Jet Airways (India) Limited v. Labour Court, Kozhikode and Mr. K.N. Suresh Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WA.No. 674 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN WPC.24324/2005 .................... APPELLANT(S): PETITIONER ------------------------ JET AIRWAYS (INDIA) LIMITED, SM CENTRE, ANDHERI KURLA ROAD, ANDHERI (EAST) MUMBAI - 400 059 REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON RESPONDENT(S): --------------- 1. THE LABOUR COURT, KOZHIKODE. 2. MR.K.N.SURESH KUMAR, 'SREE PATH', C/O.KALA RICE MILL, KAITHKUNDA P.O. AYIKKARAPADI, ERNAD TALUK, MALAPPURAM - 673 637. BY ADV..SRI. M.K. DAMODARAN FOR R2 ADV. SRI.P.K.VIJAYAMOHANAN FOR R2 SR.G.P.SRI. C.R. SHYAMKUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & K. HARILAL, JJ.** **................................................ W.A.No. 674 OF 2011** **................................................** Dated this the 15th day of November, 2011 ## **JUDGMENT** ## **Harilal, J.** This writ appeal arose from the impugned judgment passed by the learned Single Judge of this court in W.P.(C) NO.24324/2005 filed by the appellant herein. The appellant challenged Ext.P4 preliminary order passed by the Labour Court, Kozhikode. The appellant was an employer and the 2nd respondent (contesting respondent) was an employee under him. Facts necessary for consideration of this writ appeal can be summarised as follows; 2. The worker (contesting respondent) by name Mr. K.N.Suresh Kumar was employed as a Senior Security Assistant at the Calicut Airport. He was selected to undergo training at Bombay which was scheduled to be held on 16/5/2011. In that journey to Bombay, he boarded at the Calicut Airport, to travel at about 3 .p.m. on 15/5/2001. The security officers, who were standing nearby the baggage screening machine, on suspicion that he was under the influence of alcohol wanted the contesting respondent to W.A.No. 674 OF 2011 : 2 : undergo medical check-up. Without undergoing medical check up, the worker (contesting respondent) pleaded to accept him on board. He went near the aircraft without a boarding pass and undergoing security check. Ultimately, the aircraft departed without taking the passenger. The Airport Manager reported this matter to his superior officer in writing. On the basis of that report, the management charge sheeted the worker for riotous or disorderly behavior during working hours at the establishment and committing acts subversive of discipline and for wilful insubordination or disobedience of lawful and reasonable orders of superior and placed him under suspension pending enquiry. The worker denied the charges levelled against him. The advocate from Calicut Bar was appointed as an enquiry officer and he conducted enquiry. In the enquiry he was found guilty of the charges levelled against him and dismissed from the service by way of punishment. The industrial dispute raised by the worker was referred to the Labour Court, Calicut and an I.D. was registered. The Labour Court, Kozhikode found that the enquiry was vitiated by the gross violation of principles W.A.No. 674 OF 2011 : 3 : of natural justice for denial of sufficient opportunity to adduce evidence. The copy of the documents and witnesses list were not produced in advance to the delinquent employee and it caused prejudice to the delinquent employee. The legality, propriety and fairness of the enquiry was heard as a preliminary point by the Labour Court and found that the enquiry is vitiated by gross violation of the principles of natural justice. 3. Aggrieved by the impugned order, the appellant filed writ petition No.24324/2005 before this court. After considering Ext.P1, the learned Single Judge confirmed the finding that the enquiry is vitiated by gross violation of the principles of natural justice by non supply of witnesses schedule and copy of the documents in advance. The learned Single Judge was pleased to expunge the observations in paragraphs 10 and 11 of the impugned order. This writ appeal is filed challenging the finding that the enquiry was vitiated on principles of natural justice. 4. The learned counsel for the appellant contended that the Labour Court went wrong by finding that enquiry is W.A.No. 674 OF 2011 : 4 : vitiated by the gross violation of the principles of natural justice on account of facts that witnesses list and documents were not given in advance. The Labour Court erroneously came to the conclusion that alleged conduct of intoxication does not constitute mis conduct. The learned counsel further pointed out that gross violation of principles of natural justice cannot be a ground for setting aside an enquiry unless prejudice has been caused and the respondent failed to establish the nature of prejudice caused to him. The contesting respondent participated in the enquiry and thus contentions were not raised in the enquiry and no opportunity was sought for to adduce evidence. Further it is contended that the learned Single Judge ought to have quashed Ext. P4. In support of the contentions raised, the learned counsel has produced the decisions reported in Chandrama Tewari v. Union of India (1987 (Supp) Supreme Court Cases 518), State of T.N. v. K.V. Perumal ( AIR 1996 Supreme Court 2474) and Syndicate Bank v. Venkatesh Gururao Kurati (2006 (1 )L.L.J.989). 5. The learned counsel for the respondent W.A.No. 674 OF 2011 : 5 : Sri.M.K.Damodaran contended that the enquiry was vitiated by gross violation of principles of natural justice and delinquent was denied of an opportunity to adduce evidence by non supply of the materials and documents. He was precluded from cross examining the witnesses effectively and properly and also contended that the writ petition challenging the order passed on a preliminary issue is not maintainable under Article 226 of the Constitution. 6. We have given our anxious considerations to the rival submissions made by counsel for the appellant and respondent at the Bar. In **Chandrama Tewari v. Union of India** (1987 (suppl) SCC 518) the Supreme Court held that obligation to supply copies of the documents is confined only to material and relevant documents and enquiry would be vitiated by violation of natural justice, only if the non supply of material and relevant documents may have caused prejudice to the delinquent officer. The decision to question whether a document is material or not will depend upon facts and circumstances in each case. This decision was followed in **State of Tamil Nadu v. Thiru** W.A.No. 674 OF 2011 : 6 : ## **K.V. Perumal and Others** (AIR 1996 SC 2474) and **Syndicate Bank and Others v. Venkatesh Gururaokurati** (2006 (1)LLJ 989. 7. When we apply the above preposition to the facts and circumstance of the instant case, the question that arises for consideration is whether the copies of the documents and witness schedule which were not supplied to the delinquent worker in advance are material documents or not? M1 To M4 were marked and MW1, MW3 were were examined by the appellant to prove charge against the respondent in the enquiry. M1 is a report regarding the alleged misconduct committed by the delinquent worker submitted to the General Manager by MW1. M2 is the charge sheet. M3 is a copy of the model standing order and M4 is the copy of the complaint dated 2.7.2001 prepared by the Security Officer (MW3). Coming to witnesses MW1 is the author of M1. MW2 is the maker of the complaint and MW3 is a Senior Security Assistant who had been examined to speak about the misconduct allegedly committed by the worker. It could be seen that these documents are having W.A.No. 674 OF 2011 : 7 : bearing on the charges against the delinquent worker and these documents are said to have been prepared contemporaneously by the witnesses sought to be examined at the time of occurrence or after that to prove the charge against the delinquent worker. Therefore, we find that documents stated above (M1 to M4) are material and relevant documents and the witnesses MW1 to MW3 are material witnesses. 8. The next question to be considered is whether the non supply of the copy of the documents (M1 to M4) and copy of witnesses schedule, caused prejudice amounting to violation of natural justice. The 'prejudice' is a matter to be established on the basis of the facts and circumstances of each cases and it is inferable also from the circumstances. In the instant case, it is the consequential effect or impact of the non supply of the copy of the material and relevant document and witnesses schedule. The witnesses MW1 to MW3 are sought to be examined in the enquiry to prove the alleged misconduct committed by the worker in their presence, while they were standing near the bagage W.A.No. 674 OF 2011 : 8 : screening machine at about 3 p.m on 15.5.2001. Similarly, the documents are sought to be produced and marked to give support to the oral evidence of MW1 to MW3 as these documents are allegedly prepared contemporaneously. Knowledge about contents of the documents in advance are essential to cross examine a witness who claims that he prepared the documents. Had the copy of those documents been served to the appellant, he could have cross examined the witnesses more properly and effectively by asking questions to contradict the oral evidence by documentary evidence. The delinquent officer was denied of that opportunity, and thereby caused prejudice to the delinquent worker in the examination of the witness who deposed against him. It is pertinent to note that the appellant has no case that the copies of those documents were served in advance. But their case is that these documents are not material or relevant document. 9. Coming to natural justice what are the norms of natural justice? The ideas of natural law in their practical application to human problems are the norms of natural W.A.No. 674 OF 2011 : 9 : justice. What is natural law? Unlike special law consists of written enactments by which men are governed, natural law is a universal law, consists of those unwritten rules which are recognized among all men and courts of law. In very action and proceedings, and every where, there is an instinctive understanding of justice in the sense of righteousness, equality and fair play. Indian law recognizes certain fundamental principles of justice commonly called the Rules of Natural Justice. They are: 1. The person accused should know the nature of accusation. 2. He should be given an opportunity to state his case. 3. He should be given an opportunity to controvert the charge against him. 4. The decision making body should act in good faith with utmost honesty and fairness. 10. These rules are not confined to the conduct and proceeding of statutory tribunals and courts, but is applicable to contractual domestic tribunals or body of persons vested with authority to adjudicate upon matters W.A.No. 674 OF 2011 : 10 : involving civil consequences to individuals. Reliance on the report of the domestic tribunal is great as the court refuse to interfere with the report of the domestic enquiry arrived at bonafide and in accordance with natural justice. 11. In the result of the above discussions, we find that in the instant case the delinquent worker was denied of an opportunity to define his case effectively and properly by not serving copy of the material and relevant documents which allegedly speak against him and witness schedule consists of name of witness who intends to speak against him thereby caused prejudice amounting to violation of the principles of natural justice. The learned Single Judge of this Court rightly refused to interfere with the findings of the industrial Tribunal to that extent and we also confirm the judgment under challenge. The writ appeal stands dismissed accordingly. It is well settled that fair hearing also calls for a right to rebut any evidence and that necessarily involves right to cross ## W.A.No. 674 OF 2011 **==> picture [26 x 9] intentionally omitted <==** examine effectively and properly. Whenever a person suffers a civil consequences or prejudice, the principles of natural justice is attracted. **PIUS C. KURIAKOSE, JUDGE.** **K. HARILAL, JUDGE.** **cl**