Management of Kamla Dials and Devices Ltd. by Its Executive Director Vs. Sri Aswathaiah - Court Judgment

Excerpt:
- sections 8 & 14: [k.n. keshavanarayana, j] suit for partition - one s died intestate leaving behind him his wife and five sons - he had got the suit schedule property as his share in a partition between him and his brothers - wife (widow) made a will in respect of entire property in favour of great grandson, as an absolute owner - she died pending suit for partition -trial court held the property was separate property of s and on his death his wife became the absolute owner and that the will executed in favour of d-5 (great grandson) is valid and dismissed the suit - first appellate court reversed the finding of the trial court and held that all the five sons are entitled to 1/5 share each and that deceased d-1 (widow) was not the absolute owner - second appeal held, since the plaint schedule properties were the separate and exclusive properties of deceased s upon, his intestate death, his properties are inherited by all his class-i heirs as per section 8 of the hindu succession act. even if the original defendant no.1 has enjoyed the plaint schedule properties along with her husband after the partition, she did not acquire any exclusive right over the properties. at best she was entitled to enjoy the same till her lifetime. to a case of this nature, as rightly held by the lower appellate court, section 14 of the hindu succession act has no application. no doubt, as per sub-section (1) of section 14 of the hindu succession act, any property possessed by a female hindu, acquired either before or after commencement of the act, should be held by her as full owner thereof and not as a limited owner, explanation to sub-section explains the term property. according to this section, property includes moveable and immovable properties acquired by a female hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person. whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhana immediately before the commencement of this act. as noticed above, the plaint schedule properties were not inherited by defendant no. 1 nor it was transferred to her by any modes known to law. admittedly, it was allotted to the share of her husband at a partition and her husband died intestate. soon after the death of her husband, the estate left behind by him will have to be shared equally by his class-i heirs as directed by section 8. therefore, the trial court is in error in applying the provisions of section 14 of the hindu succession act to the present case. under these circumstances, the lower appellate court is justified in reversing the judgment of the trial court in this regard. merely because the 5th defendant (great grant son) has successfully established the execution and attestation of the will, it does not ipso-facto establish that he was succeeded to all the properties. the testatrix should have right over the properties bequeathed so that the beneficiary under the will succeeds to the properties. having regard to the fact that the original defendant no.1was not the absolute owner of the properties mentioned under the will, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under the will. there is no dispute that upon the death of s, defendant no.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. therefore, she succeeded to 1/6th share in the properties left behind by her husband. the question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a will? section 30 of the hindu succession act, no doubt, empowers an hindu to dispose of the properties by will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the indian succession act, 1925. explanation to section 30 explains as to what is the interest of a hindu which can be disposed of by will or other testamentary disposition. according to this explanation, only the interest of a hindu in a mitakshara co-parenary property which can be disposed of by him or her by way of will or other testamentary dispositions. in the case on hand, in the case on hand, it is clear that the plaint schedule properties were not mitakshara coparcenary properties, as according to the contentions of the contesting parities, the plaint schedule properties were the exclusive and separate properties of s having been allotted to him towards his share, under the partition. therefore, section 30 of the hindu succession act has no application to the facts of the case. upon the death of s, original defendant no.1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. thus, she became the co-owner along with her children in respect of the plaint schedule properties. her share was definite and only the division by meets and bounds had been postponed. under these circumstances, the submission of the learned counsel for the appellant that the original defendant no.1 could dispose of her undivided 1/6th share in plaint schedule properties by way of a will as provided in section 59 of the indian succession act has great force and deserves to be accepted. therefore, there is no difficulty in holding that the 1st defendant had right to dispose of her undivided 1/6th share in the plaint schedule properties by way of a will. the will of d-1 to the extent of 1/6th share is valid and the four sons and lrs of one son who was deceased will get 1/6th share each. as regards the alienation made by one of the son (plaintiff-4) while effecting partition by metes and bounds to the extent possible the share of plaintiff-4 to be identified in item-b (which he has sold). indian succession act (39 of 1925), section 59:will a testator who is having an undivided interest can dispose of her share by way of a will. section 30 of hindu succession act has no application. section 63: will interpretation testatrix claiming to be the absolute owner of entire property bequeathing in favour of her great grandson finding of the court that she is entitled to 1/6th share held, the will is valid to the extent of her 1/6th share. orderhuluvadi g. ramesh, j.1. petitions are by the management as well as by the workman assailing the award passed by the labour court bangalore in id 75/2002 on 1.6.2005.2. the workman joined the services of the management during november 1995 as a trainee and thereafter, he was appointed as grade ii workman with effect from 1.11.1996. in november 1997, his services were confirmed. during 2001, certain misconduct were alleged against the workman like, rude behaviour with his official superiors, use of abusive language and making filmy remarks and gestures, indecent behavior, unauthorised absence and willful insubordination, causing nuisance within the premises and, absence from place of work. in this regard, on several dates, charge sheet were served on the workman. during december, 2001, inquiry was held. based on the inquiry report workman was dismissed from service for the proved misconduct against the said order, workman allowing the dispute and matter was contested. thereafter, after inquiry, labour court passed the award allowing the dispute and directed the management to reinstate the workman with 60% back wages. aggrieved, management has filed wp 18861/2005 to set aside the award. wp 20492/2005 is filed by the workman aggrieved by the denial of 40% bock wages. hence, these two petitions.3. heard the counsel.4. the case of the counsel representing the management is, labour court did not consider the material evidence on record. although specific charges are framed it has observed that no charges are framed. five witnesses were examined by the management to prove the misconduct. although inquiry authority has held that the workman was guilty of misconduct contrary to the same, without properly appreciating the material evidence on record, it has passed the award which suffers from total perversity. although there is material produced to prove the misconduct of the workman which is a grave charge and necessarily a ground to pass the order of dismissal, that has been ignored by the labour court. it is also submitted, so far the workman has been paid rs. 1,92,000/- plus by way wages under section 17b of the industrial disputes act from 30.8.2005 onwards. since the company is not getting orders, its operations are closed. accordingly, it is prayed for setting aside the order of reinstatement end payment of back wages.5. in the workman's petition, it is stated that the charges leveled are not proved against the workman. labour court ought to have awarded full back wages and that the labour court has committed several errors on the face of the record.6. in the light of the arguments advanced and the grounds taken, the point that arises for consideration is whether the award passed by the labour court needs interference.7. the management is a public limited company engaged in the manufacture of watch dials. there are certified standing orders and about seventy eight persons are working. according to the workman, he was drawing a salary of rs. 4,010/- p.m. at the relevant point of time. there were several charges leveled against the workman. as per the charge sheet dated 22.6.1998, there is willful misconduct and insubordination, absence from work place during working hours, behaving rudely with the official superiors and disorderly behaviour for which, workman has replied subsequently in the next month. thereafter, warning letter has been issued after another fifteen days. several letters were issued from time to time and on 24.2.1999, warning letter was issued regarding breach of discipline in the factory premises. another charge sheet is issued on 3.7.1999 regarding disorderly behaviour, use of abuse language subversive of discipline. apart from that, there is also the charge regarding unauthorised absence and a memo is issued on 3.3.2000. regarding use of abusive language to the personnel manager, memo is issued on 12.12.2000. in this regard, warning letter is issued on 18.12.2000. once again for refusing to discharge work given by the supervisor, memo is issued on 27.6.2001. explanation is given by the workman and warning letters issued by the management are also produced. another charge against the workman is, unauthorised absence for fourteen days. when the supervisor questioned about the same, the workman has insisted for post facto sanction and abused the official. it is also stated on 21.7.2001 the workman had left the work place and was found loitering in the factory. on issue 1, a finding is given that there was illegal dismissal from service. the inquiry conducted is also held to be not fair and proper. on the issue whether the dismissal is justified labour court has ordered for reinstatement with 60% back wages.8. what has been noticed in die award is, labour court has taker, into consideration me reply given by the workman and it appears the workman as if he is innocent, has given his explanation. however, counsel representing the management has taken me through the various annexures regarding using of words - abusive and obscene language, against the official superiors which is at pages 27 and 28 of the writ petition filed by the management. when the supervisor asked the workman as to why he did not apply for leave in advance, the workman has taken the supervisor to task. similarly, when the workman was instructed to go to the work place by the supervisor, he has replied that he is tree to go anywhere, everywhere and who is he to ask him. however, in the reply given ii is as if the workman is innocent of the charges leveled against him and has also tried to justify his conduct.9. regarding unauthorised absence, labour court has noted that the workman had come to work only on 17.7.2001 for the first time and has also noted that management witness did not know whether the workman was absent on 17.7.2001 or not labour court has gone to the extent of disbelieving the version of the management witness and tried to justify the conduct of the workman only on the score that the management witness could not say properly whether on 15th and 16th the workman had 'mended duty or not. but, it is clear from 4.7.2001 to 14.7.2001, the workmen remained absent and also did not apply leave. later, he approached for post facto sanction of earned leave and this aspect has not been seriously taken note of. though it is stated that there is ambiguity but whether such unauthorised absence for any other purpose was justified has not been stated further, the labour court has also not stated as to why the management witness has to be disbelieved regarding using of abusive language except stating that it is all concocted despite placing several material on record labour court has passed an order in a passing reference as to the specific allegation made by the management against the workman.10. regarding using abusive language, the opinion formed by the labour court is, from the place of incident to the place where other people are working the distance is only 1s feet as such, others could not have heard. the reasoning of the labour court appears to be perverse because when abusive language is used one can easily hear them though the incident cannot be seen if it has taken place in a separate room. specifically the management witness has stated that the workman worked for nearly lour years and he has not misbehaved earlier till 1999. stating that earlier there is no such report against the workman regarding misbehaviour, only to harass him such a allegations is made, labour court is of die view that only on account of the submission of die charter of demands, mere is unfair labour practice. of course the explanation offered by die management in this regard is, die workman is not at all an office bearer of die union and in the usual course his misbehaviour is brought to the notice of the management and inquiry has been held and there is (sic) as such to victimise die workman nor he was an active participant in the union activities as an office bearer. through out die labour court has went on disbelieving die version of the management witness. it appears there is sufficient material evidence on record pointing out the misconduct of the workman regarding unaudiorised absence, use of abusive language and misbehaviour with die superiors. even though it is stated in the charge that this workman has misbehaved with the supervisor without specifically stating die name of die supervisor, labour court has gone to die extent of saying mat there is no charge leveled for which die workman could be held guilty. this appears to be strange.11. so far as sanctioning of leave for die unaudiorised period and permitting die workman to do duty, labour court has opined mat after die employee gives explanation for his unauthorised absence, if they are satisfied, he would be allowed to do work. it has observed that die workman was allowed to work although be remained unauthorisedly absent and a absent and false report was given against the workman. however, what made the supervisor to give a false report and what are die circumstances under which such as report was given is not forth coming except stating that he was permitted to attend for duties on 16th may. it appears, although several serious charges were leveled against the workmen, labour court has taken all those aspects lightly and went on justifying on its own, the conduct of the workman and to exonerate him. in the circumstances, the impugned award needs interference.12. further, it is noted as per the submission made and the affidavit filed the management has stopped its operations from may 2009. necessarily, the charges are in the nature of misbehaviour against the official superior and use of abusive language which would attract a major punishment. even with regard to unauthorized absence for 14 days, nothing has been stated by the labour court as to whether the punishment could be imposed against the workman or act. it has only stated that the workman has been permitted to work as he has attended to work on subsequent two days also. it is also clear there k no sanction of leave immediately prior to going on leave. although according to the workman he was regular to duties and false allegations ate made against him, it is not as if there are one or two charges. there are four to five charges regarding misbehaviour, loitering in me factory premises, using abusive and obscene language against the official superior and unauthorised absence.13. in the circumstances, while setting aside the order of reinstatement and payment of 60% back wages, in modification of the award of the labour court, it is ordered that management shall pay rs. 75,000/- as compensation in lieu of reinstatement and also back wages which amount is towards full and final settlement, since the workman has already been paid rs. 1,92,000/- plus towards section 17b wages from the date of filing of the writ petition till date.14. accordingly, petition filed by the management is allowed in part. petition of the workman is dismissed.15. heard further. it is ordered, the management shall pay another rs. 40,000/- towards full and final settlement, in addition to what has been ordered in the order dated 10.08.2009.

Judgment:
ORDER

Huluvadi G. Ramesh, J.

1. Petitions are by the management as well as by the workman assailing the award passed by the Labour Court Bangalore In ID 75/2002 on 1.6.2005.

2. The workman joined the services of the management during November 1995 as a Trainee and thereafter, he was appointed as Grade II workman with effect from 1.11.1996. In November 1997, his services were confirmed. During 2001, certain misconduct were alleged against the workman like, rude behaviour with his official superiors, use of abusive language and making filmy remarks and gestures, indecent behavior, unauthorised absence and willful insubordination, causing nuisance within the premises and, absence from place of work. In this regard, on several dates, charge sheet were served on the workman. During December, 2001, inquiry was held. Based on the inquiry report workman was dismissed from service for the proved misconduct Against the said order, workman allowing the dispute and matter was contested. Thereafter, after inquiry, Labour Court passed the award allowing the dispute and directed the management to reinstate the workman with 60% back wages. Aggrieved, management has filed WP 18861/2005 to set aside the award. WP 20492/2005 is filed by the workman aggrieved by the denial of 40% bock wages. Hence, these two petitions.

3. Heard the counsel.

4. The case of the Counsel representing the management is, Labour Court did not consider the material evidence on record. Although specific charges are framed it has observed that no charges are framed. Five witnesses were examined by the management to prove the misconduct. Although inquiry authority has held that the workman was guilty of misconduct contrary to the same, without properly appreciating the material evidence on record, it has passed the award which suffers from total perversity. Although there is material produced to prove the misconduct of the workman which is a grave charge and necessarily a ground to pass the order of dismissal, that has been ignored by the Labour Court. It is also submitted, so far the workman has been paid Rs. 1,92,000/- plus by way wages under Section 17B of the Industrial Disputes Act from 30.8.2005 onwards. Since the company is not getting orders, its operations are closed. Accordingly, it is prayed for setting aside the order of reinstatement end payment of back wages.

5. In the workman's petition, it is stated that the charges leveled are not proved against the workman. Labour Court ought to have awarded full back wages and that the Labour Court has committed several errors on the face of the record.

6. In the light of the arguments advanced and the grounds taken, the point that arises for consideration is whether the award passed by the Labour Court needs interference.

7. The management is a public limited company engaged in the manufacture of Watch Dials. There are certified standing orders and about seventy eight persons are working. According to the workman, he was drawing a salary of Rs. 4,010/- p.m. at the relevant point of time. There were several charges leveled against the workman. As per the charge sheet dated 22.6.1998, there is willful misconduct and insubordination, absence from work place during working hours, behaving rudely with the official superiors and disorderly behaviour for which, workman has replied subsequently in the next month. Thereafter, warning letter has been issued after another fifteen days. Several letters were issued from time to time and on 24.2.1999, warning letter was issued regarding breach of discipline in the factory premises. Another charge sheet is issued on 3.7.1999 regarding disorderly behaviour, use of abuse language subversive of discipline. Apart from that, there is also the charge regarding unauthorised absence and a memo is issued on 3.3.2000. Regarding use of abusive language to the Personnel Manager, memo is issued on 12.12.2000. in this regard, warning letter is issued on 18.12.2000. Once again for refusing to discharge work given by the Supervisor, memo is issued on 27.6.2001. Explanation is given by the workman and warning letters issued by the management are also produced. Another charge against the workman is, unauthorised absence for fourteen days. When the Supervisor questioned about the same, the workman has insisted for post facto sanction and abused the official. It is also stated on 21.7.2001 the workman had left the work place and was found loitering in the factory. On issue 1, a finding is given that there was illegal dismissal from service. The inquiry conducted is also held to be not fair and proper. On the issue whether the dismissal is justified Labour Court has ordered for reinstatement with 60% back wages.

8. What has been noticed in die award is, Labour Court has taker, into consideration me reply given by the workman and it appears the workman as if he is innocent, has given his explanation. However, Counsel representing the management has taken me through the various annexures regarding using of words - abusive and obscene language, against the official superiors which is at pages 27 and 28 of the writ petition filed by the management. When the Supervisor asked the workman as to why he did not apply for leave in advance, the workman has taken the Supervisor to task. Similarly, when the workman was instructed to go to the work place by the Supervisor, he has replied that he is tree to go anywhere, everywhere and who is he to ask him. However, in the reply given ii is as if the workman is innocent of the charges leveled against him and has also tried to justify his conduct.

9. Regarding unauthorised absence, Labour Court has noted that the workman had come to work only on 17.7.2001 for the first time and has also noted that management witness did not know whether the workman was absent on 17.7.2001 or not Labour Court has gone to the extent of disbelieving the version of the management witness and tried to justify the conduct of the workman only on the score that the management witness could not say properly whether on 15th and 16th the workman had 'Mended duty or not. But, it is clear from 4.7.2001 to 14.7.2001, the workmen remained absent and also did not apply leave. Later, he approached for post facto sanction of earned leave and this aspect has not been seriously taken note of. Though it is stated that there is ambiguity but whether such unauthorised absence for any other purpose was justified has not been stated Further, the Labour Court has also not stated as to why the management witness has to be disbelieved regarding using of abusive language except stating that it is all concocted Despite placing several material on record Labour Court has passed an order in a passing reference as to the specific allegation made by the management against the workman.

10. Regarding using abusive language, the opinion formed by the Labour Court is, from the place of incident to the place where other people are working the distance is only 1S feet as such, others could not have heard. The reasoning of the Labour Court appears to be perverse because when abusive language is used one can easily hear them though the incident cannot be seen if it has taken place in a separate room. Specifically the management witness has stated that the workman worked for nearly lour years and he has not misbehaved earlier till 1999. Stating that earlier there is no such report against the workman regarding misbehaviour, only to harass him such a allegations is made, Labour Court is of die view that only on account of the submission of die Charter of Demands, mere is unfair labour practice. Of course the explanation offered by die management in this regard is, die workman is not at all an office bearer of die Union and in the usual course his misbehaviour is brought to the notice of the management and inquiry has been held and there is (sic) as such to victimise die workman nor he was an active participant in the union activities as an office bearer. Through out die Labour Court has went on disbelieving die version of the management witness. It appears there is sufficient material evidence on record pointing out the misconduct of the workman regarding unaudiorised absence, use of abusive language and misbehaviour with die superiors. Even though it is stated in the Charge that this workman has misbehaved with the Supervisor without specifically stating die name of die Supervisor, Labour Court has gone to die extent of saying mat there is no charge leveled for which die workman could be held guilty. This appears to be strange.

11. So far as sanctioning of leave for die unaudiorised period and permitting die workman to do duty, Labour Court has opined mat after die employee gives explanation for his unauthorised absence, if they are satisfied, he would be allowed to do work. It has observed that die workman was allowed to work although be remained unauthorisedly absent and a absent and false report was given against the workman. However, what made the Supervisor to give a false report and what are die circumstances under which such as report was given is not forth coming except stating that he was permitted to attend for duties on 16th May. It appears, although several serious charges were leveled against the workmen, Labour Court has taken all those aspects lightly and went on justifying on its own, the conduct of the workman and to exonerate him. In the circumstances, the impugned award needs interference.

12. Further, it is noted as per the submission made and the affidavit filed the management has stopped its operations from May 2009. Necessarily, the charges are in the nature of misbehaviour against the official superior and use of abusive language which would attract a major punishment. Even with regard to unauthorized absence for 14 days, nothing has been stated by the Labour Court as to whether the punishment could be imposed against the workman or act. It has only stated that the workman has been permitted to work as he has attended to work on subsequent two days also. It is also clear there k no sanction of leave immediately prior to going on leave. Although according to the workman he was regular to duties and false allegations ate made against him, it is not as if there are one or two charges. There are four to five charges regarding misbehaviour, loitering in me factory premises, using abusive and obscene language against the official superior and unauthorised absence.

13. In the circumstances, while setting aside the order of reinstatement and payment of 60% back wages, in modification of the award of the labour Court, it is ordered that management shall pay Rs. 75,000/- as compensation in lieu of reinstatement and also back wages which amount is towards full and final settlement, since the workman has already been paid Rs. 1,92,000/- plus towards Section 17B wages from the date of filing of the writ petition till date.

14. Accordingly, petition filed by the management is allowed in part. Petition of the workman is dismissed.

15. Heard further. It is ordered, the management shall pay another Rs. 40,000/- towards full and final settlement, in addition to what has been ordered in the order dated 10.08.2009.