Automobile Association of Southern India v. SMT. P. Geetha Sudarsan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938** **WP(C).No. 4221 of 2005 (C) ---------------------------** ## **PETITIONER(S)/ACCUSED:: ----------------------** **AUTOMOBILE ASSOCIATION OF SOUTHERN INDIA V.J.T.HALL ROAD, PALAYAM, THIRUVANANTHAPURAM, REP.BY ITS SECRETARY.** **BY ADVS.SRI.U.K.RAMAKRISHNAN (SR.) SRI.SANDEEP.E. SMT.P.VIJAYAMMA** ## **RESPONDENT(S):** **--------------** **1. SMT.P.GEETHA SUDARSAN, THIRUVATHIRA PERAYIL, PEYAD POST, THIRUVANANTHAPURAM.** ## **2. THE LABOUR COURT, KOLLAM.** **R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR R2 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 4221 of 2005 (C)** ## **APPENDIX** **PETITIONER'S EXHIBITS** **---------------------EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 30.5.1981 ISSUED BY THE SECRETARY OF THE PETITIONER TO THE FIRST RESPONDENT.** **EXT.P2 TRUE COPY OF THE MEMO OF CHARGE DATED 9.11.1993 ISSUED TO THE FIRST RESPONDENT.** **EXT.P3 TRUE COPY OF THE MEMO OF CHARGE DATED 11.2.1994 ISSUED TOT HE FIRST RESPONDENT. EXT.P4 TRUE COPY OF THE MEMO DATED 29.11.1993 ISSUED BY THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE MEMO DATED 29.11.1993 ISSUED BY THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF THE MEMO DATED 29.11.1993 ISSUED BY THE FIRST RESPONDENT.** **EXT.P7 TRUE COPY OF THE REPLY DATED 12.11.1993 TO EXT.P1 MEMO OF CHARGES SUBMITTED BY THE FIRST RESPONDENT.** **EXT.P8 TRUE COPY OF THE REPLY DATED 14.2.1994 TO EXT.P2 MEMO OF CHARGES SUBMITTED BY THE FIRST RESPONDENT. EXT.P9 TRUE COPY OF THE REPLY DATED 29.12.1993 TO EXT.P3 MEMO OF CHARGES SUBMITTED BY THE FIRST RESPONDENT. EXT.P10 TRUE COPY OF THE REPLY DATED 29.12.1993 TO EXT.P4 MEMO OF CHARGES SUBMITTED BY THE FIRST RESPONDENT.** **EXT.P11 TRUE COPY OF THE REPLY DATED 29.12.2003 TO EXT.P5 MEMO OF CHARGES SUBMITTED BY THE FIRST RESPONDENT.** **EXT.P12 TRUE COPY OF THE LETTER DATED 14.5.1994 ISSUED TO THE FIRST RESPONDENT.** **EXT.P12(A) TRUE COPY OF THE COMPLAINT OF CAPTAIN RENJIT BAI DATED 12.3.1994.** **EXT.P12(B) TRUE COPY OF THE RECEIPT DATED 2.2.1993. EXT.P13 TRUE COPY OF THE ORDER OF THE PETITIONER DATED 5.6.1995 TO THE FIRST RESPONDENT.** **EXT.P14 TRUE COPY OF THE ORDER DATED 23.9.2004 PASSED BY THE SECOND RESPONDENT IN I.A. NO.67 OF 1997.** **RESPONDENT'S EXHIBITS** **---------------------NIL // TRUE COPY //** **P.A. TO JUDGE.** **Sou.** ## A. MUHAMED MUSTAQUE, J -------------------------------------------------------------W.P(C). No. 4221 of 2005 --------------------------------------------------------------Dated this the 26[th] day of May, 2016 ## J U D G M E N T The petitioner management challenging the preliminary order in an Industrial Dispute before the Labouor Court, Kollam has approached this Court. 2. The reference is based on a dispute raised by the workman. According to the petitioner, he has been dismissed pursuant to the domestic enquiry conducted by the Management. 3. In the industrial Dispute, preliminary objection has been raised by the workman as against the disciplinary proceedings on the following grounds : - “1. That the Assistant Secretary who ordered suspension of the worker has no authority to suspend the order. 2. that the Enquiry Officer Advocate G. Rajendran was the Junior of the Standing Counsel of the Company; namely Advocate N. Krishnankutty and he was biased. 3. that the report of the worker for engaging a lawyer to defend her in the enquiry was turned down. 4. that the charge memo on which the enquiry was 2 _**W.P(C)4221/05**_ conducted lacks the legal requirement of charges and they are vague. 5. that the worker was not given subsistence allowance which prejudiced her in defending the enquiry. 6. that the disciplinary authority also acted as presenting officer. 7. that the finding in enquiry are perverse and without basis. 4. Out of the above objections, objections in serial No.2,3,5 and 7 were overruled by finding in favour of the management. However, the Labour Court was satisfied with the objection shown in serial No.1, 4, and 6. By sustaining the objection, the preliminary issue answered in favour of the workman and disciplinary proceedings were quashed. Challenging the decision of the Labour Court, the petitioner approached this Court. 5. The question, this Court has to consider is whether interference at threshold is correct or not. In respect of the first issue, objection regarding suspension of the workmen without authority, this Court is of the view that assuming that suspension was without authority, at the best can it only result in claiming full charges by the worker. It can no way result in vitiating the disciplinary proceedings. This Court is of the view 3 _**W.P(C)4221/05**_ that the Labour Court cannot interfere with the disciplinary proceedings in this count. 6. In regard to the second objection, charge memo was vague and lacks legal requirement, this Court is of the view that the worker had responded to the charge memo. No doubt if any prejudice has resulted on account of vagueness in charge memo, that can be interfered after final enquiry conducted in the matter. At the threshold without giving the parties an opportunity to adduce evidence and substantiate the contentions interfering with the disciplinary proceedings on the ground of vagueness of the charge memo appears to be too premature and legally not sustainable. The worker has to prove before the Labour Court that on account of vagueness of charge memo she has been prejudiced. Thus unless any evidence is adduced and prejudice is demonstrated before the Labour Court, the Labour Court cannot interfere with the disciplinary proceedings at the preliminary stage. Therefore, this Court is of the view that interference based on vagueness of the charge memo is unsustainable at the preliminary stage. 7. With regard to the third objection, the disciplinary authority acted as a Presenting Officer. Learned senior counsel 4 _**W.P(C)4221/05**_ appearing for the petitioner placed before me a judgment of Karnataka High Court in **Motor Industries Co. Ltd., Banglore vs. Shaikh Mohammed and another** [1979-I L.L.J. 23] In this judgment the learned counsel referred to paragraph 7 which reads as follows : “7. Coming to the second question, there is no principle of natural justice which requires that a person who has lodged a complainat cannot be a presenting officer and a prosecutor in a domestic enquiry. In support of the submission that a person in the position of a complainant can also be a presenting officer, the petitioner had relied upon the decision in N.N. Rao v. Greaves Cotton & Co.[1973-I L.L.J. 81(Bom)]. The relevant paras read as follows : “12. It was then objected that throughout the proceedings G.G. Naik, the Personnel Manager of the cone plant, was present and that his presence intimidated the witness of the petitioner who did not come forward to give evidence. G.G. Naik's position more or less was that of a complainant in the case, because K.G. Naik the aggrieved worker had immediately gone to him and had told him the entire story of intimidation and it was G.G. Naik who informed the manager. We do not see how G.G. Naik could have been asked not to take part in the proceedings under these circumstances. He was, in our opinion, entitled to be present and to lead such evidence as he chose to substantiate his complaint.” 8. Per contra, learned counsel for the respondent placed before me an unreported judgment of this Court in W.P(C). No.37215 of 2007 where in paragraph 8, it was held as follows : “ 8. The first question is whether the enquiry itself 5 _**W.P(C)4221/05**_ is vitiated, since the only evidence is by way of an affidavit filed by the Presenting Officer. The said affidavit is marked as Ext.P6 herein. A reading of Ext.P6 shows that it only an affidavit filed by the Presenting Officer. The charges are reiterated and several documents (M1 to M19) have been appended to it. The functions of a Presenting Officer are well known. As far as the disciplinary proceedings are concerned, the Presenting Officer cannot act as a witness for the management. His duty is to conduct the proceedings for the management, in support of the charge. His role is akin to that of a Prosecutor who cannot act as a witness. The entire proceedings will this be hit by the principles of bias.” Learned counsel also relied on paragraph 9, which reads as follows : “9. xxxxx xxxxx xxxxx Though it is submitted by the learned counsel for the respondent that one another witness has been examined by the management in support of the charges by the Enquiry Officer suo motu, the irregularity attached to the filing of the affidavit by the Presenting Officer looms large in the proceedings and if, Exts.M1 and M21 produced by the management is thus eschewed, there is no other evidence in support of the charge. The lone witness was examined suo-motu by the Enquiry Officer, as noted already. He is examined only to show that charge was handed over to him. Further, the Enquiry Officer has no power to summon witnesses, as held by this Court in Padmanabhan v. Kerala State Handloom Development Corporation Ltd. [1992 (2) KLT]” ## 9. The dictum above indicated that disciplinary proceedings would be vitiated if enquiry report is purely relied upon evidence of a presenting officer. The bias is essentially a 6 _**W.P(C)4221/05**_ mixed question of fact and law. The authority while holding proceedings to be vitiated by bias, necessarily will have to go through the facts and evidence to assess the width and amplitude of the bias resulted from evidence of the presenting officer. Essentially this could be possible only after analysing and appreciating facts and evidence. Bias is a presumption drawn on appreciation of facts. Therefore, merely because the presenting officer happens to be a witness will not result in bias unless it is demonstrated otherwise. The unreported case referred by the learned counsel for respondent also clearly indicate that the evidence in fact was relied solely based on the evidence given by the presenting officer and no other evidence was adduced in support of the charge. 10. In this case, learned Senior Counsel placed before me the enquiry report, which would indicate that two more witnesses were also examined in the proceedings. In such circumstances, the Labour Court has to examine the credibility of the evidence given by those witnesses. Without examining the credibility of those witnesses, the Labour Court could not have interfered with the disciplinary proceedings at threshold without giving the parties an opportunity to adduce evidence. 7 _**W.P(C)4221/05**_ In that view of the matter, this Court is of the view that the matter requires re-consideration. Accordingly, the impugned award is set aside, the Labour Court has to reconsider the entire matter _denovo_ after giving the parties an opportunity of hearing and adducing evidence. The parties shall appear before the Labour Court on 20.6.2016. Sd/- A. MUHAMED MUSTAQUE, JUDGE sou. 31/5 // True copy //