petition on the

ground that the workman was terminated in terms of

settlement before the competent Civil Court. The

workman challenged that award before this Court in

W.P.No.62442/2016(L-TER). This Court by the order

Annexure-Q dated 01.07.2019 allowed the petition on

the ground that the Labour Court ought to have framed

issue whether there was termination by way of

settlement and payment of dues to the workman in

terms of the such settlement and then proceeded to

pass an award deciding that issue. Ultimately this Court W.P.No.874/2020 C/w W.P.No.10902/2020

directed the Labour Court to hear the matter afresh in

the light of the observation made therein.

15. Then the management filed application

before the Labour Court to frame the issue

on maintainability of Industrial Dispute in the context of

the alleged settlement. The Labour Court by order dated

01.10.2019 rejected the said application. During the

course of such order the Labour Court considered the

merits of the contention with regard to the settlement

before the Civil Court.

16. The management challenged that order

before this Court in W.P.No.49830/2019. This Court by

order Annexure-S dated 18.10.2019 allowed the Writ

Petition, set aside the order of the Labour Court and

conclusion recorded by the Labour Court in Para-9 of

the said order with regard to the settlement between

the workman and management. This Court further

directed the Labour Court to hear the parties and

dispose of the main matter uninfluenced by its

observation with reference to the settlement. Thereafter W.P.No.874/2020 C/w W.P.No.10902/2020

the Labour Court on hearing the parties, by the

impugned award Annexure-A dated 25.11.2019

dismissed the claim petition.

17. The Labour Court raised the following issues

for consideration:

1. Whether the I party proves that he is a workman as defined U/s. 2(s) of I.D.Act?

2. Whether the second party is justified in terminating the first party from the service in pursuance of the impugned order dtd: 2.8.2012?

3. Whether the first party is entitled to the relief which he has claimed?

18. Though the Labour Court rejected the claim

petition, answered issue No.2 regarding the justification

or legality of termination order against the

management. The Labour Court rejected the claim

petition on technical ground namely the workman has

not pleaded specific particulars of termination order

sought to be set aside. Aggrieved by the rejection of

claim petition, the workman has filed Writ Petition W.P.No.874/2020 C/w W.P.No.10902/2020

No.874/2020. Aggrieved by the finding on issue No.2

the Management has filed Writ Petition No.10902/2020.

19. Learned Counsel for the workman seeks to

assail the impugned award on the ground that the

finding that there was no termination order is perverse

and contrary to the judgment of this Court in

W.P.No.62442/2016. He further submits that on holding

that the termination order was not justifiable, the

Labour Court ought to have allowed the claim petition of

the workman. He justifies the finding of the Labour

Court on the jural relationship.

20. Per contra learned Counsel for the

Management assails the finding of the Labour court on

the jural relationship and on the justification of the

termination order on the ground that they are contrary

to the evidence, law and the precedents.

Analysis:

Regarding jural relationship and nature of dispute

21. Both Counsel relied on innumerable

judgments of Hon'ble Supreme Court and this Court to W.P.No.874/2020 C/w W.P.No.10902/2020

advance their submissions on this point. At one breath

in OS.No.5885/2012 the management contended that

the suit is not maintainable in view of the plaintiff's

claim that he is workman. The management

claimed that the workman's remedy lies before

Industrial Tribunal/Labour Court and succeeded in its

application for rejection of the plaint on that ground.

Taking a U-turn in this case managment is claiming that

the parties and dispute are not covered under the I.D

Act. Thereby the management is approbating and

reprobating simultaneously which is not permissible.

22. Further admittedly parties have agitated the

matter before this Court on several rounds. In those

cases the contention of the management was that there

was termination by way of the settlement before the

Civil Court and therefore the claim statement was not

maintainable and not on the ground that there was no

jural relationship.

23. At the first instance the Labour Court on

16.09.2016 had rejected the claim petition answering all

the issues against the workman which culminated in the W.P.No.874/2020 C/w W.P.No.10902/2020

workman filing W.P.No.62442/2016. Annexure-Q the

judgment in W.P.No.62442/2016 shows that this Court

did not set aside the finding on jural relationship, but

remanded the matter only to frame an issue regarding

the termination under the settlement and dispose of the

matter. Thereby the findings on the issue of

management being the industry and the jural

relationship between the parties is concluded.

24. Further admittedly the workman was not

working in the supervisory capacity and he was carrying

on technical work. Therefore the wages drawn by him

alone was not relevant. To invoke Section 2(s)(iv) the

workman must be employed in the supervisory capacity

and drawing wages exceeding Rs.10,000/- per month.

Unless the said section is amended the rate of wage

alone does not exclude from the definition of the

workman. Under such circumstance this Court does not

find it necessary to refer to innumerable judgments

relied by both counsel on the point. There are no

grounds to interfere with the finding in the award with

regard to the jural relationship.

W.P.No.874/2020 C/w W.P.No.10902/2020

Regarding the legality of rejection of claim petition.

25. The Labour Court has rejected the claim

petition on the technical ground that there was no

termination order and the workman has not stated

which termination order is challenged in the dispute.

While saying so the Labour Court overlooked the finding

of this Court in para-3 of judgment in

W.P.No.62442/2016(L-TER) which reads as follows:

"3. From the records it is evident that petitioner has been terminated from serviced on 16.08.2012 as is evident from the order sheet dated 29.09.2012 in original suit......".

26. In the light of the above conclusion the

Labour Court fell in serious error in rejecting the claim

petition on such technical ground. But still the workman

was required to show that his termination from

employment was unjustifiable/illegal. At the first

instance the workman was terminated by order

Annexure-C. Admittedly before Annexure-C he was put

under Performance Improvement Program (for short W.P.No.874/2020 C/w W.P.No.10902/2020

'PIP) for 30 days. According to the management he was

subjected to PIP as he was underperforming. He filed

O.S.No.5885/2012 claiming that he was forced to sign

the PIP. He himself stated in that suit that though he is

issued with termination notice dated 02.08.2012 as the

wages in lieu of notice period were not paid and he has

not signed the separation agreement he is deemed to

be in service.

27. Admittedly pending that suit the

management proposed to terminate the service of the

workman with effect from 16.08.2012 paying

Rs.4,24,335/- in terms of settlement agreement.

Admittedly the workman received the said amount. The

memo Annexure-E was filed on 29.09.2012 reporting

the said settlement.

28. In terms of the said memo on 03.10.2012

the workman returned the laptop to the management.

On 08.10.2012 he filed a memo acknowledging the

receipt of the D.D. From 29.09.2012 till 18.10.2012 the

workman who is a qualified software engineer without W.P.No.874/2020 C/w W.P.No.10902/2020

any demur went on complying the terms of the memo

dated 29.09.2012 in returning the laptop and accepting

the D.D. After 20 days for the first time on 18.10.2012

he filed affidavit alleging that the termination was

forced one and he was a passive recipient of such

decision and communication of the management. He

even went to the extent of saying that his advocate

became a passive acknowledger to the order of the

Court dated 29.09.2012 which recorded the settlement.

That sounds as an imputation against the Court.

29. A sanctity is attached to the proceedings of

the Court. The advocate is an officer of the Court. There

is a statutory presumption under Section 114 of the

Evidence Act that the judicial acts are regularly

performed. Though the Labour Court did not frame the

issue with regard to the validity of the termination

under settlement recorded on 29.09.2012 by the Court,

the burden of proving the fact that the settlement

before the Court was forced one was on the workman.

W.P.No.874/2020 C/w W.P.No.10902/2020

30. Except his self serving testimony the

workman did not adduce any evidence to show that the

settlement before the Court was forced one. Further his

conduct of raising such contention after receiving the

amount militates against him that too when he himself

is a qualified engineer and was assisted by an advocate.

He did not choose to examine his advocate to

substantiate such contention. Therefore it can be held

without hesitation that the workman was terminated on

16.08.2012 under a settlement.

31. When there is termination by mutual

settlement, which is evident from the proceedings in

O.S.No.5885/2012, it is not open to the workman to

question the same. He cannot be permitted to

approbate and reprobate. Therefore W.P.No.874/2020

shall fail.

32. So far as W.P.No.10902/2020 the challenge

against the finding on jural relationship is unsustainable.

So far as the justification of termination order dated W.P.No.874/2020 C/w W.P.No.10902/2020

02.08.2012 that does not survive in view of subsequent

termination dated 16.08.2012 under the settlement.

W.P.No.874/2020 is dismissed with costs.

W.P.No.10902/2020 is disposed of in terms of the

reasons recorded above.

Sd/-

JUDGE

PKN