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Management of Belgaum D.C.C. Bank Ltd. Vs. Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 4326 of 1984
Judge
Reported inILR1985KAR1635
ActsIndustrial Disputes Act, 1947 - Sections 2A, 11A, 17 and 17(1)
AppellantManagement of Belgaum D.C.C. Bank Ltd.
RespondentLabour Court and anr.
Appellant AdvocateManjunath, Adv. for B. Thilaka Hegde, Adv.
Respondent AdvocateP.A. Kulkarni, Adv. for Respondents - 2
Excerpt:
.....no justification to award full back wages in the absence of even subsequent intention to join duty.;it is true normally whenever the order of dismissal is found to be unjustified full back wages has to be awarded. but in a case like this, in which prior to the imposition of the penalty of dismissal, punishment of reduction in rank was imposed and the workmen concerned had refused to join duty in the reverted post and that order had remained unchallenged, there was no justification to award full back wages, unless there was evidence to show that even though the workman had changed his attitude and had expressed his intention to join duty, disregarding the same, the employer proceeded to impose the penalty of dismissal from service. if the 2nd respondent had challenged the order..........letter inter alia he stated that so long the penalty order was in force he was not prepared to join duty at any place.2. thereafter the management bank considering the attitude of the second respondent, proposed to impose the penalty of dismissal from service against the second respondent, on 9-11-1976. the order dated 29-11-1976 (annexure-d) was made imposing the penalty of dismissal from service. the 2nd respondent, after the above order was made, raised an industrial dispute, under section 10(1) of the industrial disputes act and the state government referred the matter for adjudication to labour court, hubli. the impugned award was made by the labour court on 31st december 1982. the labour court held that the imposition of the penalty of dismissal from service was excessive......
Judgment:
ORDER

Rama Jois, J.

1. The Management of Belgaum District Central Co-operative Bank Limited has presented this Writ Petition praying for quashing the award of the Labour Court, Hubli, setting aside the order of the Management-petitioner dismissing second respondent from service.

The facts of the case in brief are as follows :

1. Respondent No.2 was holding the post of Secretary in the service of the District Central Co-operative Bank, Belgaum. Disciplinary proceedings were instituted against him in respect of certain misconduct alleged to have been committed by him. He was found guilty of the charges framed against him. The finding was accepted by the petitioner and an order dated 30th October 1976 (Annexure-A) was made imposing the penalty of reduction in rank by reverting him to the post of Second Division Clerk. On receipt of the said order, the second respondent addressed a letter dated 4-11-1976 to the petitioner. In the said letter inter alia he stated that so long the penalty order was in force he was not prepared to join duty at any place.

2. Thereafter the Management Bank considering the attitude of the second respondent, proposed to impose the penalty of dismissal from service against the second respondent, on 9-11-1976. The order dated 29-11-1976 (Annexure-D) was made imposing the penalty of dismissal from service. The 2nd respondent, after the above order was made, raised an industrial dispute, under Section 10(1) of the Industrial Disputes Act and the State Government referred the matter for adjudication to Labour Court, Hubli. The impugned Award was made by the Labour Court on 31st December 1982. The Labour Court held that the imposition of the penalty of dismissal from service was excessive. Having taken the said view, in exercise of its powers under Section 11-A of the Industrial Disputes Act, the Labour Court substituted the penalty of dismissal by the penalty of stoppage of two increments with cumulative effect. The Labour Court also directed that the second respondent shall be entitled to all the benefits including backwages. The said award was published in the Official Gazette after one year on 26th January 1984. Thereafter, this Writ Petition was presented by the petitioner.

3. Sri Manjunath, Learned Counsel for the petitioner submitted as follows :

The validity of the order imposing the penalty of reversion dated 30-10-1976 has not been challenged by the second respondent. It was also not the subject matter of reference. Addressing of the letter dated 4-1-1976(Annexure-B) in which second respondent refused to join to duty so long the punishment of reversion stood was not disputed, by the second respondent. In this situation, there was no alternative for the petitioner to impose the penalty of dismissal on account of extreme insubordination on the part of the second respondent, and disobedience of order of reversion. As the 2nd respondent himself had refused to join duty, it amounted to abandonment of service. The Labour Court had also found that the conduct of the second respondent was blameworthy, but nevertheless proceeded to substitute the penalty of dismissal from service by stoppage of two increments. In any event, the Labour Court was not justified in awarding backwages, as even if the order of dismissal had not been passed, the second respondent had determined not to join duty as a clerk.

4. Before the Labour Court, the petitioner produced a letter dated 4-11-1976 (Annexure-B) of the second respondent and pleaded that in view of the refusal on the part of the second respondent to join duty which amounted toin subordination and disobedience of orders and also abandonment of service. The management was justified in imposing the penalty of dismissal from service. After extracting the contents of the said letter the Labour Court stated thus;

'It is this letter which has brought him further trouble in his service. Of course the Management would be naturally annoyed when such a letter is received from a subordinate employee. It may prima facie amount to act of indiscipline on the part of the claimant.'

The Labour Court however, proceeded to state that having regard to the previous good record of service of the 2ndRespondent the Management should have taken lenient view and should not have proceeded to impose the extreme penalty of dismissal from service.

5. The Learned Counsel for the petitioners contends that once the Labour Court came to the conclusion that theconduct of the second respondent was blameworthy and that he had refused to join the post of clerk, its conclusion that the petitioner was not justified in dismissing the service of the second respondent was arbitrary and unreasonable.

6. It appears to me that in the present case the Tribunal could have also taken the view that the order of dismissal was justified. However, the Tribunal, in its discretion and having due regard to the past good record of service of the second respondent has considered that the imposition of penalty by way of stoppage of two increments would meet the ends of justice, I do not consider expedient to interfere with the said discretion exercised by the labour Court.

7. The Learned Counsel for the petitioner next contended that even assuming that the substitution of the penalty of dismissal from service by a lesser penalty was justified there was absolutely no justification for the Labour Court to have awarded full backwages even though it was clear that even if the order of dismissal had not been made by the petitioner, the second respondent had determined not to join duty at any place and had given written intimation to that effect. I asked the Learned Counsel for the second respondent as to whether the second respondent had, subsequent to the letter dated 4.11.1976 and before the order of dismissal dated 29.11.1976 written to the Bank that he was ready and willing to join duty at the lower post without prejudice to his right to challenge the order of reversion. The Learned Counsel submitted that the second respondent had not made any such representation. However, he pointed out that in the course of cross examination, the second respondent had stated thus:

'It is not true to say that I had no mind to continue in the service and hence I addressed letter Ex. M.6.'

The exhibit M, 6 is the same as Annexure-B. Relying on the above sentence, the Learned Counsel submitted that the statement in the cross-examination showed that the second respondent would have joined service in the lower post but for the passing of the order of dismissal.

8. I find it difficult to agree that such an inference is possible from the above sentence. The second respondent in his letter dated 4-11-1976 had categorically stated that he would not join at any place unless the injustice done to him (reversion) was set aside. Therefore it is clear that even if the order of dismissal had not been made by the petitioner there was no intention on the part of the second respondent to join service. The suggestion made for the petitioner, in the course of cross-examination, which was denied by second respondent was obviously, made with reference to the second point of dispute referred for adjudication viz., whether the second respondent had abandoned his service. The answer given by the second respondent was in the negative, in that he had not abandoned the service. From this no inference can be drawn to the effect that the 2nd respondent had changed his mind and was ready and willing to join the lower post to which he was reverted.

9. It is significant that the order of reversion was made on 30-10-1976 and the order of dismissal was made on 29-11-1976. Even on the basis that the second respondent had addressed a letter dated 4-11-1976 in anger, he had twenty five days time before the impugned order, to retrace his step and to intimate his willingness to join duty as a clerk without prejudice to his right. He did not do so.

10. Talking all these facts and the circumstances into account, I am of the opinion that granting of full backwages was not justified. It is true normally whenever the order of dismissal is found to be unjustified full backwages has to be awarded. But in a case like this, in which prior to the imposition of the penalty of dismissal, punishment of reduction in rank was imposed and the workmen concerned had refused to join duty in the reverted post and that order had remained unchallenged, there was no justification to award full backwages, unless there was evidence to show that even though the workmen had changed his attitude and had expressed his intention to join duty, disregarding the same, the employer proceeded to impose the penalty ofdismissal from service. If the 2nd respondent had challenged the order of reversion and that was also held to be illegal, then the matter would have been different. Therefore, it appears to me, to compel the petitioner to paybackwages to the 2nd respondent though the latter is at fault is unfair and unjust. However, on humanitarian grounds I decline to set aside the direction for payment of backwages in its entirety and make an order reducing the backwages payable to 50%.

11. Before concluding I consider it expedient to invite the attention of the Government, to the inordinate delay that has occurred in publishing the award. The Labour Court made its award on 31st December 1982 and submitted the same to the Government. It is published in the Official Gazette on 26th January 1984. This had caused hardship not only to the workman but also to the Management. I have come across several such instances and in certain cases the delay which has occurred is much more. Section 17 of the Act requires the Government to publish the award within one month from its receipt. The view taken by the Supreme Court in Remington Rand of India Ltd. -v.- Their Workmen, : (1967)IILLJ866SC to the effect that the period mentioned in Section 17(1) is not mandatory, meant that an award published after 30 days from its pronouncement was not illegal and not that Government would without any justification take its own time to publish the award. When it is said, that the provision is directory, all that it means is that non-compliance does not result in the invalidity of an Act, made in violation of it, but that does not mean that the authority can disregard it. In this behalf the observations of the Supreme Court in Rabu Drigraj Kuer -v.- Raja Sri Amar Krishna Narain Singh, : [1960]2SCR431 are apposite. They read :

'A provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision, however, gives no discretionary power to do or not to do the thingdirected. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity.

In other words a directory provision, unless it is impracticable, has to be complied with.

12. In particular, Section 17(1) which requires the publication of the award within 30 days of its receipt, having regard to the object of the Act namely expeditious disposal of industrial disputes, should not be disregarded. Delay in publication is therefore unpardonable. It would amount to withholding the award given by the Tribunal by the executive. Therefore, immediate steps to ensure publication of awards within 30 days should be taken by the Government.

13. I also suggest the following steps to ensure speedy publication:

(i) In many cases the awards consists of large number of pages because the Labour Court or the Tribunal has to make considered order on consideration of the pleas and evidence adduced by the parties. The printing of such a lengthy award of the Tribunal labour Court in the official gazette which involves considerable cost of printing, stationery and labour, serves no purpose. Therefore, the Government, in exercise of its powers under Section 17(1) could direct the publication of only operative portion of the award. This step not only would ensure speedy publication, but also save considerable amount of money, stationery and labour of the Government Printing Press.

(ii) In cases of all the disputes falling under Section 2-A of the Act, i.e., individual disputes, the Government could also direct, by an order made under Section 17(1) that the pronouncement of the award in the open Court by the Tribunal, or award shall itself be regarded as publication of the Award under Section 17(1) of the Act.

(iii) I also record the submission made by the Counsel for workman and also employer that the steps as indicated above are in the interest of workman and the employer as well, and therefore a matter for immediate attention by the Government.

14. Counsel for the 2nd Respondent submitted that a specific direction should be given for the payment of full salary from the date on which the award became enforceable. No such direction is necessary as the award, in so far it relates to back wages does not cover the period subsequent to the award.

15. In the result, I make the following order :

(i) The Writ Petition is partly allowed.

(ii) The impugned award of the Labour Court in so far it relates to back wages is set aside to the extent,

(a) of entire back wages from 4-11-1976 upto 30-11-1976

(b) of the 50% of the back wages from 30-11-1976 upto the date .on which the award became enforceable.


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