Mattupatty Estate KDHP Company Pvt. Ltd. (formerly Tata Tea Limited) v. Narayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944** ## **WP(C) NO. 27537 OF 2010** ## **AGAINST THE ORDER/JUDGMENTID 9/2005 OF INDUSTRIAL TRIBUNAL, IDUKKI PETITIONER/S:** MATTUPPATTY ESTATE KDHP COMPANY PVT.LTD. LIMITED, (FORMERLY KNOWN AS TATA TEA LIMITED), MUNNAR, REPRESENTED BY ITS SENIOR MANAGER (IR), MR.G.SOMANATHAN. BY ADVS. P.BENNY THOMAS A.K.JAYASANKAR NAMBIAR D.PREM KAMATH SRI. GOPIKRISHNAN NAMBIAR ## **RESPONDENT/S:** 1 GENERAL SECRETARY,WORKERS CONGRESS MUNNAR P.O., IDUKKI DISTRICT-685612. 2 NARAYANAN PF NO.3601 MUTTIYAR DIVISION MATTUPATTY ESTATE, MATTUPATTY P.O., IDUKKI, DISTRICT685616. 3 INDUSTRIAL TRIBUNAL IDUKKI-685531. BY ADV SRI.P.RAMAKRISHNAN SRI. JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 27537 OF 2010** **2** ## **JUDGMENT** The present writ petition is directed against the labour court award rendered in I.D No.9 of 2005 preferred by the workman Sri. Narayanan of dismissal of the service on account of following reference sent by the Government. “Whether the dismissal of Sri. Narayanan, P.F No.3601, workman, Mattupatty Estate, Munnar is justifiable? If not, to what relief he is entitled?” 2. The case of the workman before the labour court was that he was a permanent worker under the management, was charge sheeted under Clause 22(a), (g) and (h) of the standing orders applicable to the estate workmen alleging that the workman had tresspassed and erected a petty shop in Kuttiar Division near the flag post on 11.6.2003 without the permission of the management and when confronted workman assaulted the Assistant Manager and injured him and also poured kerosene on him with the intention to immolate him. Based on the charges, a domestic enquiry was alleged to have been conducted without complying of the principles of natural justice. The management did not produce any documents to prove their ownership of the property. The workman did not erect any petty shop nor did he **WP(C) NO. 27537 OF 2010** **3** encroach on the land. In fact one Miss Jayasudha, a physically handicapped girl who happened to be the niece of the workman with the consent of the District Collector and other Revenue officials put up a petty shop; the management tried to demolish the same. Even though a criminal case was charged against the workman alleging the same set of facts, he was acquitted in the criminal case by the Sessions Court, Thodupuzha. 3. On the other hand, management refuted the contentions and submitted that on the basis of the charges served upon him, a domestic enquiry was conducted in compliance of the principles of natural justice. The workman duly participated in the enquiry but opted not to cross-examine any witnesses nor brought on record any documents or independent witnesses in support of his defense. Entire enquiry proceedings were signed and no objection was taken thereof. Labour court noticed that the management in order to prove transparency in the enquiry, requested the labour court to grant them an opportunity to lead fresh evidence by not relying upon the enquiry report. The said request was accepted. The management and the workman was given opportunity to lead evidence. Workman in support examined himself as WW1 and denied of having set up any petty shop in the land of the management and reiterated the stand of **WP(C) NO. 27537 OF 2010** **4** setting up by his niece after permission from the authorities. In a civil suit filed by the niece, Munsiff court vide order dated 9.6.2003, injuncted the management from demolition of the petty shop or any damage, Ext.W3 which was later on modified and ultimately suit aforementioned vide judgment and decree dated 16.7.2007 was allowed, W11. Though the aforementioned decree was ex parte, management submitted an application for setting aside which has been allowed and the suit was still pending at the time when the claim was preferred but the injunction order was also in vogue. 4. Learned court on examination of all the documents found that the management did not prove the charges against the petitioner rather Assistant Manager had slipped and fell down on the barbed wire and sustained minor injuries. In order to harass the workman came out with a story of causing injuries. WW2 and WW3, in their evidence, stated that the workman did not strike him with knife nor did he pour any kerosene. As a result, the workman was directed to be put into service with back wages with all benefits. 5. Learned counsel appearing for the management submitted that the workman is due to retire in 2027. Industrial Tribunal ought to have been more cautious while passing the **WP(C) NO. 27537 OF 2010** **5** order as the testimony of the witnesses has not been examined in correct prospective. 6. Labour court failed to notice that the workman had not challenged the testimony of oral and documentary evidence submitted before the enquiry officer. The act of the workman was a serious misconduct and rightly so was dismissed from the service as the outcome of the enquiry. The labour court should be circumspect in ordering the reinstatement as it would result into bonanza. 7. On the other hand learned counsel appearing on behalf of the workman opposed the aforementioned prayer by submitting that the workman was never gainfully employed and inorder to sustain, was running the canteen and the last drawn wages at the time of retrenchment was Rs.2100/-. 8. I have heard the learned counsel for the parties and appraised the paperbook. 9. Labour court after examining the evidence threadbare noticed that the management had concocted a story of attributing an injury of the Assistant Manager which was actually incorrect for the reason that in fact he had slipped and fell down on the barbed wire and sustained minor injuries. The aforementioned evidence came through the testimony of WW2, Shri. Ashirvadam **WP(C) NO. 27537 OF 2010** **6** despite extensive cross examination nothing contrary surfaced to disprove the such statement. Even WW3, Thankaraj also made similar deposition of WW2. Rather from the testimony of MW1, it surfaced that attempt was made by the management to demolish the petty shop on 11.6.2003 necessitating the affected parties to seek injunction order. Management did not examine any independent witness in support of the allegation in the charge sheet regarding causing injury with knife or pouring of kerosene. All the three workman's witnesses WW1, WW2, WW3 have been consistent in their testimonies. Now the question which arises is since there is feud between the management and the workman, whether in such circumstances, it would be improbable for the workman to implore upon the management who is due to retire on 2027. Labour court in such circumstances after having considered all the evidence, instead of ordering reinstatement ought to have assessed the compensation. Aforementioned view of mine is derived from the judgment in B.S.N.L v. Bhurumal (2014) 7 SCC 177. Paragraphs 24 and 25 reads thus: 24. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under **- Section 25 F** of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was **WP(C) NO. 27537 OF 2010** **7** working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: **State of Karnataka vs. Uma Devi** (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 25. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. Accordingly, I modify the award of the labour court and assess the compensation to the tune of Rs.3,50,000/- as a full and final settlement to be paid to the workman within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed in the aforementioned terms. **SD/-** sab **AMIT RAWAL JUDGE** **8** ## **WP(C) NO. 27537 OF 2010** ## **APPENDIX OF WP(C) 27537/2010** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF FINDINGS OF ENQUIRY OFFICER| |---|---| ||IN THE CHARGES LEVELED AGAINST 2ND| ||RESPONDENT DATED 5.11.2003.| |EXHIBIT P2|TRUE COPY OF CLAIM STATEMENT DATED| ||20.5.2005 FILED BY THE 1ST RESPONDENT IN| ||I.D.NO.9/2005 BEFORE THE 3RD RESPONDENT.| |EXHIBIT P3|TRUE COPY COUNTER STATEMENT DATED| ||6.1.2006 FILED BY THE PETITIONER IN| ||I.D.NO.9/2005 BEFORE THE 3RD RESPONDENT.| |EXHIBIT P4|TRUE COPY OF AWARD DATED 21.1.2010 PASSED| ||BY THE 3RD RESPONDENT IN I.D.NO.9/2005| ||BEFORE THE 3RD RESPONDENT.|