(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned award dated 01.02.2014, in Ref.No.72/2009 at Annexure-J passed by the Labour Court, Mysore & pass such other orders.)

Oral Order

1. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.

2. This petition is filed challenging the award in terms of which the petitioner/employer is directed to reinstate the respondent/ workman, by setting aside the penalty of termination of service.

3. The impugned award directs the respondent to be reinstated with continuity of service by withholding two annual increments with cumulative effect and only 25% back wages. In other words, 75% back wages is denied.

4. The award is not questioned by the respondent/workman and same has attained finality as against the respondent/workman insofar as denial of 75% back wages and withholding of two annual increments with cumulative effect.

5. The petitioner/employer is before this Court.

6. Admittedly, the respondent was employed in the year 1999 as Cane Sub-Inspector under the petitioner. On 30.06.2003, charge memo was issued against the respondent alleging that the respondent is collecting money unauthorizedly from the farmers, with an intention to make wrongful gain for himself. Another charge is relating to an act of insubordination, wherein he has allegedly insulted the Cane Superintendent in the presence of the farmers and the said incident made the Government to issue a letter to the petitioner/employer and caused embarrassment to the petitioner establishment /employer. The respondent/workman disputed the charges.

7. The domestic enquiry was held. As far as the charge relating to the habit of collecting money from the farmers unauthorisedly with an intention to make a wrongful gain is concerned, the Enquiry Officer has given a finding that only one witness is examined to support the charge and other farmers from whom the petitioner has allegedly collected the amount are not examined and the finding is recorded in favour of the respondent/workman and against the petitioner/employer, holding that charge is not proved.

8. As far as the second charge relating to the incident said to have taken place on 08.10.2007 is concerned, the Enquiry Officer has come to the conclusion that the second charge is proved. Accordingly, the petitioner was removed from employment. The respondent raised the industrial dispute.

9. Before the Labour Court, enquiry was held to be fair and proper. The parties were permitted to lead evidence on the plea of victimization.

10. The Labour Court has recorded a finding that the first charge relating to the habit of collecting money unauthorisedly from the farmers is not established and has come to the conclusion that the penalty of dismissal imposed on the respondent/workman is disproportionate to the misconduct alleged against the respondent/workman on the premise that said charge No.8 does not warrant the penalty of dismissal.

11. Accordingly, the penalty of dismissal is set aside and lesser punishment is awarded as noticed above.

12. Learned counsel appearing for the petitioner would urge that though the charge relating to habitual unauthorised collection of money from the farmers refers to the repeated collection of money from the farmers, merely because the employer has examined only one farmer, does not mean that the charge levelled against the workman relating to unauthorised collection of the money is not established. Thus he would urge that there was no scope for the Labour Court to interfere with the penalty of dismissal.

13. In addition, it is also urged that Charge No.8 which is relating to the incident that has taken place on 08.10.2007 is held to be established by the Enquiry Officer as well as the Labour Court and that charge itself is sufficient to attract the penalty of dismissal. Thus he would urge that the Labour Court could not have interfered with the penalty of dismissal imposed on the respondent.

14. It is also urged that charge No.9 relating to the letter addressed by the Minister is also established. This being the position, the Labour Court could not have interfered with the penalty of dismissal, is the submission.

15. In addition, it is also urged that the workman has claimed 17B wages and same is being paid. The workman is supplying sugar cane to the petitioner and that would establish the fact that he is gainfully employed, in the sense, he is cultivating his own agricultural land and he is not entitled to the 17B wages.

16. Learned counsel for the respondent/workman would defend the impugned award. He would submit that the first charge relating to habitual collection of money unauthorizedly from the farmers is not established, as the petitioner has examined only one complainant who claims that he has paid money to the respondent/workman. In addition to that, it is his further submission that the Labour Court having noticed that charge No.8 and charge No.9 being trivial would not warrant penalty of dismissal and Labour Court in exercise of jurisdiction under Section 11A of the Industrial Disputes Act, 1947 has rightly interfered with the penalty imposed.

17. Learned counsel for the petitioner, by way of reply, would contend that the Labour Court committed an error in holding that the petitioner/employer has not produced any records relating to the past misconduct of the workman. He would refer to the Award to show that documents at Exhibits M32 and M72 were produced by the petitioner to establish the past misconduct on the part of the respondent/workman.

18. The Court has considered the contentions raised at the Bar and perused the records.

19. As far as the contentions relating to the past misconduct being proved, it is to be noticed that the petitioner/employer has only produced the notices issued against the respondent/ workman relating to the alleged misconduct in the past. The respondent has not admitted his guilt and no enquiry is held against the respondent. So alleged past misconduct against the respondent are not established. Thus the Labour Court is justified in holding that there are no materials to hold that the respondent is guilty of misconduct in the past. That is one of the reasons assigned by the Labour Court to interfere with the penalty of dismissal imposed by the employer and to award a lesser penalty.

20. As far as charge No.1 relating to the habitual collection of money unauthorisedly from the farmers is concerned, the Enquiry Officer himself has recorded a finding that the charge is not established. The Labour Court has also taken a view that charge is not established, as only one farmer who claims to have paid money to the respondent is examined in support of the petitioner's contention.

21. In case the respondent/workman really had collected money from the farmers, the employer ought to have examined many more such farmers or complainants who alleged that they have paid money to the respondent. That is not done by the employer.

22. This being the position, this Court does not find any reason to interfere with the Award passed by the Labour Court which has taken note of the finding recorded by the Enquiry Officer which has attained finality.

23. As far as Charges No.8 and 9 relating to the alleged incident dated 08.10.2007 and the letter written by the Minister is concerned, this Court is of the view that both the charges are very much established and Labour Court has also taken the same view and that finding is based on evidence placed on record. Even the respondent has accepted the said finding.

24. Now, the question is, whether the Labour Court is justified in awarding a lesser penalty by setting aside the order of dismissal from employment.

25. It is noticed that the Labour Court has withheld two increments with cumulative effect and has also denied 75% back wages.

26. The Labour Court has exercised jurisdiction under Section 11A of the Industrial Dispute Act, 1947. The power of the Labour Court to interfere with the penalty is also very much recognized under Section 11A of the said Act.

27. However, it is also well settled that the Labour Court must be convinced that the penalty of dismissal imposed on the workmen is disproportionate to the misconduct proved.

28. As already noticed the misconduct of collecting money unauthorisedly from the farmers is not established. The other misconducts are relating to the incident dated 08.10.2007 and also the letter written by the Minister.

29. The Labour Court has taken a view that those two misconducts do not warrant penalty of dismissal from employment and has rightly interfered with the said penalty.

30. This Court does not find any reason to interfere with the said Award in exercise of the powers under Article 227 of Constitution of India, as the said charges at No.8 and 9 are relating to minor incidents which do not warrant penalty of dismissal.

31. Learned counsel for the petitioner would urge that though the respondent is receiving 17B wages, he is gainfully employed as is established from the cane supplied by the respondent to the petitioner/establishment.

32. Merely because the respondent has supplied the cane to the petitioner, it cannot be said that the respondent is gainfully employed in the agricultural activity. That cannot be a ground to deny the 17B wages which is already paid.

33. For the aforementioned reasons, this Court does not find any reason to interfere with the Award.

34. Accordingly, the writ petition is dismissed.

35. The 17B wages paid shall be adjusted to the arrears of salary in terms of the award passed by the Labour Court.

36. The arrears of wages shall be paid within two months from the date of the receipt of the certified copy of this Order.