KDHP Company Private Limited (formerly Tata Tea Limited) v. Secretary, National Union of Plantation Staff, Munnar & Industrial Tribunal, Idukki

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 ``` ``` W.A. NO.1121 OF 2015 ``` ``` (AGAINST THE JUDGMENT IN WPC 31227/2007 OF HIGH COURT OF KERALA) ``` ## **`APPELLANT/PETITIONER:`** ``` KDHP COMPANY PRIVATE LIMITED, (PREVIOUSLY KNOWN AS TATA TEA LIMITED), MUNNAR WORKSHOP & ENGINEERING DEPARTMENT, REPRESENTED BY ITS MANAGER (IR), MR.PRINCE THOMAS BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SECRETARY, NATIONAL UNION OF PLANTATION STAFF, MUNNAR. 2INDUSTRIAL TRIBUNAL, IDUKKI. BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.1121/2015 2 ## JUDGMENT _(Dated: 21[st ] February, 2023)_ ## Basant Balaji, J. The appellant was the petitioner before the learned single Judge and the respondents are the respondents therein. The writ petition was filed by the petitioner for the following reliefs: - _i) to issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P7 award of the second respondent-industrial Tribunal, Idukki and quash the same in so far as its direction to the petitioner to reinstate the workman into service with back wages for the period from 11.09.2004,_ - _ii) to pass an ad interim order staying the implementation of the award Ext.P7 passed by the second respondentIndustrial Tribunal, Idukki in I.D.No.51 of 2000 till final disposal of the writ petition and_ - _iii) to pass such other order as this Hon’ble Court may deem fit and proper in the circumstances of the case._ 2. The petitioner is a company registered under the Companies Act. The first respondent is the Union representing W.A.1121/2015 3 the staff of the petitioner. One Shibu who was working as an Assistant Technical Officer was charge-sheeted under Clause 14 (a), (c), (g) and (i) of the standing orders applicable to the staff employees for the following misconduct. _14(a): “wilful insubordination or disobedience whether alone or in combination with another or others of any lawful and reasonable order of a superior,_ _(c): theft, fraud or dishonesty in connection with the employer’s business or property,_ _(g): riotous or disorderly behaviour on the premises of the estate or any act subversive of discipline and_ _(i): habitual absence from duty, habitual late attendance and/or habitual neglect of work”._ 3. In pursuance of the charge-sheet, a domestic enquiry was conducted, three witnesses were examined on the side of the management and on the basis of the oral and documentary evidence, the enquiry officer found that the charges levelled in the charge sheet are established. Accordingly, he was dismissed from service with effect from 09.11.1999. 4. The 1[st] respondent Union raised an industrial dispute. The Conciliation Officer sent a report to the Government and the W.A.1121/2015 4 Government referred the issue to the Tribunal for adjudication. The 2[nd] respondent passed a preliminary order directing the petitioner to reinstate the workman without back wages. The petitioner challenged the preliminary award in W.P.(C) No.17705 of 2005, and the Union also challenged the same in W.P.(C)No.11306 of 2005. This Hon’ble Court considered both the writ petitions together, and by Ext.P6 judgment set aside the impugned award except to the extent it upholds the findings on the enquiry against the workman and remitted to the Tribunal to rehear the parties by giving opportunity to the management to lead evidence in proof of the charges which did not sustain on the scrutiny by the Industrial Tribunal and the question of proportionality of the punishment. The 2[nd] respondent after remand posted the case for evidence and the petitioner examined one witness. Thereafter, the 2[nd] respondent passed Ext.P7 award dated 17.01.2007 directing the management to reinstate the workman in service with back wages from 11.09.2004 and with continuity of service. This award was W.A.1121/2015 5 challenged before the learned single Judge. The learned single Judge by the impugned judgment held that, to the two charges proved, the punishment of dismissal is not warranted and that the award of the Tribunal reinstating him is in order. Thereafter, both the writ petitions filed by the petitioner as well as the Union were dismissed. 5. Heard Adv.Benny P.Thomas and Adv.D.Prem Kamath, learned counsel for the appellant/petitioner and Adv.A. Jayasankar, learned counsel for the respondents. 6. The contention raised by the counsel for the appellant is that the learned single Judge ought to have interfered with the award passed by the Industrial Tribunal and interfered with the reinstatement. The gravity of the misconduct committed by the workman is so grave that the dismissal from service is commensurate to the misconduct committed by him. A worker in whom the appellant has lost confidence should not have been directed to be reinstated as there is every chance, he may commit the same misconduct and the appellant may suffer W.A.1121/2015 6 further loss. Having found that the charges levelled against the worker are proved, the learned single Judge ought to have interdicted with the reinstatement awarded by the Tribunal and confirmed the punishment of dismissal. 7. The counsel for the appellant/petitioner relied on the judgment of the Apex Court in _Union of India (UOI) and Others v. M.Duraisamy (2022) 7 SCC 475) , Mahindra and Mahindra Ltd., v. N.B. Naravade and others (2005) 3 SCC 134)_ and _The Divisional Controller, KSRTC v. M.G.Vittal Rao (2012) 1 SCC 442)._ 8. _In Union of India (UOI) and Others v. M.Duraisamy_ cited (supra), the question was whether the impugned judgment passed by the High Court, which had confirmed the order of the Central Administrative Tribunal, which modified the punishment of dismissal from service to compulsory retirement was justified. It was a case in which a postal assistant while working as SPM committed fraud by way of fraudulent withdrawals in 85 RD accounts and defrauded a sum of Rs.16,59,065/-, and departmental enquiry was initiated and in the enquiry all the W.A.1121/2015 7 charges were proved against the respondent/delinquent and the delinquent officer himself admitted all the charges and thereafter the punishment of removal from service was issued. The Tribunal partly allowed the petition and modified the punishment to removal from service to compulsory retirement on sympathetic grounds as the delinquent deposited the entire amount involved and no loss has been caused to the department. The facts of the above case are totally different from the facts of this case. In the case mentioned above, it was the case of misappropriation and the said misappropriation was admitted by the delinquent. But in the present case, it is only some procedural irregularities that were proved against the workmen and hence the said decision is not applicable to the facts of this case. 9 _. In Mahindra and Mahindra Ltd., v. N.B. Naravade and Others_ cited (supra), the workman was initially appointed on a temporary basis and was made permanent and designated as a fitter. The allegation raised against him was that he used abusive W.A.1121/2015 8 and filthy language against his supervisor and in the enquiry conducted against him, it was proved that the charges levelled against him are proved and recommended dismissal. 10. In the decision reported in _The Divisional Controller, KSRTC v. M.G.Vittal Rao_ cited (supra), the allegation levelled against the officer was that the workman stayed away beyond his duty hours at his place of employment and opened the door of the blacksmith section with the aid of a duplicate key and pulled the gas cylinder trolley from the blacksmith section to the cash room and opened the inner door of the cash room by cutting the padlock and used the gas cylinder equipment for committing theft from the cash chest. In all these cases, the charges levelled against the workmen were of serious nature including theft. In the present case, the only allegation is that the charges proved against the workman were that the spare parts were swapped from one vehicle to another without authorisation and it is not specifically updated in the records. The facts of the case cited by the counsel for the appellant are totally different and the W.A.1121/2015 9 dictum laid down by the Apex Court cannot be made applicable to the facts of this case. Hence, those judgments have no application to the facts of this case. 11. The learned counsel for the respondent submitted that the Tribunal though having found that the two charges alleged against him are proved was of the opinion that the misconduct proved against the workman is not serious enough to warrant extreme punishment of dismissal from service. To the misconduct proved, the Tribunal was of the opinion that though reinstatement is ordered, back wages cannot be allowed, which itself can be taken as a punishment. The two charges out of six charges proved against the workman are: - _(i) You had prepared a fictitious estimate of Rs.2.18 lakhs on 18.05.1999, claiming that the amount is required to make road worthy and passed the fitness test of the 11 tractors received from the estates on 05.09.1998 when new tractors were issued to the estates and were to be kept ready for the safe custody at the workshop for sale after completing formalities, although 9 of the tractors were in good running condition and 7 had valid fitness certificates._ - _(ii) The register of old parts changed from the vehicle was not kept up to date when checked on 16.6.1999 by Mr.T.V.Alexander, Deputy General Manager(Production) on physical verification_ W.A.1121/2015 10 _of stock of old parts, it has been found, that spare parts are being misused. It was also found that usable parts were not included in the old parts list, which clearly shows that a deliberate attempt has been made to misappropriate the same as the parts missing from the list were found to be usable parts._ _(iii)_ _Although the above tractors were kept accepted to be in good running condition, the majority of them are not in working condition now as the vital parts have been stripped, which according to you have been used elsewhere for which no records are available._ ## 12. Section 11-A 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 dismissal was not justified, it may, 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._ ## Section 11-A was introduced in the Industrial Disputes Act on 15.12.1971. In _Workmen v. Firestone Tyre & Rubber Co. of India_ W.A.1121/2015 11 _(P) Ltd., (1973) 1 SCC 813,_ the Apex Court was called upon to interpret Section 11-A. The Apex Court held as follows: _33. The question is whether Section 11-A 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 Section 11-A 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 limitations on the powers of an Industrial Tribunal, as laid down by this Court in Indian Iron and Steel Co. Ltd. case._ _41-A. Another change that has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11-A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A._ W.A.1121/2015 12 13. The preliminary order passed by the Tribunal was challenged before this court and this Court by its judgment directed the Tribunal to afford an opportunity to the management to adduce evidence in support of the charges which were held to be not proved. Thereafter, the Tribunal granted the opportunity to both sides and the present impugned award is passed directing reinstatement of the workman in service with back wages from 11.09.2004 and with continuity of service. After remand, the management examined only one witness, who deposed that he does not have any connection with the workshop and that it is housed in a separate building, and he does not know the day-to-day affairs of the workshop. The learned single Judge thereafter held that the two charges levelled against are proved which were against the workman, and the order of dismissal is not commensurate to the charges proved. It is come out in evidence that the workman had in fact swapped the parts of the tractors so that there is least loss to the company. The allegation against the workman W.A.1121/2015 13 is that it is without any authorisation and no register is maintained by him. Charge No.5 is in respect of nonmaintenance of the register. It is found that the workman had in fact did not update the register, thus the two charges which were proved against the workman were not interdicted by this court. The Tribunal had only directed reinstatement without back wages of the worker till 11.09.2004, the date on which the preliminary order was passed. The learned single Judge was also of the opinion that the non-payment of the back wages till 11.09.2004 can be taken as a punishment imposed for the charges proved. Therefore, the learned single Judge was of the opinion that no interference is warranted and dismissed the appeal. Out of the six charges, two charges alleged against the workman were proved. The charges are in respect of swapping spare parts and not keeping the register up to date. The management does not have a case that there was any loss caused by the Act of the workman. The major allegation is that it is without authorisation W.A.1121/2015 14 that the swapping was done, and the registers were not kept up to date. When these two allegations are proven, the punishment of dismissal from service is not commensurate to the misconduct proved against him. For the misconduct proved, the Tribunal has imposed the punishment by not awarding back wages till 11.09.2004. We have gone through the award of the Tribunal as well as the judgment of the learned single Judge and we are of the considered opinion that the learned single Judge was right in dismissing the writ petition and confirming the award of the Tribunal. We find no grounds to interfere with the judgment of the learned single Judge and therefore the writ appeal fails and is dismissed. No order as to cost. _Sd/-_ S.V.BHATTI, JUDGE _Sd/-_ BASANT BALAJI, JUDGE ss