IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.404 of 2012 (L-TER) BETWEEN:
THE MANAGEMENT OF M/S. AGROMORE LTD. MYSORE ROAD BANGALORE – 560026 REPRESENTED BY ITS MANAGING DIRECTOR (BY SRI. S. GURUPRASANNA, ADVOCATE) AND:
SRI. R. MANNAJI RAO SON OF LATE RANOJI RAO AGED ABOUT 64 YEARS No.61, INDIRA COLONY RPC LAYOUT, VIJAYANAGAR BANGALORE – 560026 …APPELLANT …RESPONDENT (BY SRI. VIKRAM PHADKE, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN WRIT PETITION No.27404 OF 2005 DATED 30.09.2011.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT Appellant herein is the respondent in the writ petition and the respondent herein is the petitioner. The parties are referred to as per their rank before the learned Single Judge.
2. The brief facts of the case are as under:
The petitioner was appointed as a Helper (designated as Operator) in the year 1965 and he passed II Boiler Attendant Examination in the year 1978. His wages were also revised and his wages was fixed at Rs.400/- per month. On 18.09.1985, when he was allotted the work of conversion of 2,4- D Sodium Salt by the respondent, he refused to do the work on the ground that he was allotted the work of formulation of phosphating chemicals (deoxidine 170), and in the afternoon, he applied for leave and went away. The above referred behaviour of the petitioner, was unusual. His explanation was called for, vide letter dated 23.09.1985. He explained in his reply dated 03.10.1985, that he had not refused to do the work allotted as per the instructions of his superior, but, in fact he was unable to do the work on account of his body pain, especially of shoulder. He further assured that he would not be found wanting whenever there was a call of duty and his bodily weakness should not be taken as an intentional one. As the explanation offered by the petitioner was not found to be satisfactory, an inquiry was initiated. The inquiry officer found him guilty of misconduct of disobedience and indiscipline. On 12.05.1986, the petitioner was dismissed from service. Aggrieved by the order of dismissal, petitioner raised a dispute before the Principal Labour Court, Bangalore, by way of Reference under Section 10(1)(C) of the Industrial Disputes Act, 1947 (‘the ID Act’ for short). The Labour Court, by order dated 27.11.1997, held that the domestic inquiry was not fair and proper and offered opportunity to the parties to adduce evidence and produce documents. On appreciation of pleadings, and the oral and documentary evidence, the Labour Court held that the charges leveled against the petitioner, as proved. But the Labour Court, by exercising discretion under Section 11-A of the ID Act, held the penalty of dismissal as disproportionate. The Labour Court, under the award dated 28.02.2004, converted the order of dismissal into one of compulsory retirement. The petitioner being aggrieved by the award of the Labour Court, filed Writ Petition No.27404 of 2005 before this court. The learned Single Judge allowed the writ petition and set aside the award of the Labour Court dated 28.02.2004, passed in Reference No.280 of 1987 and the order of penalty dated 12.05.1986, was set aside and further held that the petitioner is entitled to 50% backwages from the date of dismissal till the date of superannuation of the petitioner when he attains the age of 60 years, with continuity of service and consequential benefits. The respondent, aggrieved by the order dated 30.09.2011, passed in Writ Petition No.27404 of 2005, has filed the instant writ appeal.
3. Heard the arguments of learned counsels.
4. The petitioner was working in the respondent-Establishment. While discharging his duty, the petitioner was asked to do manual job and the same was refused by him. Treating it as disobedience, is impermissible under law. The Labour Court, based on its reasoning, mainly relying upon Ex.M3 series, i.e., work allocation and executed book, has modified the order of dismissal. However, Ex.M3 series does not contain even a single counter-signature of the workman claimed to have performed the job as mentioned in the said book. The respondent has never acknowledged or admitted the existence of such a book. Ex.M3 contains entries wherein it is shown that the petitioner did job on 12.11.1985, but the fact is that on 12.11.1985, the petitioner was under suspension. The fact proves beyond doubt that Ex.M3 series are concocted documents. So the Labour Court, without considering the contents of the document in Ex.M3 and the date of suspension of the petitioner and other documents, wrongly came to a perverse conclusion.
5. The petitioner was an office bearer in the Trade Union of the workers in the respondent– Establishment and taken up the cause of workers. He has refused to sign the memorandum of settlement dated 11.06.1985, as the said settlement was prejudicial to the interest of the workman. For non-signing the memorandum of settlement, he was victimized by passing the order of dismissal from service. On going through the records, it is a clear-cut case of victimization. The respondent has failed to prove and establish the charges leveled against the petitioner. During the pendency of the proceeding, the petitioner has attained the age of 60 years and hence, the question of reinstatement will not arise. The learned Single Judge, considering the law laid down by the Hon'ble Supreme Court in GAMMON INDIA LIMTIED VS. NIRANJAN DASS [(1984) 4 SCC 501] has held that the petitioner is entitled for backwages and all monetary benefits from the date of dismissal till the date of superannuation.
6. The learned counsel for the respondent submitted that the company has stopped operation and land was acquired by the government.
7. Taking into consideration the submission made by the learned counsel for the respondent that since the company has stopped its operation and since the land has already been acquired by the government, they are not getting any profit, and hence they are unable to pay more amount in lieu of backwages. Hence, we are of the considered opinion that 40% backwages will be appropriate.
8. In view of the above reasons, we are of the considered view that the learned Single Judge was justified in allowing the writ petition. In view of the above reasons, we proceed to pass the following :
Order The writ appeal is allowed in part.
The order dated 30.09.2011 passed by the learned Single Judge in Writ Petition No.27404 of 2005 is modified only to the extent that the petitioner is entitled for 40% backwages from the date of dismissal till the date of superannuation, with continuity of service and consequential benefits.
The respondent is directed to pay the amount within a period of 8 weeks from the date of receipt of a copy of this order, without compelling the petitioner for execution.
The remaining portion of the order passed by the learned Single Judge remains unaltered.
Ordered accordingly.
Sd/- JUDGE Sd/- JUDGE RD