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2007 Supreme(Kar) 719
2008 (1) KLO 285
IN THE HIGH COURT OF KARNATAKA
N. Kumar, J.
Write Petition Nos. 38974/99 and 29500/2000
Management of L and T Komatsu Limited by its Chief Executive - Appellants
Vs.
Larsen and Toubro Employees Association - Respondent
Decided on 29-10-2007
Appellant : S. Vijaya Shankar, Sr. Counsel for B.C. Prabhakar, Advs.
Respondents: K. Subha Rao, Sr. Counsel for T. Narayanaswamy, Advs.
Headnote:LABOUR & SERVICES - Disciplinary Proceedings: [N. Kumar, JJ]. Misconduct of non-performance of the stipulated arcing hours - Dismissal from service - Award of Labour Court for Re-instatement of four employees without back wages and wages for the strike period - Writ petitions by the management and the workmen - Held, Not performing the stipulated work deliberately and not giving the agreed output for which wages are paid and received constitute a grave misconduct and is one of the most pernicious practices that harm the industry than the total cessation of work. On facts, held, The workmen not giving 1.5 arcing hours in the instant case would constitute misconduct notwithstanding the fact that the same is not one of enumerated misconduct under the standing orders.
INDUSTRIAL DISPUTES ACT, 1947 - Section 11-A: [[N. Kumar, JJ] Power of the Tribunal - Gravity of the misconduct -Interference with the order of dismissal -Held, The Tribunal has been vested with the power under Section 11-A of the Act to find out having regard to the gravity of the misconduct alleged and proved, whether the punishment of dismissal is proportionate or not - On facts, held, The order of dismissal is not proportionate to the gravity of the charges proved against workmen. The punishment imposed is extremely harsh and unjust and wholly disproportionate to the misconduct proved - Tribunal has not exceeded in exercising its jurisdiction under Section 11-A of the Act in passing an order or re-instatement.
INDUSTRIAL DISPUTES ACT, 1947 - Section 18 & Industrial Disputes (Central) Rules, 1957, Rule 58: [N. Kumar, J] Settlements and awards - Binding effect of - Memorandum of settlement between the management and workmen - When the Union accepts the settlement, whether the workmen who are its members can contend that the settlement is not binding on them? On facts, held, It is clear that the Union accepted the memorandum of settlement as binding on them and they gave up their challenge to the award of the Labour Court holding that the said settlement is binding on the Union. The four workmen are the members of the Union which fact is not disputed. Once, the Union accepts the settlement and acts on the same and gives up its right to challenge the binding nature of such settlement, it is not open to a workman belonging to the said Union to challenge the binding nature of the said settlement. The Settlement equally binds the aforesaid four workmen and they have no right to contend that it is not binding on them.
INDUSTRIAL DISPUTES ACT, 1947 - Schedule 2, Item 1: [N. Kumar, J] Misconduct not defined under Act - Reduced production - Held, Reduced production, refusal to give the agreed output, deliberately working slow, not completing the job in a proper time, is a breach of duty. It is crude device to defy the norms of work. It is dishonesty, in as much as, the workman claim wages for the work which he has not done, and claims full wages for the reduced out put. The workmen are guilty of intentional omission of duty. It has been condemned as misconduct in industrial adjudication. It is not a case of inefficiency or slackness. It is a positive act. It is quite incompatible with the express and implied terms of relationship of master and servant, that is the edifice of contract of employment. It need not be specifically mentioned in the contract of employment or in the standing orders. Standing orders lists the acts and omissions which shall be treated as a misconduct and it is not exhaustive. It is not possible to prove every type of misconduct in the standing orders. At the same time, an employer cannot fish out some conduct as misconduct and punish the workman even though the alleged misconduct could not be comprehended in any of the enumerated misconduct. Therefore, not performing the stipulated work deliberately and not giving the agreed out put for which wages are paid and received constitute a grave misconduct and is one of the most pernicious practices that harm the industry than the total cessation of work. Therefore, workmen not giving 1.5 arcing hours in the instant case would constitute misconduct not withstanding the fact that the same is not one of enumerated misconduct under the standing orders.
N. Kumar, J.
1. W.P.No. 38974/99 is preferred by the Management of Larsen & Toubro Komatsu Limited challenging the award of the Labour Court dated 13.8.99 passed by the Industrial Tribunal, Bangalore, in I.D.No. 12/97, in so far as it pertains to reinstatement of four employees. W.P.No. 29500/2000 is preferred by the Larsen & Toubro Employees Association and its four workmen who were dismissed from the service challenging the very same award in so far as it denied hack wages and wages for the strike period and for other reliefs. As in these writ petitions what is impugned is the common award passed by the Industrial, Tribunal these writ petitions are taken up for consideration together, heard and disposed of by this common order.
2. The facts in brief leading to the impugned award are as under:
Larson and Toubro Komatsu Limited is a leading engineering industry in India with an annual turn over of more than Rs. 4,300/- crores, on the date of the writ petition. It is having a factory in Bangalore called as L&T Bangalore Works. It employed about 1200 employees including 795 workmen. (The said company for short hereinafter referred to as “the Management”) Larsen & Toubro Employees’ Association is a recognised Union (for short hereinafter referred to as “the Union”). The last settlement before the dispute, was entered into between the Management and the union, came to an end on 31.12.1993. The Union by a notice dated 31.10.93 terminated the settlement and placed a charter of demands for revision of pay scales, DA and other service conditions. The management also submitted its requirements by its letter dated 20.3.94. When negotiations were initiated on the charter of demands, the Management impressed on the Union that it is imperative that the productivity of the workmen should be considerably increased and a substantial increase in wages could be considered only by augmenting the gains of improved productivity. The Union agreed in principle that there was scope for improving the productivity and therefore the Management’s requirements which primarily sought for improvement in productivity and work practices were discussed simultaneously along with the charter of demands. The Management demanded that the workman should maintain not less than 90% efficiency in computer controlled machine and 80% in conventional machines. The Management also required that the operators in gas cutting operation should perform a minimum of 5 hours of gas cutting operation in a shift of 8 hours. After protracted discussions and negotiations consensus was reached as to the revision of the work norms viz. 90% efficiency in CNC machines, 80% efficiency in non CNC machines and gas cutting of 5 hours per shift and CO2 Arc welding of 1.5 hours by 0.5 hours, more than the average of the arcing hours done during the period October to December 94 and various other work practices. In Page 2519 fact, the negotiations on the charter of demands were held over a period of 18 months spread over 71 meetings and 250 hours of discussion. The Union published bulletin dated 10.3.95 and on 13.08.1995 informing the workers of agreed terms. Thereafter the parties felt that the proposed settlement should be made at tripartite level so that it will be binding and the fairness of the settlement would not be open to any criticism at a later stage. The understanding reached regarding productivity, measurement and improvements can be spelt out in a broader sense in the settlement and the details of productivity measurements and improvements could be incorporated in a memorandum of understanding.
3. On 16.8.95 the representatives of the Management, office bearers and executive committee members of the Union went to the office of the Commissioner of Labour and in the presence of the Commissioner of Labour and the Joint Labour Commissioner participated in the meeting and signed the settlement which was also signed by the Conciliation Officer. Similarly, all the persons who have
