A.M. Sunny v. Vazhathoppu Ksheerolpadaka Sahakarana Sangam Ltd. No.1 (APCOS) and Milk Producers' Co-operative Society Ltd. (through its Secretary) and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 26663 of 2006(Y) -------------------------PETITIONER: -----------A.M.SUNNY, S/O. MATHAI, AGED 41 YEARS, ARACKAL HOUSE, THADIYAMPAD P.O., VAZHATHOPPU, IDUKKI DISTRICT. BY ADV. SRI.ABRAHAM JOHN RESPONDENTS: ------------- 1. VAZHATHOPPU KSHEEROLPADAKA CO-OPERATIVE SOCIETY LTD.NO.1, 17(D) APKOS, REPRESENTED BY ITS SECRETARY. 2. DEPUTY DIRECTOR, DEPARTMENT OF DAIRY DEVELOPMENT, OFFICE OF THE DEPUTY DIRECTOR, IDUKKI, THODUPUZHA. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, TRIVANDRUM. BY ADV. SRI.JOICE GEORGE FOR R1 G.P. SMT.N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2008, A/W. W.P(C).No.30231/06 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 26663/06. ## APPENDIX ## PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD DTD.12.7.06. P2. COPY OF THE REPRESENTATION DTD.26.8.06. P3. COPY OF THE ACKNOWLEDGMENT DTD.29.8.06. P4. COPY OF THE COMPLAINT DTD.8.9.96 TO DY.DIRECTOR DIARY DEPT. IDUKKI. P5. COPY OF THE LETTER TO R1 BY R2 DTD.12.9.06. RESPONDENTS' EXHIBITS: R1(A) COPY OF THE ORDER DTD.16.11.06 IN W.P.C.NO.30231/06. Sdk+ ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## W.P.(C).Nos.26663 & 30231 of 2006 ================== Dated this the 6[th] day of August, 2008 ## J U D G M E N T These two writ petitions arise out of the award in I.D.No.46/2003 on the files of the Industrial Tribunal, Idukki, and are heard together and disposed of by this common judgment. A milk producers' co-operative society is the petitioner in W.P(C). No.30231/2006. They are the employer of the workman who was employed as a Milk Tester in the society. On allegations of serious misconducts of misappropriation of money belonging to the society, the workman was suspended from service. An enquiry was conducted to prove the allegations against the workman. At some point of time of the enquiry, the adjournment requested for by the workman was refused by the enquiry officer and the enquiry was conducted ex parte. The enquiry officer submitted a report finding the workman guilty of the misconducts alleged against him. The workman raised an industrial dispute which was referred for adjudication to the industrial Tribunal, Idukki, as I.D.No.46/2003. 2. The issue referred for adjudication was: w.p.c.26663/06 & cc. 2 “Whether the dismissal of Shri.A.M.Suny, Milk Tester from the Vazhathoppu Ksheerolpadaka Sahakarana Sangam Ltd. No.1.1917/D (APCOS) is justifiable or not ? 2. If not, what are the reliefs he is entitled to?” 3. Since the dismissal of the workman was after conducting an enquiry, the Tribunal considered the validity of the enquiry as a preliminary point and found the enquiry to be vitiated on three grounds. First is that in spite of the objection raised by the workman, the enquiry was conducted at Thodupuzha although the establishment was at Vazhathoppu, the distance between which was 80 Kms. according to the workman and 60 Kms. according to the management and the request of the workman for change of venue was rejected. The second is that the workman was not paid subsistence allowance during the period of enquiry and therefore the enquiry was vitiated. The third is that the application for adjournment of the enquiry on 5.3.2001 supported by a medical certificate issued by a Government Homoeo Doctor certifying that the petitioner is suffering from jaundice was rejected by the enquiry officer unjustly. In the written statement submitted by the society there was no prayer for adducing fresh evidence, if the enquiry was w.p.c.26663/06 & cc. 3 found to be vitiated. Although the management had filed a petition seeking to amend the written statement incorporating a request for permission to adduce fresh evidence in case the domestic enquiry is found to be not proper, that petition was also dismissed. Since there was no prayer for additional evidence in the written statement, the Tribunal passed Ext.P5 award directing reinstatement of the workman with 50% of the backwages. The workman filed W.P(C).No. 26663/2006 complaining that he is not being reinstated in service in spite of a direction from the Deputy Director of Dairy Development, Idukki, and seeking a direction to the society to reinstate the workman in service. While that writ petition was pending, the management filed W.P(C). No.30231/2006 challenging the award itself, which is produced as Ext.P5 in that writ petition. In that writ petition originally an application for wages under Section 17B of the Industrial Disputes Act was filed. In the meanwhile, the society is stated to have directed the workman to report for duty. According to the management, although the workman reported for duty, he was totally irregular in attending duties and was absent himself from duty for long periods and although memos to show cause were w.p.c.26663/06 & cc. 4 issued, the workman did not file any explanation and now he is not attending duties at all. In view of the pendency of the writ petitions, for fear of allegations of victimisation on account of these writ petitions, the society did not take any disciplinary action in respect of those unauthorised absence, is the submission made by the management, in the writ petition and affidavits in I.As. 4. On the other hand, the workman would contend that although he was working as Milk Tester he was directed to do the work of a Class IV employee, which only he refused. According to him, because of the favourable orders obtained by him in the industrial dispute, he was being persecuted by the society. He would also submit that the entire proceedings were initiated only as a retaliatory measure for expressing inability to persuade his brother to withdraw a complaint filed by the brother against the Secretary of the society in respect of the election to a local body and also a petition filed by the brother before the Consumer Disputes Redressal Forum. It is in the above circumstances that these writ petitions are coming up before me for hearing. 5. The primary question to be decided in these writ w.p.c.26663/06 & cc. 5 petitions now is the validity of Ext.P5 award in W.P(C).No. 30231/2006. The contention of the society is that the finding that the enquiry is vitiated is totally unsustainable. According to the counsel for the society, all the three grounds relied upon for setting aside the enquiry are not sustainable. The counsel for the society would submit that the workman had no case that he was unable to attend the enquiry at Thodupuzha because of any other reason than financial difficulty. Therefore, in the application filed by him to conduct enquiry at Vazhathoppu the enquiry officer had passed an order directing the management to pay to the workman expenses for attending the enquiry at Thodupuzha at the rate of Rs.100/- per day on everyday he attends the enquiry. Therefore, the principles of natural justice have been complied with in respect of the same and the Tribunal could not have validly held that the domestic enquiry is vitiated on that ground. 6. Regarding the finding that the enquiry is vitiated for nonpayment of subsistence allowance, the counsel for the society would contend that the workman had never a case before the enquiry officer to the effect that because of non payment of w.p.c.26663/06 & cc. 6 subsistence allowance he is unable to take part in the enquiry. Relying on the Supreme Court decision in _**INDRA BHANU GOUR v. COMMITTEE, MANAGEMENT**_ [(2004) 1 SCC 281] the counsel would argue that non payment of subsistence allowance _ipso facto_ would not vitiate the enquiry unless it is proved that the said non payment of subsistence allowance prejudiced the defence of the workman in the enquiry. According to him, the Tribunal had not entered a finding to the effect that because of non-payment of subsistence allowance the workman's defence in the enquiry was seriously prejudiced. Therefore, the counsel would argue that without such a finding, non payment of subsistence allowance could not have been held as a ground for holding that the enquiry is vitiated. 7. Regarding the third ground on which the Tribunal found the enquiry vitiated, the counsel for the society would argue that eversince the enquiry started, the workman was consistently applying for adjournment on medical grounds producing medical certificates from different doctors. Altogether there were about 14 postings of the enquiry, in which the workman sought adjournment on medical grounds. He w.p.c.26663/06 & cc. 7 participated in the enquiry only on two days, that too, for seeking adjournment and for walking out of the enquiry alleging that the witness being examined was giving false evidence. According to the counsel, rejection of the application for adjournment again on medical ground was therefore, not accepted by the enquiry officer who directed the workman to either produce the doctor who issued the medical certificate to prove the medical certificate or to make himself available for examination by a doctor as directed by the enquiry officer, which the petitioner did not do and therefore, the enquiry officer was right in refusing adjournment disbelieving the medical certificates produced by the workman. The counsel therefore, would submit that all the grounds relied upon by the Tribunal to set aside the enquiry are totally unsustainable and, therefore, Ext.P5 is liable to be set aside. 8. The counsel for the society has an alternate prayer as well. He would submit that the charges against the workman are very serious involving misappropriation of money belonging to the society. The society is a small society of milk producers employing only four workers. It is true that in the original written w.p.c.26663/06 & cc. 8 statement they did not incorporate a prayer for permission to adduce additional evidence in case the enquiry was found to be vitiated. But immediately thereafter, they filed a petition seeking to amend the written statement to incorporate such a prayer as well, but unfortunately the same was rejected. The submission made before me is that assuming that the society is not entitled for a chance to adduce fresh evidence in the absence of a prayer to that effect in the written statement, in the peculiar facts and circumstances of the case, the Tribunal ought to have invoked the inherent powers vested in him to require the parties to adduce evidence, which power has been recognised by the Supreme Court in the concurring judgment in _**KARNATAKA STATE**_ ## _**ROAD TRANSPORT CORPN. v. LAKSHMI DEVAMMA AND ANOTHER**_ [(2001) 5 SCC 433], which was reiterated by the Supreme Court in the decision in _**DIVYASH PANDIT v. MANAGEMENT, NCCBM**_ [(2005) 2 SCC 684]. He points out that this was explained by this Court also in _**Edayar Ksheerolpadaka Sahakarana Sangham v. Industrial Tribunal**_ [2007 (2) KLT 613]. Accordingly, the society makes an alternate prayer to direct the w.p.c.26663/06 & cc. 9 Tribunal to permit the society to adduce evidence to prove the misconducts alleged against the workman. 9. Both contentions are stoutly opposed by the counsel for the workman. He would submit that in so far as the management was located at Vazhathoppu, there was absolutely no reason whatsoever for the management to conduct the enquiry at Thodupuzha for the only reason that the enquiry officer was stationed at Thodupuzha. In so far as the workman had objected to the conduct of the enquiry at Thodupuzha without a sustainable reason for conducting the enquiry at Thodupuzha, the enquiry officer could not have conducted the enquiry at Thodupuzha, which according to the workman, would render the enquiry totally invalid. Regarding non payment of subsistence allowance, the workman would argue that he was not paid subsistence allowance until he approached this Court by filing a writ petition and thereafter a contempt of court case. Non payment of subsistence allowance to a workman, who had no other means of livelihood, would certainly prejudice him in the enquiry and therefore, there is no merit in the challenge against the second ground also. Regarding the third ground he would w.p.c.26663/06 & cc. 10 submit that he had filed an adjournment application supported by a medical certificate from a Government Homoeo Medical Officer, which could not have been lightly discarded by the enquiry officer without assigning proper reasons. He points out that the medical officer had certified that he was suffering from jaundice and there was no justification for the enquiry officer to direct the workman to appear before a doctor at Thodupuzha by travelling 80 kilometers. Therefore, according to the workman, the Tribunal had upheld his third contention also rightly. He would, therefore, argue for sustaining the award. 10. The counsel for the workman also seriously disputes the alternate prayer of the management also. According to him, the management cannot, as of right, claim that the Tribunal should give them an opportunity for adducing fresh evidence even without a specific prayer in the written statement. He would submit that the direction to the parties to adduce evidence should be given by the Tribunal if only there are special circumstances warranting such a direction. According to him, there are no such special circumstances in this case for a direction to the Tribunal to invoke his suo motu power to require the parties to adduce w.p.c.26663/06 & cc. 11 evidence in the matter. On these contentions the counsel for the workman opposes the alternate prayer of the society also. 11. I have considered the rival contentions in detail. 12. At the outset I must state that the conduct of both parties throughout is not exemplary, but still I have to consider the matter on merits. First I should consider whether the enquiry is vitiated on the grounds stated in the award. It is true that the enquiry was conducted at Thodupuzha. The management was stationed at Vazhathoppu. The workman was also at Vazhathoppu. It appears that the management appointed an Advocate at Thodupuzha to conduct the enquiry. Therefore, although the first posting was at Vazhathoppu, he directed the parties to appear at Thodupuzha for subsequent sittings of the enquiry. But it is a fact that the workman's objection was not exactly against the conduct of the enquiry at Thodupuzha, but he was projecting only his financial difficulties. On his petition in this regard, the enquiry officer then and there directed the management to pay to the workman the expenses for attending the enquiry at Thodupuzha at the rate of Rs.100/- per sitting. The workman never thereafter pursued that matter. Therefore, it w.p.c.26663/06 & cc. 12 must be assumed that on the condition of payment of Rs.100/per sitting the workman was condescended to attend the enquiry at Thodupuzha. There is nothing on record to prove to the contrary. 13. Regarding the second point it is not disputed before me that the workman did not raise any objection before the enquiry officer to the effect that he cannot attend the enquiry on account of non-payment of subsistence allowance or that he is in any way prejudiced by the non-payment of subsistence allowance. Such a contention was raised only before the Tribunal. Without having raised that contention first before the enquiry officer, the workman could not have validly raised the same before the Tribunal for the first time. 14. Regarding the third ground, it is important to note the conduct of the workman in the enquiry. In the enquiry report the enquiry officer has stated thus: - “3. On 10.11.2001 Secretary of the employer society was present. Delinquent employee absent. His brother produced an adjournment application of the delinquent employee on medical grounds. His application allowed. Secretary produced true copy of resolution of employer appointing her as the presenting officer for conducting the case of the employer before the enquiry officer. Delinquent employee's adjournment application allowed and proceedings adjourned to 13.11.2000. On 13.11.2000 presenting w.p.c.26663/06 & cc. 13 officer present. Delinquent employee absent. His brother A.M. Joy produced an adjournment application with a medical certificate. Presenting officer opposed the application stating that delinquent employee is physically well and the medical certificate is a fabricated one. 15 days time granted to the delinquent employee for his appearance and the proceedings adjourned to 28.11.2000. On 28.11.2000 presenting officer was present, and delinquent employee absent. His brother produced another adjournment application. Application was allowed and proceedings were adjourned to 01.12.2000. The delinquent employee is directed to produce I.P. particulars of treatment. On 01.12.2000 presenting officer was present and delinquent employee absent. His brother produced an application with another medical certificate. I.P. particulars as directed is not produced by delinquent employee. He produced one O.P. card. Presenting officer opposed the application. Application allowed and proceedings were adjourned to 04.12.2000. On 04.12.2000 delinquent was not present. He made an application through his brother. Application allowed and proceedings were adjourned to 02.01.2001. On 29.12.2000 delinquent filed and adjournment application through registered post. It was also allowed and enquiry adjourned to 14.01.01. On 14.01.01 delinquent employee and presenting officer were present. Charges leveled against him was read over to him and explained. He denied the charges and filed an objection to the charges. Delinquent employee is informed that he has right to peruse the documents, which are relying by the employer, from employers office before the employer starts evidence. Delinquent employee filed a petition for permitting him to appoint an advocate to appear before the enquiry officer for and on behalf of him. For objection and hearing on the said petition enquiry adjourned to 17.01.01. On 17.01.01 both were present. Presenting officer filed objection to the delinquents petition stating that employer is not engaging advocates for enquiry and delinquent employee is educated. After hearing both parties petition dismissed. Delinquent employee filed an adjournment application and the proceedings were adjourned to 18.01.01. 4. On 18.01.01 presenting officer and delinquent employee were present. Delinquent filed two petitions. First petition is that since he is suffering from financial difficulty the enquiry proceedings may be posted to Vazhathope. The petition is heard and the employer is directed to pay an amount of Rs.100/- as T.A to the delinquent employee on his appearance on each postings out of Vazhathope. The second petition is for certified copies of w.p.c.26663/06 & cc. 14 documents and that petition is allowed and employer is directed to give certified copies of documents to the delinquent on free of cost. From the very beginning of the enquiry proceedings delinquent employee's brother Joy was waiting out side of the room and he used to call the delinquent employee more than once and was giving directions to him. Delinquent employee even without seeking permission from the enquiry officer used to go out from the room for getting instructions from his brother. When the examination of PW1 was going on delinquent employee told that he wants to go by 3 O' clock. Then PW1 suggested that if he wants to go by 3 O' clock PW1's examination can be adjourned but the witnesses may be examined. Delinquent employee agreed to the suggestion and examination of PW2 started. While so delinquent employee's brother called him from outside and delinquent went out and returned after a few minutes. On his return he told that since the witness is lying he is boycotting the enquiry. Even though he was told that he can cross examine the witness he left from the place. The proceedings were adjourned to 25.01.01 for further evidence of the employer. On 25.01.01 delinquent employee was not present. On 30.01.01 enquiry officer received a copy of petition sent by the delinquent employee to the Director Board of the employer society raising false allegations against the enquiry officer. Fresh notice was again issued to the delinquent employee for appearance on 19.02.01. On 19.02.01 presenting officer was present and delinquent employee absent. His brother Joy produced adjournment application with a medical certificate from another doctor. Application allowed and adjourned to 01.03.01. On 01.03.01 neither the delinquent was present nor any application was received the enquiry was adjourned to 17.03.01. Fresh notice was issued to the delinquent informing the posting date. In the notice it is stated that since the employer is opposing delinquent's adjournment applications on medical grounds, if he want an adjournment on medical grounds he has to produce the medical practitioner from whom he got the medical certificate so that the employer can examine him or he may get a medical certificate from Dr. O.T. George, Ortho Pedecian, Exelsiour Hospital, Thodupuzha. On 17.03.01 delinquent was absent enquiry officer received an adjournment application on 16.3.01 dated 15.3.01 with a medical certificate from another Homeo doctor. In the application it is stated that the delinquent is under treatment for jaundice and the doctor advised him to take rest for 30 days. So his prayer was to adjourn the enquiry for a period of 30 days. 5. The delinquent is filing applications for adjournment with medical w.p.c.26663/06 & cc. 15 certificates from different doctors. After considering the objection of the presenting officer he is directed to produce either the medical officer from whom he got the medical certificate or get a certificate from Dr. O.T. George, Exelsiour Hospital, Thodupuzha. He has not complied with direction. So the genuineness of the medical certificate and the adjournment applications are under doubt. Hence his application was dismissed and he is set ex-parte on 17.03.01 and employer's evidence completed and the enquiry was adjourned for hearing to 07.04.01. Delinquent employee informed that he was set ex-parte on 17.03.01 and employee's evidence was over and the enquiry was posted for hearing on 07.04.2001. On 07.04.2001 presenting officer present and she was heard and enquiry was posted for report.” I am of opinion that the conduct of the workman as is evident from the above was clearly one of non-co-operation. Therefore, I do not think that the enquiry officer was wrong in suspecting the genuineness of the certificates of the doctors especially since the workman was producing each time medical certificate from different doctors. For all the above reasons, I am unable to completely agree with the Tribunal that the enquiry was vitiated for want of compliance with the principles of natural justice. 15. But at the same time, I am not satisfied that the punishment imposed on the basis of such an enquiry should be upheld. The workman had been proceeded against for allegations of misconduct of misappropriation of money amounting to more than Rs.11,000/- A society of the stature of the management w.p.c.26663/06 & cc. 16 may not able to survive with such an employee, if he is actually guilty of the allegations against him. But at the same time, the misconducts must be proved satisfactorily. Therefore, I am of opinion that as permitted by the Supreme Court in the decisions _**LAKSHMIDEVAMMA's**_ case (supra) and _**DIVYASH PANDIT's**_ case (supra), this is an eminently fit case where the Tribunal ought to have invoked his inherent jurisdiction to require the management to adduce evidence in support of the allegations raised against the workman. In fact I also in _**Edayar Ksheerolpadaka Sahakarana Sangham's**_ case (supra) had held that such a course of action is permissible under special circumstances. From the facts of this case I am satisfied that such special circumstances arise in this case. 16. In the above circumstances, the award, which is Ext.P5 in W.P(C).No. 30231/2006 is set aside and the matter is remanded to the Tribunal for fresh adjudication with a direction to the Tribunal to invoke his inherent power to direct the management to prove the misconducts alleged against the workman by adducing fresh evidence and pass fresh award after affording both parties adequate opportunity to put forward their w.p.c.26663/06 & cc. 17 case properly. However, in the facts of the case, I do not think that for this purpose the workman should be kept out of service. The management had along with their counter affidavit in I.D.No.961/03 in W.P(C).No. 30231/2006 produced Exts.P6 and P7 Board resolutions which define the duties and functions of a Milk Tester. The workman should be allowed to continue to work as a Milk Tester, which he shall do in strict compliance with his duties and functions as laid down in Exts.P6 and P7. The workman shall be paid wages as applicable to a Milk Tester of the management society as on today. However, I make it clear that the proceedings in the industrial dispute shall not be a bar for the management to take action in respect of any misconduct which the workman may indulge in like unauthorised absence etc., if circumstances so warrant. The Tribunal shall pass fresh award within six months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.26663/06 & cc. 18