K. Premraj v. Managing Director MIMS Hospital (WP(C) Nos. 6840 of 2021 and 11595 of 2021)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 WP(C) NO. 6840 OF 2021** ## **PETITIONER:** K.PREMRAJ AGED 60 YEARS S/O KRISHNAN, MAKKANHIRATTE HOUSE, ERAMALA P.O. (Party-In-Person) ## **RESPONDENTS:** 1 THE MANAGING DIRECTOR MIMS HOSPITAL, GOVINDAPURAM P.O, KOZHIKODE-673106. 2 LABOUR COURT, KOZHIKODE, CIVIL STATION, KOZHIKODE-673020. BY ADV. V.KRISHNA MENON-R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.03.2023, ALONG WITH WP(C).11595/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(c) 6840 & 11595 of 2021 ..2..** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 WP(C) NO. 11595 OF 2021** ## **PETITIONER:** MANAGING DIRECTOR MIMS HOSPITAL, (NOW ASTER MIMS HOSPITAL) GOVINDAPURAM, MINI BYEPASS ROAD, KOZHIKODE-673016 BY ADVS. V.KRISHNA MENON P.VIJAYAMMA J.SURYA ## **RESPONDENTS:** 1 K.PREMARAJ MECHKANJIRATTU, ERAMALA P.O., VADAKARA-673501.(PARTY IN PERSON) 2 LABOUR COURT KOZHIKODE-9. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.03.2023, ALONG WITH WP(C).6840/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(c) 6840 & 11595 of 2021 ..3..** ## **JUDGMENT** Since common issues arise for consideration in these writ petitions, they are disposed of by this common judgment. For the sake of convenience, unless otherwise expressly indicated, the status of the parties and the exhibits referred to hereinbelow shall be as obtaining in W.P.(C) No.11595 of 2021. 2. The facts relevant for the disposal of the writ petitions are that the first respondent was working as a Maintenance Supervisor in the Department of Engineering in the petitioner hospital. Alleging misconduct, he was dismissed from service by the Management on 30.12.2005, after conducting a domestic enquiry. The 1[st] respondent raised an industrial dispute before the Government and the matter was referred for adjudication by the Labour Court, Kozhikode. The issue referred for adjudication was: “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?” The Labour Court passed a preliminary order dated 31.08.2009 holding that the domestic enquiry conducted **WP(c) 6840 & 11595 of 2021 ..4..** was proper and valid. The 1[st] respondent challenged the said order before this Court in W.P.(C) No.28907/2009. During the pendency of the said writ petition, the Labour Court passed final award dated 28.10.2009 upholding the order of termination from service. The petitioner filed W.P.(C) No.27808/2011 challenging the award to the extent the Labour Court did not determine as to whether the 1[st] respondent was a 'workman' as defined under the Industrial Disputes Act, 1947 ('I.D. Act' for short). This Court, by a common judgment dated 01.02.2012 in W.P.(C) No.28907/2009 and W.P.(C) No.27808/2011, set aside the award of the Labour Court and remitted the case back for fresh consideration in accordance with law and after determining as to whether the 1[st] respondent was a “workman”. Pursuant to the remand, the Labour Court, by award dated 12.06.2012, held that the 1[st] respondent cannot be treated as a “workman” as per the provisions of the I.D. Act. The 1[st] respondent preferred W.P.(C) No.20287/2012 before this Court against the award dated 12.06.2012 and the learned Single Judge, by judgment dated 09.04.2013, remitted the case back to the Labour Court with directions. The petitioner and the 1[st] respondent preferred appeals against the judgment dated **WP(c) 6840 & 11595 of 2021 ..5..** 09.04.2013 as W.A. Nos. 1583/2013 and 1034/2013 respectively. In the appeals, the Division Bench of this Court, by judgment dated 01.07.2014, held that the 1[st] respondent would come within the meaning of “workman” as defined under the I.D. Act and set aside the judgment of the learned Single Judge and remitted the case back to the Labour Court for fresh consideration on merit. 3. Pursuant thereto, the Labour Court, by award dated 08.07.2016, held that the termination of the 1[st] respondent was illegal as the entire domestic enquiry was vitiated and accordingly directed the petitioner to reinstate the 1[st] respondent in service and to pay him an amount of Rs.2,98,000/- as compensation. Against the said award, the petitioner and the 1[st] respondent preferred W.P.(C) Nos.32325 and 36300 of 2016 respectively, and this Court, by common judgment dated 22.05.2017, set aside the award dated 08.07.2016 and remitted the case back to the Labour Court for determining the validity of the enquiry as a preliminary issue. Accordingly, the Labour Court, by award dated 19.09.2018, determined the question regarding the validity of the enquiry and held that the entire enquiry was vitiated and in violation of the principles of natural justice and that the 1[st] respondent is entitled to **WP(c) 6840 & 11595 of 2021 ..6..** 60% back wages in lieu of reinstatement as compensation. Against the award dated 19.09.2018, the petitioner and the 1[st] respondent preferred W.P.(C) No.40786/2018 and W.P.(C) No.2689/2019 respectively and this Court by Ext. P1 common judgment dated 11.03.2020, set aside the award of the Labour Court and remitted the case back to the Court for fresh consideration as per the observations and directions therein. Pursuant to Ext.P1 judgment, the Labour Court considered the validity of the domestic enquiry and by preliminary order dated 27.08.2020, held that the impugned domestic enquiry was fairly and properly conducted following the principles of natural justice and it does not require any interference. After passing the preliminary order, the Labour Court considered the issue, ‘whether the punishment imposed on the workman is grossly disproportionate or excessive?’. The Labour Court, after analysing the evidence on record, by Ext.P2 award dated 13.11.2020, held that only two of the 8 charges were proved by the Management and for the said proved charges, extreme punishment of dismissal from service was grossly disproportionate. However, since the 1[st] respondent had already attained the age of superannuation and the Management ceased to have confidence in him, the Labour Court **WP(c) 6840 & 11595 of 2021 ..7..** observed that monetary compensation in lieu of reinstatement would meet the ends of justice and accordingly directed the petitioner to pay the 1[st] respondent an amount of Rs.6,47,400/- within three months, failing which petitioner was liable to pay interest on the said amount @ 6% per annum. Ext. P2 award is impugned by the petitioner contending that the Labour Court acted beyond its powers under Section 11-A of the I.D. Act. According to the petitioner, the Labour Court, while exercising the power under Section 11-A to determine whether the punishment imposed was proportionate to the charges proved, ought to have confined itself to determine the said issue rather than reappreciating the evidence and coming to a conclusion contrary to that arrived at in the domestic enquiry. 4. The 1[st] respondent has filed W.P. (C) No. 6840 of 2021 challenging Ext. P2 award to the extent of denying full back wages and interest on the compensation and he sought for the following reliefs: “I. Hon'ble Court may be please to issue a writ such certiorari or any order direction calling for the records relating to Ex.P.1 to the extent full back wages, interest etc. to the petitioner had been denied and set side the same. II. Hon'ble Court please to allow full back wage interest etc. as per private hospitals workers minimum wage **WP(c) 6840 & 11595 of 2021 ..8..** notification GO (P) NO.33/2018/LBR III. 50 Lakh compensation for poison and several physical and mental attacks from MIMS propaganda of insane fraud and Secured ID 26/07 award petitioner insane propagating with this award. IV. Ex. P.I page 25 find as per document eligible for free accommodation but not given Rs. 5000/- per month in service period may be allowed. V. Any other relief Hon'ble Court deem fit for this case. Petitioner 60 years old jobless for long years, consider the matter sympathetically.” ## 5. When W.P. (C) No. 6840/2021 came up for admission on ## 29.03.2021, this Court passed the following order: “Heard the party in person who entered appearance. I have seen no merit in the instant petition as after finding that the termination of the petitioner was not justified, Labour Court had awarded monetary compensation to the petitioner as the petitioner had attained age of superannuation during pendency of the proceedings before the Labour Court. The Petitioner submits that petitioner is entitled for prayer clause(ii), ie., minimum wages as notified by the Government. That was not the subject matter of the proceedings before the Labour Court. It is seen that the Labour Court has granted back wages in the form of salary till the petitioner had attained the age of superannuation. In order to grant one more chance to the petitioner, call for record and proceedings.” ## 6. This Court, while admitting W.P. (C) No. 11595/2021 on 24.06. ## 2021, passed the following order:- **WP(c) 6840 & 11595 of 2021 ..9..** “Heard. Issue notice before admission to the 1[st] respondent. In the meanwhile, the petitioner to deposit the amount of compensation as directed by the learned Labour Court before the Labour Court. However, the same shall not be disbursed to the 1[st] respondent without orders of this Court.” 7. Heard Sri.V.Krishna Menon, the learned counsel for the petitioner in W.P. (C) No. 11595/2021 and Sri. K. Premraj, the petitioner in W.P. (C) No. 6840 of 2021 who appeared in person. The matter was heard in extenso and I have perused the records of the Labour Court. 8. The short point for consideration in W.P.(C) No.11595/2021 filed by the Management is that whether the Labour Court has acted beyond the scope of the powers under Section 11-A of the ID Act in passing Ext. P2 award. According to Sri.Krishna Menon, the learned counsel for the Management, the Labour Court, while considering the validity of the enquiry as a preliminary issue, on analysing the evidence adduced, found that the domestic enquiry conducted by the enquiry officer against the 1[st ] respondent/workman was legal, valid, proper and in accordance with the principles of natural justice and therefore, while exercising powers under Section 11-A of the I.D. Act, the Labour Court **WP(c) 6840 & 11595 of 2021 ..10..** ought to have confined itself with regard to the proportionality of punishment as regards proved charges and can interfere with the punishment only if the same is shockingly disproportionate to the charges proved. It is contended that the Labour Court, while exercising the powers under Section 11-A of the I.D. Act, cannot re-appreciate the evidence and come to a conclusion contrary to that arrived at in the domestic enquiry. 9. Sri.Krishna Menon placed reliance on the following decisions in support of his contentions: (i) **UP State Road Transport Corporation** _**v**_ **. Subhash Chandra Sarma and Others** [(2000) 3 SCC 324], (ii) **Regional Manager, UPSRTC Etawah and others** _**v**_ **. Hoti Lal and another** [(2003) 3 SCC 605], (iii) **Mahindra and Mahindra Ltd** _**v**_ **. N.B. Narawade** [2005 (2) KLT 32 (SC)], (iv) **M.P. Electricity Board** _**v**_ **. Jagdish Chandra Sharma** [(2005) 3 SCC 401], (v) **South India Cashew Factories Workers Union** _**v**_ **. Kerala State Cashew Development Corporation Limited** [2006 (2) KLT 834], (vi) **Federal Bank Employees Union** _**v**_ **. Federal Bank Limited** [2008 (2) KLT 612], (vii) **Govindan A.** _**v**_ **. State Bank of Travancore and Another** [ILR 2016 (4) KER.345] and **President, Anickad Regional Farmers** **WP(c) 6840 & 11595 of 2021 ..11..** _**v**_ **Service Co-operative Bank Limited No.3867 and Another . Benny Thomas and Another** [2022 (6) KHC 298]. 10. Relying on the decision of the Hon'ble Supreme Court in **U.P State Road Transport Corporation** (supra), Sri.Krishna Menon would contend that the discretion conferred on the Labour Court by Section 11-A of the I.D. Act cannot be exercised capriciously and the relief can be extended only where the punishment is shockingly disproportionate to the nature of the charge found proved against him. 11. In **Regional Manager, UPSRTC Etawah** (supra), the Hon'ble Supreme Court held as under: “10. It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree (1974 LCR 120). A mere statement that it is disproportionate would not suffice. A party appearing before a Court, as to what it is **WP(c) 6840 & 11595 of 2021 ..12..** that the Court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the is or punishment proportionate disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal.” 12. In **Mahindra and Mahindra** (supra) cited by Sri. Krishna Menon, while dealing with the powers of the Industrial Tribunal under Section 11-A of the I.D. Act, the Hon'ble Supreme Court held that, the discretion which can be exercised under Section 11-A is available only on the existence of 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 requires the reduction of sentence. The Court held in paragraph 22 as follows: “22. It is no doubt true that after introduction of S.11A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in **WP(c) 6840 & 11595 of 2021 ..13..** interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above 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 S.11A 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 requires 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 S.11A of the Act and reduce the punishment. As noticed herein above at least in two of the cases cited before us, i.e. Orissa Cement Ltd. (supra) and New Shorrock Mills (supra), this Court held: "punishment of dismissal for using of abusive language cannot be held to be disproportionate." In this case all the forums below have held that the language used by the workman was filthy. We too are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society. Use of such abusive language against a superior officer, that too not once but twice, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor referred to herein above.” ## 13. In **Jagdish Chandra Sharma** (supra), the Hon'ble Supreme Court, considering the scope of interference by the Labour Court under Section 11-A of the I.D.Act with order of punishment of dismissal, held as under: **WP(c) 6840 & 11595 of 2021 ..14..** “8. The question then is, whether the interference with the punishment by the Labour Court was justified? In other words, the question is whether the punishment imposed was so harsh or so disproportionate to the charge proved, that it warranted or justified interference by the Labour Court? Here, it had been clearly found that the employee during work, had hit his superior officer with a tension screw on his back and on his nose leaving him with a bleeding and broken nose. It has also been found that this incident was followed by the unauthorized absence of the employee. It is in the context of these charges found established that the punishment of termination was imposed on the employee. The jurisdiction under S.11A of the Act to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in exercise of its jurisdiction under Art.226 of the Constitution of India only when it finds that the punishment imposed, is shockingly disproportionate to the charge proved. These aspects are well settled. In U. P. State Road Transport Corporation v. Subhash Chandra Sharma and Others (AIR 2000 SC 1163) this Court, after referring to the scope of interference with punishment under S.11A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, for a conclusion to be arrived that the was punishment shockingly disproportionate to the nature of the charge found proved, before it could interfere to reduce the punishment. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Another (2004 (8) SCC 200) this Court after referring to the decision in State of Rajasthan v. B. K. Meena (AIR 1997 SC 13) also pointed out the difference **WP(c) 6840 & 11595 of 2021 ..15..** between the approaches to be made in a criminal proceeding and a disciplinary proceeding. This Court also pointed out that when charges proved were grave, vis a vis the establishment, interference with punishment of dismissal could not be justified. In Bharat Forge Company Ltd. v. Uttam Manohar Nakate (2005 (1) SCALE 345), this Court again reiterated that the jurisdiction to interfere with the punishment should be exercised only when the punishment is shockingly disproportionate and that each case had to be decided on its facts. This Court also indicated that the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, had to act within the four corners thereof. It could not sit in appeal over the decision of the employer unless there existed a statutory provision in that behalf. The Tribunal or the Labour Court could not interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is not necessary to multiply authorities on this question, since the matter has been dealt with in detail in a recent decision of this Court in Mahindra and Mahindra Ltd. v. N. B. Narawade (2005 (2) KLT 32 : 2005 (2) SCALE 302. This Court summed up the position thus: "It is no doubt true that after introduction of S.11A 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 concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above 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 S.11A 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 requires the reduction of the sentence, or the past **WP(c) 6840 & 11595 of 2021 ..16..** conduct of the workman which may persuade the Labour Court to reduce the punishment." It may also be noticed that in Orissa Cement Ltd. v. V. Adikanda Sahu (1960 (1) LLJ 518 (SC)) and in New Shorrock Mills v. Maheshbhai T. Rao (AIR 1997 SC 252), this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Employers, Management, Muriadih Colliery BCCL Ltd. v. Bihar Colliery Kamgar Union, Through Workmen (JT 2005 (2) SC 444) this Court after referring to and quoting the relevant passages from Management of Krishnakali Tea Estate v. Akhil Bharatiya Chah Madzoor Sangh and Another (2004 (8) SCC 200) and The Management of Tournamulla Estate v. Workmen (AIR 1973 SC 2344) held : "The Courts below by condoning an act of physical violence have undermined the discipline in the organization, hence, in the above tactual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under S.11(A) of the Act to interfere with the punishment of dismissal." ## 14. In **South India Cashew Factories Workers Union** (supra), the Division Bench of this Court held that Section 11-A of the I.D. Act gives ample power to Labour Court to reappraise the evidence adduced in the enquiry and also to sit in appeal over the decision of the employer in imposing punishment. 15. In **Federal Bank Employees Union** (supra), the Division **WP(c) 6840 & 11595 of 2021 ..17..** Bench of this Court held that if proper enquiry is conducted and misconduct is proved, Industrial Tribunal or Labour Court has got jurisdiction to interfere in the punishment only when punishment is shockingly disproportionate so as to suggest victimization. 16. In **Govindan A.** (supra), the Division Bench of this Court held that the Labour Court shall interfere with the punishment under Section 11-A of the I.D. Act, only where the Court finds that the punishment was unduly harsh or shockingly disproportionate and the said power of the Labour Court cannot be invoked casually or as a matter of course. 17. In **President, Anickad Regional Farmers Service Cooperative Bank** (supra), this Court, after referring to various authorities including **Mahindra and Mahindra Ltd** and **Jagdish Chandra Sharma (** cited supra), summarised the principles regarding exercise of powers by the Industrial Tribunals and Labour Courts under Section 11-A of the Act and the powers of the High Court over the decision of the Industrial Tribunals and Labour Courts exercising powers under Section 11-A, as follows: **WP(c) 6840 & 11595 of 2021 ..18..** (1) The Industrial Tribunal or Labour Court can interfere with the punishment, only if it is shockingly disproportionate to the gravity of the misconduct proved. (2) To support its decision, the Industrial Tribunal or Labour Court has to give reasons. (3) The Industrial Tribunal or Labour Court has the power for reappraisal of the materials on record under Section 11A. (4) This Court, exercising power under Art.226 of Constitution, does not have power for reappraisal of materials on record. - (5) This Court cannot act as an appellate Court over the decision of the Industrial Tribunal exercising powers under Section 11-A. (6) This Court can interfere with the decision of the Tribunal, only if the view of the Tribunal is patently perverse or one which no man in his senses would take. ## 18. The charges levelled against the 1[st] respondent in the domestic enquiry are as follows:- “1. Habitual late coming causing inconvenience and loss to the management. 2. Disobeying the directions of the management by avoiding swiping attendance in the swiping machine to cover up habitual late coming by 30 minutes and more and leaving the premises ahead of time by 30 minutes and more. 3. Misbehaviour and also behaviour in an unbecoming manner towards the maintenance staff in the establishment. 4. Theft and dishonesty pertaining to the properties and assets of the management. 5. Failure to perform the duty and responsibilities of the post of Supervisor in the Maintenance Department. 6. Causing loss of confidence reposed on the **WP(c) 6840 & 11595 of 2021 ..19..** Supervisor by the management. 7. Creating fake documents by way of forging letters and sending the same to the authorities as if you have got authority to do while under suspension. 8. Using the letter head and properties of the management unuthorisedly and committing forgery and other misconduct.” 19. In the domestic enquiry, the charges were found proved and the 1[st] respondent was dismissed from service. The 1[st] respondent raised an industrial dispute which was referred to the Labour Court. The Labour Court, after passing the preliminary order finding that the domestic enquiry was fairly and properly conducted following the principles of natural justice, while considering the issue regarding the proportionality of punishment, analysed the very same evidence already on record and arrived at different conclusion than that of the enquiry officer and found that only the last two charges are proved. The Labour Court held thus: “...Admittedly, the workman was under suspension from 11.05.2005 and Ext.M26 letter was sent on 17.06.2005. It is certainly a misconduct that sending of a letter by a person under suspension using the letter pad of the hospital and sending it on behalf of a Senior Maintenance Manager. These two charges only are proved by the management. According to the workman, he sent a letter on behalf of the Senior Manager for the purpose of getting service report from the insurance company to prove his contentions in this case. By the said act, the workman did not **WP(c) 6840 & 11595 of 2021 ..20..** cause any loss to the management. The management has no case that the workman was indulged in a similar act in any previous occasions. Punishment of dismissal is certainly disproportionate and excessive particularly in view of the fact that the workman does not seem to have had any previous punishment. For the foregoing reasons, conclusions and observations, I am of the perpended view that extreme punishment of dismissal from service was grossly disproportionate to the proved charges. The point is therefore answered accordingly.” 20. The Labour Court found that dismissal of the 1[st] respondent from service for the proved charges was grossly disproportionate. However, since the 1[st] respondent had already attained the age of superannuation and the Management ceased to have confidence in him, the Labour Court directed the petitioner to pay to the 1[st] respondent an amount of Rs.6,47,400/- as monetary compensation in lieu of reinstatement within three months, failing which petitioner was liable to pay interest on the said amount @ 6% per annum. 21. On an analysis of Ext. P2 award of the Labour Court, it can be seen that the Labour Court has reappraised the evidence already on record and no fresh evidence was taken in relation to the matter. The Labour Court has come to a different conclusion on the charges than that of the enquiry officer. The Labour Court found that only two charges are proved and for the proved charges, the punishment of **WP(c) 6840 & 11595 of 2021 ..21..** dismissal is disproportionate. The Labour Court awarded compensation in lieu of reinstatement taking note of the fact that the Management has lost faith in the workman and he has crossed the age of superannuation. 22. According to the petitioner, the award of the Labour Court is beyond the powers of the Labour Court under Section11-A of the I.D. Act. Section 11-A of the I.D. Act reads as follows: “11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or m dismissal was not justified, it ay, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take .' any fresh evidence in relation to the matter _(emphasis supplied)_ The Tribunal has wide powers under Section 11-A to set aside the order of discharge or dismissal and direct reinstatement of workman, on such **WP(c) 6840 & 11595 of 2021 ..22..** terms and conditions, if any, as it thinks fit. Even if the enquiry proceedings are held to be proper and the finding of misconduct is also accepted, the Tribunal has power under Section 11-A to consider whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty. In such circumstances, the Tribunal can also give any other relief to the workman, including the imposition of a lesser punishment. However, the proviso to Section 11-A casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence. 23. The Hon'ble Supreme Court, in **Raghubir Singh** _**v**_ **. G.M, Haryana Roadways, Hissar** [2014 KHC 4556: (2014) 10 SCC 301], while considering the object and scope of Section 11-A of the I.D Act, after referring to the decision in **Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. and Others** _**v**_ **. Management and Others** [1973 KHC 516: 1973 (1) SCC 813: AIR 1973 SC 1227], held thus: “33. Once the reference is made by the State Government in exercise of its statutory power to the Labour Court for adjudication of the existing industrial dispute on the points of dispute, it is the mandatory statutory duty of the Labour Court under S.11A of the **WP(c) 6840 & 11595 of 2021 ..23..** Act to adjudicate the dispute on merits on the basis of evidence produced on record. S.11A was inserted to the Act by the Parliament by the Amendment Act 45 of 1971 (w.e.f. 15.12.1972) with the avowed object to examine the important aspect of proportionality of punishment imposed upon a workman if, the acts of misconduct alleged against workman are proved. The "Doctrine of Proportionality" has been elaborately discussed by this Court by interpreting the above provision in the case of Workmen of Messrs Firestone Tyre & Rubber Company of India v. Management and Others, 1973 (1) SCC 813 as under: "33. The question is whether S.11A has made any changes in the legal position mentioned above and if so, to what extent? The Statement of objects and reasons cannot be taken into account for the purpose of interpreting the plain words of the section. But it gives an indication as to what the Legislature wanted to achieve. At the time of introducing S.11A in the Act, the legislature must have been aware of the several principles laid down in the various decisions of this Court referred to above. The object is stated to be that the, Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct reinstatement or award any lesser punishment. The Statement of objects and reasons has specifically referred to the limitation on the powers of an Industrial Tribunal, as laid, down by this Court in Indian Iron & Steel Co. Ltd. v. Their Workmen, AIR 1958 SC 130 at P.138. 34. This will be a convenient stage to consider the contents of S.11A. To invoke S.11A, it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. In the course of such adjudication, the Tribunal has to be satisfied that the, order of discharge or dismissal was not justified. If it comes to such a conclusion, the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. The Tribunal has also power to give any other relief to the work - man including the imposing of a lesser punishment having due regard to the circumstances. The proviso casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence." Thus, we believe that the Labour Court and the High Court have **WP(c) 6840 & 11595 of 2021 ..24..** failed in not adjudicating the dispute on merits and also in not discharging their statutory duty in exercise of their power vested under S.11A of the Act and therefore, the impugned judgment, order and award are contrary to the provisions of the Act and law laid down by this Court in the above case. 34. Further, the object of insertion of S.11A of the Act is traceable to the International Labour Organisation resolution as it is stated in the case of Workmen of Messrs Firestone Tyre & Rubber case (supra) that: - "3.The International Labour Organisation, in its recommendation (No. 119) concerning termination of employment at the initiative of the employer adopted in June 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled, to appeal against the termination among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the neutral body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case, and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned, unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it is considered that the Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary, to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new S.11A is proposed to be inserted in the Industrial Disputes Act, 1947...." Therefore, we are of the firm view that the Labour Court and the High Court have failed to adjudicate the dispute referred to it on **WP(c) 6840 & 11595 of 2021 ..25..** the merits. This has lead to gross miscarriage of justice and therefore, we have to exercise our jurisdiction under Art.136 of the Constitution of India and interfere with the impugned judgment, order and award of the High Court and the Labour Court to do justice to the workman who has been relentlessly litigating for his legitimate rights.” 24. This Court, in **Kerala Chemicals and Proteins Ltd** _**v**_ **. Labour Court, Ernakulam** [2014 (4) KHC 107], relying on the decision of the Hon'ble Supreme Court in **Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. and Others** (supra), held that, the Labour Court has the power for reappraisal of the evidence and that, the High Court exercising power under Article 226 of Constitution does not have a similar power of reappraisal of the entire evidence. 25. The Division Bench of this Court in **Rajagopal B.** _**v**_ **. Jomy Xavier and another** [2010 (2) KHC 196: ILR 2010 (2) Ker. 117: 2010 (3) KLT SN 4: 2010 (2) KLJ 191] on a detailed consideration of the legislative history and the objects behind the introduction of Section 11-A of the I.D Act observed that, after the introduction of Section 11A, the Industrial Tribunal has got wider powers to deal with the case of dismissal of a workman and the Tribunal has power to set aside the order of discharge or dismissal and direct reinstatement of the workman **WP(c) 6840 & 11595 of 2021 ..26..** on such terms and conditions, if any, it thinks fit. The Division Bench considered the powers of the High Court while judicially reviewing the decision of a Labour Court or an Industrial Tribunal and held as under: “7.....It is also equally settled that the High Court cannot act as an appellate authority over the decisions of the Labour Courts/Industrial Tribunals. If the decision is within jurisdiction, it is no part of the business of this Court to interfere with the decision of the Labour Court/Tribunal according to its opinion, regarding the propriety of the punishment. There is no dispute that broadly, the Labour Court/Tribunal has jurisdiction to adjudicate a dispute concerning the dismissal of a workman. But, while exercising that power, the Tribunal may stray out of jurisdiction, if it follows a procedure, contrary to fundamental judicial principles, like violation of the principles of natural justice, or if it omits to take into account relevant matters or takes into account irrelevant matters or misdirects itself in law. Even if after following a proper procedure, the Tribunal arrives at a conclusion which is patently perverse or one which no man in his senses would arrive at, then also it can be described that the Tribunal has strayed out of jurisdiction because the courts would say, the Parliament cannot be intended to have conferred power on the Tribunal to arrive at such a perverse decision. It is also well settled in law that a difference of opinion or a different view was possible on the facts of the case, is also not a ground for this Court to interfere with the decision of an inferior tribunal. Lord Hailsham of St.Marylebone L.C. In re W. (An infant) (1971) A.C.682) put it felicitously that two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts, without forfeiting their title to be regarded as reasonable. The above principle has been followed by the Apex Court in several decisions. So, in this case, the point to be considered is whether, based on the proven misconduct, if the Tribunal takes the view that the **WP(c) 6840 & 11595 of 2021 ..27..** punishment was disproportionate to the gravity of the offence; so, the punishment of dismissal was not warranted and denial of back wages alone would be sufficient, can it be said to be a decision outside jurisdiction or whether it can be described as one which no man in his senses would take. We think, it is difficult to condemn the decision of the Tribunal in that manner. A plausible view has been taken on the facts. If we were acting as the original authority, we might have taken a different view, but that will not enable this Court to interfere with the decision of the Industrial Tribunal.” 26. On an analysis of Ext. P2 award it can be seen that in the light of the provisions of Section 11-A of the I.D. Act and the decisions cited above, the Labour Court, on the basis of materials on record, found that the order of dismissal of the 1[st] respondent is not justified. The Labour Court, on reappraisal of the materials on record, found that the punishment is grossly disproportionate to the proved charges. Section 11-A of the I.D. Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry. While passing Ext. P2 award, the Labour Court has not placed reliance on any materials which are not on record and no fresh evidence has been taken in relation to the matter. The reasons and conclusions for the said finding have been stated in the award. This Court cannot act as an appellate court over the decision of the Labour Court exercising powers under Section 11-A. The finding of the Labour Court that the punishment of dismissal is **WP(c) 6840 & 11595 of 2021 ..28..** grossly disproportionate to the proved charges cannot be said to be patently perverse or one which no man in his senses would take. Section 11-A provides that if the Labour Court is satisfied that the order of dismissal was not justified, it may, by its award set aside the order of dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of dismissal as the circumstances of the case may require. Since the 1[st] respondent has crossed the age of superannuation during the course of adjudication, the Labour Court, in the circumstances of the case, is justified in passing an award holding that denial of employment to the workman is not justified and he is entitled to monetary compensation in lieu of reinstatement. Therefore, Ext. P2 award cannot be unsettled, invoking the power of this Court under Article 226 of the Constitution of India. W.P.(C)No.11595 of 2021 fails and is, accordingly, dismissed. 27. The petitioner has filed I.A. No. 1 of 2022 in W.P.(C) No. 11595 of 2021 seeking stay of proceedings pursuant to Ext. P3 complaint filed by the 1[st] respondent before the Labour Court seeking to initiate criminal prosecution against the petitioner under Sections 340 and 195 **WP(c) 6840 & 11595 of 2021 ..29..** of the Code of Criminal Procedure. According to the petitioner, the said petition before the Labour Court is not maintainable and the Labour Court cannot issue notice to the petitioner as the Labour Court has become _functus officio_ after rendering Ext. P2 award and that an earlier private complaint on same grounds has been dismissed by the Judicial First Class Magistrate Court, Kunnamangalam. This Court had by order dated 14.03.2022 granted stay of further proceedings pursuant to Ext. P3 complaint. The petitioner has not chosen to amend the writ petition incorporating any challenge to the proceedings before the Labour Court pursuant to Ext.P3 complaint. It will be open to the petitioner to raise all contentions before the Labour Court as to the maintainability of Ext. P3 complaint and the jurisdiction of the Labour Court to entertain such complaint. The prayer in W.P. (C) No. 6840 of 2021 filed by the workman for full back wages cannot be granted. Since he has crossed the age of superannuation during the course of adjudication, the Labour Court has passed an award granting monetary compensation in lieu of reinstatement. The prayer for minimum wages in relief No.2 also cannot be granted as the same was not the subject matter of the **WP(c) 6840 & 11595 of 2021 ..30..** proceedings before the Labour Court. The workman has already been granted monetary compensation in lieu of reinstatement. The prayer for compensation for mental agony and harassment is beyond the scope of the writ petition and cannot be granted. While upholding Ext. P2 award, I reject the prayers in W.P. (C) No. 6840 of 2021 and the writ petition is dismissed. Sd/- **MURALI PURUSHOTHAMAN JUDGE** spc/ **WP(c) 6840 & 11595 of 2021 ..31..** ## **APPENDIX OF WP(C) 11595/2021** PETITIONER EXHIBITS Exhibit P1 A COPY OF THE COMMON JUDGMENT DATED 11.03.2020 IN W.P(C)NOS.40786/2018 AND 2689/2019. Exhibit P2 A COPY OF THE AWARD OF THE SECOND RESPONDENT DATED 13.11.2020 IN I.D.NO.26/2007. **WP(c) 6840 & 11595 of 2021 ..32..** ## **APPENDIX OF WP(C) 6840/2021** |PETITIONER EXHIBITS||| |---|---|---| |EXHIBIT P1|CERTIFIED COPY OF ID 26/07 OF LABOUR COURT,|| ||KOZHIKODE.|| |EXHIBIT P2|COMPLAINT GIVEN TO MIMS CHAIRMAN|BY| ||PETITIONER.|| |EXHIBIT P3|EVIDENCE<br>OF<br>SHAJI<br>E.V.(WW-1)|AND| ||TRANSLATION.|| |EXHIBIT P4|TECHNOLOGY REPORT OF AMRITHA HOSPITAL|| ||POISON CONTROL DEPARTMENT.|| |EXHIBIT P5|LETTER RECEIVED FROM ADGP OFFICE|AND| ||TRANSLATION.|| |EXHIBIT P6|FIRST SHOW CASE LETTER ISSUED BY MIMS.|| |EXHIBIT P7|LETTER RECEIVED FROM MEDICAL COLLEGE|CI| ||OFFICE AND TRANSLATION.|| |EXHIBIT P8|JUDGMENT OF RP 853/2015 IN WA 1897/15.|| |EXHIBIT P9|PETITIONER COMPLAINT AGAINST DISMISSAL|| ||BEFORE LABOUR DEPARTMENT AND TRANSLATION|.| |EXHIBIT P10|JUDGMENT OF WPC 25436/2007.|| |EXHIBIT P11|ORIGINAL STATEMENT OF ALLEGATION.|| |EXHIBIT P12|SERVICE REPORT OF VOLTAS.|| |EXHIBIT P13|LETTER OF TECHNICIANS TO MIMS MANAGEMENT.|| |EXHIBIT P14|SR. MANAGER LETTER TO VOLTAS.|| |EXHIBIT P15|REPLACED STATEMENT OF ALLEGATION.|| |EXHIBIT P16|CROSS EXAMINATION SR. MANAGER|AND| ||TRANSLATION.|| |EXHIBIT P17|CHARGE SHEET M 18.|| |EXHIBIT P18|PAGE 1, 21, 22 OF JUDGMENT IN WPC|NO.| ||2689/19.|| |EXHIBIT P19|PAGE 12,35,36 OF ENQUIRY REPORT.|| |EXHIBIT P20|PAGE 1, 7,8 OF JUDGMENT OF MFA 9/98.|| |EXHIBIT P21|PAGE 1, 25 OF ID 26/07/-AWARD.|| |EXHIBIT P22|PAGE 1,6,7,10 JUDGMENT OF WA 115/17.|| |EXHIBIT P23|PAGE 20 OF ENQUIRY REPORT PARA 132 ENQUIRY|| ||FILE AND 136 TRANSLATION OF 132,136.|| |EXHIBIT P24|CROSS EXAMINATION ENQUIRY OFFICER IN|ID| ||26/07 AS MW-1 AND TRANSLATION.|| |EXHIBIT P25|EVIDENCE OF PETITIONER AS WW-1 IN ID 26/07.|| |EXHIBIT P26-A,B|LETTERS OF ABDULRAHMAN TO MIMS MANAGER|AND| ||TRANSLATION.|| |EXHIBIT P27|TECHNICIANS LETTER TO MIMS.|| |EXHIBIT P28|LETTER OF MIMS TO PETITIONER.|| **WP(c) 6840 & 11595 of 2021 ..33..** EXHIBIT P29 LETTER OF MIMS TO PETITIONER AS M8. EXHIBIT P30 FINAL WARNING LETTER AS (M9). EXHIBIT P31 COMPLAINT TO POLICE AND TRANSLATION EXHIBIT P32 ACCIDENT REGISTER CUM WOUND CERTIFICATE. EXHIBIT P33 WATER TEST REPORT. EXHIBIT P34 POLICE REFER REPORT.