IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No.34253/2017 (L-TER) Between :
Management of M/s. Sun TV Network Ltd., Murasoli Maran Towers, #73, MRC Nagar Main Road, MRC Nagar, Chennai-600028, and Branch situated at Maran Towers, No.9, Bruntun Road, Off M. G. Road, Bengaluru-560025, Represented by its Legal Officer. …Petitioner (By Sri K. Ramachandran, Advocate for Sri Ravi M.R.C., Advocate) And :
Manjunatha T., S/o. V. Tippeswamy, Aged about 49 years, R/at No.1003/1, 9th Main, 2nd Cross, BSK 1st Stage, Srinivas Nagar, Bengaluru-560050. …Respondent This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the award and the order dated 18.10.2016 passed by the presiding officer, II Addl. Labour Court, Bengaluru in I.A.No.56/2012 ordering the petitioner management to reinstate the respondent with 50% back wages, consequential benefits and continuity of service vide Annexure-A and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following :
ORDER The petitioner has challenged the legality of the award dated 18.10.2016, passed by the II Addl.Labour Court, Bangalore, whereby the learned Labour Court has allowed the claim statement of the respondent-workman, and has set aside the termination order dated 1.10.2012, and has directed the petitioner-Management to reinstate the respondent-workman, with 50% backwages and consequential benefits, with continuity of service.
2. In a short compass the facts of the case are that on 21.7.2010, the respondent-workman, Mr. Manjunath T., was appointed as a reporter with Udaya Varthegalu in the News Department. Although it is claimed that he was appointed on a contractual basis for a period of three years, but by the letter dated 27.1.2011, his services were confirmed by the petitioner-Management. On 29.8.2012, the workman received a letter, wherein certain allegations against him were made, namely that he had abused one Mr. Naveen Kumar, a driver of the Management, with filthy language, and that he had also misbehaved with the then Manager, Mr. Manoj Kushalappa, on 29.8.2012, around 2.15 p.m. The workman denied the said allegations. However, when the workman reported for work on 29.8.2012, he was denied entry by the Security Guard. Thereafter, on 1.10.2012, the workman received a letter, terminating his services. The said letter was enclosed with a cheque of Rs.22,635/-. According to the termination letter, the respondent’s services were terminated on the ground that he was absent from work from 1.9.2012.
3. Since the workman was aggrieved by the termination order, he raised an industrial dispute under Section 10(4-A) of the Industrial Disputes Act, 1947 (`the Act’ for short). After service of notice upon the petitioner, the petitioner filed its counter statement. In order to support its case, the respondent –workman examined himself, and submitted six documents. In turn, the petitioner examined two witnesses, and submitted nine documents. After going through the oral and documentary evidence, the learned Labour Court passed the award in the aforementioned terms. Hence, this petition before this Court.
4. Mr. K. Ramachandran, the learned counsel for the petitioner-Management, has raised the following contentions before this Court :-
Firstly, according to the appointment letter dated 21.7.2010, the appointment was strictly on contractual basis. According to condition No.11 of the appointment letter, his services could be terminated by giving one month’s notice, or in lieu of one month’s remuneration without assigning any reasons whatsoever, and without any liability. Since the petitioner had received certain complaints against the misbehavior, and misconduct committed by the workman, one month’s notice was given to the respondent- workman, and in fact, one month’s salary was also paid to the respondent.
Secondly, since the appointment was on contractual basis, the petitioner had clearly pleaded that it is a case which falls within the exception of Section 2(oo)(bb) of the Act. Therefore, the learned Labour Court was not justified in concluding that the respondent was not appointed on a contractual basis, and in denying the benefit of Section 2(oo)(bb) of the Act to the petitioner.
Lastly, that the petitioner had proved its case of misconduct committed by the respondent-workman by examining Mr.Manoj Kushalappa as MW-1, and Mr. Naveen Kumar as MW-2. Therefore, the impugned award deserves to be interfered with by this Court.
5. Heard the learned counsel for the petitioner, and perused the impugned award.
6. It is, indeed, trite to state that the nomenclature used in the appointment letter does not necessarily clinch the issue. Like any other document, the entire appointment letter has to be read as a whole. Therefore, merely because the appointment letter dated 21.7.2010 claims to appoint the respondent-workman on “a contractual basis” for a period of three years, it cannot be ipso facto accepted that the appointment is on “a contractual basis”.
7. A bare perusal of the appointment letter dated 21.7.2010, brings out certain salient features : firstly, although the appointment letter claims that it is a contractual appointment, condition No.5 of the appointment letter states that “the respondent would be placed for a probation period of six months.” If it were to be, indeed, a contractual appointment, there is no need to place a person on probation. For, in case the performance of a contractual employee is found to be deficient, his services could be terminated. The concept of “probation period” is generally applicable to a person who is appointed on a regular and permanent basis. Therefore, condition No.5 belies the statement of the petitioner that the appointment of the respondent-workman is a contractual one.
8. Moreover, the workman produced the confirmation letter dated 27.1.2011. According to the learned Labour Court, in the confirmation letter, the performance of the respondent-workman was lauded. If it had been a contractual appointment, the question of issuing a confirmation letter could not have arisen.
9. Clause 8 of the appointment letter dated 21.7.2010 further states that “this appointment shall be deemed to have been renewed and shall be in full force till the employee continues to receive the monthly remuneration from the employer and this clause shall survive even after expiry of the term of this offer letter.” Thus, the service of the respondent-workman would be deemed to be continued, even after the end of three year period.
10. Most importantly, Clause 20 stipulates “the age of superannuation”. It clearly states that “you will retire from the services as per the prevailing policy of the Company.” Obviously, if the appointment were a contractual one, that too, for a period of only three years, the question of spelling out the retirement age would not even arise. Although, the learned counsel for the petitioner had argued that a particular clause exists in case the employee continues to serve the petitioner till he reaches the age of superannuation, and therefore, the said clause has been kept in the appointment letter by way of abundant caution, but even the said argument is merely a cover-up. For, in case the person were to retire at a particular date, and in case the appointment continues to be a “contractual” one, nothing prevents the petitioner from limiting the period of contract when the contract is being renewed for the last time. As and when the employee is near the age of retirement, obviously the employer would know the exact date on which the employee retires. Thus, the contract could be limited to prior to the date of retirement. Hence, there was no need for these clauses to exist in the appointment letter, if, indeed, the appointment was a contractual one.
11. Considering these particular conditions in the appointment letter, the conclusion is inevitable that the appointment letter dated 21.7.2010 has been worded extremely cleverly. But, the fact remains that the workman was not only appointment on a regular basis, but even his services had been confirmed by the confirmation letter dated 27.1.2011. Therefore, the respondent was appointed on a permanent basis.
12. Interestingly, the termination letter claims that the respondent’s services are being terminated on the ground of unauthorised absence. Yet the petitioner had pleaded a case that the reason for terminating the respondent’s services was due to his misbehavior with two employees, namely Mr. Manoj Kushalappa, MW-1, and Mr. Naveen Kumar, MW-2.
13. Of course, Mr. K. Ramachandran, the learned counsel for the petitioner, has pleaded that the petitioner has established the case of misconduct committed by the respondent. However, a bare perusal of the testimony of Mr. Naveen Kumar, MW-2, clearly reveals that, in his affidavit, he has made a bald statement that “on 27.8.2012, the first party abused me with bad words and threatened me with dire consequences.” However, the witness has not delineated upon “bad words”, and “the threats” held out to him by the respondent. Thus, his statement is vague and a general statement, without any evidentiary value.
14. Similarly even Mr. Manoj Kushalappa (MW-1) states that “since he had received a complaint from Mr. Naveen Kumar, he went to see the respondent in the News Section. But the first-party instead of being apologetic, started abusing and threatened with dire consequences, by questioning the authority and behaved in very rude and disorderly manner.” Even this witness does not specify the bad words allegedly used by the petitioner. Thus, again the statement is omnibus one, and does not buttress the case of the petitioner. Since neither of the two witnesses make out a case of alleged misconduct, since the petitioner does not even prove the alleged offence, since the respondent was a permanent employee, obviously, his services could not have been terminated without following the procedure established by law.
15. Mr. K. Ramachandran, the learned counsel for the petitioner, also pleaded that the benefit of Section 2(oo)(bb) of the Act, should have been given to the petitioner. However, as the petitioner has failed to establish the fact that the appointment was a contractual one, the benefit of the said provision certainly cannot be extended to the petitioner.
16. Since the learned Labour Court has given cogent and convincing reasons for allowing the claim petition of the workman, this Court does not find any illegality or perversity in the award dated 18.10.2016. This Petition is devoid of any merit. It is, hereby, dismissed.
*bk/-
Sd/- JUDGE