Karnataka High Court

M/S Kirloskar Electric Company vs Sri C Shivakumar on 8 April, 2024

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 08TH DAY OF APRIL, 2024

                            BEFORE

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

           WRIT PETITION No.24497/2012 (L-TER)

BETWEEN:

M/S. KIRLOSKAR ELECTRIC COMPANY,
UNIT-III, PLOT NO.6,
HIREHALLI INDUSTRIAL AREA
HIREHALLI, TUMKUR
REPRESENTED BY ITS
DEPUTY GENERAL MANAGER MR. B.N. THAKUR
M/S. KAYTEE SWITCHGEAR LIMITED
UNIT-III, PLOT NO.6,
HIREHALLI INDUSTRIAL AREA,
HIREHALLI, TUMKUR.
(NOW NOT IN EXISTENCE SINCE MERGED WITH
M/S. KIRLOSKAR ELECTRIC COMPANY LIMITED)
                                                 ... PETITIONER

(BY SRI K.R. ANAND, ADVOCATE)

AND:

SRI C. SHIVAKUMAR
AGED ABOUT 46 YEARS,
RESIDING AT BOMMANAHALLI,
KESARAMADU POST,
URDIGERE HOBLI,
TUMKUR TALUK & DISTRICT.                        ... RESPONDENT

(BY SRI K.B. NARAYANA SWAMY, ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
LEADING TO THE PASSING OF THE AWARD DATED 15.12.2011 AT
ANNEXURE-G PASSED BY THE PRL. LABOUR COURT, BANGALORE IN
I.D.NO.59/2008; QUASH THE AWARD DATED 15.12.2011 AT
ANNEXURE-G PASSED BY THE PRINCIPAL LABOUR COURT, BANGALORE
IN I.D.NO.59/2008.
                                     -2-

      THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
24/01/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

                                  ORDER

The impugned order is assailed by the management of

M/s.Kirloskar Electronic Company Ltd., whereby, the Labour

Court allowed the petition filed by the workman under

Section 10(4-A) of the Industrial Disputes Act, 1947

(hereinafter referred to as "the ID Act" for short) by setting

aside the order of dismissal and directing the petitioner-

management to reinstate the workman into service with 25%

backwages, continuity of service and other consequential

benefits.

2. The factual matrix of the case are that, the charge

sheet was issued to the workman for the following

misconduct:

"i) Theft, fraud or dishonesty in connection with the property of the Company under Standing Order No.3(b) of the Model Standing Orders which is applicable to you; and

ii) Willful loss of Company's property under Standing Order No.3(c) of the Model Standing Orders which is applicable to you."

3. The Enquiry Officer was appointed, departmental

enquiry was conducted and the workman was dismissed from

service. The workman raised a dispute by filing a claim

statement contending that the order of dismissal is perverse,

illegal. On service of notice, the management appeared and

filed counter, inter alia, contending that the domestic enquiry

conducted by the management was after following the

principles of natural justice and the report submitted by the

enquiry officer was after conducting a detailed enquiry and

the disciplinary authority, after considering the gravity of

misconduct, passed the impugned order of dismissal of the

workman for the charges of theft, fraud, dishonesty played

on the company and sought for the dismissal of the claim

statement.

4. The Tribunal based on the pleadings framed

necessary issues and on the issue of conducting of domestic

enquiry, the Labour Court arrived at a conclusion that the

enquiry conducted by the management was fair and proper,

by exercising its power under Section 11A of the ID Act, set

aside the order of dismissal.

5. Heard Sri K.R.Anand, learned counsel for the

petitioner and Sri K.B. Narayana Swamy, learned counsel

appearing for the respondent.

6. Learned counsel for the petitioner would contend

that the management in the domestic enquiry need not

prove the guilt of the delinquent, if some evidence is

available on record to prove the misconduct and the

probability to show that the delinquent workman has

committed misconduct that would be sufficient to hold the

guilt for the misconduct, the charges leveled against the

workman need not be proved beyond reasonable doubt

unlike criminal proceeding. Learned counsel would contend

that the Labour Court has highly waved the presence of

apron which is found in the locker of the respondent and the

Labour Court visualized and considered so many other

aspects which were not necessary in the material evidence

on record which was available to demonstrated that the

stolen copper pieces were found in possession of the

respondent, the reasoning assigned by the Labour Court for

setting aside the dismissal order warrants interference. In

support of his contentions the learned counsel placed

reliance on the following decisions:

(i) Hamdard Dawakhana Wakf vs. Its Workmen and Ors.1

(ii) Mahindra and Mahindra Limited vs. Sunil Yeshwant Pandit and Shri P.S. Narkar, Presiding Officer, Labour Court, Nashik2

(iii) B.C. Chaturvedi vs. Union of India (UOI) and Ors.3

(iv) Madhya Pradesh Electricity Board vs. Jagdish Chandra Sharma4

(v) The Management of the Bangalore Woolen Cotton and Silk Mills Co. Ltd. vs. B. Dasappa, M.T. represented by the Binny Mills Labour Association5

Civil Appeal No.199/1962 D.D. 15/10/1962

2006-II-LLJ Bombay (DB) 363

Civil Appeal No.9830/1995 D.D. 01/11/1995

2005-II-LLJ SC 156

AIR 1960 SC 1352

7. Per contra, learned counsel appearing for the

respondent would justify the judgment of the Labour Court

and would contend that the Labour Court has rightly and

judiciously exercised its power under Section 11-A, the

interference was permissible as the Tribunal was satisfied

that the findings of the domestic enquiry is perverse and the

punishment imposed is disproportionate, the same warrants

no interference by this Court.

8. Having heard learned counsel for the parties, the

point that arises for consideration is,

"Whether the Labour Court was justified in exercising the power under Section 11A of the Industrial Disputes Act, 1947?"

9. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties and

perused the material on record.

10. The charges held against the workman are that,

on 06.03.2007, after the completion of the 2nd shift, the

workman was found carrying copper pieces bundled in an

apron and kept under his right hand shoulder and when

intervened by one T.Rangaiah to submit the apron for

checking instead of submitting the apron he started running

towards the cycle stand, when followed by T.Rangaiah officer

and Hosalaiah the security supervisor and on continuous

demand for checking the apron, he opened the bundle and it

was found in the apron that he had concealed 9 number of

copper pieces all weighing around 450 grms approximately,

which were belonging to the company. The copper pieces

were sealed in his presence and he was issued with the

charges of misconduct of theft, fraud, dishonesty in

connection with the property of the company and causing

willful loss to the company's property. The domestic enquiry

was conducted, the management on their behalf examined

MW.1 who was working as the security supervisor, namely

Hosalaiah, MW.2 T.Rangaiah and MW.3 N.Girish.

11. The Labour Court having held that the domestic

enquiry is fair and proper. What was left for the Labour

Court was, to consider;

(i) Whether the finding of the enquiry officer was

perverse.


     (ii)    Whether the disciplinary authority discriminated

             the   workman    in     the   matter   of   imposing

             punishment when compared to others.

(iii) Whether there was victimization on the part of the

management in the matter of imposing

punishment and whether the punishment imposed

was shockingly disproportionate to the

misconduct.

12. The settled proposition of law is that the standard

of proof in a departmental enquiry is preponderance of

probability and differed from that of Criminal trials, if there

are some relevant material on record and the authority has

reached the conclusion that employee was guilty, then

merely because another view in the circumstances of the

case was possible it was not permissible for Tribunal to

substitute its own view. In light of the settled proposition of

Law, it has to be looked into whether material on record

were sufficient to hold the workman as guilty of charges of

theft. Law is also well settled that the Tribunal does not

debar itself from considering whether particular findings were

supported by evidence and whether the punishment was

proportional even when the domestic enquiry was held fair

and proper.

13. The Labour Court noted the evidence of MW.1 and

MW.2 who stated about the delinquent, being found with

stolen articles, the Labour Court referred to the fact that

duty hours of MW.2 T.Rangaiah had come to an end at 9.00

p.m., the alleged incident took place at 10.00 p.m., the

presence of T.Rangaiah at 10.00 p.m. is unlikely nor Ex.M-11

the logbook refer to the presence of T.Rangaiah at 10.00

p.m. The Labour Court has rightly considered and

appreciated the evidence and arrived at a conclusion for

setting aside the dismissal Order.

- 10 -

14. When the charge is that the workman has stolen

the scrap copper pieces wrapped in the apron, apron is not

seized but found in the locker. This is one of the

circumstances, which falls against the management.

15. The Apex Court in the case of Mavji C. Lakum

vs. Central Bank of India6 at para No.23 has held as

under:

"23. In this backdrop when we see unusually long judgment of the learned Single Judge, it comes out that the learned Single Judge held firstly that the Tribunal had exceeded its powers vested in it under the provisions of Section 11-A of the Industrial Disputes Act. The learned Judge, as regards Section 11-A, after quoting the same, observed:

"Though the Tribunal was equipped with the power to come to its own conclusion whether in a given case the imposition of punishment of discharge or dismissal from the service is justified. It is for that purpose that the Tribunal is authorised to go into the evidence that has been adduced before the inquiry officer in detail and find out whether the punishment of discharge or

(2008)12 SCC 726

- 11 -

dismissal is commensurate with the nature of charges proved against the delinquent."

So far the finding of the learned Single Judge appears to be correct. However, the whole thrust of the judgment has changed merely because the Industrial Tribunal had found the inquiry to be fair and proper. The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Tribunal cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Tribunal comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Tribunal would still be justified in reappreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Tribunal is not satisfied with the findings and further concludes that punishment imposed by the

- 12 -

management is highly disproportionate to the degree of guilt of the workman concerned. Besides, the Tribunal has to give reasons as to why it is not satisfied either with the findings or with the quantum of punishment and that such reason should not be fanciful or whimsical but there should be good reasons."

16. Merely because an enquiry is held to be fair and

proper, does not mean that the findings arrived at were

essentially correct finding. Enquiry being found to be fair

would only certify that all the possible opportunities were

given to the workman by following the principles of natural

justice. The proposition of law laid down in the decisions

stated supra by the learned counsel for the petitioner, this

Court has absolutely no quarrel, but it is relevant to note

that facts and circumstances of each case differs and in the

instant case, the misconduct of the delinquent about the

possession of the property has been failed to be proved as

the circumstances which leads to the workman is that a