- 1 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF OCTOBER, 2023 PRESENT THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE AND THE HON'BLE MR JUSTICE KRISHNA S DIXIT WRIT APPEAL No.419 OF2023(L-RES) C/W WRIT APPEAL No.421 OF2023(L-RES) IN W.A.NO.419/2023: BETWEEN: THE MANAGEMENT OF EXPRESS PUBLICATION (MADURAI) LTD. THE NEW INDIAN EXPRESS GROUP EXPRESS BUILDING, NO.1, QUEENS ROAD, BENGALURU-560 001. REP. BY ITS GENERAL MANAGER. …APPELLANT (BY SRI. K KASTURI., SENIOR ADVOCATE FOR SRI. GOVINDARAJ K.,ADVOCATE) AND:
1. BANGALORE NEWSPAPER EMPLOYEES UNION NO.75, M.G. ROAD, BANGALORE-560 001.
2. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT - 2 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 LABOUR DEPARTMENT, VIKASASOUDHA, BANGALORE-560 001. …RESPONDENTS (BY SRI.NARAYANA SWAMY K B.,ADVOCATE FOR C/R1; SMT.NILOUFER AKBAR., ADDITIONAL GOVERNMENT ADVOCATE FOR R2) THIS WRIT APPEAL FILED U/S4OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN W. P. No.39947/2017 DATED2402.2023 AND CONSEQUENTLY ALLOW THE WRIT PETITION AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY. IN W.A.NO.421/2023: BETWEEN: THE MANAGEMENT OF EXPRESS PUBLICATION (MADURAI) LTD., THE NEW INDIAN EXPRESS GROUP EXPRESS BUILDING, No.1, QUEENS ROAD, BENGALURU560001. REP BY ITS GENERAL MANAGER. …APPELLANT (BY SRI.K KASTURI., SENIOR ADVOCATE FOR SRI.GOVINDRAJ K., ADVOCATE) AND:
1. . G DINESH BABU S/O P GOVINDARAJULU NAIDU, AGED ABOUT48YEARS, NO125 5TH CROSS, ADL KABIR ASHRAM ROAD, MOTI NAGAR, R T NAGAR POST, BENGALURU560032.-. 3 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 2 . B MUNISWAMY, S/O B SUBRAMANIAM, AGED ABOUT55YEARS, NO9 7TH CROSS MARKET ROAD, LAKSHMINARAYANAPURA,. SRIRAMPURAM, BENGALURU560021. 3 . V S JAGADEEESH, S/O SIDDALINGAIAH, AGED ABOUT50YEARS, SIDDLINGESHWARA NILAYA, NO40 4TH CROSS, 5TH MAIN, BHUVANESHWARI NAGAR, T DASARAHALLI, BENGALURU560057. 4 . D S VENKATESH MURTHY, S/O D SHANKARA NARYANA RAO, AGED ABOUT60YEARS, C/O SUBBALAKSHMAMMA, NO11 FORT DEVANAHALLI, BENGALURU562110. 5 . R CHAKRAVARTHI, S/O RANGASWAMY NAIDU, AGED ABOUT56YEARS, NO49 THE GRAND FIELDS, HOMMADEVANHALLI GOTTIGERE POST, BANNERGHATTA ROAD, BENGALURU560083. 6 . D VENKATESULU, S/O VENKATRAMAIAH SASTRY, AGED ABOUT64YEARS, NO98 10TH MAIN, KURUBARAHALLI, BENGALURU560052. 7 . B BABU S/O LATE BALU, AGED ABOUT53YEARS, NO351, 7TH CROSS, CHIKKATHAYAPPA ROAD, AMBEKAR COLONY, VASANTHNAGAR, BENGALURU560052.-. 4 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 8 . S LAKSHMAIAH, S/O LATE SAMPANGI RAMAIAH, AGED ABOUT62YEARS, NO12 H STREET, 10TH CROSS, MAGADI RAOD, BENGALURU560023. 9 . R THANDAVA MURTHY, S/O LATE RAMACHANDRAN, AGED ABOUT62YEARS, NO4 CHINAPPA GARDEN, BENSON TOWN PO, BENGALURU560046. 10 . A LAKSHMANA MURTHY, S/O APPAIYANNA, AGED ABOUT47YEARS, NO316 ASWATHNAGAR, THANISANDRA MAIN ROAD, ARABIC COLLEGE POST, BENGALURU560005. 11 . K SURYANARAYANA RAJU, S/O K KRISHNAM RAJU, AGED ABOUT57YEARS, NO4046 19TH MAIN ROAD, H A L2D STAGE, BENGALURU560008. 12 . M.SRINATH, S/O M. MUNUVENKATAPPA, AGED ABOUT46YEARS, NO.1015, 8TH MAIN ROAD, JUDICIAL LAYOUT, G.K.V.K. POST, BENGALURU-560 045. 13 . P.VIVEKANANDAN, S/O PARASURAM, AGED ABOUT49YEARS, NO.26/13TH CROSS, J.C. NAGAR, KURBARAHALLI, MAHAKASHMIPURAM, POST, BENGALURU-560 086.-. 5 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 14 . A. NARAYANA RAO, SINCE DECEASED , BY LRS14A) SMT.LAKSHMIBAI.M, W/O LATE A. NARYANA RAO, AGED53YEARS14B) DIVYA BHARATHI BAI.N, D/O LATE A. NARYANA RAO, AGED ABOUT30YEARS, 14(C) NAVEEN RAO.N, S/O LATE A. NARAYANA RAO AGED ABOUT30YEARS, ALL ARE RESIDING AT NO.38./22, VINAYAKA LAYOUT, 12TH CROSS, MANORYANAPALYA, R T NAGARA POST, BENGALORE-560 032. 15 . M.NAGARAJU, S/O RAMACHANDRAIAHM AGED ABOUT50YEARS, NO.844, F BLOCK, NEAR ESCORTS AND GEOTZE LAYOUT, NEAR OM SHAKTHI TEMPLE, ATTUR LAYOUT, ATTUR MAIN ROAD, YELAHANKA POST, BENGALURU-560 064.
16. P.RAVI S/O PARASURAM, AGED ABOUT51YEARS, NO.26 13TH CROSS, J.C NAGAR, KURBARAHALLI, MAHALAKSHMIPURAM, POST, BENGALURU-560 086. 17 . K.RAMALINGAM, S/O M, KANDASWAMY, AGED ABOUT60YEARS, NO.5 KRISHNAPPA LAND, KADUGODI, WHITEFIELD, BENGALURU-560 067.-. 6 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 18 . B.S NAGARAJ, S/O SRIKANTAIAH, AGED ABOUT60YEARS, NO.15, SRINIVASA NILAYA, 5TH CROSS, SUBANNA GARDEN, VIJAYANAGAR, BENGALURU-560 040. 19 . R. MURTHY S/O RATHNAM, AGED ABOUT63YEARS, NO.312, 9TH CROSS, 6TH MAIN, 3RD STAGE, PILLANNA GARDEN, BENGALURU-560 045. 20 . S.RAMSINGH, S/O SARDAR SINGH, AGED ABOUT52YEARS, NO.1/1. 2ND CROSS, 2ND MAIN, AZAD NAGAR, CHAMARAJPET, POST, BENGALURU-560 018. 21 . P. PANJAMANI S/O PERUMALM AGED ABOUT60YEARS, NO.673, NR. MUNESHWARA TEMPLE, KRISHNAPPA LAYOUT, SUBBANNAPALYA, BENGALURU-560 033. 22 . P.BABU S/O LATE B.M PERUMAL, AGED ABOUT56YEARS, NO.16/13 B BLOCK, DGQA RESIDENTIAL QTRS, GUNATHA VIHAR, R T NAGAR, BENGALURU-560 006. 23 . DHARAM RAJ.V, S/O VASUDEVAN.R AGED MAJOR,(ABOUT YEARS), NO.7, 10TH CROSS, BHAGYA JYOTHI PALYA, MAHALAKSHMIPURAM, - 7 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 24 . M.HARIBABU S/O MOHAN, AGED ABOUT47YEARS, NO.51/2, 7TH CROSS, CHIKKATHAYAPPA STREET, VASANTHNAGAR, BENGALURU-560 052. 25 . P.VENKATESH, S/O PARTHASARATHY NAIDU, AGED ABOUT59YEARS, NO.343, 5TH MAIN, 3RD PHASE, MANJUNATH NAGAR, WEST OF CHORD ROAD, BENGALURU-560 010. 26 . DAIVEGAN.R.,. S/O RAJENDRAN, AGED ABOUT56YEARS, NO.1/7 RANGAMMA GARDEN, PSK NAIDU ROAD, DODDIGUNTA, COX TOWN BENGALURU-560 005. 27 . GERALD HUGGINS S/O JERRY HUGGINS, AGED ABOUT53YEARS, KRISHNAPPA BUILDING, 2ND CROSS, PEMME GOWDA ROAD, J.
C NAGAR, BENGALURU-560 006. 28 . G.JAYAPRAKASH, S/O GOVINDASWAMMY CHETTY, AGED ABOUT53YEARS, NO.11, 2ND CROSS, MVR BLOCK, J.
C NAGAR, BENGALURU560006. 29 . R.ELUMALAI S/O LATE RAMASWAMY AGED ABOUT61YEARS, NO.14,-A, 65/2, GANGAPPALYT, BEHIND TTK, SHAKTHINAGAR, BENGALURU-560 016.-. 8 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 30 . N. SURENDRA SINGH, S/O B.H NARYANA SINGH, AGED ABOUT50YEARS, C/O SANJU, SHREYAS NILAYA, 11TH CROSS, VISHWANATH NAGENAHALLI, R.T NAGAR POST, BENGALURU-560 032. 31 . JAVARAIAH.S, S/O SIDDAIAH, AGED ABOUT58YEARS, NO.877,3RD MAIN ROAD, GOKULA EXTN, DIVANARAPALYA, BENGALURU-560 055. 32 . C.VELU S/O CHINNAPPA, AGED ABOUT48YEARS, NO.114, 27TH CROSS, TANNERY ROAD, OLD BAGALUR LAYOUT, BENGALURU-560 084. 33 . JOTHIRAJAN.S, S/O LATE SWAMY IYA, AGED ABOUT58YEARS, NO32 NR. JAYALAKSHMI SCHOOL, RAMASWAMY PALYAM, BENGALURU-560 033. 34 . B.JAYARAM, S/O LATE. B DORAISWAMY, AGED ABOUT61YEARS, NO.81, RAGHAVENDRA NILAYA, 2ND CROSS, BALAJI LAYOUT, BSK3D STAGE, BENGALURU-560 085. 35 . B.NAGESH S/O LATE. D VIJENDRA RAO, AGED ABOUT62YEARS, NO.18/1 L.D BLOCK, 1ST MAIN, 7TH CROSS, GANGANAGAR, R T NAGAR POST, BENGALURU-560 032.-. 9 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 36 . K.KUMAR RAO,KRISHNOJI RAO, AGED ABOUT46YEARS, NO.32 4TH CROSS, JAIJAWAN NAGAR, M.S NAGAR POST, BENGALURU-560 033. 37 . PADMANABHA POOJARY, S/O JARU POOJARY, AGED ABOUT51YEARS, NO.656, 1ST FLOOR, CHIKKABAZARROAD, SHIVAJINAGAR, BENGALURU-560 051. 38 . B.VENUGOPAL, S/O LATE BHOOPATHICHETTAIR, AGED ABOUT63YEARS, NO.317, 6TH CROSS, MARUTHI NAGAR, NR. BALAJI MEDICALS, HEGGANAHALLI, ANDHRAHALLI MAIN ROAD, VISWANEEDAM POST, BENGALURU-560 091. 39 . M.BALAKRISHNA, S/O L. NARSIMHA MURTHY, AGED ABOUT71YEARS, NO.3831-143/3, GREEN GARDEN MARRIPALYAM, VISHAKAPATNAM-500 018. ANDHRA PRADESH. 40 . BASAVARAJ.C S/O CHANNACHARI, AGED ABOUT51YEARS, NO.11, CHANDRASHEKAR LAYOUT, SRIGANDHA KAVAL, SUNKADAKATTE, BENGALURU-560 091. 41 . V.LAKSHMAN RAO S/O APPALA NAIDU, AGED MAJOR( ABOUT YEARS), NO3921-26/1, MADHAVADHARA, VIDYANAGAR, VISHAKAPATNAM, ANDHRA PRADESH-530 037. ..RESPONDENTS (BY SRI. NARAYANA SWAMY K B., ADVOCATE FOR C/R1) - 10 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 THIS WRIT APPEAL FILED U/S4OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN WP No-20186/2016 DATED2402.2023 AND CONSEQUENTLY ALLOW THE WP AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS COMING ON FOR ORDER
S THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING: JUDGMENT
These intra-Court appeals seek to call in question a learned Single Judge’s order dated 24.02.2023 whereby appellant’s W.P.Nos.39947/2017 c/w W.P.No.20186/2016 (L-RES) have been dismissed. The challenge in those writ petitions essentially was to the award dated 28.04.2017 passed by the Industrial Tribunal, Bengaluru in I.D.No.77/2009 and to the award dated 27.11.2015 passed by the II Additional Labour Court, Bengaluru in I.D.No.11/2009. The net effect of these awards and the impugned order is the reinstatement of the workmen with full back wages.
2. The learned Senior Advocate appearing for the appellant –Management vehemently argued that the impugned order of the learned Single Judge is liable to be - 11 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 voided mainly on two grounds: going by the pleadings of the parties and evidentiary material placed on the record of the Labour Court/Industrial Tribunal, there was no case of retrenchment at all; the workmen themselves were at fault in not reporting back to duty despite repeated letters and requests; in any event, having on their own stayed away from employment, the workmen are not entitled to the award of full back wages. This aspect, according to him, having not been properly appreciated, there is error apparent on the face of the impugned order warranting it being struck down. In support of his contention, he presses into service a few decisions of the Apex Court.
3. Learned counsel appearing for the respondent- workmen vehemently opposes the appeals making submission in justification of the impugned order of the learned Single Judge and also the orders made by the Labour Court and the CGIT. He draws our attention to the fact that out of 47 workmen, 5 have expired and all others except 10 workmen who are reinstated, have been - 12 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 superannuated. He further contends that the intra-court appeals are not maintainable in view of a Seven Judge Bench decision of this Court in TAMMANNA vs RENUKA, ILR2009KAR1207 Even otherwise, according to him, this Court cannot undertake a deeper examination of the matter when the CGIT and a learned Single Judge having examined all the aspects, have granted relief to the workmen.
4. Having heard the learned counsel for the parties and having perused the appeal papers, we decline indulgence in the matter for the following reasons: (a) The learned Senior Advocate appearing for the appellant –Management argues that despite written requests, the workmen did not turn back to employment and therefore theirs is not a case of retrenchment at all and as a consequence, no back wages could have been awarded, more particularly when they are reinstated, 10 of them actually and others notionally. To substantiate this point, he draws attention of the Court to the letters - 13 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 dated 16.01.2009 and 06.02.2009, whereby, the workmen were asked to come back to duty and be in the employment, which they did not accede to. Per contra, learned counsel appearing for the Trade Union and the workmen contends that without any justification whatsoever his clients were removed from service and they were not permitted to work at all; even otherwise, they were asked to give a letter of regret as a pre- condition for being permitted to regain entry to employment. According to him, it is a text book case of retrenchment done contrary to law and therefore the back wages have been rightly awarded. (b) The letter dated 16.01.2009 i.e., Ex.M-28 sent by the Management to the workman reads as under: “You have been unauthorisedly absenting yourself from duty with effect from 7th January 2009 to till date. This is a Newspaper industry, which has precise deadlines for each operation and the Management cannot afford to condone - 14 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 absenteeism which will cut at the very root of the survival of the organization. Due to your unauthorised absence from 7th January 2009, the Management is constrained to inform that you have lost your lien on your appointment/employment. By a copy of this letter, we are advising the Accounts Department to settle your account and you are requested to collect your dues, if any, on any working day during the working hours of the office.” The vehement submission of learned Senior Counsel appearing for the Management that the text of the above letter does not amount to retrenchment is bit difficult to countenance. If the letter were to indicate only “loss of lien” on the employment and nothing more, perhaps there was scope for accepting such an argument more particularly in view of the decision of the Apex Court in MOTI RAM DEKA vs G.M., NORTH-EAST FRONTIER RAILWAY, AIR1964SC600 (This case related to Service Jurisprudence, is kept in view). However, the text - 15 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 of the letter is not that innocuous; it tells the workman that his dues are being settled and during working hours of the office, he can collect the same. In construing letters of the kind, one cannot keep his common sense in cold storage. The letter should be construed in its plain meaning as would be drawn by the addressee workman who may be a stranger to the grammar school. Learned counsel representing the workmen is more than justified in contending that this letter has cut the umbilical chord of employment and thereby brought about the retrenchment, sans compliance of pre-conditions enacted by law. (c) Learned Senior Advocate appearing for the Management drew our attention to the other letters dated 06.02.2009 at Annexure-B series. All they have the following English text: “This has reference to your letter dated 21/01/2009 in reply to our letter dated 16.1.2009. The various statements made in your letter are untrue & incorrect and do not justify your unauthorized absence.-. 16 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 However, without prejudice to our right to take disciplinary action against you, we hereby direct you to report for duty immediately.” Mr.Kasturi, on the basis of text of these letters, argues that the workmen were directed to report back for duty and they having failed to comply with the same, there is no case for retrenchment compensation; he tells that it is a case of voluntary abandonment of employment. This too, we do not agree with. Reasons are not far to seek: After the letter dated 16.01.2009 was sent, the workmen had submitted their reply thereto, making certain allegations as to they being required to give a “regret letter”. Had they given one, that would have been a case of admission of guilt. Added, the Management’s letter lacks bona fide inasmuch as it does not recall the earlier letters which mentioned about ‘loss of lien’ and had directed the workmen to get their service benefits settled. These benefits are nothing but the terminal benefits of employment. Strangely, these letters do not make even a cursory reference to the earlier letters asking the employees to take the terminal benefits. The canons of - 17 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 labour jurisprudence built precedent by precedent over the years, require industrial managements to conduct themselves tall and bona fide qua the workmen who happened to be a vulnerable section of society, whom the law seeks to protect. It hardly needs to be stated that they cannot act as the East India Company of the bye- gone era. The “hire and fire” policy of yester century has been reduced to a footnote in the history of Labour Law. (d) Learned counsel appearing for the Management next argues that the conduct of workmen coupled with the letter correspondence of the Management, demonstrates a prima facie case of shared culpability and therefore full back wages could not have been awarded. The appellant is not an ordinary industrial establishment; it is a part of the Fourth Estate. Mr.Kasturi rightly extolled certain appreciable events of history with which the appellant is creditably associated; however, that is not much relevant to the adjudication of case at hand. The arguable elements of culpability qua the workmen are too frugal to be counted. It is more so because the stand sought to be - 18 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 canvassed before us, does not earn credence by the pleadings of the Management taken up before the Labour Court, the Industrial Tribunal and before the learned Single Judge. We do not find any justification whatsoever for the Management to have kept away from the statutory conciliation proceedings. Learned Single Judge has rightly made some comments in the impugned order in this regard. It is not the case of the Management that it has any financial constraints or such other difficulties that justify its claim for denial of retrenchment compensation. The Apex Court time and again has held that the provisions of 1947 Act inter alia regulating retrenchment are mandatory vide RAJKUMAR vs. DIRECTOR Of EDUCATION, (2016) 6 SCC541 Such a claim cannot be readily granted just for an askance; a special case needs to be made out for that and no such case is made out before us. That being the position, the plea of shared culpability does not merit countenance. (e) There is yet another aspect namely, the maintainability of intra-Court appeals. What were - 19 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 challenged before the learned Single Judge were the outcome of the proceedings held by the Labour Court and the Industrial Tribunal under the provisions of the Industrial Disputes Act, 1947. Obviously, the learned Single Judge had examined the matter in the limited supervisory jurisdiction constitutionally vested under Article 227, the other provision namely, Article 226 having been ornamentally employed by the Management in the writ petitions. That being the position, we are afraid that a deeper examination of the order of the learned Single Judge cannot be ventured by us, assuming that the appeals are maintainable. In TAMMANNA supra, it has been held that ordinarily such appeals are not maintainable as rightly contended by the learned counsel appearing for the Labour. Even otherwise, the appeals being continuation of the original proceedings, they have the limitations which the learned Single Judge himself had in deciding the writ petitions. After all, the judicial review focuses the decision making process and not the decision itself vide SUSHIL KUMAR vs STATE OF HARYANA, - 20 - NC:
2023. KHC:37845-DB WA No.419 of 2023 C/W WA No.421 of 2023 (2022) 3 SCC203 This applies to the writ appeals, as well. We also noted that only 10 of the workmen are reinstated, many others having retired by attaining the age of superannuation and the rest having been laid to rest in peace, in the long drawn legal battle. The decisions cited by both the sides have been duly considered by the learned Single Judge who has crafted the impugned judgment in an appreciable way and therefore, we have not burdened our judgment with the duplication of the said rulings. In the above circumstances, these appeals being devoid of merits are liable to be and accordingly are dismissed, costs having been made easy. Sd/- CHIEF JUSTICE Sd/- JUDGE Snb,bvk