C.A. Muralidharan & K. Kader v. The Manager, Achoor Estate & The Labour Court, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938** ## **W.P(C).No.29374 of 2006 (V)** **--------------------------------------** **[AGAINST THE AWARD IN I.D.7/1998 DATED 01.09.2005 OF LABOUR COURT, KANNUR]. -------------------------** ## **PETITIONER(S):-** **-------------** **1. C.A.MURALIDHARAN (3944), ACHOOR DIVISION, ACHOORANAM P.O., WAYANAD DISTRICT.** **2. K.KADER (4277),** **KOLANCHERRY VEEDU, ACHORNAM P.O., POZHUTHANA (VIA), WAYANAD DISTRICT. [BOTH DISMISSED LABOURERS OF ACHOOR ESTATE, WAYANAD]** **BY SENIOR ADVOCATE SRI.GRASHIOUS KURIAKOSE.** **RESPONDENT(S):-** **--------------** **1. THE MANAGER, ACHOOR ESTATE, ACHOORANAM P.O., POZHUTHANA (VIA), WAYANAD DISTRICT.** ## **2. THE LABOUR COURT, KANNUR.** ## **R2 BY SENIOR GOVERNMENT PLEADER SRI.RENIL ANTO KANDAMKULATHY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** ## **W.P.(C) NO.29374 OF 2006-V** ## **APPENDIX** **PETITIONER'S EXHIBITS:-** **-----------------------** **EXT.P1 TRUE COPY OF THE AWARD IN I.D.NO.7/98 DATED 1.9.2005 PASSED BY THE LABOUR COURT, KANNUR.** **EXT.P2 TRUE COPY OF THE JUDGMENT DATED 7.8.2002 IN C.C. NO.532/1996 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA.** **RESPONDENT'S EXHIBITS:-** **-----------------------NIL** **vku/-** **[ true copy ]** ## K. Vinod Chandran, J ---------------------------------------W.P.(C) No.29374 of 2006-V ---------------------------------------Dated this the 06th day of August, 2016 ## **JUDGMENT** Dismissal of two workmen by the management was found to be justified by the Labour Court in a reference made by the Government. The workmen impugn the award, produced at Exhibit P1. 2. The workmen, who were before the Labour Court, filed claim statement contending that on the death of an ex-employee the Union leaders sought for knock-off from work one hour earlier, to attend the funeral of the deceased. This request was declined and one of the workmen, 2nd petitioner herein, complained, on the next day, to one Assistant Manager, Mahesh Babu, who is said to have pacified him and directed the workman to go for work. Subsequently when the said workman was working in Field No.15, the Assistant Manager is said to have come in a motor cycle and hit the workman. Both the workman and the Assistant Manager is said to have fallen down. Consequently, the workman was issued with a memo and he - 2 - WP(C) No.29374 of 2006-V being an illiterate, had gone to the Field Officer and a reply was given on the instructions of the Field Officer. The management is said to have misused the reply, leading to issuance of a show cause notice and initiation of disciplinary proceedings; pursuant to which the workmen were dismissed from service. 3. The allegations of misconduct as levelled against the workmen by the management was assault on the Assistant Manager, which led to the following charges being raised: - “a) Wilful insubordination or disobedience of lawful and reasonable order of a superior. - b) Riotous or disorderly behaviour on the premises of the Estate or any act subversive to discipline”. 4. Though a domestic enquiry was conducted, in which the workmen were found guilty; by preliminary order dated 31/03/2001, the Labour Court set side the enquiry proceedings and the management was permitted to adduce fresh evidence to prove the charges against the workmen. 5. The management examined the Assistant Manager as MW2 and the Field Officer as MW3. MW4, again a witness of WP(C) No.29374 of 2006-V - 3 - the management, was a workman in the very same estate of the management. The 2nd petitioner deposed on behalf of the workmen. 6. The evidence of MW2 showed that he, as Assistant Manager, had permitted knock-off from work early to enable the workmen of the estate to attend the funeral of an ex-temporary worker. However, on the next day, the 2nd petitioner is said to have shouted at the Field Officer and MW2, alleging that he was not permitted to leave early. The 2nd petitioner was allotted to Field No.22 and later when MW2, along with the Field Officer MW3, was inspecting the estate, the 2nd petitioner was found working in Field No.15 and, hence, MW3 directed the Supervisor to assign the 2nd petitioner to Field No.22. After giving such instruction when MWs 2 and 3 were moving away, the 2nd petitioner came running and deliberately fell in front of the motor cycle, putting his hands on the front wheel and shouted that he has been run over by the motor cycle. At that point, the 1st petitioner, who was plucking leaves nearby, came to the spot with WP(C) No.29374 of 2006-V - 4 - a big boulder and hit MW2 on his head over the left ear. When further assault was attempted, MW3, a Supervisor, and other workers held back the 1st petitioner. 7. MW2 suffered a wound, which was bleeding and, hence, was admitted to the Vythiri Government Hospital. MW2 gave a report to the management, based on which show cause notices were issued to the two workmen, produced as Exhibits M3 and M3(a). The explanations given by the workmen, respectively marked as Exhibits M4 and M4(a), were found to be unsatisfactory and charge-sheet at Exhibits M5 and M5(a) were issued. 8. MW2 admitted that there was a case and a counter-case and he was the accused in the counter-case. Both the cases ended in acquittal; which, it is trite is of no consequence as far as the disciplinary proceedings are concerned. The workmen, during cross-examination suggested to MW2, that no such incident occurred; which suggestion was found by the Labour Court to be inconsistent with the version of - 5 - WP(C) No.29374 of 2006-V the workmen themselves in the claim statement. There was also a suggestion made to MW2 that there was a scuffle between MW2 and the 1st petitioner, which was also denied; which, again, was not a case set up in the claim statement. 9. MW3 concurred with the evidence of MW2 and was unshakable in cross-examination. MW4, an employee of the estate, deposed that while he was carrying on work, he heard a noise from the road and as he reached the spot, he saw the Field Officer (MW3) preventing Murali (the 1st petitioner) from attacking the Assistant Manager (MW2). The Assistant Manager, according to the said witness, was sitting on the motor bike and the 2nd petitioner was lying leaning on the motor bike. MW4 also deposed that he saw a bleeding injury on the left ear of the Assistant Manager. It was also specifically stated by MW4 that when he was running to the spot, he saw Murali running in front of him. 10. The workman, who was examined as WW1, deviated from the statements made in the claim statement. His WP(C) No.29374 of 2006-V - 6 - version on the box was that the motor bike driven by the Assistant Manager (MW2) hit him and he was lying under the motor bike and that he was unaware of what happened thereafter. The different stance taken by the workmen in the claim statement, in the suggestions put on cross examination and the chief examination of WW1 clearly revealed the gross inconsistency, which, according to the Labour Court, probabilised the incident as narrated by the management witnesses, who were consistent in their statement. 11. The Labour Court relied on a decision of the Hon'ble Supreme Court in **Allahabad District Co-operative Bank Ltd. v. Vidya Varidh Mishra [(2004) 6 SCC 482]** to find that the nature of the evidence which could be relied on in a criminal proceeding and in a disciplinary proceeding are quite different and while the former required proof beyond reasonable doubt, the latter only warranted a preponderance of probabilities as deciphered from the evidence recorded. The Labour Court found the evidence adduced by the management to have WP(C) No.29374 of 2006-V - 7 - established the misconduct alleged. 12. On the question of Section 11A of the Industrial Disputes Act, 1947, the Labour Court found that it was a case of gross misconduct and relied on the decisions of the Hon'ble Supreme Court in **Madhya Pradesh Electricity Board v. Jagdish Chandra Sharma [AIR 2005 SC 1924]** to find that physical assault on a superior officer is a serious misconduct, which has to be dealt with in a manner which deters the other workmen from taking recourse to such practises, on even a slight provocation. The Labour Court found the order of dismissal to be justified. This Court does not find any reason to interfere with either of the findings of the Labour Court. The writ petition fails and the same would stand dismissed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]