THE MANAGEMENT OF M/S.GRAPHITE INDIA LTD. v. SRI SRINIVASA REDDY

SRI SRINIVASA REDDY S/O LATE GURAREDDY AGED ABOUT 60 YEARS R/AT SORHUNISE VILLAGE POST BANGALORE SOUTH TALUK. ...RESPONDENT (BY M/S: S B MUKKANNAPPA & ASSTS, ADVOCATES) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN WRIT PETITION NO.744/2006 (L-TER) DATED 15.9.2011. 2 THIS WRIT APPEAL COMING ON FOR PRELIMINARY MR.K.L.MANJUNATH, J., HEARING THIS DAY, DELIVERED THE FOLLOWING: J U D G M E N T There is a delay of 13 days in filing the appeal. Being satisfied with the cause shown in the affidavit, the delay in filing the appeal is condoned.

2. The appellant is questioning the validity and correctness of the order passed by the learned Single Judge in W.P.No.744/2006 dated 15th September 2011, wherein the learned Single Judge has allowed the writ petition filed by the respondent in part, modifying the order passed by the Labour Court on 30th May 2005 in Reference No.67/1989, converting the order of penalty of dismissal into one of withholding two increments with cumulative effect. Since the respondent had attained the age of superannuation, instead of reinstatement, the learned Single Judge has 3 allowed 50% of backwages and other retirement benefits. This order is called in question in this appeal.

3. We have heard the learned counsel for the appellant and the learned counsel for the respondent.

4. The respondent was appointed as an Assistant Operator on 15.12.1978. On the ground that he was not obedient and on account of his disobedience, he was demoted in the year 1988 as a plant-man. Thereafter on 3.11.1988, Articles of Charges were issued stating that on four days, namely, 27.10.1988, 28.10.1998,

29.10.1988 and 31.10.1988, the respondent had disobeyed the instruction given to him by his superior. Since the explanation offered by the respondent was not satisfactory, the disciplinary proceedings were initiated against him and based on the report of the Enquiry 4 Officer, he was dismissed from service with effect from 6.1.1989. The said order was challenged by the respondent by raising a dispute before the Labour Court in Reference No.67/1989. The Labour Court held the domestic enquiry as fair and proper and considering the fact that there is disobedience of the instructions of the superiors by the respondent, the Labour Court declined to interfere with the order of punishment. This order was challenged by the respondent by filing a writ petition. The learned Single Judge exercising his discretion and considering the nature of misconduct said to have been committed by the respondent and as by then, the respondent had attained the age of superannuation, without ordering for reinstatement, directed the appellant herein to pay 50% of the backwages along with the terminal benefits. This order is called in question in this appeal. 5

5. The learned counsel for the appellant contends that the learned Single Judge has exceeded his jurisdiction in not dismissing the writ petition since the Labour Court as well the Disciplinary Authority had come to a definite conclusion that the enquiry was fair and proper and charges levelled against the respondent were proved. When the charges levelled against the respondent were proved, under Article 226 of the Constitution, the learned Single Judge had no jurisdiction to reduce the penalty as it is not within the domain of the writ jurisdiction. In the circumstances, relying upon the judgment in the case of J.K.SYNTHETICS LTD. V/S. K.P.AGRAWAL & ANR. (2007 (1) L.L.N. 725) contends that the learned Single Judge was not justified in giving the benefits to the respondent. At best, the respondent is entitled for retirement benefits. In the circumstances, he requested 6 the Court to allow the appeal and set aside the order of the learned Single Judge.

6. The learned counsel for the respondent submits that the learned Single Judge has given his finding on the ground that the order of dismissal is harsh and not commensurate with the misconduct alleged in the Articles of Charges. Even the Labour Court at para-9 of its order has given a finding that the misconduct alleged against the respondent does not warrant severe punishment of dismissal. However, the Labour Court has dismissed the Reference considering the past conduct of the respondent. Therefore, he contends that the learned Single Judge considering the entire background of the case has differed with the findings of the Labour Court and has modified the order of penalty. He further contends that if the appellant is directed to pay only the retirement benefits, except 11 months salary, 7 he will not get anything. Therefore, in the interest of justice, he requests this Court to modify the order of the learned Single Judge suitably and dispose of the appeal.

7. We have heard the learned counsel for the parties.

8. The Labour Court has come to a definite conclusion that the severe punishment of dismissal was not warranted considering the Articles of Charges levelled against the respondent, in the enquiry. But the Labour Court, considering the past conduct of the respondent has dismissed the appeal. We have also considered the past conduct of the respondent. The past conduct is that the respondent did not reach the target fixed for an employee. Under what circumstances, the employee could not reach the target has not been considered both by the Disciplinary 8 Authority and the Labour Court. In these circumstances, if the learned Single Judge, by taking a lenient view, without ordering for reinstatement has ordered for payment of 50% of backwages. In the circumstances, at best, this Court may hold that awarding of 50% backwages is on the higher side. Accordingly, we reduce the same to 25%.

9. In the result, the appeal is allowed in part. The order of the learned Single Judge is modified holding that the appellant shall pay 25% of the backwages instead of 50% as awarded by the learned Single Judge. Rest of the order of the learned Single Judge is confirmed. Sd/- JUDGE Sd/- JUDGE KM