K. Premaraj v. Managing Director, MIMS Hospital, Govindapuram, Kozhikode & Labour Court, Kozhikode (WP(C).Nos. 32325 of 2016 and 36300 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939** **WP(C).No. 32325 of 2016 (M) ---------------------------ID. 26/2007 OF LABOUR COURT, KOZHIKODE** - **PETITIONER(S): -------------** **K.PREMARAJ, MAKKANHIRATTE HOUSE, ERAMALA P.O., KOZHIKODE, PIN-673501.** ## **BY SRI.PREMARAJ (PARTY IN PERSON)** **RESPONDENT(S):** **--------------** **1. THE MANAGING DIRECTOR, MIMS HOSPITAL GOVINDAPURAM P.O., KOZHIKODE-673016.** **2. LABOUR COURT, KOZHIKODE, CIVIL STATION, KOZHIKODE-673 020** **R1 BY ADVS. SRI.V.KRISHNA MENON** **SMT.P.VIJAYAMMA SMT.J.SURYA** **R2 BY GOVERNMENT PLEADER SMT.POOJA SURENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2017, ALONG WITH WPC. 36300/2016, THE COURT ON 22-05-2017, DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 32325 of 2016 (M)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **EXHIBIT P1 CERTIFIED COPY OF ID 26/2007 DATED 8-7-2016. EXHIBIT P2 ORDER OF MFA 9/98 RELEVANT PAGE 5,6,7,8,10,11, DATED 03-04-2000.** - **EXHIBIT P3 COMPLAINT GIVEN TO MIMS CHAIRMAN DATED 22-12-2002.** - **EXHIBIT P4 STATEMENT OF SHAJI E.V. BEFORE LABOUR COURT DATED 09-03-2015.** - **EXHIBIT P5 TOXICOLOGY REPORT GIVEN BY AMRUTHA HOSPITAL ERNAKULAM DATED 23-12-2004.** - **EXHIBIT P6 LETTER RECEIVED FROM ADGP OFFICE DATED 06-10-2008.** - **EXHIBIT P7 ORDER OF WPC 25436/2008 DATED 17-12-2008. EXHIBIT P8 FIRST SHOW CAUSE NOTICE TO PETITIONER DATED 08-01-2005.** - **EXHIBIT P9 PAGE 12, 40 OF ENQUIRY REPORT. EXHIBIT P10 PAGE 2 OF ORIGINAL STATEMENT OF ALLEGATION DATED 03-05-2005. (RELEVANT PAGE)** - **EXHIBIT P11 LETTER TO DIVISIONAL MANAGER NEW INDIA INSURANCE DATED 17-06-2005.** - **EXHIBIT P12 PAGE 2 OF REPLACED STATEMENT OF ALLEGATION DATED 30-05-2005. (RELEVANT PAGE)** - **EXHIBIT P13 TECHNICIAN LETTER TO MIMS DATED 14-05-2005. EXHIBIT P14 LETTER OF SENIOR MANAGER TO VOLTAS. EXHIBIT P15 WW1 CHIEF AFFIDAVIT PAGE 5,6,12,13 IN ID 26/2007 DATED 20-04-2012. (RELEVANT PAGES)** ## **SKG** **WP(C).No. 32325 of 2016 (M) ----------------------------** - **EXHIBIT P16 NOTES OF ARGUMENT PAGE 1,9,10,13,14 IN ID 26/2007.** - **EXHIBIT P17 COMPLAINT GIVEN TO NADAKKAVU POLICE AGAINST MIMS, DATED 1-06-2016.** - **EXHIBIT P18 TREATMENTS PRESCRIPTION DUE TO POISON GAS, POLICE COMPLAINT AGAINST MIMS DATED 27-08-2016.** - **EXHIBIT P19 PAGES 71, 124, 136 OF ENQUIRY REPORT (RELEVANT PAGES)** - **EXHIBIT P20 COPY OF THE OFFER LETTER PRODUCED IN ENQUIRY. EXHIBIT P21 COPY OF OFFER LETTER PRODUCED IN LABOUR COURT. EXHIBIT P22 ENQUIRY REPORT PAGE 20 EXHIBIT P23 CROSS EXAMINATION OF ENQUIRY OFFICER IN LABOUR COURT PAGE 1,2,3,11,12 DATED 18.5.2012** - **EXHIBIT P24 CROSS EXAMINATION OF K.N.SURENDRA DAS, SENIOR MANAGER MAINTENANCE PAGE 1 TO 6 DATED 2.5.2012** - **EXHIBIT P25 ORDER OF WA 1034/2013 EXHIBIT P26 ORDER OF CONTEMPT CASE NO.1742/2016 EXHIBIT P27 LETTER RECEIVED FROM CI OFFICE MEDICAL COLLEGE DATED 14.8.2008** - **EXHIBIT P28 LETTER RECEIVED FROM MIMS HOSPITAL DATED 24.6.2004** - **RESPONDENT(S)' EXHIBITS ----------------------NIL** **/TRUE COPY/** **P.S. TO JUDGE** **SKG** ## **A. MUHAMED MUSTAQUE, J.** -------------------------------------------------- W.P.(C) Nos. 32325 & 36300 of 2016 -------------------------------------------------Dated this the 22[nd] day of May, 2017 ## **J U D G M E N T** 1.These writ petitions are filed by the workman and the management, challenging the award in an industrial dispute on the file of the Labour Court, Kozhikode. - 2.The industrial dispute referred, as per the Government Order dated 31.07.2007, is as follows; “Whether the termination of service of Sri.K.Premaraj, Maintenance Supervisor, MIMS Hospital, Govindapuram, Calicut by the management is justifiable or not? If not, what relief he is entitled to?” - 3.The brief facts leading to the dispute is as follows; The workman was engaged as Maintenance Supervisor of the management hospital in the year, 2001. Pursuant to a domestic enquiry conducted, he was dismissed from service. This was raised as an industrial dispute. The Labour Court initially passed an award on 28.10.2009, holding that the workman will not come within the ambit of “workman” as referred W.P.(C) Nos. 32325 & 36300 of 2016 **==> picture [20 x 8] intentionally omitted <==** under Section 2(S) of the Industrial Disputes Act (for short, “the Act”). The workman challenged the award before this Court; and this Court set aside the award and remanded the matter for fresh consideration. The Labour Court again ruled that the workman will not fall within the definition of “workman” under the Act. The workman again approached this Court. This Court again remanded the matter to the Labour Court. Challenging the judgment of the learned Single Judge, writ appeals were filed by the workman and the management before this Court. This Court, taking note of the materials already placed on record, found that the workman would satisfy the definition of “workman” under the Act. In view of the fact that the Labour Court had no occasion to consider the validity of termination of the workman pursuant to the domestic enquiry, this Court remitted the matter to the Labour Court for considering the issue of termination. Pursuant to the remand, the Labour Court found that the termination W.P.(C) Nos. 32325 & 36300 of 2016 **==> picture [20 x 8] intentionally omitted <==** was illegal. However, the workman was not ordered to be reinstated and the management was ordered to pay a compensation of 2,98,800/- (Rupees two lakhs ninety₹ eight thousand and eight hundred only) to the workman. It is challenging this, the workman and the management approached this Court with these writ petitions. - 4.Insofar as the question regarding “workman”, the dispute has attained finality as the Division Bench, in categorical terms, held that the workman would satisfy the definition of “workman” under the Act. Therefore, the only surviving question is regarding termination pursuant to the domestic enquiry. - 5.The Labour Court is having original jurisdiction to decide upon the validity of termination subject to the satisfaction that the domestic enquiry is vitiated for any valid reason. Otherwise, the Labour Court's jurisdiction is very limited, if the enquiry is found valid. The power under Section 11(K) of the Act is only to interfere with W.P.(C) Nos. 32325 & 36300 of 2016 ..4.. the punishment imposed, if such punishment imposed is inadequate. Therefore, functions of the Labour Court are of two types; firstly, to examine whether the enquiry was proper or not and secondly, to examine the adequacy of punishment. If there are no vitiating elements to interfere with the enquiry, the Labour Court cannot act as an appellate court to substitute the findings of the enquiry officer. No doubt, in the given circumstances, even if principles of natural justice is complied with, Labour Court can examine whether the findings are correlated to the evidence adduced. If the findings are so perverse and in no circumstances, an enquiry officer could arrive at such findings based on the evidence adduced, certainly, the Labour Court can impeach such findings. However, if the findings of the enquiry officer have relation with the evidence adduced, it is not open for the Labour Court to reappraise such findings as of an appellate authority. 6. The Hon'ble Supreme Court, in **South Indian Cashew** W.P.(C) Nos. 32325 & 36300 of 2016 ..5.. **Factories Workers' Union** v. **Kerala State Cashew Development Corporation Ltd.** [2006 (2) KLT 834 (SC)], held that the Labour Court has no power to reappraise the evidence to find out whether findings of the enquiry officer are correct or not or whether punishment imposed is adequate or not. The Division Bench of this Court in **Federal Bank Employees' Union** v. **Federal Bank Ltd.** [2008 (2) KLT 612], held that if a proper enquiry is conducted and misconduct is proved, jurisdiction of the Labour Court is limited and the Labour Court can only interfere with the punishment, if such punishment is shockingly disproportionate to suggest victimization. 7.As afore noted, if an enquiry is defective, it is possible for the Labour Court to exercise the original jurisdiction, permitting the management to adduce evidence in justification of the termination. To exercise such power, it must be shown that the enquiry is vitiated and defective. The Labour Court cannot W.P.(C) Nos. 32325 & 36300 of 2016 **==> picture [20 x 8] intentionally omitted <==** exercise the power of original jurisdiction without there being a finding as to the validity of the enquiry conducted. 8.In this case, the Labour Court failed in exercising its jurisdiction. The Labour Court did not enter into any finding as to the validity of the enquiry conducted and the termination thereon. Instead, the Labour Court ventured upon to decide the matter as of an appellate authority. The Labour Court examined each of the charges and came to the conclusion that such charges are not proved. It is, according to me, is an erroneous approach. The Labour Court has to find whether the enquiry was valid or not. In the absence of any finding as to the validity of enquiry, the Labour Court could not have reappraised the finding as though it was exercising the appellate power. As afore noted, the Labour Court could examine whether the enquiry was concluded after complying with the principles of natural justice and whether the findings are in correlation with the W.P.(C) Nos. 32325 & 36300 of 2016 **==> picture [20 x 8] intentionally omitted <==** evidence adduced. If both these conditions are satisfied, the Labour Court cannot substitute the finding of the enquiry officer by its own decision. Once it is satisfied, the enquiry is proper. The limited power of Labour Court is only to examine the punishment imposed. 9.In the light of the discussion as above, this Court is of the view that the matter has to be remitted back again for consideration of validity of termination. Accordingly, the impugned award is set aside and remanded to the Labour Court, Kozhikode. Parties are directed to appear before the Labour Court, Kozhikode on 15.06.2017. Thereafter, the Labour Court shall dispose the case within a period of three months. 10.The writ petitions are disposed of as above. Transmit the lower court records forthwith. Sd/- ## **A. MUHAMED MUSTAQUE JUDGE** bka/-