Karnataka High Court

M/S. Shakti Precision Components ... vs Mr. Jayapal K M on 16 February, 2024

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                                                               NC: 2024:KHC:6682
                                                            WP No. 149 of 2022
                                                       C/W WP No. 52533 of 2019



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                                              BEFORE

                             THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

                              WRIT PETITION NO.149 OF 2022 (L-RES)
                                               C/W
                             WRIT PETITION NO.52533 OF 2019 (L-RES)

                      IN W.P.NO.149/2022

                      BETWEEN:

                      MR. JAYAPAL K.M.
                      S/O. LATE MUNISWAMY,
                      NO.2, CHADRASHEKAR BUILDING,
                      OPP. GOVERNMENT SCHOOL,
                      K.R. PURAM,
                      BANGALORE - 560 036.                        ... PETITIONER

                      (BY SRI SHASHI B.P., ADVOCATE)

                      AND:
Digitally signed by
MAHALAKSHMI B M       THE MANAGEMENT OF
Location: HIGH        SHAKTI PRECISION
COURT OF
KARNATAKA             COMPONENTS (INDIA) LIMITED,
                      NO.20-13,
                      DODANEKKUNDI INDUSTRIAL ESTATE,
                      WHITEFIELD ROAD,
                      BANGALORE-560 048.
                      REPRESENTED BY ITS DIRECTOR,
                      MR. C.R. NARASIMHA MURTHY.                 ... RESPONDENT

                      (BY SRI PRASHANTH B.K., ADVOCATE)

                          THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                      AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
                      QUASH THE AWARD DATED 20.11.2019 PASSED BY THE II
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                                          NC: 2024:KHC:6682
                                       WP No. 149 of 2022
                                  C/W WP No. 52533 of 2019



ADDL. LABOUR COURT BENGALURU IN IA NO.61/17 IN
RESPECT OF NON-CONSIDERING THE BACK WAGES AND
OTHER CONSEQUENTIAL BENEFITS VIDE ANNEXURE-A TO THE
WRIT PETITION AND ETC.

IN W.P.NO.52533/2019

BETWEEN:

M/S. SHAKTI PRECISION COMPONENTS
(INDIA) PRIVATE LIMITED,
PLOT NO.20 B, DODDANEKUKUNDI
INDUSTRIAL ESTATE WHITEFIELD ROAD,
MAHADEVAPURA POST,
BENGALURU-560 048
REPRESENTED BY ITS DIRECTOR
MR C R NARASIMHA MURTHY.                       ... PETITIONER

(BY SRI. PRASHANTH B.K., ADVOCATE)

AND:

MR. JAYAPAL K.M.,
S/O LATE MUNISWAMY,
R/AT NO.2 CHANDRASHEKAR BUILDING,
OPPOSITE GOVERNMENT SCHOOL,
K R PURAM,
BENGALURU-560 036.                            ... RESPONDENT

(BY SRI. SHASHI B P., ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH    THE   AWARD   DATED     20.11.2019   IN   I.D.61/2017
PASSED BY THE LEARNED II ADDL. INDUSTRIAL TRIBUNAL,
BENGLAURU ANNEXURE-Q AND THEREBY UPHOLD THE ORDER
OF DISMISSAL PASSED BY THE PETITIONER AGAINST THE
RESPONDENT AND ETC.
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                                             NC: 2024:KHC:6682
                                        WP No. 149 of 2022
                                   C/W WP No. 52533 of 2019



    THESE PETITIONS, COMING ON FOR DICTATING
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

WP.No.149/2022 is filed by the workman assailing

the impugned award insofar as not awarding back wages

and other consequential benefits and W.P.No.52533/2019

is preferred by M/s. Shakthi Precision Components (India)

Private Limited by its Director assailing the award directing

the petitioner to reinstate the workman, by the award

dated 20.11.2019 in I.D.No.61/2017 on the file of the II

Additional Labour Court, Bangalore ('the Labour Court' for

short).

2. The parties herein are referred to as a petitioner -

company and the respondent - workman as per the

ranking in W.P.No.52533/2019 for the sake of

convenience.

3. Petitioner - company is a company registered

under the Companies Act, 1956/2013, and is engaged in

the manufacturing of auto components such as fuel

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injection pumps, gear boxes, axeles, transmission, case

etc., and supplying them to customers like Bosch, TAFE,

Husco, Caterpiller, V.S.T, etc., The respondent joined the

services of the petitioner on 16.02.2002 and was working

as a CNC operator in PE Cell, while in service, for certain

acts of misconduct, the respondent was suspended,

pending disciplinary proceedings with effect from

14.09.2016, charge sheet was issued, respondent

submitted reply, not being satisfied with the reply,

departmental enquiry was conducted by Enquiry Officer,

the Enquiry Officer conducted enquiry and held that the

charges leveled against the respondent are proved, the

Disciplinary Authority on considering the material on

record and the enquiry report held the respondent is guilty

of charges and imposed punishment of dismissal.

4. The respondent - workman raised dispute by filing

claim statement under Section 2A read with Section

10(4-A) (Karnataka Amendment) of the Industrial

Disputes Act, 1947 ('the ID Act' for short). The petitioner

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- company filed counter inter alia resisting the claim of the

respondent - workman. The Labour Court on the question

of fairness of domestic enquiry held that the domestic

enquiry conducted by the petitioner against the

respondent is not fair and proper.

5. On merits, the petitioner examined M.W.2-Mrs.

Shanthi Wilma Pais and Mr. Santhosh Kumar Rai as M.W.3

and got marked documents at Exs.M.1 to M.20. On the

other hand, the workman did not examine himself nor

adduced any evidence on the question of victimization.

The Labour Court by the impugned award set aside the

order of dismissal, passed by the Disciplinary Authority

and held that the conduct of the management amounts to

victimization, unfair labour practice and awarding of

punishment of dismissal is extreme to the charges of

abuse of some worker or officer and award of punishment

is disproportionate while holding so, the Labour Court

directed the petitioner to reinstate the workman into

service.

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6. Heard, Sri. Prashanth B K, learned counsel

appearing for the petitioner - company and Sri. Shashi B P,

learned counsel appearing for the respondent - workman.

7. Learned counsel for the petitioner would contend

that the Labour Court has failed to consider the evidence

tendered by M.W.2 and M.W.3 in proper perspective, while

M.W.2 is the person against whom the respondent used

unparliamentarily and derogatory language and she has

categorical stated about the respondent having

misbehaved and the aggressive act of the respondent, and

M.W.3 has also stated about the incident where the

respondent - workman used abusive language and

threatened the Enquiry Officer of dire consequences.

Learned counsel would contend that the oral evidence of

M.W.2 and M.W.3 remained unrebutted and also

supplemented by the documentary evidence and the

reasoning of the Labour Court to negate their evidence is

totally uncalled for. Learned counsel would contend that

the discipline at work place/ Industrial Establishment/

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Industrial Undertakings are necessary and the employees

cannot be allowed to break the discipline in any manner

and would contend that terming of misconducts committed

by the respondent has not grave and serious, is very

casual, and contrary to the settled preposition of law and

place reliance on the decision of the Apex court in the case

of J.K Synthetics Limited v. K.P.Agrawal and

Others.1(J.K Synthetics Limited)

8. Per contra, learned counsel appearing for the

respondent - workman would justify the order of

reinstatement by the Labour Court and would contend that

in light of reinstatement of the workman into service to his

original post, the Labour Court ought to have awarded

back wages with continuity of service and other

consequential benefits. Learned counsel would contend

that the order of reinstatement and holding that the

misconduct and the punishment imposed is

(2007) 2 SCC 433.

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disproportionate has rightly directed reinstatement which

does not warrant interference by this Court, while on the

other hand, would contend that the back wages and

continuity of service needs to be awarded and placed

reliance on the following decisions:

1. WP.No.100649/2021 in the case of Smt. Medha v. The State of Karnataka and others dated 26.07.2021.

2. C.A.No.2393/2022 in the case of Armed Forces Ex Officers Multi Services Co-

operative Society Ltd v. Rashtriya Mazdoor Sangh(INTUC) dated 11.08.2022.

3. D.N.Krishnappa v. The Deputy General Manager in C.A.No.9008/2022 dated 12.12.2022.

      Supreme         (SC)     899        in     the    case     of
      Jayanthibhai         Raojibhai      Patel    v.     Muncipal
      Counsil,    Narkhed            and         others      dated
      21.08.2019.

   5. C.A.Nos.632-635/1980                in     the     case    of

Surendra Kumar Verma and Others v. Central Government Industrial Tribunal-cum-Labour

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Court, New Delhi and Another dated 23.09.1980.

9. Having heard learned counsel for the petitioner

and learned counsel for the parties, the point that arises

for consideration:

Whether the Labour Court was justified in interfering with the order of the Disciplinary Authority and set aside the order of dismissal in the present facts and circumstances of this case?

10. The charges leveled against the respondent is:

1. On 08.07.2016, while he was working in the first

shift hours, at around 1:45 pm, he has left the

work spot unauthorizedly and went up to the

Manager, HR in the pretext of clarifying his leave

balance and when he went to the HR Manager, he

got into argument and abused her by shouting in

Kannada saying "neenu nalayakku illi kelasa

madalikke, yenakke kuthukondidiya illi."

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2. On 27.07.2016 at around 12:40 pm, when the

workman represented as a co-workman of Mr.

Manjunath. N in a domestic enquiry, he shouted

and abused at the Management Representative

Mrs. Shanthi Wilma Pais, HR Manager(MW2), in a

singular language by saying in Kannada "avaligenu

maryade koduvudu."

3. On 30.08.2016 at around 10:25 am, when the

workman attended the domestic enquiry as a co-

workman to Mr. Praveen Kumar T at Hotel Airlines

Bangalore, he abused and threatened the Enquiry

Officer Mr. A R Ravi, despite the Enquiry Officer's

best attempt to prevail upon him to keep calm and

follow the rules.

4. On 12.09.2016 at around 9:00 am, when he was

representing a co-workman Mr. Manjunath N in a

domestic enquiry, he once again abused and

shouted at he Management Representative Mrs.

Shanthi Wilma Pais, HR Manager (MW2) in

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singular and abusive language by saying in

Kannada "Ninna hathra mathaduthilla naanu,

neenu yaake maathanaaduthiya, ivanu -givanu

antha helabeda, naanu ninna mane kelasadavanu

alla artha aytha, neenu henge avanu-givanu

annutheeya, ninna mane kelasadavana naanu."

5. On 19.09.2016 at 9:30 am when he attended the

domestic enquiry as a co-workman to Mr.

Manjunath N, he behaved rudely with the Enquiry

Officer shouting and abusing him of favouring the

Management and threatens to walk out of enquiry.

6. The repeated serious acts of misconducts, the

management suspended him by issuing a detailed

charge sheet. The charge sheet cum show-cause-

notice also indicate that the workman remained

absent from work for 38 days between May 2015

to September 2016.

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11. Noting the acts on part of the workman having

amounted to serious misconduct under the provisions of

Model Standing Orders provided under the applicable

Karnataka Industrial Employment (Standing Orders) Rules,

1961, namely:

1) 15 (3) (a) Wilful insubordination or disobedience, whether alone or in combination with others to any lawful and reasonable order of his superior;

2) 15 (3) (c) Will full damage to or loss of employer's goods or property;

3) 15 (3) (e) Habitual absence without leave;

4) 15 (3) (g) Habitual breach of any law applicable to the establishment;

5) 15 (3) (h) Riotous or disorderly behaviour during working hours of the establishment or any act of subversive of discipline;

6) 15 (3) (j) Frequent repetition of any act or omission;

7) 15 (3) (l) Threatening or intimidating any employee of the establishment;

12. The Labour Court held that the domestic

enquiry to be not fair and proper and the management

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examined MW2 and MW3 as management witness on

merits. MW2 is Mrs. Shanthi Wilma Pais who was working

as HR Manager in the petitioner company. M.W.2

categorically stated about the incident that occurred on

27.07.2016, 12.09.2016 wherein the workman abused and

shouted at MW2 by using derogatory remarks in a filthy

language. The cross examination on part of the workman

is to the effect that the word stated by the workman on

18.07.2016 are not damaging and the language which has

been used by the workman nothing but daily using words.

The relevant portion of the cross examination of M.W.2 is

reads as under:

Cross examination: by Sri. SVS Advocate for I party.

21. Presently I am not working on II party company. I left the job in the month of April 2018.

My qualification is MSW. It is true to suggest that presently HR-Manager and other HR people are working in II party. I have not produced any authorization letter issued by the II party to come and depose evidence in this case. If any person scolded loudly in Kannada language I can understand the same. It is not true to suggest that

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the II party company has forcibly obtained resignation from me. It is true to suggest that the documents produced in my evidence are all part of documentary evidence produced in Domestic Enquiry.

22. It is true to suggest that whatever the words stated by the I party on 18.07.2016 are not damaging words. I am aware of the fact that the enquiry officer has given findings in respect of the documents produced by me in this case. I am aware of the fact that this court has already given findings on Domestic Enquiry issue. It is not true to suggest that whatever the language used by the I party are nothing but daily using words. It is not true to suggest that though the II party has not authorized me to come and give evidence but by having grudge on the I party I filed false affidavit and deposing false evidence. I have obtained oral permission from my present employer to give evidence in this case."

Emphasis supplied

13. M.W.3 is one Mr. Santhosh Kumar Rai, who was

working as a IR consultant for the petitioner company and

categorically stated that he has participated in a domestic

enquiry held by one Mr. A R Ravi against Mr. Praveen

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Kumar T and the incident that has transpired on

02.08.2016 and the subsequent events, categorically

stated that the workman was using singular terms despite

the Enquiry Officer controlled and try to pacify the

workman.

14. The Labour Court holds the evidence of MW2

and MW3 as an interested witness and does not consider

the evidence stated by MW2 and MW3, who in categorical

terms narrates the incident that has been occurred. The

acts of subversive of discipline are as such acts that tend

to subverts discipline of tendency over through, upset and

destroy discipline in any establishment. Broadly speaking,

all acts which tends to destroy discipline would tantamount

to "acts subversive of discipline" and which may include

misconduct relating to duty, negligence going on illegal

strikes, go slow, in subordination and disobedience of

orders, riots and disorderly behavior. The following Acts

have been treated as acts subversive of discipline:

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a) Writing a letter to the director of the company containing offensive remarks against him.

b) behaviour insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of employer and employee.

c) abusing a superior officer by using vulgar and filthy language and use of immoderate language.

d) Preferring a false complaint to police against a superior officer knowing it to be false with a view to bringing the management into humiliation.

e) the act of wrongfully restraining and confining the manager by workmen with a view to making him concede to their demands.

f) preventing a superior officer from discharging his duties towards the management.

g) sleeping in office while on duty.

h) rowdy conduct in the course of working hours, or in some cases, even outside the working hours but within the precincts of the concern and directed towards the employees of the concern and

i) constructing a pacca structure in the labour quarters contrary to the directions of the management and subsequent refusal to dismantle

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the same in disobedience to the order of the management.

Emphasis supplied

15. The Apex Court in the case of Mahindra and

Mahindra Limited v. MV Nervary2 (Mahindra and

Mahindra Limited) observed:

"It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which

(2005) 1 LLJ 1129 SC

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require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. As noticed hereinabove at least in two of the cases cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills, this Court held: "Punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating fact or referred to hereinabove."

Emphasis supplied

16. In the later judgment, the Apex Court in JK

Synthetics has taken a similar view stated supra has held

at para 22 as under:

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22. This takes us to the next question as to whether the Labour Court was justified at all in interfering with the punishment of dismissal. The Labour Court held that one serious charge was proved, another charge was not proved and in regard to the third charge gave 'benefit of doubt' to the employee. The Labour Court also relied on the decisions of this Court in Rama Kant Misra v. State of U.P. MANU/SC/0194/1982: (1982) IILLJ472SC, wherein it was held that the punishment of dismissal was excessive where the employee was found to have uttered indecent words and used abusive language and substituted it by the lesser punishment of stoppage of two annual increments.

The said decision depended on its special facts and may not apply to this case. The recent trend in regard to scope of interference with punishment in matters involving discipline at the workplace has been different. We may refer to some of the recent decisions.

23. In Hombe Gowda Educational Trust v. State of Karnatak MANU/SC/2522/2005: (2006) ILLJ1004SC, this Court stressed the need to give importance to discipline at the workplace. This Court observed:

This court has come a long way from its earlier viewpoints. The recent trend in the decisions of this Court seek to strike a balance between the

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earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/ industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity.

24. In Mahindra and Manhindra Ltd. v. N. B Narawade MANU/SC/0138/2005: (2005) ILLJ1129SC, this Court considered a case where a workman used abusive and filthy language against his superior officer, in the presence of his subordinates. He was terminated after conducting an inquiry. Labour Court found the punishment to be excessive and in exercise of power under Section 11A of the ID Act, imposed a lesser punishment. This Court held that the misconduct cannot be termed to be an indiscipline calling for lesser punishment than termination. A similar view was taken in Orissa Cement v. Adikand Sahu 1960 (1) LLJ 518 and New Shorrock Mills v. Mahesh Bhai T. Rao MANU/SC/0069/1977: (1977)ILLJ1212SC.

25. In UP. SRTC v. Subhash Chandra Sharma MANU/SC/0188/2000: (2000) ILLJ1117SC, this

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Court held that the punishment of removal, for abusing and threatening another employee, was not shockingly disproportionate to the gravity of the offence. In that case also, only one among three charges was established and the Labour Court had interfered with the punishment, which was upheld by the High Court. Reversing such decision, this Court held:

The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent, from the service. The charge against the respondent was that he, in drunken state, along with a conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised

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by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in miscarriage of justice."

17. The Apex Court in Mahindra and Mahindra

Limited and J.K Synthetics Limited has come heavily

on such type of acts of employee and to be treated as

serious and held, removal/dismissal in such cases are

justified. The decision placed reliance by the learned

counsel appearing for the respondent - workman is

distinguishable and not applicable to the present facts and

circumstances of the present case.