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Judgment
H.N. Nagamohan Das, J.—In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the award dated 2.1.2007 in KID No. 37/1996, 38/1996, 39/1996 and 40/1996 passed by the Labour Court at Hubli. Respondents were the employees of petitioner company. On 7.7.1995 respondents without permission from the management entered the factory premises by using force. For this misconduct of violating the company rules and regulations articles of charges were issued, enquiry was hold and on 10.10.1995 penalty of dismissal came to be passed. Aggrieved by this order of penalty the respondents raised dispute before the Labour Court in KID No. 37/1996, 38/1996, 39/1996 and 40/1996 u/s 10(4A) of the Industrial Disputes Act. On the basis of pleadings, the Labour Court framed the following issues for its consideration:
I) Whether the respondent prove that the departmental enquiry held is fair and proper?
II) Whether the respondent is justified in terminating the service of claimant with effect from 10.10.1995?
III) If not for what relief the parties are entitled to?
Before the Labour Court both the parties have not adduced any oral evidence on preliminary issue relating to domestic enquiry but by consent of parties Ex. M 1 to M 4 were marked. The Labour Court by considering this material on record passed an order on 7.2.2004 holding that the domestic enquiry as not fair and proper. Thereafter the petitioners examined two witnesses as MW 1 and MW 2 and got marked Ex. M 5 to M 7. Respondents examined four witnesses as WW. 1 to WW. 4 and got marked Exs. W 1 and W 2. On appreciation of the evidence on record, the Labour Court held that the charge leveled against the respondents as proved. But by exercising discretion u/s 11A of the Act, the Labour Court held that the penalty of dismissal as shockingly disproportionate. Consequently under the impugned award the Labour Court set-aside the order of penalty of dismissal, directed reinstatement with 50% backwages and continuity of services and withheld one annual increment for the year 1995. Aggrieved by this award the petitioners are before this court.
The Labour Court on appreciation of the entire material on record held that the charges leveled against the respondents as proved. This finding of the Labour Court is not questioned by the respondents. Therefore, it is not necessary for this court to go into the finding of the Labour Court holding that the charges as proved.
The only question that arise for my consideration in this writ petition is whether the Labour Court was legally correct in exercising discretion u/s 11A of the ID Act?
The Labour Court on appreciation of the material on record noticed as under:
There is absolutely no evidence on record to show that by forcible entry in to the main gate, the claimants committed any mischief. They have not misbehaved with the manager or other co-workers. They have not caused any loss to the property of the mill. They have not quarreled with any of the staff members after entering in to the premises. They have not done any act from so as to cause any loss to the mill. After alleged entry the work of the factory was not stopped. After making entry the claimants did not provoke co-workers or the staff members or the manager. Their entry was not with the intention of making any unlawful gain. There is absolutely no evidence on record to show that by forcible entry in the main gate the work of the mill has hampered. Therefore, mere entering in to the main gate without permission by the worker of the same factory does not amount to a grave misconduct. In case after making entry forcibly, if the claimants had involved in violence, then that misconduct should not have been tolerated. Therefore, the alleged entry in to the main gate is not a grave misconduct so as to remove the claimants from the service.
The management has issued certificates to the claimant Siddappa and Basavaraj as good workers and they are obedient to their higher authorities and having nature of hard working. This certificate was issued in the month of February 1985. This itself goes to show that claimant Basavaraj and Claimant Siddappa were good and obedient workers and their work has been appreciated by the respondent. The said certificates are marked as Ex. W. 1 and Ex. W. 2. The issue of these two certificates by the respondent is not at all denied. Sri. J. Balachandra, the Chief Executive and factory manager has issued these two certificates appreciating the sincerity and hard work.
There are no bad remarks in the service of the claimants. There is no previous history of the claimants regarding a misconduct at any time. The claimant Siddappa has worked for 20 years in the establishment of respondent. The claimant Manjunath has worked for 17 years without any black remarks. The claimant Veerabhadrayya has worked for 25 years and he is on the verge of retirement. The deceased Basavaraj has worked for 17 years without any bad remarks in the establishment of respondent this itself shows that all the four claimants were good workers and they have worked to the satisfaction of the management. All these factors has to be considered while awarding punishment to the claimants.
The above reasoning of the Labour Court in the facts and circumstances of the case for exercising discretion u/s 11A of the Act is in accordance with law and I find no justifiable ground to interfere with the same.
Out of five workmen who committed the misconduct only four of them raised dispute before the Labour Court. Another workman by name Halappa tendered resignation and he took retrial benefits. During the pendency of the proceedings before the Labour Court the workman by name Basavaraj died and his legal representatives are contesting the proceedings. After passing the award two workmen by name Siddappa and Veerabhadrayya retired from service on superannuation. The only workman who is continuing in service is the first respondent - K. Manjunath. Having regard to the length of service rendered by the respondents, their past history and the gravity of the present misconduct, the discretion exercised by the Labour Court is in accordance with law.
The Labour Court while exercising the discretion had taken care to punish the respondents against whom the misconduct is proved. The Labour Court denied 50% of backwages, consequential benefits and also withheld one annual increment for the year 1995. In the facts and circumstances of the case, punishment levied on the respondent workmen is in accordance with law and the same do not call for interference. The judgments relied on by the learned counsel for the petitioner in (2007) 2 SCC (L & S) 327, 2007 (1) LLN 725, 2006 SCC (L & S) 132, Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma, are all cases where the misconduct was not only violating the rules and regulations of the management but also resulted in physical violence and serious injuries to other workmen and management officials and also loss to the management. But in the instant case, there is no physical violence, no loss to the property and there is no instigation from the respondent workmen. In the facts and circumstances of the case, the law declared by the Apex Court in the judgments referred to supra will not be of any assistance to the petitioners. Accordingly the writ petition is hereby dismissed.