Chelamattom Sree Krishna Swami Devaswom Trust v. State of Kerala, Labour Court, Ernakulam and Geetha Narayanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **WP(C) NO. 2029 OF 2021** ## **PETITIONER/S:** THE CHELAMATTOM SREE KRISHNA SWAMI DEVASWOM TRUST CHELAMATTOM, OKKAL P.O, PERUMBAVOOR, ERNAKULAM DISTRICT PIN 683550, REPRESENTED BY ITS PRESIDENT BY ADVS. ALEXANDER JOSEPH SMT.AKHILASREE BHASKARAN ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2 THE LABOUR COURT, ERNAKULAM PIN 682 031 3 SMT. GEETHA NARAYANAN, AGED 56 YEARS W/O. NARAYANAN, CUPPLINGATTU MANA, CHELAMATTOM, OKKAL P.O, PERUMBAVOOR PIN 683550 BY ADVS. SMT.M.M.FATHIMA JALEENA SRI.K.A.HAZAN SRI.K.P.WILSON SRI.V.J.JAMES ## **OTHER PRESENT:** ADV.JUSTINE JACOB-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 2029 OF 2021** **2** ## **JUDGMENT** Petitioner, Chelamattom Sree Krishna Swami Devaswom Trust has challenged the order dated 18.11.2020, Ext.P22 of the labour court in I.D No.9 of 2013 setting aside the enquiry report dated 10.8.2012, Ext.P15. 2. As per the averments the 3[rd] respondent, Smt.Geetha Narayanan was working as an Accountant. The Chartered Accountant who conducted Annual Audit found certain discrepancies in the receipts and payments for the year ended on 31.3.201 and difference of Rs.1,49,272.90/- in the physical cash balance and day book balance as on date of verification. A show cause notice dated 5.10.2011 was served which was duly replied by the 3[rd] respondent on 8.10.2011. A charge memo dated 10.10.2011 was issued and she was placed under suspension. Reply notice dated 13.10.2011, Ext.P3 to the show cause notice was sent. Before acceptance or rejection of the reply to the show cause notice, petitioner issued a memo dated 17.10.2011 calling for an explanation and proposal to terminate the 3[rd] respondent from service. A memorandum of allegations were also served, Ext.P6. An advocate was appointed as Enquiry officer and the petitioner issued notice of enquiry dated **WP(C) NO. 2029 OF 2021** **3** 25.10.2011 to the 3[rd] respondent requesting to receive Memorandum of allegation from the office, Ext.P7. Enquiry officer issued the notice on 31.11.2011 intimating the date of enquiry and requesting to receive memorandum of allegations. Ultimately, on the basis of the enquiry, the charges were alleged to have been proved and recommended the termination. The enquiry report was served on the 3[rd] respondent and explanation was sought for. As per the order dated 19.8.2012 the petitioner dismissed the 3[rd] respondent from service, Ext.P16. Third respondent raised Industrial Dispute as evident from the reference order dated 23.3.2013, Ext.P17. I.D No.9/2013 was registered and issued notice to the petitioner and the 3[rd] respondent and they have entered appearance and submitted the pleadings. Copy of the Claim statement and written statement are produced as Ext.P18, Ext.P19. Before the labour court, enquiry officer was examined as MW1 and enquiry file was marked as M1. The 3[rd] respondent was examined as WW1. An award dated 12.8.2015 was passed by the labour court finding that the Petitioner Temple was not an Industry under the Industrial Disputes Act and therefore the Labour Court has no jurisdiction to decide the dispute between the 3[rd] respondent. The 3[rd] respondent challenged the **4** ## **WP(C) NO. 2029 OF 2021** award of the 2[nd] respondent before this Court in W.P.(C) No.36919/2015. This Court vide judgment dated 15.12.2016 set aside the award and remitted the case back to the labour court, Ernakulam. The aforementioned judgment of the Single Judge was challenged by the petitioner in W.A No.619 of 2017. As per the judgment dated 21.6.2017, the Writ Appeal was dismissed with a modification that the labour court shall consider whether the Devaswom Board would qualify to be an industry under Section 2(j) of the Industrial Disputes Act. The Labour Court considered the issue and as per the interim order dated 5.6.2018 held that Devaswom Board would qualify to be an Industry under Section 2(j) of Industrial Dispute Act. Against the aforementioned order, W.P.(C) No.26820 of 2018 was preferred by the petitioner which was dismissed vide judgment dated 27.1.2020. Thereafter the labour court considered the issue whether the domestic enquiry against the 3[rd] respondent was proper, valid and in compliance of the natural justice. The labour court passed preliminary order dated 18.11.2020 finding that the enquiry was in violation of the principles of natural justice. Aggrieved by the order, the present writ petition has been filed. **WP(C) NO. 2029 OF 2021** **5** 3. It is contended by the learned counsel for the petitioner that the labour court had erred in not seeing that no prejudice was caused to the 3[rd] respondent in the enquiry leading to Ext.P15 report. Ext.P5 memo was issued to the petitioner and fully knowing the allegations, the 3[rd] respondent admitted the same in Ext.P9 and P21 and participated in the enquiry much less cross examined the management witnesses. Memorandum of allegations Ext.P6, was the reproduction and repetition of the charges of allegations. In support of the aforementioned contentions, relied upon the judgment in _**2011**_ _**KHC 4820 (Sanjay Kumar Singh v. Union of India and Others)**_ wherein it was stated that no prejudice is caused for not giving 48 hours after reading out the charges. Another judgment of this Court in _**Mayadevi v. Deputy General Manager SBT (2017(5) KHC 588)**_ wherein it was held that the punishment disproportionate to the established misconduct depends on various factors was also cited. One has to establish the prejudice regarding the violation of the principle of natural justice. Whatever stated in Ext.P5 was a repetition in Ext.P6 and there is no prejudice as had been caused to the respondent No.3. 4. On the other hand, counsel for the respondent No.3 **WP(C) NO. 2029 OF 2021** **6** submitted that the respondent is out of service almost 9 years and the petitioner had attempted to delay the adjudication of the industrial dispute registered way back in 2013. Labour court found that in the Ext.M1 domestic enquiry ie., the proceedings of the enquiry officer, it was noted that the first sitting commenced at 3.30 p.m on 11. 12.2011 and the copy of the charge was given to the delinquent, read over and she denied the allegation Nos.1, 3, 4 and 5. Two weeks time was sought for answering the allegations. On reading the allegation No.2 by the enquiry officer, delinquent replied that she could reply only after verification of the relevant accounts/documents. But enquiry officer refused to grant the time and handed over the allegation only on 11.12.2011. The order would reflect that on many occasions the enquiry officer did not accede to the request of the respondent No.3 for supply of the documents and therefore there was a violation of the principles of natural justice rather no harm and prejudice has been caused to the petitioner as in view of the judgment of the Hon'ble Supreme Court in the Workmen of M/s Firestone Type and Rubber Co. of India v. The Management and others [(1973) 1 SCC 813]. It is imperative for the labour court to consider the desirability whether the enquiry officer was actually **WP(C) NO. 2029 OF 2021** **7** held properly or not and both the parties would have been given a chance to lead again an evidence and the controversy could have been brought to logical end and urged this Court for dismissal of the writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submission and the writ petition is gross abuse of the process. The facts detailed above reveals that the respondent No.3 was recommended to be dismissed from the service on receipt of the enquiry report way back in 2012 and referred the industrial dispute in 2013. In the first round, labour court declined to interfere finding that the temple not to be an industry, which was set aside and the said order was assailed before the Division Bench by the management which was also dismissed. Thereafter the labour court held that the temple was industry which was again challenged by the petitioner-management and dismissed. During all these period, respondent No.3 has been dragged to the litigation and her claim had been oscillating. This is the third round of litigation at the instance of the management whereby the interim award Ext.P22 has been assailed holding that the enquiry was not proper. There has not **WP(C) NO. 2029 OF 2021** **8** been any whisper in the submissions as well as the writ petition that whenever the respondent No.3 sought for vouchers relevant entry in the day book, ledger from the management, enquiry officer did not take any steps to call for the documents, for verification of the same by the workmen, and therefore, had taken away a valuable right of the workman to defend her case which amounts to denial of proper hearing. It is not only that the memorandum of allegations were served by the enquiry officer and it was a repetition of the memo Ext.P6 and the nature of the proceedings conducted by the enquiry officer. On 27.3.2012, respondent No.3 submitted the following application, Ext.P10. It is prayed that for revising the allegations made by the Temple Secretary against me I may be allowed to produce copies of the daily accounts verified and signed by me, day book (from 1.4.2010 to 31.3.2011), Ledger, Voucher during the period and to give evidence. 6. Petitioner in response to the aforementioned application, replied in the following manner: 'Your letter dated 27.3.2012 addressed to the Enquiry Officer have been forwarded to the undersigned. In this regard we would like to inform you that the copies of all the documents (including copies of the audited report duly certified by the chartered accountant) which are being relied on in the enquiry have already been given **WP(C) NO. 2029 OF 2021** **9** to you. However you are granted permission to peruse all the records available in the Devaswom office which are required for defending your case in respect of the domestic enquiry. You may do so during the office hours of the Temple Administration, with prior to the concerned officials. 7. The contents of the letter dated 29.3.2012 of the petitioner management reflects that it is an eye wash. The documents purported to have were already given but there is no proof, receipt or acknowledgment ie., the documents relied upon by the management were communicated to the respondent No.3 at any point of time either through the show cause notice, with memo of statement of allegations or during the interim proceedings. Otherwise the same would have been reflected in the interim order of the enquiry officer. The judgments relied upon on behalf of the petitioner in view of the observation herein above would not come to the rescue as actually a serious prejudice has been caused to the respondent No.3 of not only having been served with the allegations by the enquiry officer, repetition of memo but have also been denied the opportunity to cross examine the witnesses as well as supply of the documents, thus the award of the labour court is perfectly legal and justified and do not call for any interference to form a different **WP(C) NO. 2029 OF 2021** **10** opinion than the one arrived at. Writ petition is bereft of merit. Accordingly dismissed with a cost of Rs.30,000/- to be paid to the respondent No.3 as just and equitable compensation for defending the third round of litigation. **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C) NO. 2029 OF 2021** **11** ## **APPENDIX OF WP(C) 2029/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 05-10-2011 OF THE PETITIONER TO THE 3RD RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE CHARGE MEMO DATED 10-102011 OF THE PETITIONER TO THE 3RD RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE REPLY NOTICE DATED 13-102011 OF THE 3RD RESPONDENT TO THE PETITIONER - EXHIBIT P4 THE EXTRACT OF THE ATTENDANCE REGISTER EXHIBIT P5 MEMO DATED 17-10-2011 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT - EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF ALLEGATIONS - EXHIBIT P7 TRUE COPY OF THE NOTICE OF THE NOTICE OF ENQUIRY DATED 25-10-2011 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT - EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 31-11-2011 OF THE ENQUIRY OFFICER - EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE ENQUIRY OFFICER DATED 11-12-2011 - EXHIBIT P9 TRUE ENGLISH TRANSLATION OF EXHIBIT P9 EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 27-032012 OF THE 3RD RESPONDENT TO THE ENQUIRY OFFICER **WP(C) NO. 2029 OF 2021** **12** EXHIBIT P10 - TRUE ENGLISH TRANSLATION OF EXHIBIT P10 - EXHIBIT P11 TRUE COPY OF THE LETTER DATED 29-03-2012 OF THE PETITIONER TO THE 3RD RESPONDENT - EXHIBIT P12 TRUE COPY OF THE LETTER DATED 30-04-2012 OF THE ENQUIRY OFFICER TO THE 3RD RESPONDENT - EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 08-05-2012 OF THE ENQUIRY OFFICER TO THE 3RD RESPONDENT - EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS OF DOMESTIC ENQUIRY CONDUCTED BY THE ENQUIRY OFFICER - EXHIBIT P15 TRUE COPY OF THE ENQUIRY REPORT DATED 1008-2012 OF THE ENQUIRY OFFICER AND ENGLISH TRANSLATION OF MALAYALAM EXHIBIT SIN PAGES 53 AND 54 - EXHIBIT P16 TRUE COPY OF THE DISMISSAL ORDER DATED 1908-2012 OF THE PETITIONER TO THE 3RD RESPONDENT - EXHIBIT P17 TRUE COPY OF THE REFERENCE ORDER DATED 2303-2013 OF THE 1ST RESPONDENT - EXHIBIT P18 TRUE COPY OF THE CLAIM STATEMENT DATED 0306-2013 OF THE 3RD RESPONDENT IN I.D NO. 9/2013 - EXHIBIT P19 TRUE COPY OF THE WRITTEN STATEMENT DATED 19-07-2013 IN I.D NO. 9/2013 OF THE PETITIONER. - EXHIBIT P20 TRUE COPY OF THE REJOINDER DATED 12-08-2013 OF THE 3RD RESPONDENT **WP(C) NO. 2029 OF 2021** **13** EXHIBIT P21 TRUE COPY OF THE PROOF AFFIDAVIT OF THE 3RD RESPONDENT IN ID NO. 9/2013 EXHIBIT P22 TRUE COPY OF THE ORDER DATED 18-11-2020 OF THE 2ND RESPONDENT. EXHIBIT P23 TRUE COPY OF THE JUDGMENT IN ST.THOMAS MISSION HOSPITAL VS. STATE OF KERALA (2007(2)KHC 583)