Baby M.K. v. The Managing Director, FCI OEN Connectors Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 WP(C) NO. 35071 OF 2014** ## **PETITIONER/S:** **BABY M.K., AGED 50 YEARS MAMMOTTIL HOUSE, NAITHUSALAPADY, PAMPAKKUDA, ERNAKULAM DISTRICT 686667** **BY ADV SRI.PAULSON C.VARGHESE** ## **RESPONDENT/S:** - **1 THE MANAGING DIRECTOR, FCI OEN CONNECTORS LTD. FCI OEN CONNECTORS LTD, MULANTHURUTHY P.O, ERNAKULAM 682314** - **2 THE ASST MANAGER, HRD FCI OEN CONNECTORS LIMITED, MULANTHURUTHY P.O, ERNAKULAM 682314** - **3 THE LABOUR COURT ERNAKULAM** **BY ADVS. SRI.P.BENNY THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 35071 OF 2014 ..1.. ## JUDGMENT ## SHOBA ANNAMMA EAPEN, J. This writ petition has been filed by the petitioner challenging Ext.P7 award dated 19.09.2012 passed by the Labour Court, Ernakulam, dismissing the industrial dispute raised by the petitioner/workman to adjudicate the issue against the management. 2. The petitioner was a workman employed as Team Leader in the canteen run by the first respondent establishment. While so, he was issued with Ext.P1 show cause notice dated 07.07.2007, alleging willful insubordination and riotous or disorderly behaviour. Though the petitioner replied to Ext.P1 show cause notice vide Ext.P2, the management issued Ext.P3 charge sheet dated 09.07.2007. Thereafter, a domestic enquiry into the alleged charges was initiated and an enquiry officer was appointed. The petitioner alleges that a formal enquiry was conducted by the enquiry officer violating basic principles of natural justice and found the petitioner guilty of all the charges levelled against him and he was dismissed by the management with WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** effect from 24.09.2007. The Labour Court, finding that the punishment imposed against him is not disproportionate to the charges proved against him, held that his dismissal from service of the management is justifiable. Aggrieved by this, the petitioner has come up before this Court. 3. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent management. 4. Learned counsel for the petitioner submits that the allegation against the petitioner is that he threatened a superior officer and shouted at him in a riotous and disorderly manner and committed insubordination willfully disobeying the orders of the superior officer. It is further submitted that the management failed to maintain standing orders in the establishment and therefore, the disciplinary action initiated against the petitioner in the absence of standing orders is ab initio void and illegal. According to the learned counsel, the Labour Court failed to note that the conclusions drawn by the enquiry officer in the domestic enquiry report are totally unreasonable and that the enquiry officer has acted in a biased manner to reach the intended conclusion aiding the WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** management, who relied on the deposition of the de facto complainant. It is also submitted that the Labour Court failed to see that the act of the petitioner will not reflect rioting at any point of time and no police complaint was lodged by the management in pursuance of the alleged incident happened in the establishment. It is further submitted that no subsistence allowance was paid to the petitioner during the period of suspension and the petitioner was struggling hard to make both ends meet without any earnings. According to him, the Labour Court omitted to note that there was no evidence before the enquiry officer to conclude that the charges against the petitioner are fully proved. 5. Per contra, learned counsel for the respondent management submitted that scope of interference of this Court in the award passed by the Labour Court is limited and this Court cannot act as an appellate authority over the decision of the Labour Court. It is further submitted that insubordination and uttering of abusive words towards his superior officer were clearly proved by the oral evidence adduced by the witnesses, who were present at the time of the incident. The enquiry officer granted an opportunity to the WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** petitioner to cross-examine the witnesses on the side of the management and after enquiry, the enquiry officer has submitted a report that the petitioner is guilty of the charges levelled against him. It is on the basis of the said enquiry report, the management has taken the decision to dismiss the petitioner from service and accordingly, he was dismissed from service with effect from 24.09.2007. It is further submitted that after dismissal from service, the petitioner went abroad along with his wife and is working in a gulf country. According to the learned counsel for the respondents, the petitioner was paid subsistence allowance legally payable to him. 6. On a perusal of the entire materials available on record, it is seen that the enquiry officer had filed a detailed report regarding the incident that occurred on 09.07.2007. It is relevant to note that the petitioner did not adduce any evidence on his side to prove his case that there was no insubordination or misbehaviour on his part. On the other hand, the management examined two witnesses and they were also cross-examined by the petitioner. The evidence of the petitioner was taken by the enquiry officer and the statement WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** was also recorded. It was on the basis of the evidence adduced, the enquiry officer has given the report, pursuant to which the management has taken action against the petitioner. The factual aspects were considered by the Labour Court very elaborately. The petitioner had stated that two ladies, viz., Leela and Geetha, were eyewitnesses to the incident. However, he did not care to examine them, who allegedly were part of the incident. The conduct of the employees are very relevant in an establishment and insubordination to the superior officers affects the discipline of the establishment. It was proved beyond doubt that filthy and abusive language was used by the petitioner towards his superior, which would amount to serious misconduct. 7. This Court does not intend to detail the altercations that took place between the petitioner and the management. Factual aspects were found against the petitioner by the Labour Court. It is also a settled position that if an enquiry is properly held, the departmental authorities are the sole judge of facts. The award of the Labour Court can only be set aside if there is an error apparent on the face of record. It is impermissible for the High Courts under its writ jurisdiction WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** to re-appreciate evidence and substitute its view with that of the Labour Court/Tribunals. Here, in this case, nothing has been found against the award passed by the Labour Court. 8. In Deputy General Manager (Appellate Authority) & Others v. Ajai Kumar Srivastava [(2021) 2 SCC 612], the apex court held that the power of judicial review exercised by constitutional courts under Art.32/136/226 of the Constitution is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and is not akin to adjudication of case on merits as an appellate authority. In State of Bihar & Others v. Phulpari Kumar [(2020) 2 SCC 130], it was held that it is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. WP(C) NO. 35071 OF 2014 **==> picture [31 x 8] intentionally omitted <==** In Bank of India & Another v. Degala Suryanarayana [(1999) 5 SCC 762], it was held that strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. 9. In this case, it cannot be held that there was grave error committed by the Labour Court in passing the award. Reasonable and fair approach was taken by the Labour Court by considering all available evidence. I do not find any infirmity or illegality or jurisdictional error in the impugned award passed by the Labour Court. The writ petition is accordingly dismissed. ## SD/- ## SHOBA ANNAMMA EAPEN ## JUDGE bka/- WP(C) NO. 35071 OF 2014 ..8.. ## **APPENDIX OF WP(C) 35071/2014** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OFTHE SHOW CAUSE NOTICE DATED 07-07-2007 ISSUED TO THE PETITIONER** **EXHIBHIT P2 TRUE COPY OF THE EXPLANATION DATED 09-07-2007 SUBMITTED BY THE PETITIONER** **EXHIBIT P3 TRUE COPY OF THE CHARGE SHEET DATED 09-07-2007 ISSUED BY THE FIRST RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE MANAGEMENT** **EXHIBIT P5 TRUE COPY OF THE REJOINDER PREFERRED BY THE WORKMEN** **EXIBIT P6 TRUE COPY OF THE PRELIMINARY ORDER PASSED BY THE THIRD RESPONDENT LABOUR COURT IN I.A NO 13/2011** **EXHIBIT P7 TRUE COPY OF THE AWARD PASSED BY THE THIRD RESPONDENT LABOUR COURT IN ID NO 13/2011**