IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT APPEAL No.67 OF 2017 (L - TER) BETWEEN:
M.L. KRISHNAMURTHY, SON OF LAKSHMAIAH, AGED ABOUT 44 YEARS, RESIDING AT D.NO.420, 3RD MAIN, 1 A CROSS, MATHIKERE, BENGALURU – 560 054.
... APPELLANT (BY SRI Y.S.SATHISH CHANDRA, ADVOCATE) AND:
THE MANAGEMENT OF M/S TAURUS PRIVATE LTD., REPRESENTED BY ITS DIRECTOR, NO.26-C/1, VEERASANDRA, INDUSTRIAL AREA, HEBBAGODI POST, BANGALORE DISTRICT-560 110.
... RESPONDENT (BY SRI SOMASHEKHAR, ADVOCATE FOR S.N.MURTHY ASSOCIATES, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.10600 OF 2007 DATED 01.03.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.11.2019 COMING ON THIS DAY, M.NAGAPRASANNA J., PRONOUNCED THE FOLLOWING:-
JUDGMENT Aggrieved by the order passed by the learned Single Judge dated 01.03.2012 in Writ Petition No.10600 of 2007, rejecting the writ petition, the respondent- workman has filed the instant writ appeal.
2. The parties will be referred to as per their ranking in the writ petition before the learned Single Judge.
3. Brief facts of the case are as follows:
The respondent was appointed by the petitioner in the year 1986 as a Fitter. On account of assault of a co- worker in the year 1991, a charge sheet came to be issued against the respondent on 19.01.1991. The assault was on another co-worker by name Sri Rajendran who was also issued a similar articles of charge. Since it was an assault and counter-assault by the respondent and Sri Rajendran, a joint inquiry was ordered to be conducted against the respondent and Sri Rajendran. The Inquiry Officer after holding disciplinary proceedings against the respondent and Sri Rajendran, submitted a report dated 18.04.1991 holding the charges to have been proved against the respondent and not proved against Sri Rajendran. It is thereafter the petitioner considered the reply of the respondent given to the second show cause notice enclosing the report of the Inquiry Officer and by order dated 31.05.1991 dismissed the respondent from service.
4. The respondent challenged the order of dismissal by raising a dispute before the Tribunal in I.D.No.117 of 2002. In those proceedings, on an issue with regard to fairness of inquiry having been framed, the Tribunal held by its order dated 16.10.2013 that the inquiry was not fair and proper. The petitioner challenged the said finding on the preliminary issue before this Hon’ble Court in Writ Petition No.53921 of 2003 on the ground that the Tribunal could not have held the inquiry to be not fair and proper. This Court, by its order dated 19.12.2003, dismissed the writ petition reserving liberty to the petitioner to raise the contentions before the Tribunal.
5. It is thereafter, the Tribunal recorded evidence of the parties, considered their submission and by the award dated 1.12.2006 allowed the application filed by the respondent, by ordering his reinstatement but without backwages. The respondent aggrieved by the award of the Tribunal denying full back wages filed Writ Petition No.9780 of 2007 and the petitioner challenged the entire award by filing Writ Petition No.10600 of 2007.
6. The learned Single Judge by his order dated 01.03.2012 allowed the writ petition filed by the petitioner and set aside the order dated 16.10.2003 wherein the Labour Court had held that the enquiry to be not fair and proper. Insofar as the award of the Labour Court dated 1.12.2006 relating to reinstatement, it was substituted by payment of ex-gratia in lump sum of Rs.2,50,000/-. The learned Single Judge dismissed the writ petition filed by the respondent challenging that portion of the award denying full backwges. Feeling aggrieved by the order passed dismissing the writ petition, the respondent has preferred the instant writ appeal. The petitioner has not chosen to challenge the order passed by the learned Single Judge insofar as it pertains to payment of ex-gratia of Rs.2,50,000/-.
7. Heard Sri Satish Chandra, learned counsel appearing for the appellant and Sri Somashekar, learned counsel appearing for the respondent.
8. The respondent who was appointed as Fitter in the year 1986 was issued with a charge sheet in the year 1991 alleging that he has assaulted one Sri Rajendran, which is alleged to be misconduct under the certified standing orders which govern the conditions of service of the respondent. A similar charge sheet was issued against Sri Rajendran as well. A joint inquiry was held against the respondent and Sri Rajendran. The Inquiry Officer recorded his findings holding the respondent guilty of the charges levelled against him and let off Sri Rajendran from the charge. The Disciplinary Authority, on considering the cause shown by the respondent pursuant to the second show cause notice, imposed the penalty of dismissal from service against the respondent on 31.05.1991. The respondent challenged the said order of dismissal before the Tribunal on 12.07.1991 in I.D. No.150 of 1991 which was later re-numbered as I.D. No.117 of 2002. The petitioner contested the matter on the preliminary issue with regard to the inquiry held against the respondent being fair and proper. The Tribunal by its order dated 16.10.2003 held that the inquiry that was conducted by the petitioner against respondent to be not fair and proper which was unsuccessfully challenged by the Management before this Court in Writ Petition No.53921 of 2003. Liberty was reserved by the learned Single Judge while dismissing the said writ petition on 19.12.2003 to raise the contention advanced in the writ petition before the Tribunal itself.
9. The Tribunal thereafter recorded evidence of parties and passed an award on 1.12.2006:
“The I party workman is entitled for reinstatement but not with full back wages.
But with a wage that is given to the similar workman as on this day, be paid to the I party workman.”
This award so made by the Tribunal in I.D.No.117 of 2002 was challenged by the respondent before this Court in Writ Petition No.9780 of 2007 only insofar as the Tribunal denied full back wages to the respondent. The petitioner also filed writ petition in W.P.No.10600 of 2007 challenging the entire award that is passed in favour of the respondent. The learned Single Judge clubbing both the matters has passed the order impugned in this writ appeal.
10. The respondent was also involved in six similar incidents earlier to the one that he was issued with the charge sheet. On a joint inquiry being conducted against the respondent and Sri Rajendran, Sri Rajendran was let off with a stern warning and the respondent was imposed penalty of dismissal from service. All these incidents happened in the year 1991. The respondent raised a dispute before the Tribunal in the year 1991 itself. The ultimate award of the Tribunal was on 1.12.2006. Before the learned Single Judge as well as before us, the contention of the respondent is that the order passed by the learned Single Judge is erroneous for the reason that the learned Single Judge without considering the fact that persons whose statements were recorded in the inquiry were not offered for cross-examination as they were not produced in the inquiry and the Tribunal had allowed the dispute filed by the respondent holding that the inquiry was not fair and proper. It is the further contention of the respondent is that the learned Single Judge could not have substituted the order of reinstatement directed by the Tribunal to that of payment of ex-gratia of Rs.2,50,000/- to the respondent.
11. In our considered view, the learned Single Judge has given cogent reasons for substituting the order of reinstatement to that of payment of lumpsum amount of Rs. 2,50,000/-. The reason that the learned Single Judge assigned is that the incident has occurred in the year 1991 and twenty-one long years had elapsed till date. The learned Single Judge also considered that the respondent was involved in six similar incidents earlier to the present one. As we have hereinabove noticed that within a span of five years of service, the respondent was involved in six similar incidents of assault prior to the dismissal in the year 1991. Twenty-one years had elapsed. It is now Twenty-eight years after the dismissal of the respondent, since the respondent has chosen to file this writ appeal five years after the order was passed by the learned Single Judge. The learned Single Judge noticing the fact that the respondent had been paid 75% wages from 21.01.2004 till December 2006 and from January 2007 till the date, totally amounting to Rs.1,33,500/- and having arrived at the conclusion that the punishment of dismissal imposed was too harsh or disproportionate to the proved misconduct and in order to meet the ends justice, the learned Single Judge ordered to substitute the order of reinstatement with payment of ex-gratia in a lumpsum amount of Rs.2,50,000/-. In our considered view, the learned Single Judge has viewed the matter leniently, even in the face of the respondent being involved in six similar incidents of assault in a span of five years period of service between 1986 and 1991, in granting ex-gratia amount, in substitution of the order of reinstatement to meet the ends of justice. We are in respectful agreement with the order passed by the learned Single Judge.
12. For the aforesaid reasons, the writ appeal being devoid of merits, is dismissed. There shall be no order as to costs.
Sd/- JUDGE Sd/- JUDGE Cs