G. Govinda Pillai v Express Publications (Madurai) Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** **WP(C).No. 20970 of 2006 (U) ---------------------------** **PETITIONER:** **----------** **G.GOVINDA PILLAI, SENIOR CLERK, INDIAN EXPRESS, CALICUT RESIDING AT 113E, PERIYAR PATHAI, CHOOLAI MEDU WEST CHENNAI-600 094.** **BY ADV. SRI.C.P.PEETHAMBARAN** **RESPONDENT(S):** **--------------** **1. THE CHAIRMAN AND MANAGING DIRECTOR, EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS ESTATE ANNA SALAI, CHENNAI-600 002.** **2. THE REGIONAL MANAGER, EXPRESS PUBLICATIONS (MADURAI) LTD. EXPRESS BUILDINGS, KALOOR, KOCHI-17.** **3. THE PRESIDING OFFICER, LABOUR COURT, KOZHIKODE.** **R1,2 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) R1,2 BY ADV. SRI.V.KRISHNA MENON BY SRI.U.K.RAMAKRISHNAN (SC FOR R1&2) BY SRI.U.K.RAMAKRISHNAN (SC FOR R1&2)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : TRUE COPY OF THE LETTER DT 28.4.21001 ISSUED TO THE ENQUIRY OFFICER BY THE PETITIONER** - **EXT.P2 : TRUE COY OF the PETITION BEFORE THE LABOUR COMMISSIONER DT 26.11.2001 SUBMITTED BY THE GENERAL SECRETARY, NEW INDIAN EXPRESS EMPLOYEES ASSOCIATION.** - **EXT.P3 : RUE COPY OF THE WRITTEN STATEMENT FILED BY THE MANAGEMENT BEFORE THE LABOUR COURT** - **EXT.P4 : TRUE COPY OF THE REJOINDER FILED BY THE UNION DT. 12.4.2004 BEFORE THE LABOUR COURT** - **EXT.P5 : TRUE COPY OF THE PRELIMINARY ORDER DT 16.6.205 OF THE LABOUR COURT** - **EXT.P6 : TRUE COPY OF THE AFFIDAVIT WITH PETITIN IN I.D. 16/2002 DT 4.7.2005 OF THE LABOUR COURT.** - **EXT.P7 : TRUE COPY OF THE AWARD IN I.D. NO. 16/2002 DT 23.7.2005 OF THE LABOUR COURT** - **EXT.P8 : TRUE COPY OF THE ORDER DT 9.9.2005 IN M.P 92/2005 IN I.D. NO. 16/2002 OF THE LABOUR COURT, KOZHIKODE** ## **RESPONDENTS' ANNEXURES:** - **EXT.R2(a) : TRUE COPY OF THE REPLY OF THE MANAGEMENT DT 10.4.2006 SENT TO THE PETITIONER** - **EXT.R2(b) : TRUE COPY OF THE TELEGRAM DT 5.5.2006 SENT BY THE PETITINER** - **EXT.R2(c) : TRUE COPY OF THE REPLY DT 1.6.2006 SENT BY THE MANAGEMENT TO THE PETITONER** **//TRUE COPY//** ## **P.A. TO JUDGE** **jma** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 20970 OF 2006** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 8[th] day of February, 2013** ## **J U D G M E N T** The petitioner is the workman in an industrial dispute espoused by a union; against his alleged illegal dismissal from service. The short facts necessary for the disposal of the writ petition are that the petitioner/workman was employed as a senior Clerk in the management establishment at its Calicut unit. On 10.10.2000, the workman, in the presence of other employees abused the Assistant Advertisement Manager and used vulgar language against him. When a memo was sought to be served on him, for the above alleged misconduct, on 7.11.2000 the workman again repeated his conduct and abused the person who was entrusted with the service of such memo on the workman. The said conduct of the workman, according to the management amounted to riotous behavior within the premises of the establishment and was a deliberate act of wilful insubordination of the lawful and reasonable order of the superior officer amounting to acts subversive of discipline. WPC.No.20970/2006 : 2 : 2. The workman stood suspended by order dated 19.11.2000 on 20.11.2000 and was issued with a memo of charges dated 21.11.2000 alleging the misconducts, above referred to. An enquiry was held wherein an advocate was appointed as Enquiry Officer. The Enquiry Officer having completed the enquiry submitted report finding all the charges alleged as being proved; which was accepted by the disciplinary authority and punishment of dismissal from service was imposed on the workman. The union espoused the cause of the workman before the Labour Court, Kozhikode. 3. The validity of the enquiry conducted was raised as a preliminary issue and the same was considered by order dated 16.6.2005. The workman contended that the enquiry was a farce especially on the ground of the Enquiry Officer turning down his request to engage a lawyer or at least a coworker to represent him. According to the workman this disclosed the apparent bias of the Enquiry Officer and the proceedings would show that the enquiry itself was conducted in undue haste denying an opportunity to the workman to WPC.No.20970/2006 : 3 : adduce evidence regarding his innocence The management denied the above claims and also examined the Enquiry Officer in the case. 4. MW1 the enquiry officer, marked the enquiry report and deposed that there was no violation of principles of natural justice and the enquiry was conducted with due regard to such principles. With respect to the claim for the assistance of a lawyer or a co-worker, it was the Enquiry Officer's deposition that the request made was for the assistance of a lawyer or an outsider. No request regarding a co-worker was made before the Enquiry Officer. In the context of the management having not engaged any lawyer, it is trite that the delinquent employee also cannot be permitted to have the assistance of the lawyer in a domestic enquiry. The fact that the Enquiry Officer was a lawyer does not entitle the workman to engage a lawyer for his defence. The Labour Court has rightly found that the decision of the Enquiry Officer to reject the assistance of a lawyer or an outsider was perfectly in order and also garnered support from the judgment reported in **Bharat Petroleum** WPC.No.20970/2006 : 4 : **Corporation Ltd. v. Maharashtra General Kamgar Union & others(1999 (1) SCC 626)** and **Brooke Bond India Ltd., v. Subba Raman ( 1961 (2) L.L.J 417)** . 5. With respect to the workman being denied an opportunity of explaining the charge sheet, the labour court noticed that the endorsement of the worker in the charge sheet and the proceedings would clearly establish that the charge sheet was served on the workman and an opportunity too was granted to the workman to prefer his explanation within one week from the date of receipt of the same. However, the workman chose not to give any explanation within the time stipulated or thereafter. 6. The allegation with respect to the denial of opportunity to adduce evidence was also considered by the labour court. It was noticed that the proceedings would disclose that despite the conduct of the workman in absenting from the enquiry proceedings, the enquiry officer had many a time adjourned the enquiry to secure the presence of the workman. It is also pertinent that though the workman's cause was espoused in the Labour Court by a trade union, WPC.No.20970/2006 : 5 : which is alleged to be not recognised by the management, the workman never had a case before the enquiry officer that he should be permitted the assistance of a co-worker. In the circumstances, this Court is of the opinion that the preliminary order of the Labour Court regarding the sustainability of the enquiry and the compliance of the principles of natural justice in the proceedings is not liable to be interfered with. 7. What remains is, the consideration of the Labour Court regarding the proportionality of the punishment and the examination of whether the penalty imposed is reasonable; tested against the gravity of the offences alleged. The workman has a contention that he was not heard, since himself and counsel were unfortunately absent when the matter was taken up, and hence the Labour Court has adjourned the matter for passing an order. It is seen from the records that the workman had moved an application before the Labour Court for re-opening and rehearing of the case which was rejected as per Ext.P8. It is significant that Ext.P8 is not challenged in the above writ petition. However, what is WPC.No.20970/2006 : 6 : relevant for consideration in testing the sustainability of penalty imposed by Ext.P7 order, is whether the workman was prejudiced by his counsel not being heard by the Labour court. 8. Looking at Ext.P7 order it is seen that even without the presence of the counsel for the workman, the labour court had raised the following point for determination: Whether or not the impugned punishment was just and proper proportionate to the gravity of misconduct committed? The labour court considered the misconduct alleged against the workman and the gravity of the same. The Assistant Advertisement Manager and the officer who was entrusted with the job of serving the memo on the workman were examined as MW1 and MW7. Both of them deposed in consonance with the charges levelled against the workman. That the said conduct of the workman was in the presence of the other employees is more than evident from the deposition of the co-workers MWs 2, 5 and 6. What has been proved at the enquiry beyond any reasonable doubt is the use of abusive and vulgar language against the superior officers of the WPC.No.20970/2006 : 7 : workman. The workman had refused service of the memo on him by his superior officer and had repeated the misconduct by using abusive language. The charges levelled against the workman were not of a solitary incident but a repeated one; that too, within the span of about a month. 9. The learned Senior Counsel Sri. U.K. Ramakrishnan, appearing for the management would place before me two decisions reported in **M.P. Electricity Board v. Jagdish Chandra Sharma (2005 (3) SCC 401)** and **L.K.Verma v. H.M.T Ltd. & another [2006(108) FLR 1101]** to canvass the position that the use of abusive language especially against superior officers is a misconduct which is so subversive of discipline at the work place that the Supreme Court had said that a punishment of dismissal on such charges was eminently justified. On the strength of the above principles, this Court is of the opinion that the labour court was perfectly right in declining interference under Section 11 A of the Industrial Disputes Act. The question of the disproportionality of punishment has been raised and has been considered by the labour court with reference to binding WPC.No.20970/2006 : 8 : precedents. The mere fact that the workman's counsel was not heard, does not according to this Court, visit the workman with any prejudice. In these circumstances, the Writ Petition is dismissed, however, without costs. Sd/- - **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge