Harrisons Malayalam Ltd. v. K.K. Ahamed & Industrial Tribunal, Palakkad

WP(C) NO. 29143 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** ## **WP(C) NO. 29143 OF 2010** **AGAINST THE ORDER/JUDGMENTID 13/2008 OF INDUSTRIAL TRIBUNAL, PALAKKAD** ## **PETITIONER/S:** HARRISONS MALAYALAM LTD., MOOPLY ESTATE PALAPILLY PO, 680 304,THRISSUR,REPRESENTED BY ITS, DEPUTY MANAGER MR.ANOOP THYAGARAJAN. BY ADVS. SRI.E.K.NANDAKUMAR SRI.N.GOPIKRISHNAN NAMBIAR ## **RESPONDENT/S:** 1 K.K.AHAMED ROLL NO. 2691 KARIKULAM DIVISION, MOOPLY ESTATE, HARRISONS MALAYALAM LTD.,, PALAPPILLY PO,PIN-680 304. 2 INDUSTRIAL TRIBUNAL PALAKKAD PIN-678 002. BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29143 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No.29143 of 2010 -------------------------------------Dated this the 21[st] day of October, 2022** ## **JUDGMENT** The above writ petition is filed challenging Ext.P4 award passed by the Industrial Tribunal, Palakkad in ID No.13 of 2008. The Government of Kerala as per GO (Rt.) No. 1065/2008/LBR dated 26.4.2008 referred the following issues for adjudication : “Whether the dismissal of Shri.K.K.Ahamed, Tapper, C.R.No. 2691 by the management of Harisons Malayalam Limited, Mooply Estate, Palappilly is justifiable? If not what relief he is entitled to get?” 2. The Industrial Tribunal after considering the entire aspect declared that the dismissal of the 1[st] respondent by the petitioner is not justifiable and he is entitled to the relief of reinstatement with continuity of service with 25% backwages. Aggrieved by the same, this writ petition is filed. WP(C) NO. 29143 OF 2010 3 3. Heard the learned counsel for the petitioner and the learned counsel appearing for the 1[st] respondent. 4. The counsel for the petitioner argued the matter in detail after narrating evidence adduced by the Management. The counsel submitted that the finding of the Industrial Tribunal is without considering the evidence available. The counsel submitted that even the 1[st] respondent admitted certain aspects and that is also not considered by the Tribunal while deciding the matter. The counsel submitted that there is adequate evidence adduced by the Management to show that the 1[st] respondent committed theft. In a serious case like this, the submission of the counsel is that the Tribunal ought not have ordered reinstatement. The counsel for the petitioner also relied the judgments of the Apex Court in **OM Pal Singh** v. **Disciplinary Authority and others** [(2020) 3 SCC 103] and **State of Bihar and others** v. **Phulpari Kumari** [(2020) 2 SCC 130]. 5. The counsel for the 1[st] respondent has supported the award and submitted that there is nothing to interfere with the award passed by the Tribunal invoking the powers under WP(C) NO. 29143 OF 2010 4 ## Article 226 of the Constitution of India. 6. This Court considered the contentions of the petitioner and the 1[st] respondent. This Court carefully perused Ext.P4 award. A perusal of Ext.P4 award will show that in the preliminary order, it is found that the enquiry conducted by the Management as evident by Ext.P1 cannot be accepted. It will be better to extract the relevant portion of the order. “2-10 The only case put up by the management is that the workman used to bring less quantity of FC compared to other tappers and hence it was suspected that he had stolen the FC. It is true that there will not be eye-witnesses or any other direct evidence to prove an offence like theft. It is also true that in a domestic enquiry, the strict rules of evidence is not applicable. But there must be some circumstantial evidence against the delinquent workman to hold him guilty of the charge. Mere suspicion is not substitute for circumstantial evidence. Therefore, merely because the workman had given only less number of FC compared to other workmen, it cannot be held that he had committed the misconduct of theft as alleged by the management. 2-11 In support of the contention that the workman was in the habit of giving only less quantity of FC the management has produced the Daily Data Entry sheets for the period from 26.9.06 to 30.9.06. These sheets for the period prior to the date of assigning the concerned tapping block/field to the workman and to the period subsequent to his removal/suspension from service are not produced in the enquiry. The procurement of WP(C) NO. 29143 OF 2010 5 FC and latex from a particular block/field would depend on various factors. The tapping Supervisor has not denied the suggestion in the docmestic enquiry that the block assigned to the workman was low yielding. 2-12 I am of the view that the details of FC accounted in the name of the workman for few days is not sufficient to hold that he was in the habit of giving only less number of FC. Even as per the above documents, the FC brought by worker No. 2778. On 27.9.2006, the FC brought by him is more than that of worker Nos. 2750, 1844 & 1910. The quantity of FC credited on that day in his favour as well as in favour of other workers (2702, 2723, 2778, 1851) is the same. In the circumstance, the contention of the management that the delinquent workman used to bring less quantity of FC is found to be incorrect. 2-13 The Enquiry Officer failed to notice the above aspects. In fact, he has not analysed the evidence adduced in the enquiry. According to him, the workman failed to prove his innocence. This is an erronious approach. In domestic enquiry, it is for the management to prove the charge. In the light of the foregoing discussion, it would be seen that the management totally failed to prove the charge and the findings to the contrary rendered by the Enquiry Officer is undoubtedly incorrect and perverse, and the same are liable to be set aside. 2-14 In the aforesaid circumstance, I have no hesitation to hold that though there is no procedural impropriety in conducting the domestic enquiry against the workman, the findings of the Enquiry Officer are perverse. The preliminary point as to the propriety of the domestic enquiry is accordingly found against the management. Whether the management succeeded to prove the charge by adducing additional/fresh WP(C) NO. 29143 OF 2010 6 evidence?” 7. Thereafter, the Tribunal considered whether the Management succeeded to prove the charge. Subsequently, the Tribunal considered the evidence in detail. The evidence adduced by each witness was discussed and considered by the Tribunal. Here also it will be better to extract the paragraph Nos. 9, 10 and 11 of the impugned award. “9. It is true that workman (WW1) had admitted in crossexamination that he brought only 120 nos. of FC on 30.9.06, though he had tapped 365 trees on that day. As per the DDEST dt. 30.9.06, the FC brought by him is only 3 ½ kg. Another tapper (2778) had brought only 3 kg. The highest quantity of FC brought by a tapper on that day is only 5 ½ kg. Therefore, the maximum number of FC that might have been procured by a tapper on that day would be only 189 [120/3.5 kg x 5.5kg]. This calculation would clearly show that the contention of the management that each tapper used to tap around 400 trees a day and they must procure 400 nos of FC is found to be totally untenable as the weight of FC for 400 trees would be around 11.67 kg. As per Ext.M4 series nobody had brought that much FC on any day. 10. Even assuming that since the workman had tapped 365 trees on 30.9.06 and he ought to have given 365 nos. of FC on that day, instead of 120, it was necessary for the management to adduce some circumstantial evidence to show that he actually procured 365 nos and the balance 245 were removed WP(C) NO. 29143 OF 2010 7 from the estate or sold to somebody else. The security of the estate is under a Security Officer and the Workman was working under MW2 and MW3. These officers had not reported any theft of FC allegedly committed by the workman. The case of the management as spoken by these officers is that the Group Manager had some information in this regard. If that be so, they would have been vigilant and it was not possible for the workman to commit such an offence, especially on 30.9.2006. The evidence adduced by the management in the domestic enquiry as well as before this Tribunal by way of additional/fresh evidence are to the effect that the Group Manager, Asst.Manager, Field Officer and Security Officer jointly visited the field of the workman on 30.9.06 around 10.15 a.m. when he was collecting latex. Thereafter, the counting of the FC and the trees tapped by the workman were done. MW3 has stated that the Group Manager informed him about the theft of FC by the workman on that day at 8 a.m. It is, therefore, clear that the workman was under the gaze of the above officers right from the early morning and it was practically impossible for him to commit the misconduct of theft on that day. 11. For all the reasons stated above, I have no hesitation to hold that management has failed to prove the allegations levelled against the workman in the chargesheet dt.3.10.06.” 8. Thereafter, the Tribunal considered whether the punishment of dismissal is justifiable. The Tribunal found that the punishment of dismissal is unjustifiable and the 1[st] WP(C) NO. 29143 OF 2010 8 respondent is entitled reinstatement with backwages 25%. The counsel for the petitioner submitted that in a serious case like this, the Tribunal ought not have ordered reinstatement with 25% backwages. The Counsel relied the judgment of the Apex Court in **Phulpari Kumari's** case (supra), the relevant portion is extracted hereunder : “6. The criminal trial against the Respondent is still pending consideration by a competent criminal Court. The order of dismissal from service of the Respondent was pursuant to a departmental inquiry held against her. The Inquiry Officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the Respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the Respondent. 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of 'no evidence'. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the WP(C) NO. 29143 OF 2010 9 order of dismissal of the Respondent by re - examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the Inquiry Officer.” 9. The counsel submitted that this is not a criminal case and the Management is able to prove from the evidence and the circumstances that the 1[st] respondent committed theft. The counsel also relied the judgment of the Apex Court in **Om Pal Singh's** case (supra) to show that the backwages ordered by the Tribunal is not justifiable. This Court considered this point in detail in the light of the observation in Ext.P4 award. This Court is of the opinion that there is nothing to interfere with the impugned award invoking the powers under Article 226 of the Constitution of India. The Tribunal considered each and every point raised by the petitioner and rejected the same. This Court cannot re-appreciate the evidence invoking the powers under Article 226 of the Constitution of India. When this writ petition was admitted, this Court only stayed the implementation of Ext.P4 award to the extent it order payment of 25% backwages. In the light of the above order, it is WP(C) NO. 29143 OF 2010 10 admitted that the petitioner-Management already re-instated the 1[st] respondent. The counsel for the 1[st] respondent submitted that even now, the 1[st] respondent is continuing with the petitioner-Management. In the light of the above facts, according to me, there is nothing to interfere with the award passed by the Industrial Tribunal invoking the powers under Article 226 of the Constitution of India. Therefore, this writ petition fails and the same is dismissed. **SD/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 29143 OF 2010 11 ## **APPENDIX** EXT.P1 TRUE COPY OF FINDINGS OF ENQUIRY OFFICER DATED 3.1.2007 IN THE CHARGES LEVELED AGAINST 1ST RESPONDENT EXT.P2 TRUE COPY OF THE CLAIM STATEMENT DATED 16.8.2008 FILED BY THE 1ST RESPONDENT IN ID 13/2008 BEFORE THE 2ND RESPONDENT EXT.P3 TRUE COPY OF THE COUNTER STATEMENT DATED 22.12.2008 FILED BY THE PETITIONER IN ID NO.13/2008 EXT.P4 TRUE COPY OF THE AWARD DATED 5.4.2010 PASSED BY THE 2ND RESPONDENT IN ID NO. 13/2008 RESPONDENT'S EXHIBITS : NIL