Telangana High Court
N.Krishna, Ranga Reddy District vs Gmoperation, The Mgmt Of Engine Volves ... on 16 October, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
&
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT APPEAL Nos.150 AND 577 OF 2014
COMMON JUDGMENT:
(per Hon'ble Sri Justice Laxmi Narayana Alishetty)
Since both the appeals arise out of common order dated
12.12.2013 passed in W.P.Nos.2800 of 2003 and 20276 of 2005,
which were filed aggrieved by the order dated 30.03.2002 in
I.D.No.179 of 2000, both the Appeals were heard together and
disposed of by this common judgment.
2. W.A.No.150 of 2014 is filed by the appellant-employer
assailing the order dated 12.12.2013 passed by the learned single
Judge of this Court in W.P.No.2800 of 2003. W.A.No.577 of 2014 is
filed by the appellant-workman assailing the order dated
12.12.2013 passed by the learned single Judge of this Court in
W.P.No.20276 of 2005.
3. For convenience, the facts in Writ Appeal No.150 of 2014
are referred hereunder.
4. The 2nd respondent (hereinafter referred to as 'workman')
was appointed in the appellant-company (hereinafter referred to
'employer') on casual basis from 02.06.1987 to 02.08.1987. Later,
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he was taken as trainee from 03.08.1987 to 03.08.1989; that he was
put on probation for a period of one year and subsequently, the
probation of the workman was declared. While so, a charge-sheet
was issued to the workman alleging that he indulged in low
production and was dismissed from service on 28.01.1993,
however, later, the workman was reinstated as a fresh employee
under Section 18(1) of the Industrial Disputes Act, 1947 (for short,
'Act, 1947') consequent upon the settlement arrived at between
the employer and the workman. Subsequently, another charge-
sheet was issued to the workman on 25.08.1994 on the ground
that he was unauthorizedly absent from duties without
intimation on various dates between 28.02.1994 and 24.08.1994.
Consequently, a domestic enquiry was conducted against the
workman and the workman was found guilty in the enquiry
report dated 10.03.1995. Again, one more charge-sheet was issued
to workman on 28.01.1995 alleging that he wilfully indulged in
low production.
5. It is further averred that a common show-cause notice was
issued to the workman on 07.08.1995 and the workman submitted
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his explanation on 22.08.1995; that not satisfied with the
explanation offered by the workman, the disciplinary authority
dismissed the workman from service vide order dated 04.11.1995;
that at that time, I.D.No.103 of 1994 was pending before the
Tribunal. The employer filed M.P.No.1 of 1996 under Section 33
(2)(b) of the Act, 1947 before the Tribunal and the Tribunal vide
its order dated 10.12.1997, held that enquiry was proper and
ultimately, M.P.No.1 of 1996 was allowed vide order dated
16.02.1998.
6. Aggrieved by the order dated 16.02.1998, the workman
filed I.D.No.59 of 1998 under Section 2-A(2) of the Act, 1947
before the Labour Court-III, Hyderabad and the said I.D. was
transferred to Labour Court-I, Hyderabad and was renumbered
as I.D.No.435 of 2000 and it was again transferred to Industrial
Tribunal-II, Hyderabad and was renumbered as I.D.No.179 of
2000. The Tribunal, vide award dated 30.03.2002, held that
enquiry was conducted properly, however, came to conclusion
that findings were perverse. Consequently, the Tribunal ordered
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reinstatement of the workman without back-wages, continuity of
service and attendant benefits.
7. Aggrieved by the award dated 06.12.2001, the employer
filed W.P.No.2800 of 2003 and the workman filed W.P.No.20276
of 2005. Learned single Judge vide order dated 12.12.2013
disposed of both the writ petitions, confirming the award passed
by the Tribunal in I.D.No.179 of 2000 with the modification that
reinstatement of the workman shall be with continuity of service
and attendant benefits, however, without back-wages.
8. Heard Sri S.Ravindranath, learned counsel for the
appellant and the learned Government Pleader for Labour
appearing for respondent No.1 and Sri V.Narasimha Goud,
learned counsel for respondent No.2 in W.A.No.150 of 2014;
Sri V.Narsimha Goud, learned counsel for appellant and
Sri S.Ravindranath learned counsel for the respondent in
W.A.No.577 of 2014.
9. Learned counsel for the employer contended that once
Industrial Tribunal passed order dated 16.02.1998 in M.P.No.1 of
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1996 that the enquiry is proper, I.D.No.179 of 2000 filed by the
workman is barred by the principles of res judicata. Learned
counsel further contended that the Industrial Tribunal did not
properly appreciate the findings of the Enquiry Officer, whereby
the Enquiry Officer held that the charges of unauthorized absence
and low production were proved; that the Tribunal ought not to
have ordered for reinstatement of the workman; that the
Industrial Tribunal erred in applying Section 11-A of the Act,
1947 on sympathetic grounds; that the workman has indulged in
low production and unauthorized absence regularly, therefore,
the Tribunal ought not to have applied Section 11-A of the Act,
1947 and ordered reinstatement of workman and finally,
contended that the learned single Judge was not justified in
ordering continuity of service and attendant benefits despite
misconduct on the part of the workman.
10. Per contra, learned counsel for workman contended that the
Industrial Tribunal though held that enquiry was proper, it has
categorically held that the findings of the Enquiry Officer is
perverse; that though the Industrial Tribunal ordered for
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reinstatement of the workman, it committed error in not ordering
continuity of service, attendant benefits and back-wages; that the
learned single Judge having not interfered with the findings of
the Industrial Tribunal that charges levelled against the workman
were not proved, ought to have ordered for back-wages along
with continuity of service and attendant benefits, however,
learned single Judge has only ordered continuity of service and
attendant benefits without back-wages. Learned counsel for
workmen finally contended that order passed by the learned
single Judge is liable to be interfered and workman shall be given
benefit of full back-wages by modifying the order dated
12.12.2013 passed by the learned single Judge.
11. Perusal of the record would show that the workman was
dismissed from service on 28.01.1993 on the ground of low
production and was reinstated consequent to settlement arrived
at between the employer and the workman under Section 18(1) of
the Act, 1947. The workman was again charge sheeted on
25.08.1994 for unauthorized absence and one more charge sheet
was issued on 28.01.1995 for wilfully indulging in low production
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and the workman was found guilty in the enquiry on both
grounds vide enquiry report dated 10.03.1995 and 30.06.1995
respectively. Show-cause notice was issued on 07.08.1995, to
which, the workman offered explanation on 22.08.1995. However,
the disciplinary authority, not satisfied with the explanation
offered by the workman, dismissed the workman from service
vide order dated 04.11.1995.
12. Consequently, the employer filed M.P.No.1 of 1996 before
the Tribunal and the Tribunal vide order dated 10.12.1997 held
that the enquiry was proper and thereafter, allowed the M.P.No.1
of 1996 vide order dated 16.02.1998. Aggrieved thereby, the
workman filed I.D.No.59 of 1998 under Section 2-A(2) of the Act,
1947, which was subsequently renumbered as I.D.No.179 of 2000.
In I.D.No.179 of 2000, the Tribunal held that enquiry conducted
by the employer was proper, however, came to conclusion that
the findings were perverse. The Tribunal observed that
misconduct alleged against the workman was not established and
therefore, findings of the enquiry officer were set aside.
Consequently, the Tribunal directed the employer to reinstate the
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workman without back-wages, continuity of service and
attendant benefits.
13. The main contention raised by the learned counsel for
appellant-employer is that in view of the order dated 16.02.1998
passed in M.P.No.1 of 1996 on merits that enquiry conducted by
the employer was proper, the claim of the workman in I.D.No.179
of 2000 is not maintainable and is hit by the principle of
res judicata.
14. On the other hand, learned counsel for workman had
contended that findings of the Tribunal in M.P.No.1 of 1996 that
enquiry was proper is only a prima facie opinion and is not an
order/decision on merits of the enquiry. Therefore, the same does
not operate as res judicata, more so, when the workman raised
dispute under Section 2-A(2) of the Act, 1947 questioning his
dismissal from service.
15. Learned counsel for the workman placed reliance on the
following decisions:
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i) M/s. G.Mekenzie and Co.Ltd. v. Its Workmen and
others 1;
ii) Management of Bharat Heavy Electricals Ltd.,
Hyderabad v. Labour Court-II, Hyderabad and
another 2;
iii) Hindusthan Aeronautics Ltd., Hyderabad v. Additional
Industrial Tribunal-cum-Labour Court, Hyderabad and
another 3;
iv) A.L.Karla v. The Project and Equipment Corporation of
India Ltd., 4;
v) Pradeep v. Manganese Ore (India) Limited and others 5
vi) Depot Manager, APSRTC, Guntur District and another
v. Ch.Suresh Babu and another 6;
16. In M/s.G.Mekenzie & Co. (1 supra), the Hon'ble Apex
Court held that the nature and scope of proceedings under
Section 33 shows that removing or refusing to remove the ban on
punishment or dismissal of workmen does not bar raising of an
industrial dispute when as a result of the permission of the
Industrial Tribunal, the employer dismisses or punishes the
workmen. It is further held that as the purpose of Section 33 of
the Act is merely to give or withhold permission and not to
AIR 1959 SC 389
2005 (3) ALD 383
2005 (4) ALD 846
AIR 1984 SC 1361
(2022) 3 SCC 683
2019 (2) ALD 264 (DB)
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adjudicate upon an industrial dispute any finding under Section
33 would not operate as res judicata and bar raising of an
industrial dispute. In Managgement of Bharat Heavy Electricals
Ltd., ( 2 supra), Hindusthan Aeronautics Ltd., (3 supra), and
A.L.Karla (4 supra), similar view has been taken.
17. In view of ratio laid down by the Hon'ble Apex Court , the
principal contention raised by the appellant-employer that
industrial dispute raised by the workman was hit by principle of
res judicata is not tenable and is accordingly, rejected.
18. The learned counsel for the appellant-workman in
W.A.No.577 of 2014 contended that the workman was entitled to
back-wages and relied upon the judgment of the Hon'ble Apex
Court in Pradeep (5 supra) and the judgment of the Division
Bench of erstwhile composite High Court of Andhra Pradesh in
Ch.Suresh Babu (6 supra).
19. In Pradeep (5 supra), the Hon'ble Apex Court held as
under:
"12. It is, undoubtedly, true when the question arises as to
whether the back wages is to be given and as to what is to be
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the extent of back wages, these are matters which will
depend on the facts of the case as noted in Deepali Gundu
Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] .
In a case where it is found that the employee was not at all at
fault and yet, he was visited with illegal termination or
termination which is actually activised by malice, it may be
unfair to deny him the fruits of the employment which he
would have enjoyed but for the illegal/malafide termination.
The effort of the Court must be to then to restore the status
quo in the manner which is appropriate in the facts of each
case. The nature of the charges, the exact reason for the
termination as evaluated and, of course, the question as to
whether the employee was gainfully employed would be
matters which will enter into the consideration by the Court.
...
14. We have also, however, noticed that there was hardly
any worthwhile reason for the respondent to terminate the
services. The impugned order [Pradeep v. Manganese Ore
(India) Ltd., 2017 SCC OnLine Bom 10125] itself shows that
there was no basis for termination of the services of the
appellant. When the appellant was qualified and
particularly, when the appellant also has a case that all this
was done for the reason that he had taken up certain issues
relating to the manner in which the affairs of the respondent
was being run, we would think that the High Court was in
error in not making appropriate order relating to back
wages."
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20. In Ch.Suresh Babu (6 supra), the Division Bench of
erstwhile composite High Court of Andhra Pradesh has taken a
similar view.
21. The facts and circumstances of the above cases and the facts
and circumstances of the present case are different and therefore,
we are afraid that same cannot be applied to the cases on hand.
22. It is appropriate to refer to the observation recorded by the
learned single Judge at paragraph-19 of the common order dated
12.12.2013. It reads as under:
"19. ... where the employee was in fact dismissed on one
occasion and was reinstated through a settlement under
Section 18(1) of the Act and where the employee could
not give proper production, albeit he is not guilty of low
production since there was no settlement between the
employee and the employer, the order of the Tribunal
ordering reinstatement without back-wages is justified. I
consider that it would be appropriate to order
reinstatement with continuity of service and attendant
benefits where the misconduct has not been established."
23. In considered opinion of this Court, the observations and
reasons recorded by the learned single Judge are proper and do
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not warrant interference by this Court. Therefore, this Court is
not inclined to interfere with the common order dated 12.12.2013
passed by the learned single Judge in W.P.Nos.2800 of 2003 and
20276 of 2005.
24. In view of above discussion, facts and circumstances, the
Writ Appeals fail and are accordingly dismissed. There shall be
no order as to costs.
Pending miscellaneous applications if any shall stand
closed.
___________________________________
ABHINAND KUMAR SHAVILI, J
___________________________________
LAXMI NARAYANA ALISHETTY, J
Date:16.10.2024
Kkm/dr
