Workman - Industrial disputes Act- work man was dismissed from service for absent and for low productivity - Tribunal find that the employer failed to prove the allegations and held that the domestic enquiry is also not done as per procedure - Writ filed by employer was dismissed - Writ filed by employee allowed with modification by confirming the tribunal order with continuity of service = The Management of Engine Valves Limited, Plot Nos.68 and 77, Industrial Estate, Medchal, Ranga Reddy District, Rep. by its General Manager(Operations)... Petitioner/employer 1.Industrial Tribunal-II, Chandra Vihar Building, M.J. Road, Nampally, Hyderabad 2. N.Krishna (workman)... Respondents = published in judis.nic.in/judis_andhra/filename=10637

 Workman - Industrial disputes Act- work man was dismissed from service for absent and for low productivity - Tribunal find that the employer failed to prove the allegations and held that the domestic enquiry is also not done as per procedure - Writ filed by employer was dismissed - Writ filed by employee allowed with modification by confirming the tribunal order with continuity of service = 
The workman was allegedly absent for various dates between 28-02-
1994 and 24-8-1994.  A domestic enquiry was conducted against the workman.  
In the meanwhile, another charge-sheet was issued to the workman on 28-01-1995 
that he willfully indulged in low production.  In respect of unauthorized
absence from duty, the workman was found guilty through the enquiry report dated
10-3-1995.  He was found guilty for low production through enquiry report dated
30-6-1995. =

In I.D.No.179 of 2000, the Tribunal held on
06-12-2001 that the enquiry was properly conducted.  The Tribunal, however, held
that the findings were perverse.  Consequently, the workman was ordered to be
reinstated without back wages, continuity of service and attendant benefits, so
much so, the Tribunal ordered the reinstatement of the workman as a fresh
candidate. =

However, where the employee was in fact dismissed on one occasion and was  
reinstated through a settlement under Section 18(1) of the Act and where the employee could not
give proper production, albeit he is not guilty of low production since there
was no settlement between the employee and the employer, the order of the
Tribunal ordering reinstatement without back wages is justified.  
I consider
that it would be appropriate to order reinstatement with continuity of service
and attendant benefits where the misconduct has not been established.
20. Accordingly, the writ petitions are disposed of holding that the award of
the Tribunal in I.D.No.179 of 2000 is sustained and is confirmed with the
modification of reinstatement of the employee with continuity of service and
attendant benefits but without back wages.  The miscellaneous petitions pending,
if any, shall stand closed.  No costs.

HON'BLE Dr.JUSTICE K.G.SHANKAR      

Writ Petition No.2800 of 2003

12-12-2013

The Management of Engine Valves Limited, Plot Nos.68 and 77, Industrial Estate,
Medchal, Ranga Reddy District, Rep. by its General Manager(Operations)...
Petitioner/employer

1.Industrial Tribunal-II, Chandra Vihar Building, M.J. Road, Nampally,
Hyderabad 2. N.Krishna (workman)... Respondents

Counsel for the petitioner:Sri S.Ravindranath
       
Counsel for respondent No.1: None
 Counsel for respondent No.2: Sri V.Narasimha Goud

<Gist:

>Head Note:

?Cases referred:
1. AIR 1970 Gujarat 1
2. (1974) 4 SCC 681
3. (1975) 4 SCC 696
4. AIR 2005 SC 570
5. 2005 (3) ALD 383
6. 2005 (4) ALD 846
7. (2008) 1 SCC 224

HON'BLE Dr. JUSTICE K.G.SHANKAR      

Writ Petition No.2800 of 2003
and
Writ Petition No.20276 of 2005

Date: 12-12-2013

Common Order:

        These two writ petitions are disposed of through this common order.  The
former writ petition in W.P.No.2800 of 2003 was laid by the employer against the
workman.  W.P.No.20276 of 2005, which is the latter writ petition, was filed by
the workman against the employer.  In both the cases, the award of the
Industrial Tribunal-II, Hyderabad (the Tribunal, for short), dated 30-3-2002 in
I.D.No.179 of 2000 is questioned.
Hence, both the writ petitions are disposed of through this common order.

        2. The employer is a manufacturer of Engine Valves supplied to the
automobile industry.  About 250 workers have been engaged by the employer.  The
workman, by name N.Krishna was one among them.    

3. The workman was appointed on casual basis from 02-6-1987 till 02-8-1987.  The
employer later took the workman as a trainee from 03-8-1987 till 03-8-1989.  He
was put on probation for a period of one year on
03-8-1989.  Subsequently, the probation of the workman was declared.

4. A charge-sheet was issued to the workman on the ground that he was guilty of
low production.
He was dismissed from service on 28-01-1993.  However, a settlement was arrived
at between the employer and the workman on 21-7-1994 under Section 18(1) of the 
Industrial Disputes Act, 1947 (the Act, for short), consequent upon which the
workman was reinstated as 
a fresh employee.  On 25-4-1994, a fresh charge-sheet was issued against the
workman on the ground that he was unauthorisedly absent without intimation to
the reliever.  The workman was allegedly absent for various dates between 28-02-
1994 and 24-8-1994.  A domestic enquiry was conducted against the workman.  
In the meanwhile, another charge-sheet was issued to the workman on 28-01-1995 
that he willfully indulged in low production.  In respect of unauthorized
absence from duty, the workman was found guilty through the enquiry report dated
10-3-1995.  He was found guilty for low production through enquiry report dated
30-6-1995.

5. A combined Show Cause Notice was issued to the workman on 07-8-1995.  On 22-  
8-1995, the workman offered his explanation.  Not satisfied with the explanation
offered by the workman, the Disciplinary Authority passed orders dismissing the
workman through orders dated 04-11-1995.  However, industrial dispute in
I.D.No.103 of 1994 was pending before the Tribunal by then.  Consequently, the
employer filed M.P.No.1 of 1996 under Section 33(2)(b) of the Act before the
Tribunal.  On 10-12-1997, the Tribunal held that the enquiries were properly
conducted.  On 16-02-1998, M.P.No.1 of 1996 was allowed.  Assailing the same,
the workman raised I.D.No.59 of 1998 under Section 2-A(2) of the Act before
Labour Court-III, Hyderabad.  The same was subsequently transferred to Labour
Court-I, Hyderabad and was renumbered as I.D.435 of 2000.
It was again transferred to Industrial Tribunal-II, Hyderabad and was renumbered
as I.D.179 of 2000.

6. In I.D.No.179 of 2000, the Tribunal held on
06-12-2001 that the enquiry was properly conducted.  The Tribunal, however, held
that the findings were perverse.  Consequently, the workman was ordered to be
reinstated without back wages, continuity of service and attendant benefits, so
much so, the Tribunal ordered the reinstatement of the workman as a fresh
candidate.  Questioning the award, the employer filed W.P.No.2800 of 2003
contending that once orders were passed in M.P.No.1 of 1996 under Section
33(2)(b) of the Act, I.D.No.179 of 2000 is not maintainable.  The workman, in
his turn, filed W.P.No.20276 of 2005 contending that when the order of the
Enquiry Officer was perverse, the Tribunal ought to have ordered reinstatement
of the workman with back wages.

7. The learned counsel for both sides are in advantageous position in each turn
since they appeared before the Tribunal in M.P.No.1 of 1996 as well as
I.D.No.179 of 2000.  Sri S.Ravindranath, learned counsel for the employer,
contended that the only question that can be considered under Section 33 of the
Act is whether there was proper enquiry or otherwise.  The Tribunal examines
questions, viz., (1) whether the employer paid one month wages to the employee,
(2) whether the employer made application simultaneously and
(3) whether the employer followed Standing Orders.  Thus, the Tribunal examines
under Section 33(2)(b) of the Act whether the employer prima facie made out the
grounds enunciated above and passes an order in favour of the employer if the
employer made out the grounds.

8. The learned counsel for the employer contended that once it is held in
M.P.No.1 of 1996 that the employer has prima facie proved its case, subsequent
industrial dispute by the workman is hit by the principles of
res judicata.  It is contended by the learned counsel for the employer that the
workman raised identical contentions in M.P.No.1 of 1996 as well as in
I.D.No.179 of 2000 and that as I.D.No.179 of 2000 is hit by
res judicata, the workman is not entitled to reinstatement.  He also submitted
that the workman allowed the orders in M.P.No.1 of 1996 dated 16-02-1998 to
become final and that the workman therefore cannot question the same again
through separate industrial dispute.

9. This aspect was brought to the notice of the Tribunal in the industrial
dispute.  The orders in M.P.No.1 of 1996 were marked as Ex.M-50 in the
industrial dispute.  However, the Tribunal deemed it appropriate to order
reinstatement of the workman holding that there was no evidence to support the
charges.  The Tribunal, inter alia, held that the workman assumed at the time of
the enquiry that he would mend his ways and concluded that once further
opportunities were given to the workman, it was deemed that the employer
condoned the unauthorized absence as well as low production, so much so, the
charges were not proved.

10. The main plank of the attack by the employer is res judicata.  In Testeels
Ltd. v. N.M.Desai, Conciliation Officer1, the Full Bench held that application
under the proviso of Section 33(2)(b) of the Act was not an interlocutory
proceeding but was an independent proceeding.  It is the contention of the
learned counsel for the employer that the orders in M.P.No.1 of 1996 are orders
in a main proceeding and that they therefore operate as res judicata.
In WORKMEN v. STRAW BOARD MFG. CO.2, it was noticed that the principles of    
Section 11 C.P.C are applicable to the industrial adjudication (vide para 27 of
the judgment).  Similar view was expressed in PUNJAB CO-OP. BANK LTD. v.  
R.S.BHATIA3 (vide para 5 of the judgment).  It thus is contended by the learned
counsel for the employer that the principles of res judicata apply to the
present case.

11. It may, however, be noticed that the findings under Section 33(2)(b) proviso
are prima facie
findings.  In Cholan Roadways Ltd. v. G.Thirugnanasambandam4, it was observed
that while exercising the jurisdiction under Section 33(2)(b) of the Act, the
Tribunal examines whether a prima facie case has been made out regarding the
validity or otherwise of the domestic enquiry held against the workman and that
it would not therefore operate as res judicata in an industrial dispute where
the question needs to be considered elaborately.

12. A learned single Judge of this Court in Management of Bharat Heavy
Electricals Ltd., Hyd. v. Labour Court-II, Hyd.5 (vide para 9) held that the
order passed by the Tribunal under Section 33(2)(b) of the Act granting approval
of the termination/dismissal order cannot bar the workman from invoking the
provision under Section 2-A(2) or Section 10 of the Act and that the Tribunal is
not debarred from examining the validity of the order of termination/dismissal
in an application under Section 2-A(2) or Section 10 of the Act.
In Hindusthan Aeronautics Ltd. v. Addl. Industrial Tribunal-cum-Labour Court6,
similar view was expressed by the same learned Judge who disposed of the earlier
case.

13. I consider that orders in proceedings under Section 33(2)(b) proviso do not
operate as res judicata in a proceeding under Section 2-A(2) of the Act since
the proceedings under Section 2-A(2) of the Act are exhaustive whereas the
Tribunal examines the limited question of prima facie case in a petition under
Section 33(2)(b) proviso.  Consequently, the primary objection raised by the
learned counsel for the employer is not sustainable and is accordingly rejected.

14. Regarding the low production, the employer relied upon Ex.M-49 settlement
entered into by the employer and workman under Section 18 of the Act with
reference to the norms of production.  The Tribunal noticed that whereas the
workman is N.Krishna, Ex.M-49 was by one G.Krishna.  The Tribunal consequently  
held that the employee did not enter into any agreement regarding the norms of
production and that the employee cannot be subject to disciplinary proceedings
for low production.  I do not find any ground to differ with the view expressed
in the industrial dispute.  The employer is not able to offer any explanation as
to how a settlement entered into by an employee by name G.Krishna would bind the 
employee whose name is N.Krishna.  Any finding that the workman was guilty of
indulging in low production consequently is not sustainable.
The Tribunal was justified in holding that the finding that the workman was
guilty of low production was perverse where the workman never entered into a
settlement regarding the norms of production.

15. It would appear that the workman sought for reinstatement by invoking
Section 11-A of the Act.
The learned counsel for the employer submitted that the Tribunal can interfere
if the order of the employer/Enquiry Officer is perverse.  He also pointed out
that the powers under Section 11-A of the Act are different from the dispute
raised under Section 2-A of the Act.  He also submitted that the workman ought
to have raised a dispute under Section 33-A(b) of the Act.

16. Sri V.Narasimha Goud, learned counsel for the workman contended that Section
33-A of the Act can be invoked in the event the employer contravenes
Section 33(2)(b) or Section 33(1) of the Act and not otherwise.  Section 33-A of
the Act deals with special provisions for adjudication as to change of
conditions of service during the pendency of proceedings under
Section 33 of the Act.  The workman has not been agitating that his conditions
of service were changed during the pendency of the proceedings under
Section 33(2)(b) of the Act.  Section 33-A of the Act therefore is not relevant
for the present dispute.

17. The learned counsel for the employer submitted that dismissal of the workman
from service is just and reasonable.  In L&T KOMATSU LTD. v. N.UDAYAKUMAR7,    
relied upon by the learned counsel for the employer, it was held that the
habitual absenteeism was tantamount to gross violation of discipline and that
dismissal from service of such a delinquent was justified. 
 The learned counsel for the employee pointed out
that from 12-5-1994 till 28-8-1994, which was the first span during which the
workman remained absent, the period of absence was only for
22 days and that the same was not continuous but sporadic.  He also submitted
that even out of these
22 days, on 21-6-1994 the petitioner could not submit
a Casual Leave application.  The Tribunal in I.D.No.179 of 2000 considered that
the grounds of absence were quite reasonable and held that the charges were not
proved.  I am afraid that the order of the Tribunal in the industrial dispute
does not deserve to be interfered with.
18. Inter alia, the learned counsel for the employee submitted that the Tribunal
did not give any reason in the award in I.D.No.179 of 2000 as to why it was
deferring from the view taken in M.P.No.1 of 1996.
The reasons are obvious.  In M.P.No.1 of 1996, the Tribunal was considering the
prima facie case whereas in I.D.No.179 of 2000, the Tribunal went further and
examined whether there was evidence for proving the charges against the
employee.  The award of the Tribunal in I.D.No.179 of 2000 that the employer
failed to establish the misconduct of the employee therefore deserves to be
sustained.

19. However, where the employee was in fact dismissed on one occasion and was  
reinstated through a settlement under Section 18(1) of the Act and where the employee could not
give proper production, albeit he is not guilty of low production since there
was no settlement between the employee and the employer, the order of the
Tribunal ordering reinstatement without back wages is justified.  
I consider
that it would be appropriate to order reinstatement with continuity of service
and attendant benefits where the misconduct has not been established.
20. Accordingly, the writ petitions are disposed of holding that the award of
the Tribunal in I.D.No.179 of 2000 is sustained and is confirmed with the
modification of reinstatement of the employee with continuity of service and
attendant benefits but without back wages.  The miscellaneous petitions pending,
if any, shall stand closed.  No costs.
___________________  
Dr. K.G.SHANKAR, J.  
12th December, 2013.

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