Fertilisers and Chemicals Travancore Ltd., Cochin Division, Ambalamedu v. O.P. Aravindakshan and Labour Court, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 WP(C).No. 35023 of 2003(T) -------------------------- PETITIONER: ------------ FERTILISERS AND CHEMICALS TRAVANCORE LTD COCHIN DIVISION, AMBALAMEDU, REP. BY ITS DEPUTY GENERAL MANAGER(LGAL SERVICES) P.K.SUDHAKARAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------- 1. O.P.ARAVINDAKSHAN, SENIOR DRAFTSMAN, ORESHATHA HOUSE, ASRAM ROAD, AMBALAMEDU. 2. LABOUR COURT, ERNAKULAM. BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35023/2003/T APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE AWARD IN ID NO.45/96 OF THE 2ND RESPONDENT. EXT. P2: COPY OF THE OFFICE ORDER DATED 27-6-92 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P3: COPY OF THE ABSENT NOTICE DATED 29-9-92 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P4: COPY OF THE LETTER DATED 16-10-92 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P5: COPY OF THE CIRCULAR NO.GM(P) IC 412/85 DATED 20-11-1985 CONTAINING THE PROCEDURE FOR REMOVING THE EMPLOYEES ON THE GROUND OF VOLUNTARY ABANDONMENT. EXT. P6: COPY OF THE CERTIFIED STANDING ORDERS OF THE PETITIONER. EXT. P7: COPY OF THE LETTER DATED 13-10-1992 FROM THE 1ST RESPONDENT. EXT. P8: COPY OF THE LETTER DATED 2-11-1992 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P9: COPY OF THE LETTER DATED 11-12-1992 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P10: COPY OF THE ORDER DATED 11-1-1993 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXT. P11: COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT DATED 29-7-96. EXT. P12: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL JULY, 1997. RESPONDENT'S EXHIBITS: - EXT. R1(A): COPY OF REPRESENTATION DATED 28-6-1992 SUBMITTED BY THE 1ST RESPONDENT. EXT. R1(B): COPY OF TELEGRAM SENT BY THE 1ST RESPONDENT ON 4-7-1992. EXT. R1(C): COPY OF MEDICAL CERTIFICATE DATED 28-6-1992 SUBMITTED BY THE 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE JP **S.SIRI JAGAN, J.** ======================= W.P.(C) No. 35023 of 2003(T) ======================= Dated this the 7[th] day of April, 2008 ## JUDGMENT The management in ID No.45/1996 of industrial dispute before the Labour Court, Ernakulam is challenging Ext.P1 award passed by the Labour Court in that ID, in this writ petition. The issue referred for adjudication was: "Whether Shri.O.P.Aravindakshan, (workman), who has removed from the rolls of the FACT (CD) on account of prolonged absence is entitled to reinstatement with backwages." 2. The case of the management was that the petitioner was transferred by order dated 27.6.1992 and he was due to report for duty from 28.6.1992 from FACT Ambalamedu (Cochin Division) to Willington Island, the workman did not report for duty, Instead he sent a telegram dated 4.7.1992 saying that he is on medical leave. The saying was not followed up with any Medical Certificate or any leave application. Subsequently, workman sent a letter stating that he is suffering from blood pressure and he has been advised further treatment and bed rest. He further requested the management to grant and W.P.(C) No. 35023/2003/T -2- regularise medical leave from 28.6.1992 and extent the same till he joins duty on recovery from his illness. Thereafter the management issued Exts.P8 & P9 communication directing him to report for duty as directed by the superior officer. The workman did not respond to the same and remain absent. Therefore, by Ext.P10, he was removed from the rolls with effect from 20.12.1992. Against the same, workman raised industrial dispute which culminated in Ext.P1 award by which the Labour Court directed payment of 50% backwages from 28.6.1992 till the date of superannuation. Since pending the dispute the workman superannuated from service. That award is under challenge before me. 3. The management would contend before me that apart from sending a telegram and Ext.P7 letter dated 13.10.1992, the workman never applied for leave or submitted any medical certificate before the management which is a requirement under Ext.P6 standing orders of the company. The counsel for the management would submit that he also did not respond to the repeated notices issued to him directing him to report for duty. According to the management, in such circumstances the W.P.(C) No. 35023/2003/T -3- management was justified in assuming that the workman had abandoned his service. They also rely on the decision in **Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another** (2000 LAB I.C. 2326) in support of their contentions. 4. On the other hand, the learned counsel for the workman would argue in sustaining Ext.P1 award. According to him, during the relevant period he was totally bed ridden with high blood pressure and at no time the management directed him to produce any medical certificate or to appear the company medical officer. He would also point out that the company medical officer was also aware of his illness and in such circumstances, it was incumbent upon the management to give him an opportunity to produce leave application and medical certificate. He would submit that he had produced three medical certificates from an Ayurvedic Doctor before the Labour Court, relying on which only the Labour Court found in his favour. He, therefore, submits that Ext.P1 award is perfectly valid and proper. 5. I have considered the rival contentions in detail. W.P.(C) No. 35023/2003/T -4- 6. Even bearing in mind the limitations of my jurisdiction under Article 226 and 227 of Constitution of India in interfering with awards of Labour Courts and the Industrial Tribunals, I am not satisfied that Ext.P1 award can be sustained. Here is a case where a workman has been transfered on 27.6.1992 to another office of the establishment within the Ernakulam city itself which is not far away from the original office where he was working. He did not report for duty on 28.6.1992 to the transferred office. Of course, he requested for leave but he did not pursue that. Ext.P6 standing orders specifically prescribed the procedure for obtaining leave. It would insist submission of a leave application alongwith a medical certificate when leave is applied for on medical grounds. The company has a fulfledged hospital also where the workman can obtain free treatment. Although workman would contend that he was dissatisfied with the treatment, he has not produced any document regarding any treatment at the company hospital. All that the Labour Court refers to some earlier treatment in the company hospital. The workman has no case that he submitted any leave application at any time except Ext.P7 letter. Although he had produced three medical certificates W.P.(C) No. 35023/2003/T -5- before the Labour Court, he has no evidence to the effect that he produced the same before the management. On the other hand, the Labour Court "categorically found that it is from that there is no evidence to prove the originals of the above medical certificates were submitted or workman in the company though the workman claims so." As I have already stated Ext.P7 as the only letter apart from the telegram which the workman has sent to the company that is dated 13.10.1992, at that time admittedly, Ext.R(1)(a) medical certificate dated 28.6.1992 was in his possession. In Ext.P7, he does not say that it was being forwarded along with Ext.P7. The petitioner had produced two more medical certificates dated 27.8.1992 and 26.10.1992. These also were not produced before the management but only before the Labour Court. The workman has no explanation whatsoever as to why he did not produce the same before the management. Further, in all those medical certificates he was suffering from stated as Vatharakthavikaram. The workman did not also examine the Ayurveda Doctor who is stated to have been issued the medical certificate. There is no explanation whatsoever as to why the medical certificate does not state blood W.P.(C) No. 35023/2003/T -6- pressure. Nothing is explained as to whether the decease is the the same as the blood pressure. In fact, the workman has filed an appeal before the Board of Directors of the company along with that also the workman did not produce any medical certificate whatsoever and admittedly, he had not produced any leave application except Ext.P7. In spite of all these negative evidence against the workman, the Labour Court has assumed everything in his favour to find that his removal from service was unsustainable. It is in some more similar circumstances that the supreme court has referred the decision in Syndicate Bank's case. Therein the Supreme Court has held thus: "14. In the present case action was taken by the Bank under Clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from the work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayayanda did not respond to the notice at all. On the expiry of the notice period Bank passed orders that Dayananda had voluntarily retired from the service of the Bank. 15. Now what are the requirements of principles of natural justice, which are required to be observed? These are: (1) workman should know the nature of the complaint or accusation; (2) an opportunity to state his case; and (3) the management W.P.(C) No. 35023/2003/T -7- should act in good faith which means that the action of the management should be fair, reasonable and just. All these three criteria have been fully met in the present case. Principles of natural justice are inbuilt in Clause 16 of the Bipartite Settlement. When evidence was led before the Tribunal, Bank produced the registered covers, which had been received back with the endorsement "refused" and the addressee "not found during delivery time". Dayananda said he never refused to receive the notice. In these circumstances Tribunal thought it necessary to hold that notice was not served on Dayananda as the Bank did not examine the postman. The notice was sent on the correct address of Dayanada and it was received back with the postal endorsement "refused". A clear presumption arose in favour of the Bank and against Dayananda. Yet the Tribunal held that no notice was given to Dayananda as postman was not produced by the Bank. This appears to us to be rather an incongruous finding by the Tribunal. Unfortunately, High Court did not go into this question at all. Considering the conduct of Dayananda all this period and after three years of his having voluntarily retired from the Bank in terms of Clause 16 of the Bipartite Settlement his statement that he did not receive the notice was a sheer lie. His whole edifice was built on falsehood and yet the Tribunal was there to give him relief on the platter though at the same time criticised his conduct during his employment with the Bank. 16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are: (a) no man shall be Judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of -8- W.P.(C) No. 35023/2003/T natural justice have been expanded, e.g., a party must have due notice when the Tribudnal (sic) will proceed; Tribunal should not act on irrelevant evidence or shut out relevant evidence; if the Tribunal consists of several members they all must sit together at all times; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above. 17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement. 18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as Bank is concerned. Conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda W.P.(C) No. 35023/2003/T -9- be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award." 7. In the above circumstances, I have no difficulty in coming to the conclusion that the award of the Labour Court is clearly perverse and against the evidence adduced before it. Therefore, Ext.P1 award is liable to be set aside. I do so. From the files, I find that there was two orders on 5.8.2004 and 7.12.2005, a total amount of Rupees One Lakh has been directed to be paid. It is admitted before me that the same has been paid. Taking a lenient view, I direct that the amount need not be recovered from the workman. The writ petition is disposed of as above. **S.SIRI JAGAN, JUDGE** jp