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Essae-teraoka Pvt. Ltd v. The Labour Commissioner And Ors

Essae-teraoka Pvt. Ltd v. The Labour Commissioner And Ors

(High Court Of Karnataka)

WRIT PETITION NO.53274 OF 2016 (L-TER) | 08-12-2023

JYOTI MULIMANI, J.

1. Sri.S.N.Murthy., learned Senior counsel on behalf of Sri.Somashekar., for the petitioner and Smt.Rashmi Patel., learned HCGP for respondent No.1 have appeared in person.

When the matter is called there is no representation on behalf of respondent No.2.

2. The order dated:22.09.2016 passed by the first respondent - the Labour Commissioner according sanction for prosecution is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.

3. Learned counsel for the petitioner and learned HCGP for respondent No.1 have urged several contentions. Heard, the contentions urged on behalf of respective parties and perused the Writ papers with utmost care.

4. The point that requires consideration is whether the accord of sanction for prosecution is just and proper.

5. Suffice it to note that the petitioner is a private limited company having its factory at Bommasandra and Corporate office at No.410, 100 feet road, 4th Block, Koramangala, Bangalore - 560 034. The petitioner has 41 branch offices throughout India and the employees are transferred from one place to another in business exigencies.

The second respondent - Y.Muniraju was appointed by letter dated:29.04.1998 as Helper at Bengaluru. The appointment order was accompanied by terms and conditions of appointment. Since petitioner has 41 branch offices throughout India, a transfer clause has been incorporated in appointment order.

The second respondent started working in Bommasandra Unit from April 1998 to 17.02.2004 when he was transferred to the office located at Wilson Garden. He was transferred from Bommasandra Unit to the office located at Wilson Garden, Bengaluru with effect from 17.02.2004 by a letter dated:18.02.2004. Accordingly, the second respondent reported for duty at the Office of Wilson Garden, Bengaluru. He was working in Wilson Garden Office from February 2004 till 17.05.2008 for nearly more than four years. It is said that he was a habitual and chronic unauthorized absentee to duty while working at Wilson Garden office. He unauthorizedly absented for 66 days from 02.08.2005 and was issued with charge sheet while working at Wilson Garden office. An inquiry was held, in which he was found guilty. Hence, he was dismissed from service on 17.05.2008 on proved misconduct.

The second respondent challenged the dismissal order before the III Addl. Labour Court, Bengaluru in Reference No.11/2009. After adjudication, the Labour Court concluded that the misconduct of chronic unauthorized absence was proved, but held that punishment of dismissal from service was excessive. Therefore, the second respondent was reinstated to the same old post which he was holding as on 17.05.2008, but, without any backwages. It is said that the second respondent was working as Helper in Wilson Garden Office on the date of dismissal on 17.05.2008. Now, the Wilson Garden office is closed from 15.04.2011.

The petitioner accepted the award of the Labour Court and reinstated the second respondent into the same post of Helper which he was holding as on 17.05.2008 and as the Wilson Garden office was closed from 15.04.2011, transferred him to the branch office at Mangalore by order dated:07.06.2012. The second respondent acknowledged the transfer order by letter dated:27.06.2012 and insisted that he should be provided employment in Bommasandra branch, Bengaluru. The request of the second respondent was not acceptable to the petitioner Management and hence, he was informed to go and report for duty at Mangalore branch office. The second respondent did not obey or challenged the transfer order. Hence, the petitioner Management thought that the second respondent was not interested in employment.

Strangely, after a lapse of almost of two years, the second respondent filed a Complaint before the Labour Commissioner, stating that the Management has not implemented the Award passed by the Labour Court in Reference No.11/2009. Hence, sought permission to prosecute the petitioner. The Management brought to the notice of the Labour Commissioner that the Wilson Garden office is closed from 15.04.2011 and there was no post of Helper at Bommasandra unit. The first respondent - Labour Commissioner vide order dated:22.09.2016 accorded sanction to prosecute the petitioner on the ground that the Management had failed to implement the Award of the Labour Court. This is unsustainable in law. The reason is quite simple. As already noted above, the Labour Court in the Award directed reinstatement of the second respondent into service to the same old post which he was holding as on 17.05.2008. It is pivotal to note that the second respondent was working as a Helper in Wilson Garden office on the date of dismissal i.e., on 17.05.2008. The Wilson Garden Office was closed from 15.04.2011. Hence, he was transferred to branch office at Mangalore where there was a vacancy.

Suffice it to note that there is a difference between the words, 'post' and 'place'. The Labour Court directed to reinstate the second respondent in the 'post' held by him as on 17.05.2008 and never directed to reinstate the second respondent at the same place where he was working in Wilson Garden as on the date of dismissal. The conclusion of the first respondent Labour Commissioner that the second respondent should have been reinstated in service at Bommasandra Unit, is totally misconceived, because the second respondent was not working in Bommasandra Unit as on the date of dismissal i.e., 17.05.2008, but he was working at Wilson Garden Office consequent to transfer as per Annexure-C. There was no post of Helper at Bommasandra unit and when the Wilson Garden office is closed, the question of reinstatement at Bommasandra Unit or Wilson Garden office does not arise at all. This aspect of the matter has been overlooked by the Labour Commissioner and erroneously accorded sanction to prosecute the petitioner.

Furthermore, as long as the legality of the transfer order at Annexure-E is not challenged, the same is binding on the second respondent and as such, the question of concluding that the petitioner has not implemented the award of the Labour Court does not arise. Therefore, the first respondent Labour Commissioner exceeding his jurisdiction and granting permission to prosecute the petitioner resulted in miscarriage of justice.

6. For the reasons stated above, the order dated:22.09.2016 according permission to prosecute the petitioner is liable to be quashed.

7. The Writ of Certiorari is ordered. The order dated:22.09.2016 passed by the Labour Commissioner, Bengaluru in DzÉñÀ ¸ÀASÉå: LJJ-1/ADgï-81/2013-14 vide Annexure- M is quashed.

8. As a result, the Writ Petition is allowed.

Advocate List

  • SRI. S.N.MURTHY, SENIOR ADVOCATE FOR SRI SOMASHEKAR

  • SMT. RASHMI PATEL, HCGP FOR R1; SMT.MAMATHA ROY

Bench
  • HON'BLE MS. JUSTICE JYOTI MULIMANI
Eq Citations
  • 2023/KHC/44648
  • LQ/KarHC/2023/3639
Head Note

Industrial Disputes Act, 1947 — S. 11A — Permission to prosecute — Labour Court directed reinstatement of the respondent into service to the same old post which he was holding as on the date of dismissal — Respondent was working as a Helper in Wilson Garden office on the date of dismissal — Wilson Garden Office was closed from an earlier date — Hence, he was transferred to branch office at Mangalore where there was a vacancy — Labour Commissioner accorded sanction to prosecute the petitioner on the ground that the Management had failed to implement the Award of the Labour Court — Held, the Labour Commissioner exceeded his jurisdiction and granting permission to prosecute the petitioner resulted in miscarriage of justice — Order quashed.