SRI B B KRISHNA v. THE MANAGEMENT OF M/S SPUN SILK PVT., LTD., CHENNAMANAHALLI, RAMANAGARAM

accordingly, confirmed the order of dismissal by dismissing the dispute. It is against the said award, the petitioner – workman is before this court. 4

5. Learned Counsel for the petitioner submitted that, both the Disciplinary Authority and the Labour Court have misread the entire evidence led before the Enquiry Officer. The findings of the Enquiry Officer are perverse as they are contrary to the evidence. To support her contention, she relied on the alleged charge interalia contending that, the Enquiry Officer proceeds on the assumption that, on

14.02.1995 petitioner had remained absent from duty and same amounts to a misconduct in terms of Clause 26.1.4-5 of the Standing Order, whereas MW-1 in his evidence in examination-in-chief itself has stated that, on 14.02.1995 at about 4.40 pm., he had requested the workmen working in Godown section to unload the bales from the lorry. However, only three workmen came for unloading, therefore he asked to get the other workmen, but petitioner was not present in the Godown. In the cross-examination, MW-1 has admitted that, on

14.02.1995, MW-1 had sent petitioner from Godown Section to Degam Section and at about 4.35 p.m., the petitioner was not present in Godown Section. He has also admitted that, he has power to send the workmen from one Section to another Section. Relying on this 5 evidence, learned counsel for the petitioner submitted that, the charge alleged against the petitioner was that he was absent, but the evidence of MW-1 was otherwise and in turn, MW-1 himself admits that, the petitioner was on duty on 14.02.1995. He has also admitted that on

14.02.1995, MW-1 himself sent the petitioner from Godown Section to Degam Section and only at 4.35 pm., he had not found the petitioner in Godown Section. It is not the case of the Management that, the petitioner was working in Godown Section . The evidence led by the Management only shows that, the petitioner was not found in the Godown Section, when in the cross-examination, MW-1 has admitted that, the petitioner was sent to Degam Section. This evidence does not prove the charge. The Enquiry officer by misreading the evidence of MW-1 has given the finding that, the petitioner was not present on 14.02.1995, which is apparently contrary to the evidence on record.

6. She also relied on the evidence of WW-1 to WW-7 and submitted that, the petitioner, who is examined as WW-1, in his 6 evidence has stated that, on 14.02.1995 he was supplying the fire wood to the Boiler Section and at 4.40 pm., no person came and called him, he was working in Degam Section till 5.00 pm. WW-6 in his evidence has stated that, the petitioner was working in Degam Section from 8.30 a.m. to 5.00 p.m., and nobody had called him to the Godown Section. He has also stated that, he was working in Godown Section and he had unloaded the lorry and nobody called WW-1 to Godown section. Relying on this evidence, she submitted that, both the petitioner as well as the witness examined by the workmen, who were present for unloading the cotton bales, have stated that, the petitioner was present in Degam Section and was working in Degam Section, he was not called to Godown Section and only WW-6 and other workman alone unloaded. If this is the evidence of WW-6 on record, which is also not challenged by the Management by cross- examining him, the Enquiry Officer without referring to this evidence and contrary to the evidence on record gives a finding that, the petitioner was not on duty on 14.02.1995 and submits that, the charge of absence of the petitioner on 14.02.1995 cannot be held as proved. 7

7. It is also submitted that, charge No.2 that the petitioner went to the chamber of MW-1 on 15.02.1995 at about 03.00 p.m., abused him in vulgar language and assaulted him, is not supported by any evidence, as MW-1 himself is a complainant and MW-2 is another Officer, who has stated that, when he went to the chambers of MW-1 he saw that, the petitioner was present and petitioner assaulted MW-

1. But he has also stated that, he had gone to the chamber of MW-1 to get the bills, to prove that he had gone to the chambers and collected bills, nothing has been produced. If the incident on 14.02.1995 itself is not proved, there was no reason for the petitioner to go to the chamber of MW-1. If the charge No.1 is not proved, second charge cannot be held proved. If this evidence is considered, the findings of the Enquiry Officer are perverse, contrary to the evidence on record, same is liable to be set aside. She relied on the findings of the Labour Court to submit that, the Labour Court without even looking into the evidence to find out the perversity of the findings of the Enquiry Officer, mechanically reiterated the findings of the Enquiry Officer and held that, the charges are proved and dismissed the appeal. 8

8. On the other hand, Sri.Ramachandran, learned Counsel appearing for the respondent - Management submitted that, MW-1 made a complaint to the Management that, at 3.00 pm. on 15.02.1995, petitioner came to his chamber, used abusive language and assaulted him. This is reported by MW-1, in pursuance of which, an enquiry is held. The charge is that, on 14.02.1995 at 4.40 p.m., petitioner was not present in Godown Section and to prove the same, MW-1 has been examined, MW-1 in his evidence has stated that, he had asked the workmen in Godown section to unload the cotton bales, however, only three workmen had come, hence, he sent for the search for the other workman, it was reported that, petitioner was not present in the Godown. He further submitted that, Godown Section and Degam Section are within the periphery and there is nothing like workmen are assigned different duties, they are within the control and supervision of MW-1 and as such, they were all required to work in the Godown or in any other Section. It is proved that, 4.43 p.m. onwards, petitioner was not present and this is also evident from the evidence of WW-5, who in his cross-examination has admitted that, after 4.43 9 p.m., he did not know where the petitioner was. This clearly proves that, the petitioner was not present in the Godown Section, his absence from the duty has been treated as misconduct and the charge is framed. This evidence is sufficient to prove the charge. The allegation against the petitioner was that, he had remained absent on

14.02.1995, as he was not present in Godown Section for unloading and to this extent, the Management has clearly proved the charge. He also relied on the evidence of MW-2, who has seen the incident, abuse and assault of MW1 on 15.02.1995. If this evidence is appreciated, there is nothing to show that, the Management has failed to prove the charges.

9. It is not in dispute that, the enquiry is held as fair and proper, the scope for interference by the Labour Court is limited to the extent as to whether the findings of the Enquiry Officer culminating in passing the order of punishment is perverse or whether the punishment is a result of victimisation. As far as victimisation is concerned, there appears no evidence, only question is as to whether there is a perversity in the findings. 10

10. Fact, which is not in dispute is that, MW-1 is the complainant, who complained to the Management on 15.02.1995 alleging that, the petitioner entered his chamber, abused and assaulted him. It is in pursuance of the same, an enquiry was initiated. The enquiry report reveals the charge on which the enquiry was initiated. The enquiry was initiated on the following allegations: (i) That on 14.02.1995 “you were not on duty”. This is a serious misconduct as per Clause 26.1.4-5 of the Standing Orders of the Company. Because of your absence on the workspot with the help of your co-employee the goods were unloaded from the lorry”. (ii) On 15.02.1995 at about 3.00 p.m., “you have inside the chamber of your supervisor Mr.Syed Yusuf and abused him in a vulgar language and slapped him on his left cheek and you have behaved badly with him”. The above act on your part constitute serious misconduct as per clause 26.1.19, 26.1.26 of the standing orders of the company. Your absence on the workspot on the previous 11 day Mr. Syed Yusuf represented to the same to the Management, because of that, you have committed the above misconduct.”

11. These are the two charges. The first charge relates the misconduct in terms of Clause 26.1.4-5 of the Standing Orders, it refers to the allegation that the petitioner was not on duty on

14.02.1995.

12. It is not in dispute that, the Management has examined two witnesses namely, MW-1 and MW-2. MW-1 is the complainant. In his evidence, in the Examination-in-Chief, he admits that on

14.02.1995, the petitioner was not present in the Godown Section. In the cross-examination, he has admitted that, the petitioner reported to MW-1 and MW-1 himself sent him to Degam Section. The portion of the evidence of the MW-1 in the cross-examination reads as under: “ vÁB 14.02.1995 gÀAzÀÄ ²æà © © PÀȵÀÚ£ÀªÀgÀ£ÀÄß UÉÆöÃqÁ£ï «¨sÁUÀ¢AzÀ rUÁA «¨sÁUÀPÉÌ PÀ¼ÀÄ»¸À¯Á¬ÄvÀÄ. vÁB 14.02.95 gÀAzÀÄ ¸ÀAeÉ 04.35 UÀAmÉUÉ ²æà © © PÀȵÀÚ£ÀªÀgÀÄ UÉÆöÃqÁ£ÀÄ «¨sÁUÀzÀ°è EzÀÝgÀÄ. £ÀªÀÄä «¨sÁUÀzÀ 12 PÁ«ÄðPÀgÀ£ÀÄß ¨ÉÃgÀö «¨sÁUÀPÉÌ PÀ¼ÀÄ»¹zÁUÀ CªÀgÀ PÉ®¸À PÁAiÀÄðUÀ¼À §UÉÎ DzÉñÀ ¤ÃqÀ®Ä £À£ÀUÀÆ ªÀÄvÀÄÛ ¸ÀzÀj r¥ÁmïðªÉÄAömï£À C¢üPÁj ªÀÄvÀÄÛ ªÉÄî¢üPÁjUÀ½UÉ C ¢üPÁgÀ«gÀÄvÀÛzÉ.”

13. From this evidence, it is clear that, the Management had not disputed the presence of the petitioner on 14.02.1995. As such, the charge that the petitioner was absent on 14.02.1995 is not supported by any evidence. Even assuming that, petitioner though was present, but did not co-operate for unloading the cotton bales. The witnesses examined by the Management mainly MW-1, in his evidence has stated that, on 14.02.1995, he sent the petitioner from Godown Section to Degam Section and at 4.35 p.m., petitioner was not present in Godown Section. This evidence also does not prove that the petitioner was absent, as admittedly the petitioner was not working in Godown Section, he was admittedly sent to Degam Section. It is not known whether Degam Section is a separate section or it is within the periphery of Godown section . It is also admitted that, MW-1 has power to send the employees from one Section to another Section. To corroborate the same, workman in his evidence has stated that, he 13 was working in Degam Section till 5.00 p.m. and he has denied that, he was called by anyone. MW-1 also in the examination-in-chief has not stated that he had sent any workman to Degam Section to get the petitioner from Degam Section for unloading and the petitioner refused to come or was not present. He had only asked to get the workmen from the Godown Section. It is nobody’s case that, employees working in Degam Section were asked to unload to bales. WW-6, who is also one of the workmen, who unloaded the bales on

14.02.1995, in his evidence, he has stated that, from 8.30 a.m. to 5.00 p.m., petitioner was working in Degam Section and WW-6 was working in Godown Section and the lorry came at 5.00 p.m., and he was present and unloaded the cotton bales for which he will get half an hour break. In the examination-in-chief, he has stated that, on

15.02.1995, no incident as such had occurred and the petitioner was working with him. It is also not in dispute that this witness is not even cross-examined by the Management. Similar is the evidence of another witness WW-7. He is also not cross-examined. 14

14. When this unchallenged evidence is on record before the Enquiry Officer, in utter disregard to the evidence on record, Enquiry Officer gives a finding that, the petitioner was not present on duty on

14.2.1995. No doubt, MW-2 has supported as regard to 15.2.1995 incident. But 15.2.1995 incident is dependent on the incident of

14.2.1995. In the charge memo itself as extracted by the Enquiry Officer, it is stated that, the compliant was made by MW-1 because the petitioner was absent from the work spot on 14.02.1995. The evidence on record does not prove that the petitioner was absent on

14.2.1995. There was no reason for the MW-1 to make a complaint and if there is no such incident of absence on 14.2.1995, the question of petitioner going to the chamber, abusing and assaulting does not probabalise and does not also justify the case of he Management.

15. If the evidence on record shows that the findings of the Enquiry Officer are perverse, the Labour Court could have interfered with the order of the Disciplinary Authority and passed an appropriate award. However, the Labour Court without considering the evidence on record has given a finding on the perversity. 15

16. In these circumstances, I find that the finding of the Enquiry Officer is being perverse, award passed by the Labour Court is also not sustainable in law. Accordingly, I pass the following order: The writ petition is allowed. The impugned award dated

12.05.2010 passed by the III Addl.Labour Court, Bangalore, in I.D.No.34/1997 is hereby set aside. Consequently, the order of dismissal passed by the Disciplinary Authority is also stand quashed. It is submitted by the learned Counsel for the respondent – Management that, the factory has been closed from 2006. However, learned Counsel for the petitioner had submits that, the petitioner had worked since 1990 till his dismissal from service, and there is no adverse record against him throughout his career except the one alleged. 16 Since the fact of closing of the factory in 2006 has not been seriously disputed by the learned Counsel for the petitioner, I find that, if the other employees have been granted VRS and other monetary benefits, the said benefit could also be extended to the petitioner. Hence, in lieu of reinstatement and other benefits, the petitioner is entitled for the similar VRS benefit on par with similarly placed employees, who have taken voluntary retirement. Sd/- JUDGE KNM/-