A Labour Court's power under Section 11A of the Industrial Disputes Act, 1947, allows for the modification of a disproportionate penalty of dismissal, but relief such as continuity of service may be denied if the claimant pursued untenable legal proceedings, contributing to unreasonable delay.

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

CAV ORDER

The petitioner–Company has assailed the award dated 27.01.2020 in Reference No.15/2017 on the file of the Labour Court, Mysuru, directing reinstatement of the respondent–workman, whereby the penalty of dismissal from service dated 16.11.2006 has been set aside.

2. The award also directs reinstatement without back wages and allowances from the date of dismissal till reinstatement. However, the award directs continuity of service. The respondent–workman has accepted the award. In other words, the finding on misconduct is accepted by the workman.

3. The petitioner–employer is before this Court assailing the award primarily on the premise that the dispute is raised 10 years after the date of dismissal, and the Labour Court could not have interfered with the punishment when the misconduct is established.

4. The respondent-workman joined the petitioner Company as an Operator in the year 1995. The petitioner Company issued a charge memo dated 07.04.2006 to the respondent alleging certain misconducts from 03.02.2006 to 11.02.2006.

5. The charge memo dated 07.04.2006 contains the following charges:

(a) Unauthorized absence from the workplace during working hours;

(b) Causing damage or loss to the company’s property;

(c) Deliberate slowing down of work and instigating or coercing other workmen to slow down the work;

(d) Refusal to accept the charge sheet, notices, suspension orders, warning letters, show-cause notices, or any other communications offered for service by the Company.

(e) Slowdown or enticing workmen to slow down any performance of work; and

(f) Tampering with or sabotaging the Company’s property.

6. The respondent-workman did not submit any explanation to the said charge memo. The petitioner appointed an Enquiry Officer to enquire into the charges. The respondent did not participate in the enquiry. After considering the evidence, the Enquiry Officer, vide report dated 12.07.2006, held that the charges against the respondent are proved.

7. A copy of the enquiry report was sent to the respondent along with a memo dated 16.08.2006, calling upon the respondent to submit his reply, both on the findings of the Enquiry Officer and on the proposed punishment of dismissal from service. The notice sent along with the report is said to have been returned with an endorsement ‘not claimed’. Thereafter, the petitioner-Company dismissed the respondent vide order dated 16.11.2006.

8. The petitioner-Company contends that one more dispute concerning the respondent, not connected to the misconducts alleged, was pending consideration before the Industrial Tribunal, Mysuru (Tribunal) in Reference No.111/2004. Therefore, the petitioner filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (“Act, 1947”) seeking approval for the penalty of dismissal, and one month’s salary was also paid to the respondent as required under Section 33(2)(b).

9. The Tribunal, by order dated 12.04.2013, allowed the said application under Section 33(2)(b) of the Act, 1947, holding that the domestic enquiry was fair and proper, and granted approval to the order of dismissal. The respondent has not challenged the said order.

10. The respondent filed a complaint under Section 33-A of the Act, 1947, alleging that the provisions of the Act,