Branch Secretary, Kerala Kashuvandi Thozhilali Congress, Central Office, Congress Bhavan (HO), INTUC, Kollam District v Western India Cashew Company Corporate Office; Western India Cashew Company Private Limited; Labour Court, Kollam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** **WA NO. 857 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 12490/2018 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/1ST RESPONDENT:** **THE BRANCH SECRETARY KERALA KASHUVANDI THOZHILALI CONGRESS, CENTRAL OFFICE, CONGRESS BHAVAN (HO), INTUC, KOLLAM DISTRICT, PIN-691001. BY ADV V.PREMCHAND** ## **RESPONDENTS/PETITIONERS 1 TO 2 AND RESPONDENT 2ND IN W.P.(C.):** - **1 WESTERN INDIA CASHEW COMPANY CORPORATE OFFICE, P B NO.75, BEACH ROAD, KOLLAM-691001, REPRESENTED BY MANAGER (HR), ANESH DAMODARAN NAIR.** - **2 WESTERN INDIA CASHEW COMPANY PRIVATE LIMITED, PUTHENTHERUVU FACTORY, K S PURAM P.O., KARUNAGAPALLY, KOLLAM-690518, BY MANAGER ANESH DAMODARAN NAIR.** - **3 LABOUR COURT, KOLLAM, CUTCHERY P.O., PIN-691013.** **R1 AND R2 BY SRI. P. RAMAKRISHNAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.857 OF 2020 2 ## **JUDGMENT** ## Haripal, J. In this appeal preferred under Section 5 of the High Court Act, correctness of the judgment of the learned Single Judge in W.P.(C.) No. 12490/2018 is canvassed. Appellant is the first respondent in the writ petition. 2. Respondent is a company registered under the Companies Act engaged in the business of processing and sale of cashew nuts. According to them, 26.10.2012 being Bakrid was a holiday for the company. On 27.10.2012, in the morning, three workmen of the company, namely, Ramani Amma, Geetha G. and Geetha R. boycotted the work alleging that they were denied employment on 26.10.2012. They also manhandled and obstructed the other workers from entering the factory after the tea break and also abused and threatened the superiors. Alleging commission of misconduct by the above stated three workers, disciplinary proceedings were initiated against them; pending disciplinary action all the three were placed under suspension. Adv. Siju, a practicing lawyer of Kollam was appointed as W.A.No.857 OF 2020 3 enquiry officer to conduct domestic enquiry. The following were the charges levelled against the delinquent workmen:- i) On 27.10.2012, at 8.A.M., alleging that they were not given work on 26.10.2012, the delinquent workers came to the company, stood at the security gate without the permission of the Management and did not report for work; ii) They manhandled and threatened the workers who were working on the day when they went out for tea; iii) Thereafter, they were prevented from entering the factory and obstructed their duty; iv) The Manager and Supervisor were abused in front of other workers; v) The Management suffered a loss of Rs. 10 lakhs due to the acts of the delinquent workers; vi) The workers who attended duty thereafter were threatened and abused. 3. The workmen were represented by one H. Abdul Latheef, a retired Joint Labour Commissioner, besides, two union leaders of the INTUC in the enquiry proceedings. After completing the enquiry, by the Ext. P1 report, the enquiry W.A.No.857 OF 2020 4 officer concluded that the delinquent workmen committed misconduct, illegal boycott led by them had resulted in production loss, quality defect and thus the management sustained financial loss. In other words, the report went against the workmen. It is stated in the written statement of the respondents 1 and 2, Ext.P3, that the enquiry report was furnished to the workers and their comments were obtained; as the comments were found not satisfactory, all the three were terminated from service, with retrospective effect. 4. Thereafter, on the basis of a Government Order, G.O. (Rt.)No.317/2014/LBR dated 03.03.2014, the matter was referred to the Labour Court under Section 10(1)(c) of the Industrial Disputes Act for adjudicating the question whether the denial of employment of the above mentioned three workers is justifiable. In the impugned preliminary award, the Labour Court held that the domestic enquiry conducted by the enquiry officer was not in accordance with the principles of natural justice and on that view, the same was set aside and the management has been allowed to adduce evidence for taking disciplinary action to prove the charges levelled against the W.A.No.857 OF 2020 5 workers. 5. That finding of the Labour Court shown as Ext.P4 was challenged by the respondents 1 and 2 before this Court under Article 226 of the Constitution. After hearing counsel on both sides and considering the materials, the learned Single Judge did not favour with the finding of the Labour Court. By the impugned judgment, the preliminary award stands set aside and the Labour Court has been directed to pass fresh orders in accordance with law, on the basis of the available evidence. That finding has been called in question in the appeal. 6. We heard counsel on both sides. 7. According to the learned counsel for the appellant, violation of the principles of natural justice committed by the enquiry officer has been found by the Labour Court. A document as Ext. M3 was relied on by the enquiry officer without examining the author of the certificate, that is, the Quality Assurance Officer, which is bad. In this connection, he placed reliance on the decision of a Division Bench of this Court in **Subramania Pillai K. v. Senior Divisional Manager, LIC and others [2009 (3) KHC 787]** . According to the learned counsel, ## W.A.No.857 OF 2020 6 there is absolutely nothing to be considered after the remand. The learned counsel strongly pleaded for interfering with the judgment of the learned Single Judge. On the other hand, the learned counsel for respondents 1 and 2 strongly defended the judgment of the learned Single Judge and submitted that the Labour Court went wrong in interfering with a reasoned enquiry report which was prepared following the principles of natural justice. 8. The facts leading to the initiation of disciplinary action against the delinquent workmen have already been set out. After the submission of Ext.P1 enquiry report, show cause notice was issued to the workmen, after getting their comments, they were retrenched from service with retrospective effect. That was how an industrial dispute was drawn and referred to the Labour Court for consideration. The Labour Court by the impugned preliminary award, set aside the enquiry report on two grounds, namely, there was violation of principles of natural justice and that the Ext.M3 test certificate which is referred in the enquiry report was marked without examining the Quality Assurance Officer who issued the certificate. The learned Single Judge has ## W.A.No.857 OF 2020 7 considered these two aspects and said that there is no factual basis in the conclusion that principles of natural justice was violated. Regarding the other aspect, the learned Single Judge pointed out, basing on the decision in **B. C. Chaturvedi v. Union of India [(1995) 6 SCC 749]** and **Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762]** that strict rules of evidence are not applicable to departmental enquiry proceedings. The court also referred to the decision in **Pure Drinks (Private) Ltd. v. Kirat Sing Maungatt and another [1961 (2) LLJ 99 (SC)]** , which is followed in **Managment of Karur Vysya Bank v. S. Balakrishnan [(2016) 12 SCC 221]** and said that what is important in such a departmental enquiry is whether the conclusion arrived at is perverse, enquiry suffers from any procedural lapses or was conducted in violation of the principles of natural justice thereby causing any manner of prejudice to the workers. The learned Single Judge said that no such lacuna could be highlighted to set aside the report. The Court also pointed out that non-examination of the author of Ext.M3, referred to in the report, is not a reason to unsettle the entire enquiry. W.A.No.857 OF 2020 8 9. After hearing counsel on both sides, we do not find overwhelming reasons to interfere with the judgment under attack. Firstly, the finding of the Labour Court that the report is not in accordance with the principles of natural justice is not based on any analysis of evidence. Such a conclusion lacks particulars. Even though it was stated in the claim statement by the workmen that sufficient opportunity was not given to the delinquent workmen to defend the charges, that the enquiry officer conducted the enquiry violating the principles of natural justice, the enquiry was an empty formality etc., after going through the Ext.P1 enquiry report, we are not convinced that there is substance in the contentions. After framing charges against the delinquent workmen, sufficient opportunity was given for filing their objection and then an enquiry officer was appointed who conducted the enquiry as per procedure known to law. It has come out that the delinquent workmen were defended by representatives of their choice, one H. Abdul Latheef, retired Joint Labour Commissioner was representing them. The witnesses for the management were cross examined by Mr. M.A. Latheef, union leader of the INTUC. Thereafter, the W.A.No.857 OF 2020 9 delinquent workers were afforded opportunity to adduce their evidence; one of the delinquent workers herself gave evidence and three independent witnesses were also examined on their side. The enquiry report was submitted after considering all the relevant aspects. Still without giving particulars, or adverting to the factual position, the Labour Court has concluded that the principles of natural justice were violated, which does not stand to logic or reason. 10. The learned counsel for the appellant also could not enlighten us as to how the enquiry officer had acted in violation of the principles of natural justice. In our reading, the enquiry officer had neither acted in breach of the principles of natural justice nor put the finding be regarded as one which no reasonable person could have entered into a course of adjudication, basing on the facts and evidence. 11. The aim of rules of natural justice is to secure justice, or to put it in other words, to prevent mis-carriage of justice. Rules of natural justice that _nemo judex in causa sua_ and _audi alteram partem_ have a definite meaning and connotation in law and their contents and implications are well understood and W.A.No.857 OF 2020 10 firmly established. What particular rule of natural justice should apply to a given case depends to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for the purpose. ( **A. K. Kraipak v. Union of India [AIR 1970 SC 150]** ). 12. Here in the given facts and circumstances, we are not persuaded to hold that the principles of natural justice have been violated in the enquiry proceedings and therefore, that part of the finding of the learned Single Judge cannot be assailed. 13. In fact, we have an added reason to interfere with the impugned order of the Labour Court. Having regard to the facts, even if the order is sustained and the matter is relegated to the management, as done by the Labour Court, it would not serve any useful purpose. In our opinion, this is a fit case to apply 'the useless formality theory'. (See the decision in **Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529]** etc.) That means, even if the matter is remitted to the management at this distance of time, after a lapse of eight years, that would be a futile exercise and will not be going to serve any purpose. W.A.No.857 OF 2020 11 14. Turning to the second aspect also, it is true that Ext.M3 certificate referred to in the enquiry report was relied upon without examining the author of the certificate, the Quality Assurance Officer. All the same, we concur with the learned Single Judge that non-examination of the author of the certificate is not a reason to set aside the very report. The decision in **Subramania Pillai** (supra) in which one of us was a party (C.T. Ravikumar, J.) was rendered in a totally different context. There the question was whether the employer, the Life Insurance Corporation of India was justified in placing reliance on certain reports which were prepared on the basis of some discreet enquiries conducted by an officer of the LIC. On facts, the court held that the LIC was not justified in finding the appellant guilty without affording opportunity to cross examine the author of the report. That finding was rendered in the fact situation of the case. 15. Moreover, as noticed earlier, the question whether the alleged mis-conduct of the workmen had caused loss to the management does not assume much importance in the fact situation. If it is found that the proved mis-conduct of the workmen had caused obstruction to the daily works in the W.A.No.857 OF 2020 12 factory, it is only a natural corollary that the management has suffered loss irrespective of the quantum. 16. The Labour Court has also noticed that the Ext.M6 photocopy of the photographs referred to in the enquiry report does not reveal the identity of persons who stood in the door and caused obstruction of other workers from entering into the factory. But as a matter of fact, no one has a case that there is any identity crisis. The parties are known to each other. The delinquent workers have no case that they did not abstain from work on 27.10.2012. After considering the evidence brought out through the oral testimony of witnesses and materials, the enquiry officer concluded that the delinquent workers had obstructed the other employees of the factory from re-entering the factory after getting out for taking tea at 10.00 A.M., on 27.10.2012. Similarly, they had also threatened and abused the manager and supervisor of the factory, even though there is no evidence that they had manhandled anyone. 17. It is also important to note that, even though the delinquent workers claimed that the union had called for a boycott on 27.10.2012, on evidence the enquiry officer found W.A.No.857 OF 2020 13 that there was no such call. No record could be produced to prove the claim, nor any notice was issued to the management. It is also noticed that the delinquent workers did not examine any union leader to prove the defence. Thus there is basis in finding them guilty of misconduct. 18. There is no reason to interfere with the judgment under challenge. The appeal lacks merits and is dismissed. Having regard to the fact that the proceedings were initiated in 2013, the Labour Court is directed to dispose of the ID within six months from the date of receipt of a copy of this judgment, untrammelled by the observations made by this Court. Dismissed. **SD/-** **C.T.RAVIKUMAR JUDGE SD/K.HARIPAL JUDGE** **==> picture [101 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> DCS/15.06.2021<br>**----- End of picture text -----**<br>