M/s. H and R Johnson [India] vs Mr. Vasantharaju

Ram Mohan Reddy, J.—This petition, though listed for orders on extension of interim stay, with the consent of learned counsel for the parties, is finally heard and disposed of by this order. The dismissal of the respondent from service of the petitioner by order dated 23.7.2010 resulted in a petition u/s 10[4-A] of the Industrial Disputes Act, 1947 [for short ''the Act''], registered as ID No. 36/2010 on the file of the Presiding Officer, Principal Labour Court, Bangalore, whence, the petitioner arraigned as second party opposed the petition by filing counter statement, inter alia, contending that the respondent was charge sheeted for certain acts of misconduct, following which a domestic enquiry was held, extending reasonable opportunity of hearing to the respondent and a report holding that the respondent was not guilty of two charges under clauses 19.4, 19.13[a] and [b] of the Standing Orders, while charges under clauses 19.34 and 19.43 were proved. The Disciplinary Authority accepted the findings of the Enquiry Officer and regard being had to the fact that two of the charges were proved, imposed the punishment of dismissal from service.

In terms of pleadings of parties, the Labour Court framed as many as five issues, first of which related to the validity of the domestic enquiry. Petitioner examined one H.S. Prasad as MW. 1 and introduced in evidence Ex. M1 to M12, on the preliminary issue No. 1, while the respondent was examined as WW. 1. The Labour Court, by order dated 21.12.2011 answered issue No. 1 in the affirmative, holding that the domestic enquiry held was fair and proper. There afterwards, workman was further examined on the aspect of victimization and seven documents were introduced in evidence as Ex. W1 to W7.

The Labour Court, having regard to the material on record, more appropriately, evidence both oral and documentary, coupled with the pleadings of the parties, returned findings in the affirmative over issue Nos. 2 and 3 and partly in the affirmative over issue No. 5 and in the negative over issue No. 4, in other words, held that the order dated 23.7.2010 imposing the punishment of dismissal was perverse and bad in law and that the respondent proved that he was a protected workman and the dismissal from service without prior permission of the Industrial Tribunal under the Act is non est, while petitioner failed to prove the charges of misconduct leveled against the respondent and finally held that the respondent was entitled to 50% of the back wages and accordingly by Award dated 21.6.2013, directed reinstatement into service with 50% of back wages. Hence this petition by the Management.

The first submission of learned counsel for the petitioner that the misconduct alleged against the respondent is established in the oral testimony of MWs. 1 and 2 cannot be countenanced. The Labour Court having examined the charges against the workman, noticed that the Enquiry Officer recorded a finding that the charges under clauses 19.4, 19.3[a] and [b] of the certified Standing Orders i.e., due to irresponsible act on the part of the respondent, the first shift workman had'' wasted their time without doing any work and had resulted in the loss of production, were not proved and accordingly concurred with the said finding. As regards charges under clause 19.34 and 19.43 that the respondent abused and made statements threatening the life of the Cook - Mr. Manjunath, the Labour Court held was not proved, since, the Cook was not examined in the enquiry while the testimony of Prasad and another Narayan Gowda said to be the Manager and Production Manager, respectively examined as MWs. 1 and 2 not being eye witnesses was hear say evidence. In the absence of explanation as to why Mr. Manjunath - Cook was not examined, the Labour Court held that the Enquiry Officer was not justified in recording a finding holding charges under clauses 19.34 and 19.43 proved, and accordingly disagreed with the said finding. The Labour Court, having found that the allegations of threat, abuse, assault or intimidation in connection with employment in the factory which might affect performance of the work and cause disturbances in the factory was not established, the respondent was given a clean chit over the charges. No exception can be taken to the said finding.

There is force in the second submission of the learned counsel that the Labour Court was not justified in recording a finding that failure on the part of the petitioner - Management to accept or reject the claim of the respondent to be treated as a protected workman under the Act and the Karnataka Rules in the light of the division Bench decision of this court in Bharat Fritz Werner Ltd., Bangalore, Rep. by its President & Ceo v. Assistant Labour Commissioner, Bangalore and Another, 12011 [II] LLJ 850 [Kant]. It is no doubt true that a division Bench while examining the effect of sub rule [2] of Rule 62 of the Industrial Disputes [Karnataka] Rules, 1957, read with section 33 of the Act, held that though the word ''shall'' is used in sub-rule [2], nevertheless, failure on the part of the Management in not accepting or rejecting the claim for treating an employee as a protected workman, there was no deeming provision. To that extent, the Labour Court was not justified in recording a finding contrary to the decision of the division Bench [supra].

The last submission of learned counsel that Labour Court was not justified in awarding 50% back wages, has no merit. When the charges of misconduct alleged against the respondent were not established and the court having come to a conclusion, on facts that the charges were not proved, it is axiomatic that the workman would be entitled to full wages. The Labour Court appears to have sympathized with the petitioner - Management by stating that since the respondent - workman did not discharge duties for three years, therefore back wages should be pared down to 50%. This finding of the Labour Court cannot be countenanced. However, since the workman has not questioned the Award of 50% backwages, there is no necessity to interfere with the said finding. In the result, this petition, devoid of merit, is rejected, subject to the finding on the claim of the respondent as a protected workman.