1. This Writ Petition was posted for hearing on 27.9.1985 and after arguments were heard, the matter was adjourned to to-day for further hearing since it was submitted by the Learned Counsel for the first respondent-workmen, who appeared for him as amicus curiae, that despite the order made by this Court requesting him to appear for the workman he (the workman) had expressed his disinclination to accept him as his Counsel and wanted to argue the matter himself. Accordingly, the workman's name was shown in the cause-list and though his name was called out thrice, he is absent.
2. The petitioner is the Management of the City of Bangalore Municipal Corporation Employee's Co-operative Society Limited, which is a society consisting of employees of the Bangalore City Municipal Corporation and it has challenged the award of the Additional Labour Court, Bangalore, directing reinstatement of the first respondent-workmen with the 50 per cent backwages, continuity of service and other consequential benefits with immediate effect.
3. The dispute referred to the Labour Court for adjudication was whether the termination of the services of the first respondent - workman was justified with effect from 25.1.1975. Though this reference was made on 10th May, 1976, the award of the Labour Court was made only on 18th September, 1982, after a lapse of nearly 6 years.
4. According to the petitioner, the workman was employed as Second Division Clerk on 25th June, 1973 and was on probation for a period of six months. His work and conduct was not found satisfactory during the probationary period and hence in order to give him an opportunity to improve his performance and conduct, his probationary period was extended by a further period from 25.12.1973. Even during the extended period of probation, the workman was not attending to his work regularly and used to abstain from work without permission or prior approval from his superiors. Many warnings were issued to him, but he used to be absent from duty without prior permission and finally on 14.6.1974, a show cause notice was issued to him to submit his explanation within three days as to why suitable disciplinary action should not be taken for violating the instructions of then Honorary Secretary of the petitioner - Society. This show cause notice was followed by two more show cause notices dated 12.7.1974 & 1.10.1974, but the workman did not reply to any of these notices. He was finally served with a show cause notice dated 1.1.1975 as per Annexure-F filed in the Writ Petition to which the workman did not give any reply. The case of the petitioner is that in view of his unsatisfactory performance, arrogant and indecent behaviour it was constrained to terminate his services with effect from 25.1.1975 as per a memo dated 24.1.1975 filed as Annexure - G in the Writ Petition. An appeal was preferred by the workman to the General Body of the petitioners-Society. The General Body, by the resolution dated 25.11.1975 resolved that a committee of its members should go into this question and submit its report. The duly constituted committee recommended that the action taken by the petitioner-Society was in order. Thereafter, the workman raised a dispute and obtained reference from the State Government for the adjudication of the dispute.
5. The workman in his statement of claim filed before the Labour Court contended that the order of termination was bad in law since it amounted to unfair dismissal and victimization and therefore he was entitled to reinstatement with the backwages and continuity of service. Before the Labour Court, it is common ground, that the petitioner-Society sought permission the Labour Court to adduce evidence in support of the alleged misconduct against the workman on the ground that no enquiry could be held by it before termination of his services. The contention of the workman was that he was entitled to relief under Section 18(11) of the Karnataka Co-operative Societies Act; that in view of the decision of the Supreme Court in the Express News Paper Limited vs. Labour Court, Madras & Another (1964 - I - LLJ - 9), he was deemed to be a permanent employee and termination of his services without enquiry was bad in law. The first contention of the workman was rejected by the Labour Court on the ground that the provisions of the Industrial Dispute Act, 1947, are applicable to the dispute in question and not the provision of the Karnataka Co-operative Societies Act and therefore Section 18 of the Karnataka Co-operative Societies Act would not be applicable to the facts of this case. The Labour Court placed reliance on the decision of the Supreme Court in the Life Insurance Corporation of India vs. D. J. Bahadur & Others (1981 - I - LLJ - 1) and accordingly it rejected the contention of the workman based on the provisions of the general Act, namely, the Karnataka Co-operative Societies Act. But the second contention raised by the workman that the termination of his services was bad in law since no enquiry was held was accepted by the Labour Court and it made the impinged award. The plea of the petitioner to rely on the evidence on the alleged misconduct against the workman was turned down by the Labour Court on the ground that the petitioner having not mentioned the specific charges of the misconduct in the order of the termination it was not open to it to rely on any evidence before the Labour Court and the termination order itself was bad in law. The Labour Court on this point, followed the decision of the Supreme Court in Workmen of Motipur Sugar Factory (P) Ltd. vs. Motipur Sugar Factory (P) Ltd., (1965-II-LLJ-162) the decision of this Court in Basavalingaiah Shivalingaiah Hiremath vs. The Management of Shri Ganeshar Textile Mills & Another (1979 Lab IC 155) and a decision of the Delhi High Court in Malkhan Singh vs. Union of India & Ors (1981-II-LLJ 174). According to the Labour Court, these decisions laid down, that the petitioner should confine itself to the charges farmed against the workman in the domestic enquiry on the basis of which the penalty was imposed; that in the instant case no enquiry was held and no charge was farmed and the Petitioner had not even produced the copy of the termination order issued to the workman. However, the workman had produced a copy of the termination memo dated 25th January, 1975 which only showed cause notices dated 14th June, 12th July, 1st October, 1974 and 18th January, 1975 (Exhibits M-6, M-8, M-10, M-36, and M-45 before the labour Court) and therefore the Labour Court came to the conclusion that the petitioner could not be allowed to lead the evidence to prove the misconduct. It should be noted at this stage that the Labour Court had already recorded the evidence of the parties on the alleged misconduct against the workman. Having permitted the parties to leads oral evidence on this point, it is rather strange that the Labour Court took this view and made the impugned award without placing any reliance on the evidence so recorded. If the Labour Court was of the view that the Management could not rely on any evidence in support of the charges of alleged misconduct, it should not have wasted its time in recording the evidence of the parties on this point and made the impugned award without placing reliance on the said evidence. That only shows that the Labour Court was not sure of its own ground and had wasted its time without any purpose for recording evidence over a period of nearly two-and-a-half years. The recording of the evidence commenced on 18th December, 1979 and it was concluded on 21st July, 1981.
6. The Learned Counsel for the Management contended that the Labour Court was in error in coming to the conclusion that it could not permit the petitioner-Society to lead any evidence in support of the alleged misconduct against the workman. His grievance is that the Labour Court misunderstood and misapplied the ruling of this Court in 1979 LAB. I.C. 155 (supra) and therefore the impugned award is vitiated by non-application of mind to the relevant principles of law which do not admit of any doubt in industrial jurisprudence. In 1965-II-LLJ-162 (supra) the Supreme Court had rules that at P 169 - 170.
'..... Where an employer has failed to make an enquiry before dismissing or discharging a workman, it is open to him to justify the action before the tribunal by the leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where the domestic enquiry has been properly held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or the discharge was justified. We may in this connection refer to Sasa Musa Sugar Works (P) Ltd. vs. Shobrati Khan (1959-II-LLJ-388) .... It was pointed out that 'the important effect of omission to hold an enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out'. It is true that three of these cases (quoted therein) except Phulbari Tea Estate case (1959-II-LLJ-663) were on applications under Section 23 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under the Section 10 of the Industrial Disputes Act, 1947. In either case, if the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was the proper. Phulbari Tea Estate case (vide supra) was on a reference under Section 10 and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry, in our opinion, stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on the facts the order of dismissal or discharge was a proper.
If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the Industrial, Tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another Industrial Dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitled the employer to claim the benefit of the domestic enquiry.'
This case was followed by this Court Ganeshar Textile Mills case (supra). This Court could not have departed from the view taken by the Supreme Court in Motipur Sugar Factory case. What this Court observed was that :
'Therefore always enquiry by the Labour Court or Tribunal must confine itself to the charge framed against the workman in the domestic enquiry or charges on the basis of which the penalty was imposed. Therefore it is not open to the management to level new charges against a workman which did not figure in the domestic enquiry or which did not form the basis to the order in which penalty was imposed and to adduce evidence in support thereof before the Labour Court.'
So, this Court made it clear that the Management will have to confine its case before the Labour Court by relying on the charges framed in the domestic enquiry or, the charges on the basis of which the order of dismissal was imposed on the workman. Admittedly in the instant case, there was no enquiry by the competent authority before the order of dismissal was made under Annexure - G in the Writ Petition (Ex. W-90 before the Labour Court). But the memo of dismissal clearly made a reference to the 'show cause' notices to which I have already adverted to in para - 5 of my order. There were as many as five 'show cause' notices issued to the workman alleging various acts of misconduct and therefore the order of dismissal made under the Annexure - G does satisfy the requirement of law laid down by this Court in Ganeshar Textile Mills supra. In my view, the Labour Court misdirected itself in coming to the conclusion that no charges had been framed at all against the workman. Charges had been framed as is evident from the five 'show cause' notices issued to the workman. These charges of course were not the subject matter of enquiry. These charges are :
1.1. That the workman has been instructed to write in the Movement Register Vide Memo No. COS 149/73-74 dated 10th May, 1974.
2. That he has agreed for the same in his application dated 11th May, 1974.
3. That on 13th June, 1974 he has left the Society at 5.47 P.M., with Sri Channaiah, Driver and returned at 6.05 P.M.
4. That he has not mentioned his movement in the Movement Register.' (See Ex. M.6, dated 14th June, 1974).
2. 'Sri E. V. Lakshminatha Gowda, Clerk is hereby directed to show cause within three days as to why action should not be taken against him for having struck and recording his remarks in the remarks column of the movement register maintained in the office, as this column is meant only for the use of the undersigned or the person authorised in this behalf' (See Ex. M-8, dated 12th July, 1974).
3. 'That his work is very unsatisfactory, that his activities are contrary to the duties and the responsibilities entrusted to him as per the agreement, and undertaking agreement executed by him, that he has gone beyond his limits and has made allegations against the Managing Committee and has, questioned the validity and the very existence of the Managing Committee in his letter dated 3rd July, 1974 even though his duty to carryout the orders of the Managing Committee and an employee of the Society in spite of issue of notice dated 11th April, 1974, that he has disobeyed the orders by not writing movements in the movement register as per memo dated 10th May, 1974 and show cause notice dated 14th June, 1974 and he is in the habit of asking explanations and questioning the validity of the orders issued to him that he is in the habit of applying for leave often and often thus causing inconvenience to the work in the Society as well as to members that he talked indecently and behaved rudely with the undersigned before the Vice-Chairman and other directors and members on 16th September, 1974 and finally he had failed to complete probationary period to the satisfaction of Managing Committee even after giving sufficient opportunity to improve his conduct and efficiency of work, that he is in the habit of visiting cloth shops often and often though he is not expected to visit the same.' (See Ex. M-10 dated 1st October, 1974).
2. That on account of his frequent absence from duty, the Society work is being suffered very much and the members are complaining for not attending to their work then and there.
3. That he is in the habit of applying for the permission hours together in spite of memo No. 60/74-75 dated 12th September, 1974 intimating that his hours of permission would be adjusted in the leave.' (See Ex. M.36 dated 1st January, 1975).
5. 'Sri E. V. Raju, Clerk is hereby informed that the Committee of management at their meeting held on 8th January, 1975 have resolved to issue a show cause notice as to why disciplinary action should not be taken against him for having talked loudly in filthy language with the Hon. Treasure and threatening him before the other officials in the office of the Corporation Engineer during office hours on 21st December, 1974'. (See Ex. M-45 dated 18th May, 1975).
The management had its own reasons for not going through the enquiry. According to the Learned Counsel for the Management, the workman took up a defiant attitude when he was called upon to appear before the Enquiry Officer. Under Ex. M-59, the Management by its memo dated 16th August, 1974; had appointed one Jayarama Reddy, Corporation Prosecutor of the Bangalore Corporation as Enquiry Officer to conduct the enquiry against the workman. He was also requested to submit his finding within one month from the date of the memo. A copy of this memo had been served on the workman and it is clear from the reply dated 9th August, 1974 that he did not appear for the enquiry, but he wanted certain clarifications from the Management in regard to the earlier correspondence entered by him with the Management on the various show cause notices and several other matters unconnected with the alleged misconduct against him. Therefore, the reasoning of the Labour Court that the Management cannot be permitted to lead any evidence is contrary to the decisions of the Supreme Court and this Court and therefore this is a matter for my interference in these proceedings.
7. The next point for consideration is whether the matter has to go back to the Labour Court with a direction to appreciate the evidence on record and record its finding on the misconduct alleged against the workman. Ordinarily, I would have made a direction on these lines, but after a lapse of nearly 10 years from the date of termination of the services of the workman, the interests of justice would not warrant the remand of this matter to the Labour Court. Further, this Court in the light of the decision of the Supreme Court in Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazadoor Sabha & Others supra could re-assess the evidence on record and record a finding which the Labour Court was empowered to record in exercise of its power under Section 11A of the Act. Therefore, the evidence on record will have to be examined for ascertaining whether the petitioner had proved the alleged misconduct against the workman.
8. In proof of the alleged misconduct the petitioner had examined MW-1. Honge Gowda. MW-2, B. Ramakrishnaiah and MW-3, Siddappa. MW-1 is the honorary Secretary of the petitioner-Society. He had stated that the workman was appointed as a temporary clerk and he had executed an agreement under Ex. M.3 undertaking to abide by the conditions of service of the petitioner - Society; that his period of probation was extended from time to time and under Ex. M-5, the last of such orders was made extending the period of probation by six months with effect from 16th March, 1974; that upto 25th January, 1975 the workman was on probation; that the workman used to leave office without making any entries in the movement register and for the said misconduct he was served with the 'show cause; notice dated 14th June, 1974 as per Ex. M-6; that another show cause notice dated 13th June, 1974 was served on him; that he was not generally found in his seat and his conduct had resulted in inconvenience to the customer and hence an adverse remark was made by MW-1 in Ex. M-7 (Movement Register) at Ex. M-7(a); that on 12th July, 1974 another show cause notice was issued as he had struck off the blank portion in the movement register in order to prevent the Honorary Secretary from making adverse remarks and that show cause notice was produced as Ex. M-8; that on 1st October, 1974 another show cause notice was issued to him as he was doing unsatisfactory work and was acting contrary to the duties and responsibilities entrusted to him as per Ex. M-9; that in Ex. M - 11, instead of replying to the specific allegation of unsatisfactory work, the workman had questioned the authority of the petitioner to issue such a notice. Thereafter, he was issued with a warning notice as per Ex. M-12 to which he replied as per Ex. M-13 dated 10th April, 1974. This witness has proved the correspondence exchanged between the parties and they are marked as Exs. M-1 to M-60. In cross-examination, the workman did not challenge the veracity of the various documents marked through this witness. He was also not cross-examined regarding the unsatisfactory nature of his work and the extension of his probationary period from time to time. The only relevant question put to him, in my view, is whether any other employee was removed from service after his dismissal. This witness could not say anything on that. To a question from Court this witness said that Jayarama Reddy did not hold an enquiry since the workman did not turn up for enquiry and therefore he had not given any report.
9. Ramakrishnaiah MW-2, the second witness for the petitioner, has spoken regarding the complaint dated 11th December, 1974 marked as Ex. M-31. According to him, one peon of the petitioner-Society had brought a letter to him during office hours and he was told to come after office hours of the Corporation and then he received the same. On the same day after the officer hours he went to the office of the petitioner-Society and found that the workman had brought the letter to him at that time. He told the workman to give the letter to the Secretary since that was the proper channel. But the workman started discussing the matter. His behaviour at that time was not tolerable. He addressed him saying that the (MW-2) was not fit for the post of a Treasurer and he did not understand as to who had elected him. He was talking 'like that but after completing my work I went away'. On 21st December, 1974 at about 4.20 p.m., this witness was in the Engineering Officer of the Corporation and at that time the workman came to him with a letter. As usual he advised him to go and give the same to the Secretary of the Society but the workman went on talking to him in filthy language. The officials of the office knew about it. The workman did not go away though he (witness) had requested him to do so. Thereafter, he had to be forcibly sent away from the Engineering Office. He proved the complaint given by the staff of the Engineering department about this incident which is produced as Ex. M-35 before the Labour Court. This complaint had been signed by eight employees of the Corporation. He was cross-examined by the workman, but no suggestion was put to this witness about the two acts of misconduct specifically alleged against him. Neither this witness was cross-examined on the incident on 11th December, 1974 which related to the intolerable behaviour of the workman (he having said that this witness was not fit for the post of Treasurer and he did not understand who had elected him) nor the incident on 21st December, 1974 on which date the workman had used filthy language against this witness and therefore the alleged misconduct on 11th December, 1974 and 21st December, 1974 had been clearly proved against the workman.
10. The third witness is Siddappa (MW-3), who was the Honorary Internal Auditor of the petitioner-Society for the years 1973-74 and 1974-75. He had stated in his examination in-chief that on 10th January, 1975 he had visited the Society officer at 3.35 p.m., and at that time the workman was working in the Society. He was shouting. The Manager of the Society then came inside the Society office and the workman shouted at him and asked him who he was. The manager then told him that he might ask the Secretary. The workman then abused the manager in vulgar words. MW-3 therefore advised the workman not to use such language, but the workman did not listen to him, but continued shouting. He also threatened the manager that the consequences would not be good if any memos are issued. The workman then abused the managing committee members also. On this incident this witness gave a complaint to the management. This witness was cross-examined by the workman, but no suggestions are put to him that the incident which took place on 10th January, 1975 did not occur in the manner stated by this witness and therefore the alleged misconduct of uttering threatening and vulgar language against the manager of the Society as also against this witness is not challenged in cross-examination by the workman. So, on the evidence of these three witnesses the Labour Court could not have found any difficulty in holding the workman guilty of the three specific acts of misconduct committed by him on 11th December, 1974, 21th December, 1974 and 10th January, 1975. The gravity of the acts of misconduct proved against the workman was sufficient for the management to dismiss him from its services. As against the evidence of these witness who are not shown to be either interested witnesses or whose evidence in cross-examination has not been challenged, the workman had only examined himself. His deposition running up to twenty eight pages does not in any way offer a proper defence against the alleged acts of misconduct. He has told the Court the grievances he had about the working of the petitioner-Society, about the corruption prevailing amongst the officers and so on and so forth but he does not deny the allegations made against him.
11. In his deposition before the Labour Court, the workman had not denied the alleged acts of misconduct alleged as per Annexures C, D, E and F produced in this petition. Only regarding one incident on 18th January, 1975 (Ex. M - 45) he denied the same. Mere denial will not exonerate him. He was interested in denying this incident since it suited him. Even then, the other incidents on 11th December, 1974, 21st December, 1974 and 10th January, 1975 had not been denied by him. The misconducts alleged against him are therefore proved and those misconducts by themselves are sufficient to warrant his dismissal from the service of the petitioner-Society. The protection given to the workman in industrial law is not for his misconduct but against unlawful termination of his services by the management. The only change brought about by the Industrial Disputes Act is that whereas in Common Law an employer could dismiss a man on a month's notice or a month's wages in lieu of notice, he cannot dismiss his employee even on good notice except at the risk of having to reinstate him and pay him a large sum should the Industrial Tribunal find that the dismissal was not proper. That right given to the workman under the statute presupposes that he has done a good job for his employer. As observed by Lord Denning in Langston v. AUEW (1974) ICR 180 'A skilled man takes a pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all. He does it so as to keep himself busy and not idle. To use his skill and to improve it to have the satisfaction which comes of a task well done. Such as Long fellow attributed to The Village Blacksmith : 'Something attempted, something done, has earned a night's repose ....' To my mind, therefore, it is arguable that in these days a man has, by reason of an implication in the contract, a right to work'. That right to work is not be confused with a person's right to misconduct himself in the course of his employment. The Industrial Disputes Act which is modelled after the Trade Disputes Act in England does not say in so many words that every termination of the services of the workman should be preceded by a domestic enquiry. If a dispute is raised by the workman and referred to adjudication, then only the question comes up whether the employer had a good reason for the dismissal of the workman. That reason may relate to the capability or qualifications or to the conduct of the employee or to redundancy or that the employment of the workman was prohibited by a statute or some other substantial reason justifying the employee's dismissal. If there is a good reason for the dismissal of the employee, the next point for consideration by the Labour Court would be whether the employer followed the proper procedure. In this case it is on record that the workman had been given warning notices (Exs. M. 12 and M-14 before the Labour Court). He was also served with several 'show cause' notices. An Enquiry officer was appointed to go into the acts of misconduct against him. But the enquiry could not be held since the workman by his own conduct stalled the enquiry proceedings by raising all sorts of untenable objections. He was trying to mix up his personal grievances with the acts of misconduct alleged against him. Being an employee of the petitioner-Society he was expected to discharge his duties faithfully and if he had not done so, for acts of alleged misconduct against him, the employer was at liberty to terminate his services since he had a good reason to do so. Therefore, the failure of the petitioner to hold a domestic enquiry or the failure of the petitioner to mention the specific charges of misconduct in the letter of termination would not take away the jurisdiction of the Labour Court to consider the evidence adduced before it. As noticed earlier, the order of termination has specifically referred to all the five notices relating to misconduct alleged against the workman on five different dates. The only lacuna in the order of termination was that those charges were not enumerated or particularised. The decisions of the Supreme Court and this Court on this point nowhere lay down that the Labour Court is precluded from relying on the evidence adduced by the management. The Labour Court by misdirecting itself on a question of law has seriously prejudiced the right of the petitioner to terminate the services of its workman for the misconduct alleged against him and proved against him by the evidence of the witnesses whose credibility cannot be impeached as they happen to be responsible officials of the Corporation and also Honorary members of the petitioner-Society. Their evidence regarding the workman's misconduct, as noticed earlier, was not challenged in cross-examination. Therefore, the petitioner was justified in dismissing the workman and that would have entailed in no payment of compensation to the workman. But the order of dismissal would seriously prejudice the future career of the workman who is in his middle age. Therefore, the interests of the workman would be best served by making it a case of simple termination which in turn would attract the provisions of Section 25F of the Act. The compensation amount will be too meagre under the aforesaid provisions since the salary of the workman is only Rs. 205/-. Therefore, if a sum of Rs. 25,000/- is paid as lumpsum compensation it will enable the workman to rehabilitate himself by seeking suitable employment elsewhere. The petitioner has already paid a sum of Rs. 7000.00 pursuant to the order of this Court and therefore he shall pay the balance amount of Rs. 18,000/- within 8 weeks from this date in two equal installments. If the said amount is not paid as stipulated above, the workman would be entitled to interest at the rate of 12% from this date up to the date of realisation. If the workman were to go up in appeal and protract these proceedings, the direction regarding interest will cease to operate.
12. Accordingly the impugned award is modified as above. Parties to bear their own costs in these proceedings.