K. Premaraj v. The Managing Director, MIMS Hospital, Kozhikode; Labour Court, Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939 ## **WA.No. 1157 of 2017 IN WPC. 32325/2016 ----------------------------------------** AGAINST THE ORDER/JUDGMENT IN WP(C) 32325/2016 of HIGH COURT OF KERALA DATED 22-05-2017 AGAINST THE ORDER/JUDGMENT IN ID 26/2007 of LABOUR COURT, KOZHIKODE ## **APPELLANT:** ----------- K.PREMARAJ, MAKKANHIRATTE HOUSE, ERAMALA P.O., KOZHIKODE, PIN-673501. BY ADV.K.PREMRAJ(PARTY-IN-PERSON) ## **RESPONDENTS:** ## **------------** 1. THE MANAGING DIRECTOR, MIMS HOSPITAL, GOVINDAPURAM (PO) KOZHIKODE, PIN 673 016 2. LABOUR COURT, KOZHIKODE, CIVIL STATION KOZHIKODE 673 020 R BY GOVERNMENT PLEADER SRI RENIL ANTO R BY SRI.V.KRISHNA MENON THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2018, ALONG WITH W.A. 1328/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma ## **K. Vinod Chandran & Ashok Menon, JJ** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.A No. 1157 of 2017 &1328 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January, 2018** ## **J U D G M E N T** ## K. Vinod Chandran, J The appellant is before this Court challenging the common judgment of the learned Single Judge, in two writ petitions; one filed by the management and one by the appellant. The appellant, admittedly was a workman which contention has been upheld by this Court in Ext. P25 judgment in the writ petition. We will not refer to the various proceedings earlier taken by the workman in prosecuting the Industrial Dispute itself. As of now, the workman is found entitled to invoke the remedy under the Industrial Disputes Act, 1947 as per the Division Bench judgment of this Court in Ext.P25. The labour court was directed to consider the dispute afresh. W.A.No. 1157/2017& 1328/2017 : 2 : 2. On consideration of the dispute and after appreciating the evidence, the labour court found that certain misconducts were proved and others were not proved. The labour court directed the workman to be paid a compensation of Rs.2,98,000/-; purportedly under Section 11A of the ID Act, interfering in the punishment imposed. The labour court also found that the appellant's mental state is not conducive to continuance in the employment of the management. The Labour Court hence declined the relief of reinstatement and granted compensation. 3. The appellant seeks reinstatement as also entire backwages. During the pendency of the proceedings, the appellant has crossed the age of superannuation. In any event, we are not considering that aspect since there is no evidence produced as to the age of superannuation in the management establishment. W.A.No. 1157/2017& 1328/2017 : 3 : 4. The learned Single Judge who considered the matter found that the Labour Court had not considered the validity of domestic enquiry and had directly proceeded to appreciate the evidence and then interfered with the punishment under Section 11A. The learned Single Judge found that the procedure followed by the Labour Court is not in consonance with that which is prevalent in industrial jurisprudence. We perfectly agree with the learned Single Judge and we extract the succinct statement of law made by the learned Single Judge in paragraphs 5 and 6. “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 W.A.No. 1157/2017& 1328/2017 : 4 : found valid. The power under Section 11(K) of the Act is only to interfere with 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 W.A.No. 1157/2017& 1328/2017 : 5 : 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 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 W.A.No. 1157/2017& 1328/2017 : 6 : 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. We do not see any reason to depart from the declaration of law as stated by the learned Single Judge. 5. Considering the fact that the appellant was appearing in person, we went through the award of the Labour Court. We find that the Labour Court having noticed the charges, did not at all examine whether the enquiry was conducted in a valid manner complying with the principles of natural justice and affording the delinquent employee with every opportunity to defend his case. An application to that end was pending before the Labour Court, but without W.A.No. 1157/2017& 1328/2017 : 7 : looking into that aspect a consideration on merits was carried out. The Labour Court extracted the various charges levelled against the appellant and proceeded to examine the evidence adduced in the domestic enquiry. As rightly found by the learned Single Judge it amounted to a re-appreciation of evidence. The Labour Court was not exercising an appellate jurisdiction. 6. After examining the validity of the enquiry if it is found sustainable then the only consideration is as to whether the findings of the Enquiry Officer, as found favour by the Disciplinary Authority, are reasonable or not. If the enquiry is held to be vitiated,then the Labour Court has to afford opportunity to adduce evidence, to the management and only then can there be an independent appreciation of evidence, as adduced before the Labour Court. 7. We also have to notice the charges. Certain W.A.No. 1157/2017& 1328/2017 : 8 : charges, of grievous nature were found to be proved by the Labour Court. One of the allegations of theft and dishonesty was, a gas cylinder carried out of the hospital campus, on the certification of the workman. Though the workman denied the signature in the gate pass, which was the certification, the Labour Court found that on a comparison with the admitted signature, the contention cannot be sustained. Despite that the allegation of theft and dishonesty was found to be not proved. There is one another charge of a recalcitrant and arrogant attitude displayed by the workman and an allegation of the workman being unfit to discharge the important duties of a Supervisor in a multi-speciality hospital which was also found to be not proved. Yet another charge was creation of false document and using letter head and properties of the management while under suspension. The said allegation was found to be correct and the enquiry officer's finding of ## W.A.No. 1157/2017& 1328/2017 : 9 : guilt was upheld by the Labour Court. It was on such re-appreciation of evidence that a finding was entered that the proved charges did not deserve extreme punishment of dismissal from service, especially when there was no allegation that the worker had indulged in any similar Act in any previous occasion. Then on the alleged mental state of the worker, it was found that it was not conducive to reinstate him in the management and hence a compensation was awarded which as seen above was of Rs.2,98,800/- with interest at the rate of 6% from the date of dismissal. 8. We are in agreement with the learned Single Judge that the Labour Court had completely misunderstood and misdirected itself in the jurisdiction, it has, in considering an industrial dispute where the management has proceeded against a workman, departmentally conducting an enquiry and dismissed him on the charges proved at the enquiry as W.A.No. 1157/2017& 1328/2017 : 10 : found by the disciplinary authority also. In such circumstance, we do not find any reason to interfere with the order of remand made by the learned Single Judge. We are also of the opinion that the Labour Court while considering the issue has to consider the same _de hors_ the observations made in Ext.P1 award and any observation made by us in this judgment. We also have to notice that the Labour Court has misdirected itself in finding that the appellant's mental state is proved since the Labour Court proceeded merely on the fact of an admission to a hospital by his wife's relatives and the wild allegations made by the appellant in the complaint filed in pursuance to the reference of the dispute. The management however, would be entitled to place any evidence on that count. 9. Again considering the fact that the appellant who was dismissed from service, has been before this Court and W.A.No. 1157/2017& 1328/2017 : 11 : before the Labour Court from 2005, we offered a mediation to the appellant. The learned Counsel appearing for the respondent Management then submitted that already a mediation was conducted and the appellant's claim was for Rs.45,00,000/- which was not agreeable to the management. We hence offered the appellant a sum of Rs. 5,00,000/- with 6% interest, from the date of dismissal, without even consultation with the management. The appellant declined, upon which we dictated the aforesaid judgment. We again ask the appellant whether he is willing for such a settlement; the appellant declined. In such circumstance, we are constrained to dismiss the writ appeal directing the Labour Court to again consider the issue as directed by the learned Single Judge, keeping in mind the law declared. We direct the appellant and the respondent Management to appear before the Labour Court and the Labour Court shall carry out the hearing of the W.A.No. 1157/2017& 1328/2017 : 12 : case on a day to day basis and pass an award within a period of three months from 25.01.2018. Writ appeal is dismissed. No costs. jma //true copy// Sd/- **K. Vinod Chandran, Judge** Sd/- **Ashok Menon, Judge** P.A to Judge