Karnataka High Court

The Management Of R.V. College vs Mr. M.G. Guruhari on 12 May, 2022

Bench: K.S.Mudagal

                                          W.P.No.8674/2014
                                      C/w W.P.No.2137/2017

                          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.8674/2014 (L-RES)
                       C/W
        WRIT PETITION No.2137/2017 (L-TER)
W.P.No.8674/2014:
BETWEEN:
THE MANAGEMENT OF
R.V.COLLEGE OF ENGINEERING
MYSORE ROAD
BANGALORE - 560 059
REP. BY ITS PRINCIPAL
MR.B.S.SATYANARAYANA                      ...PETITIONER

(BY SRI K.R.ANAND, ADVOCATE)
AND:

MR M.G.GURUHARI
AGED ABOUT 61 YEARS
C/O KARNATAKA TRADE UNION CENTRE
NO.43, MIG, 2ND FLOOR
2ND PHASE, K.H.B. COLONY
BASAVESWARA NAGAR
BANGALORE-560 079                        ...RESPONDENT
(BY SRI D.NAGARAJA REDDY, ADVOCATE)

      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.
W.P.No.2137/2017:

BETWEEN:

SRI M.G.GURUHARI
AGED ABOUT 63 YEARS
                                                 W.P.No.8674/2014
                                            C/w W.P.No.2137/2017

                           2


S/O LATE GANGADHAR SA
R/AT NO.15/3, 4TH FLOOR
P.A.LANE, MANAVARTHYPET
BANGALORE - 560 053                             ...PETITIONER

(BY SRI.D.NAGARAJA REDDY, ADVOCATE)

AND:

THE MANAGEMENT OF
R.V.COLLEGE OF ENGINEERING
MYSORE ROAD
BANGALORE - 560 059
REP.BY ITS PRINCIPAL                         ...RESPONDENT

(BY SRI K.R.ANAND, ADVOCATE)

     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.

     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 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.

W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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.

W.P.No.8674/2014 C/w W.P.No.2137/2017

(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.
                                             W.P.No.8674/2014
                                        C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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. Ltd1

2. The Rajasthan State Road Transport Corp. & Anr, etc. etc. Vs Krishna Kant etc. etc.2

3. Management of M/s Hotel Samrat Vs Government of NCT & Ors3

4. T.M.Ramamoorthy Vs Union of India4

5. Divisional Controller, KSRTC, Davanagere Division Vs Sri. H.G.Basavegowda5

(2006) 5 SCC 201

1995 II LLJ SC 728

2007 LLR 386

2012 IV LLJ 700 (Mad)

2013 SCC Online Kar 1998 W.P.No.8674/2014 C/w W.P.No.2137/2017

6. The workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt) Ltd. V. The Management and others6

7. Lokmat Newspapers Pvt. Ltd Vs Shankarprasad7

8. M.Ramanatha Pillai Vs The State of Kerala and Ors.8

9. Shyam Lal Vs The State of Uttar Pradesh and Ors.

10. Management of State Bank of India, New Delhi Vs J.D.Jain and Ors.10

11. M/s Bharat Iron Works Vs Bhagubhai Balubhai Patel & Ors.11

12. Bengaluru Water Supply and Sewerage Board Vs A.Rajappa and Ors.12

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

(1973) 1 SCC 813

1999 II LLJ 600

AIR 1973 SC 2641

AIR 1954 SC 369

1979 LabIC 1041

(1976) 1 SCC 518

(1978) 2 SCC 213 W.P.No.8674/2014 C/w W.P.No.2137/2017

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

2. General Secretary, South Indian Cashew Factories Workers Union Vs Managing Director, Kerala State

Cashew Development Corporation Ltd. and others

3. Union of India Vs Asraf Ali15

4. V.Varadarajan Vs The Management of Syndicate

Bank

5. Tapash Kumar Paul Vs BSNL17

Analysis:

17. The Tribunal reversed the findings of the

enquiry officer and consequently the dismissal order

1980 0 PLRJ 162

AIR 2006 SC 2208

2004 3 LLJ 908

(2008) 5 KarLJ 691

Civil Appeal No.4980/2014 DD 28.01.2014 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 Srivastava18 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

(2021) 2 SCC 612 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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.

W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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 confers 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 W.P.No.8674/2014 C/w W.P.No.2137/2017

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