G4S Security Services (India) Pvt. Ltd. v. M.G. Radhakrishnan and The Labour Court Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 16TH DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 17979 OF 2010`** ## **`AGAINST THE ORDER/JUDGMENTID 22/2005 OF LABOUR COURT, ERNAKULAM`** ## **`PETITIONER:`** ``` G4S SECURITY SERVICES (INDIA)PVT.LTD., (FORMERLY GROUP 4 FLACK, GROUP SECURITAS GUARDING PVT.LTD.)H.NO.34/259, "AMBAT",N.H.BYE PASS ROAD, EDAPPALLY, COCHIN-682024. REPRESENTED BY THE VICE PRESIDENT. ``` ``` BY ADVS. SRI.GEORGE POONTHOTTAM SMT.NISHA GEORGE ``` ## **`RESPONDENTS:`** ``` 1M.G.RADHAKRISHNAN, ARAKATHADAM NIKATHIL(H), KC 11/987, KADAYIL BHAGAM, PALLURUTHY, COCHIN ``` ``` 2THE LABOUR COURT ERNAKULAM. ``` ``` BY ADV. SRI.PAULSON C.VARGHESE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON 16.03.2023 DELIVERED THE FOLLOWING: ``` `WP(C) NO. 17979 OF 2010 -` 2 `-` ## **`JUDGMENT`** Present writ petition is directed against the preliminary order dated 04.08.2009 and final award dated 09.12.2009 in I.D.No.22 of 2005. 2. The private limited company – management had been providing the security services to its clients. 1[st] respondent workman was employed by the petitioner company to work as security guard in different places as and when deputed. On 15.12.2003 a co-worker submitted a complaint against the workman alleging usage of vulgar language and assault. Management summoned the workman, issued a show cause notice, conducted a preliminary enquiry and found that there was some misconduct and workman was placed under suspension and copy of charge memo Ext.P5 dated 21.01.2004 was served. Workman submitted two replies in support of the defence which was not found to be satisfactory and enquiry officer was appointed. Before the Enquiry `WP(C) NO. 17979 OF 2010 -` 3 `-` Officer, the workman submitted an application for providing the assistance of the lawyer to defend the case vide Ext.P8. The same was rejected on the ground that the management did not get the assistance of the lawyer. The Enquiry Officer after noticing the statement of the witnesses of the management as well as of the guard/workman proved the charges against the workman which resulted into his dismissal from service. Matter was taken to the Labour Court by reference under Section 10 (1)(c) of the Industrial Disputes Act, 1947. Management contested the case before the Labour Court on the ground that on an earlier occasion also, workman was placed under suspension, was warned not to repeat the indecent behavior and that his increment in 2003 was withheld, but his misconduct continued and therefore the order of dismissal was perfectly legal and justified. Before the Labour Court, management examined the enquiry officer as MW1 and placed on record the enquiry file. The workmen did not lead any evidence. Labour Court `WP(C) NO. 17979 OF 2010 -` 4 `-` on per-ponderance of the evidence, vide Preliminary Award Ext.P16 found that the enquiry was not proper and set aside the report of the enquiry officer on the ground that sufficient opportunity was not given to the parties to adduce evidence as per the provisions under Section 11(A) of the Industrial Dispute Act. Before the Labour Court the management did not lead any evidence resulted into ordering the re-instatement of the workman with continuity of service with back wages and other benefits. 3. Learned counsel appearing on behalf of the management submitted that the awards of the Labour Court i.e., both Ext.P16 Preliminary Award and main award Ext.P17, are illegal and unsustainable in setting aside the order of the enquiry for the reason that in a domestic enquiry, delinquent had no right to be represented by the lawyer as the management had not taken the assistance of the lawyer and therefore no prejudice was caused. On examination of the statement of the workman and cross examination, it `WP(C) NO. 17979 OF 2010 -` 5 `-` was established on record that the workman was fully competent to defend his case and had raised all possible questions which could be manifested for opposing the charges. There was no violation of principles of natural justice. Perusal of the deposition of witnesses and cross examination of witnesses demonstrate that domestic enquiry was done in a most effective manner. 4. On the other hand, learned counsel representing the 1[st] respondent workman opposed the aforementioned argument on the ground that since the date of the termination i.e., 15.05.2004, workman was unemployed. In the absence of any independent evidence brought on record after the setting aside of the enquiry report reflects that the management shirked in leading any evidence to prove the charges against the workman. No harm and prejudice would be caused in case charge is reinvestigated by bringing material before the Labour Court for adjudication. 5. I have heard learned counsel for the parties `WP(C) NO. 17979 OF 2010 -` 6 `-` ## and appraised the paper book. 6. In Ext.P16 award, the genesis of the findings for setting aside the enquiry was that the application of the workman for providing the assistance of the advocate was rejected by the Enquiry Officer on the ground that the presenting officer of the management raised the objection for the reason that the management did not obtain the assistance of an advocate. But the Enquiry Officer failed to inform the workman that he could get the assistance of a coworker if interested. On examination of the proceedings of enquiry dated 16.02.2004, it was observed that the management was allowed to be represented by Mr.Thomas Varkey as its presenting officer and was informed that in the domestic enquiry workman will be attending directly. It is only then an application for assistance of the advocate was submitted. The Enquiry Officer in cross-examination showed ignorance on the qualification of the presenting officer. On noticing that the presenting `WP(C) NO. 17979 OF 2010 -` 7 `-` officer was qualified against innocent workman, the enquiry was set aside. The management did not challenge the preliminary order dated 04.08.2009. Parties were given chance to lead any evidence and after a gap of three months vide award dated 09.12.2009 in the absence of any independent evidence, Labour Court allowed the matter. 7. I am of the view that the finding arrived at by the Labour Court is perfectly legal and justified for the reason that the workman would not be knowing the etiquette of the cross examination and whatever thought process came to his mind at the time of the enquiry and when asked the questions to the witnesses viz-a-viz the presenting officer who was duly qualified. Thus the management grossly failed to establish the workman had committed any alleged misconduct and thus ordered for reinstatement. But this fact has not been noticed that the workman had already crossed the age of sixty(60) and in my view, the award of reinstatement is liable to be modified by way of `WP(C) NO. 17979 OF 2010 -` 8 `-` compensation, in view of the ratio decidendi culled out in the judgment of the Supreme Court in B.S.N.L v. Bhurumal (2014) 7 SCC 177), to the tune of Rs.2,50,000/- (Rupees Two lakh fifty thousand only) to be paid to the workman in full and final settlement within a period of three months from the date of receipt of a certified copy of the judgment. **Sd/-** **`AMIT RAWAL JUDGE`** ``` vv ``` `WP(C) NO. 17979 OF 2010 -` 9 `-` ## **`APPENDIX OF WP(C) 17979/2010`** ## **`PETITIONER EXHIBITS`** - `EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 15/12/2003 FILED BY THE CO WORKER.` - `EXHIBIT P2 TRUE COPY OF THE SECURITY INCIDENT REPORT DATED 29/12/2003.` - `EXHIBIT P3 TRUE COPY OF THE EXPLANATION DATED 02/01/2004 SUBMITTED BY THE WORKMAN.` - `EXHIBIT P4 TRUE COPY OF THE PRELIMINARY ENQUIRY REPORT.` - `EXHIBIT P5 TRUE COPY OF THE CHARGE MEMO DATED 21/01/2004` - `EXHIBIT P6 TRUE COPY OF THE REPLY DATED 23/0/2004` - `EXHIBIT P7 TRUE COPY OF THE REPLY DATED 24/01/2004` - `EXHIBIT P8 TRUE COPY OF APPLICATION SUBMITTED BY THE WORKMAN.` - `EXHIBIT P9 TRUE COPY OF THE DEPOSITION OF MWS 1.` - `EXHIBIT P10 TRUE COPY OF THE DEPOSITION OF MWS 2.` - `EXHIBIT P11 TRUE COPY OF THE DEPOSITION OF MWS 3.` - `EXHIBIT P12 TRUE COPY OF THE DEPOSITION OF THE WORKMAN.` - `EXHIBIT P13 TRUE COPY OF THE ENQUIRY REPORT DATED 26/4/04.` - `EXHIBIT P14 TRUE COPY OF THE CLAIM PETITION.` `WP(C) NO. 17979 OF 2010 -` 10 `-` - `EXHIBIT P15 TRUE COPY OF THE WRITTEN STATEMENT.` - `EXHIBIT P16 TRUE COPY OF THE PRELIMINARY ORDER DATED 4/08/2009 PASSED IN I.D.NO.22/2005.` - `EXHIBIT P17 TRUE COPY OF THE AWARD DATED 09/12/2009 IN I.D.NO.22/2005` - `EXHIBIT P19 TRUE COPY OF THE COVERING LETTER AS WELL AS THE ACKNOWLEDGMENT OF THE PETITIONER OF HAVING RECEIVED THE AMOUNT` - `EXHIBIT P20 TRUE COPY OF THE BANKERS CHEQUE DATED 4/9/2013` - `EXHIBIT P21 TRUE COPY OF THE COMMUNICATION DATED 17/4/2013 ISSUED BY THE PETITIONER` - `EXHIBIT P22 TRUE COPY OF THE COMMUNICATION DATED 27/8/2013 ISSUED BY THE PETITIONER.` - `EXHIBIT P23 TRUE COPY OF THE COMMUNICATION DATED 4/9/2013 ISSUED BY THE PETITIONER.` - `EXHIBIT P24 TRUE COPY OF THE DEPLOYMENT ORDER` - `EXHIBIT P25 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT.` - `EXHIBIT P26 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT.` - `EXHIBIT P27 TRUE COPY OF THE JUDGMENT DATED JUNE 4,2014 IN CONT.CASE (C) NO.381 OF 2014 IN WPC-17979/2010` ## **`RESPONDENTS EXHIBITS`** - `EXHIBIT R1(A) TRUE COPY OF THE PAPAER NEWS PUBLISHED IN MATHRUBHUMI DAILY DATED 18.12.2010` `WP(C) NO. 17979 OF 2010 -` 11 `-` - `EXHIBIT R1(B)` - `TRUE COPY OF THE DISCHARGE SUMMARY DATED 01.01.2011 ISSUED BY THE SPECIALISTS HOSPITAL, ERNAKULAM` - `EXHIBIT R1(C)` - `JUDGMENT DATED 04.06.2014 IN CON.OF COURT CASE NO.381 OF 2014` - `EXHIBIT R1(D)` - `TRUE COPY OF THE LETTER DATED 06.09.2014 SENT BY THE PETITIONER` - `EXHIBIT R1(E) TRUE COPY OF LETTER DATED 07/05/2013 SENT BY THE WORKMAN TO THE MANAGEMENT` - `EXHIBIT R1(F) TRUE COPY OF LETTER DATED 10/05/2013 SENY BY THE WORKMAN TO THE MANAGEMENT` - `EXHIBIT R1(G) TRUE COPY OF LETTER DATED 13/05/2013 SENT BY THE WORKMAN TO THE MANAGEMENT` - `EXHIBIT R1(H) TRUE COPY OF LETTER DATED 20/08/2013 SENT BY THE WORKMAN TO THE MANAGEMENT` - `EXHIBIT R1(I) TRUE COPY OF THE LAWYER NOTICE DATED 01/08/2013` - `EXHIBIT R1(J) TRUE COPY OF THE BUS TICKET BEARING NO.774134 DATED 09/07/2020` - `EXHIBIT R1(K) TRUE COPY OF THE LETTER DATED 08/08/2020`