IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI WRIT APPEAL No.1279/2018 (L-RES) BETWEEN:
M/S. OTTO BLIZ (INDIA) PVT. LTD., 5/A5/B/6A, KIADB INDUSTRIAL AREA, DODDABALLAPURA, BANGALORE – 561 203.
REP. BY ITS MANAGING DIRECTOR S.K. HARISH. ... APPELLANT (BY SRI B.C. PRABHAKAR, ADVOCATE) AND:
SRI A. LOKESH S/O. APPANNA AGED ABOUT 38 YEARS, RESIDING AT NO.606/196, NEAR SHIVA TEMPLE, RAJANAKUNTE, BANGALORE – 560 064. ... RESPONDENT (BY SRI S. VICTOR MANOHAR, ADVOCATE) ***** THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE PORTION OF THE ORDER DATED 07/03/2018 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.4477/2015 I.E., IN SO FAR AS DISMISSING THE WRIT PETITION FILED BY THE APPELLANT IS CONCERNED AND ALLOW THE WRIT PETITION FILED BY THE APPELLANT IN THE W.P.NO.4477/2015.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Appellant herein is the employer while respondent is the workman. Appellant is aggrieved by a portion of the order of the learned Single Judge, passed in W.P.No.4477/2015 dated 07/03/2018 connected with W.P.No.16297/2015, by which the direction issued by the Labour Court in I.D.No.37/2013 in award dated 22/11/2014 to the effect that appellant herein to give a fresh appointment to the respondent has been affirmed.
2. Brief facts of the case are that appellant is a registered private limited company with work force of about 85, governed by Certified Standing Orders. The respondent-workman was appointed as Turner in the appellant-Company on 12/10/1995. On 03/01/2013, the appellant served a letter to respondent stating he was absent for 38 days during 2012. Pleading his illness as the reason for his absence, the workman submitted his explanation along with medical certificate, which was not accepted by the appellant. Consequently, the appellant served him the charge-sheet cum call notice dated 01/03/2013, which was refuted with an explanation by the respondent. Being not satisfied with the same, appellant company initiated a domestic enquiry on 27/03/2013 and upon conclusion of the enquiry, the workman was dismissed on 18/06/2013.
3. Challenging his dismissal order, respondent raised an industrial dispute before the Principal Labour Court, Bengaluru in I.D. No.37/2013. The Labour Court upon holding the domestic enquiry as fair and proper, ultimately, dismissed the claim statement by award dated 22/11/2014 (Annexure “S”) as under:
“AWARD The claim statement is dismissed in part. It is dismissed for the relief of reinstatement, full back wages, continuity of service etc The management M/s.Otto Bliz (India) Pvt. Ltd., Bangalore is directed to give fresh appointment to the first party Mr.A.Lokesh (Workman).”
4. Being aggrieved by the said order, both the appellant herein as well as the respondent – workman filed their respective writ petitions before the learned Single Judge.
5. Learned Single Judge dismissed W.P.No.16297/2015 filed by the workman, as a result, that portion of the award dismissing the claim petition was affirmed by learned Single Judge holding that the workman would not be entitled to relief of reinstatement, back wages or continuity of service. However, further direction issued by the Labour Court to the appellant – management was to give a fresh appointment to the respondent – workman. It is only the latter direction which was challenged by the appellant – management in W.P.No.4477/2015, the learned Single Judge has also affirmed the said direction and has dismissed the writ petition filed by the appellant – management.
6. We have heard learned counsel for appellant.
7. It is the contention of learned counsel for appellant that the consequent direction issued by the Labour Court is contrary to the earlier direction issued by the Labour Court whereby, the claim petition of the respondent – workman was dismissed and no relief of reinstatement, no back wages or continuity of service was granted. It is further contended by the learned counsel for appellant – management that when the Labour Court as well as the learned Single Judge found that the respondent – workman was not entitled for reinstatement, there could not have been a direction to the management to give a fresh appointment to the workman. He submitted that even by exercising power under Section 11-A of the Industrial Disputes Act, 1947 [hereinafter, referred to as “the Act”], such a direction could not have been issued.
8. Per contra, learned counsel for respondent has supported the said direction issued by the Labour Court which has been affirmed by the learned Single Judge.
9. However, we find that on a reading of Section 11-A of the Act, the Labour Court could have exercised powers only when the order of the discharge or dismissal was set aside and there was a direction for reinstatement and on such condition precedent, give any other relief to the workman including the award of any lesser punishment in lieu of dismissal, as the circumstances in the case may require.
10. In the instant case, firstly, there is no setting aside of the order of dismissal inasmuch as the claim petition has been dismissed even though there is an observation that the penalty of dismissal may have been harsh. There is no direction to reinstatement with both back wages and continuity of service etc. In absence of such condition precedent, the Labour Court could not have given a consequential direction to the management to give a fresh appointment to the respondent – workman. The same also cannot be construed to be a “lesser punishment” in the context of Section 11-A of the Act.
11. In the circumstances, that portion of the order of the learned Single Judge, who has affirmed the direction of the Labour Court, directing the appellant – management to give a fresh appointment to the respondent – workman is set aside.
12. Hence, the appeal is allowed and disposed of in the aforesaid terms.
Parties to bear their respective costs.
In view of the *disposal of the appeal, all pending applications stand disposed.
Sd/- JUDGE Sd/- JUDGE *mvs *Corrected V.C.O. dated 14.02.2020