High Land Plantation Labour Union (UTUC-B) v. Industrial Tribunal, Elappara & Tyford Estate

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 31689 of 2004(V) -------------------------- PETITIONER(S): --------------- HIGH LAND PLANTATION LABOUR UNION (UTUC-B) REPRESENTED BY ITS GENERAL SECRETARY, ELAPPARA P.O., IDUKKI DISTRICT. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY RESPONDENT(S): --------------- ## 1. THE INDUSTRIAL TRIBUNAL, ELAPPARA P.O., IDUKKI. ## 2. TYFORD ESTATE REPRESENTED BY ITS MANAGER, FAIRFIELD, ELAPPARA P.O., IDUKKI DISTRICT ADV. SRI.JOSEPH KODIANTHARA FOR R2 SRI.MITHUN MARKOS FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX TO W.P.C.NO.31689 OF 2004** ## **PETITIONER'S EXHIBITS:** EXT.P1: TRUE COPY OF SHOW CAUSE NOTICE NO.1250/2000-01 DATED 8.12.2000 ISSUED TO MR.M.RAVI BY 2ND RESPONDENT. EXT.P2: TRUE COPY OF COMPLAINT DATED 8.12.2000 SUBMITTED BY JAMES THOMAS, ASST.FIELD OFFICER TO 2ND RESPONDENT. EXT.P3: TRUE COPY OF EXPLANATION DATED 09/12/2000 SUBMITTED BY MR.M.RAVI TO 2ND RESPONDENT. EXT.P4: TRUE COPY OF CHARGE SHEET NO.1373/2000-01 DATED 15/12/2000 ISSUED TO MR.M.RAVI BY 2ND RESPONDENT. EXT.P5: TRUE COPY OF PROCEEDINGS OF ENQUIRY CONDUCTED BY ADV.K.J.THOMAS AGAINST MR.M.RAVI. EXT.P6: TRUE COPY OF ENQUIRY FINDINGS DATED 6/3/2001 SUBMITTED BY ADV.K.J.THOMAS. EXT.P7: TRUE COPY OF REPRESENTATION DATED 16/3/2001 SUBMITTED BY MR.M.RAVI TO 2ND RESPONDENT. EXT.P8: TRUE COPY OF AWARD DATED 29/6/2004 PASSED BY 1ST RESPONDENT IN I.D.NO.29 OF 2003. ## **RESPONDENT'S EXHIBITS:** NIL // True Copy// PA to Judge ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.31689 of 2004 ---------------------------------------- Dated this the 29[th] day of November 2011 ## **J U D G M E N T** The petitioner, a trade union of the workmen, challenges Ext.P8 award passed by the Industrial Tribunal Idukki denying any relief to the workman, Sri.Ravi who was dismissed from service of the 2[nd] respondent Management pursuant to a charge sheet, Ext.P4 and findings in the enquiry Ext.P6. 2. In the enquiry conducted it was found that the delinquent, on 08/12/2000 at about 8 a.m assaulted the Assistant Field Officer and thereby conducted misconduct as defined under clause 22(a) and (h) of the Standing Orders for Estate workmen. 3. In the writ petition, it is inter alia contended that the award was misconceived as the enquiry conducted was in violation of natural justice, that the evidence had not been properly appreciated by the Tribunal, that the misconduct had not been properly proved and that, at any rate, the punishment of dismissal was not proportionate to the alleged misconduct and the same is vitiated by non-application of mind, non- W.P.C.No.31689 of 2004 2 consideration of relevant circumstances etc. On the other hand, it is contended by the learned counsel appearing for the 2[nd] respondent that no steps were taken by the workman to adduce evidence against the enquiry proceedings and having accepted the findings of the enquiry, it is not possible for the workman to contend that he has not committed any misconduct. 4. No evidence was adduced on the part of either side and having considered the materials on record, the tribunal passed an award refusing to interfere with the dismissal of the workman. 5. The learned counsel for the 2[nd] respondent also relied upon the judgment of the Supreme Court in **Mahindra and Mahindra Ltd. v. N.B.Narawade [(2005)3 Supreme Court Cases 134]** and Division Bench judgment of this Court in **Cochin Shipyard Ltd. v. Industrial Tribunal [2006(2)KLT** **825]** to indicate that interfering with the punishment is discretionary and only in exceptional cases interference is possible. Paragraph 20 of **Mahindra** (Supra) is extracted below: W.P.C.No.31689 of 2004 3 “It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment.” W.P.C.No.31689 of 2004 4 6. Having gone through the proceedings Exts.P5 and P6, it is clear that sufficient opportunity had been granted to the workman to defend the charges and therefore the contention that there is violation of natural justice in conducting enquiry is unsustainable. 7. This is a case which involves abusing and assaulting the officer of the Management who has got all rights to supervise the workman and therefore the Industrial Tribunal found that there is no reason to interfere with the punishment and dismissal since the misconduct proved is very grave and serious in nature. I do not think that a different reason can be adopted in the matter and in the light of the judgments referred above there is no circumstance warranting a reduction of the punishment. In these circumstances, the writ petition fails and is dismissed. ## **(A.M.SHAFFIQUE, JUDGE)** jsr // True Copy// PA to Judge W.P.C.No.31689 of 2004 5 W.P.C.No.31689 of 2004 6 W.P.C.No.31689 of 2004 7 ## **THOMAS.P.JOSEPH,J.** Crl.M.C.No. of 200 ORDER 19/01/2011