M.S. Jayakumar v. The Managing Director, PUMPA RUBBERS LTD.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** **WP(C).No. 29414 of 2014** **AGAINST THE ORDER/JUDGMENT IN ID 27/2010 of LABOUR COURT, KOLLAM DATED 26-04-2014** ## **PETITIONER/S:** **M.S.JAYAKUMAR AGED 53 YEARS RESIDING AT MANIMANDIRAM, VADAYAR, THALAYOLAPARAMBU P.O, KOTTAYAM** **BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI V.A** ## **RESPONDENT/S:** **THE MANAGING DIRECTOR, PUMPA RUBBERS LTD. BLOCK RUBBER FACTORY, ARUVAPPULAM P.O, KONNI 689691** **BY ADVS. SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC SRI.TOM THOMAS (KAKKUZHIYIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 29414 of 2014** **2** ## **JUDGMENT** **The petitioner, who was working as a permanent workman under the respondent, has filed this writ petition challenging Ext.P5 award, by which the punishment of dismissal awarded by the respondent is converted as discharge and seeking reinstatement.** **2. The case of the petitioner is that he joined in the Pumpa Rubbers Limited as a factory worker in the year 1993. He has passed Pre-Degree course and ITI in the trade of Fitter. He was made permanent since 29.12.1994. His case is that he was affected by chickun-guinea and he was forced to avail leave from 16.04.2007 to 16.10.2007. It is stated that he could not rejoin for duty after expiry of the period of leave as he had not recovered from his illness. He has also stated that he could not apply for extension of leave. On 26.07.2008, the respondent issued a show cause notice alleging unauthorised absence and intimating** **WP(C).No. 29414 of 2014** **3** **the proposal to initiate disciplinary action. It is stated that on receipt of the same, petitioner contacted one Sri.Maniyan, who was in charge of the factory on 11.08.2008, when he was advised to take rest. Despite this, a memo of charge was issued to him for unauthorised absence from 17.10.2007 onwards. In the domestic enquiry conducted thereafter, he was found guilty and on the basis of that a punishment of dismissal was awarded.** **3. The petitioner alleges that the enquiry was conducted in violation of principles of natural justice. The matter was taken up in ID No.27 of 2010. Petitioner filed Ext.P1 claim statement. The management-the respondent filed Ext.P2 written statement. The Enquiry Officer was examined before the Labour Court as MW1. Ext.P4 preliminary order was passed, in which it was found that the enquiry was conducted consistent with the principles of natural justice. It was found that the petitioner did not have any allegation as to bias as against** **WP(C).No. 29414 of 2014** **4** **the Enquiry Officer. It was also found that the Managing Director of the establishment was examined in the enquiry and that the Enquiry Officer had given a fair opportunity to cross examine the witness. It was also found that petitioner was also given sufficient opportunity to defend. After perusing the enquiry files and connected records and analysing the evidence adduced, the Labour Court, Kollam found that there was no violation of principles of natural justice. Further it was found that unauthorised absence is an enumerated misconduct. Management had granted leave to the petitioner only up to 16.10.2007; but petitioner remained absent even after 17.10.2007 without submitting any application for leave. Even the contention of the petitioner that he had approached one Sri.Maniyan on 11.08.2008 on receipt of the show cause notice, could not be substantiated by him by adducing any evidence. Therefore petitioner's case that he had approached** **WP(C).No. 29414 of 2014** **5** **the Management to rejoin duty on 11.08.2008 was disbelieved. Accordingly, the enquiry report was upheld in Ext.P4. In Ext.P5 award, the Labour Court found that Management had not considered the fact that petitioner had worked from 1994 onwards with an unblemished service record till 15.04.2007. Therefore the punishment of 'dismissal' was converted as 'discharge' with a direction to the Management to pay all the benefits due to him for the period from 29.12.1994 to 16.10.2007, as if he had attained superannuation on 16.10.2007.** **4. In this writ petition, the petitioner has again alleged that the enquiry was conducted in violation of principles of natural justice. Relying on the judgment in** _**Pepsu Road Transport Corporation v. Rawel Singh**_ **: (2008) 4 SCC 42, the learned counsel for the petitioner pointed out that the punishment awarded to petitioner for the absence on a few days is highly disproportionate. It is seen that in** _**Pepsu Road Transport Corporation's case**_ **WP(C).No. 29414 of 2014** **6** _**(Supra)**_ **, the departmental enquiry was conducted ex parte. In that case Labour Court found that the punishment of dismissal was excessive. That judgment was confirmed by the High Court as well as the Apex Court. It was found therein that the workman was absent for a few days without leave being sanctioned. Labour Court exercised its jurisdiction under Section 11-A of the Act, which the High Court found unnecessary to interfere. The absence was found to be of a few days and a leave application was submitted by the workman on 08.09.1988 onwards requesting for leave up to 30.09.1988. Thereafter show cause notice was issued to him on 05.12.1988. He was terminated from service on 13.07.1989.** **5. In the present case, the petitioner has participated in the enquiry. No evidence was adduced by him to show that he submitted any application for leave for the period from 17.10.2007. Even according to him, he reported** **WP(C).No. 29414 of 2014** **7** **before Sri.Maniyan, who was in charge of the factory, only on 11.08.2008. That itself could not be substantiated by him. He did not report for duty even after the memo of charge was issued on 07.11.2008. The Labour Court has found that the enquiry was conducted consistent with the principles of natural justice and that the petitioner did not choose to adduce any evidence atleast to show that he had reported on 11.08.2008. While modifying the punishment from 'dismissal' to 'discharge' from service, the Labour Court has directed to grant the petitioner all the service benefits.** **Therefore I do not find any reason to interfere with the decision of the Labour Court. The petitioner is free to receive any benefits from the respondent in tune with the directions issued by the Labour Court. The learned counsel for the petitioner submitted that the certificates of the petitioner are in the custody of the respondents.** **WP(C).No. 29414 of 2014** **8** **In case the petitioner approaches the respondent requesting for his certificates, the respondents shall take expeditious steps to return the same to petitioner. Even otherwise petitioner is free to collect the same from the respondent.** **Accordingly, this writ petition is disposed of. Sd/-** **P.V.ASHA JUDGE** **WW** **WP(C).No. 29414 of 2014** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CLAIM STATEMENT DATED 18-10-2010 FILED BY THE PETITIONER BEFORE THE LABOUR COURT EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 18-12-2010 FILED BY THE RESPONDENT BEFORE THE LABOUR COURT EXHIBIT P3 TRUE COPY OF THE DEPOSITION OF THE ENQUIRY OFFICER EXHIBIT P4 TRUE COPY OF THE PRELIMINARY ORDER DATED 15-2-2014 OF THE LABOUR COURT, KOLLAM EXHIBIT P5 TRUE COPY OF THE AWARD DATED 26-04-2014 OF THE LABOUR COURT, KOLLAM**