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2010 4 AIR(Kar)(R) 751; 2010 3 KarLJ 394; 2010 4 LLJ 59; 2010 0 Supreme(Kar) 1153;

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

H.N. Nagmohan Das, J.
Shivankari Gowda —Appellant
Vs.
Alpas Granite Private Limited —Respondent
Writ Petition No. 14297 of 2009
Decided on : 01-04-2010

INDUSTRIAL DISPUTES ACT, 1947 - Section 11-A: [H.N. Nagmohan Das,J] Dismissal of
workman who is also office bearer of recognised trade union of workers in establishment -
Dispute regarding dismissal on ground that charge of instigating workmen to stop work
was proved against him in domestic enquiry - Labour Court after recording finding that
there was no direct evidence to prove charge, confirmed order of dismissal on ground that
domestic enquiry was fair and that charge was proved on preponderance of probabilities -
Held, Since decision to stop work was collective decision of Union, targeting particular
workman alone for imposing penalty for being office bearer of Union, amounted to his
victimization, which is an unfair labour practice. Punishment of dismissal is
disproportionate to charge proved against him. Award of Labour Court which has failed to
give appropriate relief to dismissed workman was set aside. However, with closure of
establishment, relief of re-instatement of dismissed workman has been rendered otiose,
only relief that can be granted to him is to direct management to pay him closure/VRS
benefits similar to those payable to other workmen.

Acts Referred:
INDUSTRIAL DISPUTES ACT : S.10(4)(a), S.11(a)

ORDER

H.N. Nagmohan Das, J.— This writ petition is filed calling in question the Award dated October
15, 2008 in I.D. No. 33/2004 passed by the Labour Court, Bangalore.

2. Petitioner was an employee of the respondent. Respondent issued articles of charges stating
that on August 1, 2003 the petitioner instigated other workmen to stop the work in connection with
certain demands made by the workers' union. Since the explanation of the petitioner was not
satisfactory, enquiry proceedings were initiated. The enquiry officer submitted a report stating that
the charges levelled against the petitioner as proved. The disciplinary authority by accepting the
enquiry report passed an order of penalty dismissing the petitioner from service. Aggrieved by this
order of penalty the petitioner raised a dispute in I.D. No. 33/2004 under Section 10(4-A) of the
Industrial Disputes Act, 1947. On the basis of pleadings, the Labour Court framed the following 3
issues for its consideration:

(1) Whether the domestic enquiry held against the first party workman is fair, proper and valid?

(2) Whether the second party management is justified in dismissing the first party workman

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(3) What relief?,

3. Before the Labour Court the counsel for the petitioner made a submission, that the enquiry
proceedings are just and proper. Thereafter on the question of the victimisation, petitioner himself
examined as W.W.I and respondent examined one witness as M.W.I and got marked from M-1 to
M-11. The Labour Court on appreciation of the entire material on record passed the impugned
award dismissing the reference. Hence this writ petition.

4. Heard arguments on the side of the petitioner and perused the entire writ papers.

5. The material on record discloses that before the enquiry officer, respondents examined 7
witnesses and petitioner examined 10 witnesses. But the Labour Court has only appreciated and
taken into consideration the evidence of witnesses examined on behalf of the management but failed
to take into consideration the oral evidence of the witnesses examined on behalf of the petitioner.
The non-consideration of the evidence on the side of the petitioner resulted in failure of justice.

6. Further it is seen from the record that the Labour Court noticed the fact that there is no
direct evidence with regard to the charges levelled against the petitioner stating that he went
Section to Section instigating the workers to stop the work. But the Labour Court on preponderance
of probabilities concludes that the charge levelled against the petitioner as proved. Again this
finding is illegal. The material on record discloses that the respondents have recognised a trade
union in their establishment. The respondents have also entered into memorandum of settlement
with the recognised trade union. It is collective decision of the trade union in placing demands
before the respondent-management. Since the respondent-management failed to consider the
demands placed by the union, the workers union resorted to stoppage of work in the process of
collective bargaining. No doubt at the relevant point of time, petitioner was one of the office
bearer in the trade union but he alone is not responsible for the collective decision. Targeting the
petitioner alone by the respondents amounts to victimisation. The Labour Court without noticing this
aspect of the matter committed an error in not exercising its discretion under Section 11A of the
Industrial Disputes Act.

7. The material on record discloses that petitioner participated in the strike called by the
workers union. Participation of the petitioner in stoppage of work is a misconduct. But the extreme
penalty of dismissal from service is shockingly disproportionate. But then the petitioner shall not go
unpunished since a part of the charge is proved against him. Now learned Counsel for the petitioner
brought to my notice that respondent-establishment is now closed and therefore, the question of
reinstatement into service will not arise. From the date of dismissal till now the petitioner has not
worked in the establishment and there is contribution by him. In the circumstances, the following:

(i) Writ petition is partly allowed.

(ii) The impugned award dated October 15, 2008 passed by the Labour Court, Bangalore is
hereby set aside.

(iii) Respondents are hereby directed to pay the closure/VRS benefits to the petitioner as though
he continued in service and similar to other workman.

(iv) Petitioner is not entitled for back wages.

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