Forest Industries Travancore Ltd. v. Labour Court, Ernakulam and T.P. Raman (WP(C).17380/2013 & WP(C).30968/2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** # **WP(C).No. 17380 of 2013** **AGAINST THE ORDER/JUDGMENT IN ID 36/2011 of LABOUR COURT, ERNAKULAM DATED 08-04-2013** ## **PETITIONER/S:** **FOREST INDUSTRIES TRAVANCORE LTD. (A KERALA GOVERNMENT COMPANY), THAIKKATTUKARA, ALUVA, ERNAKULAM 683106, REPRESENTED BY ITS MANAGING DIRECTOR** **BY ADVS. SRI.M.K.THANKAPPAN SMT.C.G.VINODINI** ## **RESPONDENT/S:** **1 THE LABOUR COURT, ERNAKULAM KOCHI 682037 2 T.P RAMAN S/O PARAMESWARAN, THAZHAHUVEETTIL HOUSE, PARASSLA PADY, KOZHIPPILLY P.O, KOTHAMANGALAM 686691** **BY ADVS. SRI.ALEXANDER JOSEPH SMT. MARY BEENA JOSEPH, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2019, ALONG WITH WP(C).30968/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.17380/2013 & 30968/2015** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 30968 of 2015** **AGAINST THE ORDER/JUDGMENT IN ID 36/2011 of LABOUR COURT, ERNAKULAM DATED 25-06-2012** ## **PETITIONER/S:** **T.P.RAMAN AGED 62 YEARS S/O. PARAMESWARAN, THAZATHU VEETTIL HOUSE, KOZHIPPILLY P.O., VARAPETTY VILLAGE, KOTHAMANGALAM TALUK.** **BY ADV. SRI.ALEXANDER JOSEPH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LABOUR & REHABILITATION DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM.** **2 FOREST INDUSTRIES (TRAVANCORE) LTD, REP. BY ITS MANAGING DIRECTOR, THAIKATTUKARA, ALUVA, ERNAKULAM DISTRICT - 683 106. BY ADVS. SRI.M.K.THANKAPPAN, SC SMT. MARY BEEN JOSEPH, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2019, ALONG WITH WP(C).17380/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.17380/2013 & 30968/2015** **3** ## **JUDGMENT** **Ext.P6 Award passed by the Labour Court, along with Ext.P3 Preliminary Order in I.D.No.36 of 2011, of the Labour Court, Ernakulam, is under challenge in this writ petition.** **2. The 2[nd] respondent was working as a Supervisor Grade-II in the Forest Industries Travancore Limited. While he was working as Operator Grade-I, the petitioner initiated disciplinary proceedings against him, issuing Ext.P1 memo of charge on 24.09.2009, alleging that during the 5 days period from 24.08.2009 to 28.08.2009, while working on re-saw machine, he caused loss to the petitioner to the tune of Rs.16,000/- by inaccurate re-sizing of the wooden logs rendering the logs unworthy to use, disregarding the repeated instructions given by the Supervisors and hence he committed misconduct by insubordination. It was alleged** **WP(C).Nos.17380/2013 & 30968/2015** **4** **that despite the cutting list given to him he deliberately cut the logs either in lower size or in the higher size. It was also alleged that disciplinary action was taken against the 2[nd] respondent several times for insubordination, for abusing his Superior Officers, for causing loss to the petitioner, etc. Petitioner denied the charges and an enquiry was conducted thereafter, in which he was found guilty and the 2[nd] respondent was awarded a punishment of dismissal. As per G.O.(Rt.) No.1377/2011/LBR dated 16.09.2011, the legality and justifiability of the punishment of dismissal from service of the 2[nd] respondent was referred to the Labour Court for adjudication.** **3. After claim statement and written statement were filed in the ID, the Labour Court passed a preliminary order in which it was found that enquiry was held in violation of the principles of natural justice, as the** **WP(C).Nos.17380/2013 & 30968/2015** **5** **workman was not given sufficient opportunity to defend. The copies of documents the workman requested were not seen furnished to him.** **4. In the Labour Court, the enquiry Officer was examined as MW1, before the Preliminary Order was passed and thereafter MW2 and MW3 were examined. Documents M1 to M8 were marked. The 2[nd] respondent got himself examined as WW1 and marked Exts.W1 to W6 documents.** **5. Main allegation raised against the 2[nd] respondent was that he caused loss to the Company's goods and by way of his acts in insubordination to the orders of the superior officers in violation of clause 46(V)1, 10 and 12 of the standing orders. The Enquiry Officer was examined before the Labour Court as MW1 and the court below found that the Enquiry Officer had not allowed the petitioner's request for cross examination of witnesses, who were examined after re-opening the evidence. It was** **WP(C).Nos.17380/2013 & 30968/2015** **6** **found that the Management had not produced the original of the documents relied on by them in support of the charges.** **6. The cutting register was one of the documents based on which the charges were alleged to have been proved. It was found that the photocopy of register alone was produced. From the evidence of WW1 with respect to the Register which was produced, claiming that it was the original one, the Labour Court found that the contention of the workman relating to fabrication cannot be ruled out. Similarly when the 2[nd] respondent had in his petition sought for production of computer print out of the attendance register, the petitioner produced a photocopy of the muster roll Ext.M30., in which the names of the helpers who were allegedly allotted to help the 2[nd] respondent were not seen included. That was also found unreliable.** **WP(C).Nos.17380/2013 & 30968/2015** **7** **7. From the testimony of WW1 as well as MW3, the Labour Court found that out of the 5 days covered by the memo of charge, there was no work in the re-saw section on two and a half days. The petitioner did not produce and mark the original cutting register or cutting list despite several petitions filed by the workman. Though a copy of the cutting register was marked as M8, the Labour Court disbelieved the same to be the true copy as it found that there were entries for the days on which admittedly he had not worked and hence it cannot relate to the workman alone. Further it was found that the entries, which were underlined in the M8 Register, claiming that those are the measurements of the logs re-sized by the workman, cannot be correct because those entries included work done on 01.08.2009 and 03.08.2009 also, when the workman had to face disciplinary action pursuant to M13 charge memo, for his** **WP(C).Nos.17380/2013 & 30968/2015** **8** **unauthorised absence on those two days. Labour Court therefore accepted the contention of the workman that there was no material to show the logs which are re-sized by the workman and that Ext.M8 cannot be relied on for the purpose of substantiating the charge alleged against him. Even though he had filed application for the production of cutting list, cutting register, job order, etc the Management did not produce the originals stating that those documents were required for audit purposes, which also was repelled by the Labour Court. The job orders, which were marked as Exts.M5 and M7 series, did not tally with the details given in the affidavit of MW2. The Labour Court has explained the details and the differences found in the job order Ext.M5 with reference to the proof affidavit, joint complaint of MW2 and MW3, etc and found that there were no wooden logs to be cut with the measurements stated in the proof** **WP(C).Nos.17380/2013 & 30968/2015** **9** **affidavit. After analyzing all these evidences, it was found that none of the documents produced by the petitioner could be relied on and that there was total absence of evidence in order to find the petitioner guilty of the charges. As the first charge was not found proved, the Labour Court found that the second charge of insubordination also would not lie as they are interconnected. In effect the loss of Rs.16,000/-, which was alleged against the petitioner, was found unsustainable.** **8. As the 2[nd] respondent had attained superannuation in the year 2011, Labour Court found that even if the dismissal was set aside, it was not possible to reinstate the 2[nd] respondent. The dismissal was on 31.12.2010 and he attained the age of superannuation at the age of 58 years on 30.11.2011. In those circumstances, the Labour Court directed to grant him all monetary benefits to him as the** **WP(C).Nos.17380/2013 & 30968/2015** **10** **dismissal was found unjustified. It was found that he was entitled to continuity in service along with all monetary benefits till the date of superannuation. However since it was found that petitioner did not lead any evidence that he was not gainfully employed, the Labour Court limited the back wages to 25%.** **9. The learned counsel for the petitioner vehemently argued that the finding of the Labour Court with respect to denial of opportunity to the workman to defend is erroneous and that the award is passed misconstruing the evidence on record. Relying on** _**St.Thomas Missions Hospital v. State of Kerala**_ **: 2007 (2) KLT 415 and referring to the standing order 46(V) of the Forest Industries, it was argued that there is no provision to permit the assistance of the legally trained person and that neither the Enquiry Officer nor the Presenting Officer were legally trained and** **WP(C).Nos.17380/2013 & 30968/2015** **11** **therefore the finding as to violation of principles of natural justice is unsustainable. But I find that the finding of the Labour Court with respect to violation of principles of natural justice is not because of denial of** **permission of legally trained defence assistant. Labour Court found that the 2[nd] respondent was denied opportunity to cross examine the witnesses after the Management was permitted to re-open their evidence and that copies of documents requested were not furnished to him. Labour Court has arrived at the findings after analysing the evidence on record and found that there was no material, which could be relied on to substantiate the charges. When the Labour Court has rendered the findings and passed the award after analysing the legal evidence before it, interference with such an Award by this Court under Article 226 is unwarranted, as held by the Apex Court in** **WP(C).Nos.17380/2013 & 30968/2015** **12** _**Veerappa v. Raman & Raman Ltd.**_ **: A.I.R 1952 SC 192 itself, where it was held that writs under Article 226 are intended to enable the High Court in grave cases where Tribunals or Officers act wholly without jurisdiction, or in excess of it, or in violation of principles of natural justice or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, or excess has resulted in manifest injustice. At the same time, the High Court is not supposed to convert itself in to a court of appeal and examine the correctness of the decisions impugned.** **10. As rightly contended by the learned counsel for the 2[nd] respondent, relying on the judgments of the Apex Court in** _**Bhuvnesh Kumar Dwivedi v. Hindalco Industries Limited**_ **: (2014) 11 SCC 85 and** _**Harjinder Singh v. Punjab State Warehousing Corporation**_ **: 2010 (3) SCC 192,** **WP(C).Nos.17380/2013 & 30968/2015** **13** **finding of facts rendered by an inferior tribunal which has acted on legal evidence, is not liable to be corrected, in writ jurisdiction. Reiterating the dictum laid down in Harjinder Singh's case (Supra), the Apex Court held that social welfare legislation like Industrial Disputes Act are liable to interpreted keeping in view the goal set out in the preamble to the constitution and the provisions contained in Part IV of the Constitution of India. The Labour Court has passed the award after meticulous analysis of materials before it. The Award is not at all perverse.** **11. Therefore, I find that Ext.P3 or Ext.P6 Award do not warrant any interference impugned in W.P.(C) No.17380/2013. Accordingly this writ petition is dismissed.** **W.P.(C) No.30968/2016** **12. The workman claims full back wages. The** **WP(C).Nos.17380/2013 & 30968/2015** **14** **Labour Court has found that workman has not led any evidence regarding his non-engagement or non-employment during the period when he was out of service. Nothing is stated to reverse such a finding. Therefore I do not find it necessary to grant any further relief to the petitioner.** **However petitioner-the 2[nd] respondent in W.P.(C) No.17380/2013 would be entitled to all other benefits, as directed in the Award without any deduction as if he retired from service on the date of superannuation. The management shall make the payment within a period of one month from the date of receipt of a copy of this judgment. As the retirement benefits due to the workman was retained by the Management all this time, because of the interim order passed in the writ petition, the workman shall be entitled to interest on the amount due to him at the rate of 9% p.a. from** **WP(C).Nos.17380/2013 & 30968/2015** **15** **the date of superannuation. In case any amount is already paid, the balance shall be paid along with the interest.** **This writ petition is disposed of, accordingly.** **Sd/-** **P.V.ASHA, JUDGE.** **ww** **WP(C).Nos.17380/2013 & 30968/2015** **16** ## **APPENDIX OF WP(C) 17380/2013** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CHARGE SHEET DATED 24-092009 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE DISMISSAL ORDER DATED 3112-2010 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE PRELIMINARY ORDER DATED 25-06-2012 PASSED BY THE IST RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE I.A NO.211/2012 FILED BY THE 2ND REPSONDENT BEFORE THE LABOUR COURT** **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT DATED 13-09-2012 FILED BY THE PETITIONER BEFORE THE LABOUR COURT.** **EXHIBIT P6 TRUE COPY OF THE AWARD DATED 08-04-2013 PASSED BY THE LABOUR COURT** **EXHIBIT P7 TRUE COPY OF THE PURCHASE ORDER DELIVER CHALLAN DATED 08-11-2011 TO THE SUPPLY OF BIO-SIGN D2 FINGER PRINT TIME & ATTANDANCE RECORDER** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 21.07.2014 ISSUED BY THE REGIONAL PROVIDENT FUND AUTHORITY ALONG WITH FORM NO.19 TO THE PETITIONER COMPANY.** **WP(C).Nos.17380/2013 & 30968/2015** **17** ## **APPENDIX OF WP(C) 30968/2015** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF CHARGE MEMO DT. 24.9.2009. EXHIBIT P2 TRUE COPY OF THE PRELIMINARY ORDER DT. 25.6.2012 OF THE LABOUR COURT, ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE AWARD DT. 08.4.2013 IN ID 36/2011 OF THE LABOUR COURT, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE ORDER DT. 11.09.2015 IN IA NO. 16919/2014 IN WPC NO. 17380/2013. EXHIBIT P5 TRUE COPY OF THE LETTER DT. 01.10.2015 ISSUED BY THE 2ND RESPONDENT.**