## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945
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## **`WP(C) NO. 623 OF 2012`**
## **`AGAINST THE AWARD IN ID 20/2006 OF LABOUR COURT, KANNUR`**
## **`PETITIONER:`**
- `1 PLANTATION EMPLOYEES UNION OF SOUTH INDIA THEKKUMKAL BUILDING, COLLECTORATE P.O., KOTTAYAM-686002, REP.BY ITS PRESIDENT, JOSEPH MATHEW`
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2JOHN P.JOSEPH
CHELOTTE ESTATE,
CHUNDALE P.O.,WAYANAD DIST
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BY ADVS.
SRI.B.ASHOK SHENOY
SMT.LAKSHMI B.SHENOY
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## **`RESPONDENTS:`**
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1THE PRESIDING OFFICER,
LABOUR COURT, KANNUR-670003
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2THE MANAGER
CHELOTTE ESTATE, CHUNDALE P.O.,
PIN-673123, WAYANAD DIST
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BY ADVS.
SRI.P.BENNY THOMAS
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.06.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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_**W.P(C).623/2012**_
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## J U D G M E N T
Dated this the 5[th] day of June, 2023
Preliminary and final Award of Labour Court, dated 21.5.2010 and 26.3.2011, upholding dismissal of the workman/petitioner No.2, are under challenge in the present writ petition.
2. Petitioner No.2/workman was appointed with the management on 3.6.1990 and with his experience, has reached the status of Assistant Field Officer. On denial of denied senior grade, approached the Labour Court. When the said matter was pending consideration, in respect of an incident occurred on 5.8.2004, of recording full attendance of one worker (Philomina) though was actually not physically present, was served with the following charges :
- “1) Lady worker Smt. Vettikattu Philomina left the field by 10.30 a,m. on 5-8-2004 with permission.
- 2) The delinquent Sri.John P.Joseph the Asst. Field Officer
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marked full attendance to Vettikattu Philomina on 5-82004 with 18Kg green leaves.
- 3) Vettikattu Philomina was on leave on 6-8-2004.
- 4) The delinquent marked full attendance to Vettikattu Philomina on 6-8-04 and subsequently scored off the attendance marked in the check roll.
- 5) The act of the delinquent is unauthorised, fraudulent, irregular, causing loss of confidence, loss of discipline, loss of money, subversive of discipline.”
3. The aforementioned charges were duly replied. Dissatisfied with the same, an enquiry officer was appointed. Before the Enquiry Officer, Management examined five witnesses, MW1 to MW5 and brought on record documentary evidences M1 to M13. Enquiry Officer, as per Enquiry report, Exhibit P2 dated 10.1.2005, found that the charges aforementioned were proved against the workman. Disciplinary authority, on the basis of the enquiry report, after compliance of principles of natural justice by putting a show cause notice to the workman, dispensed with the service by passing an order of dismissal. The aforementioned dismissal was assailed in Industrial Dispute No.20 of 2006.
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4. The essential ground for assailing the order of dismissal was disproportionality vis-a viz the charge and also non affording of opportunity to cross examine witnesses MW1 to MW5. The Labour Court in the preliminary order dated 21.5.2010, noticing Exhibits X1 to X18, found that enough opportunity was given to petitioner No.2 to cross examine the witnesses, but that opportunity was not availed and thus, held that principles of natural justice was complied with and vide final Award upheld the dismissal.
5. Learned counsel appearing on behalf of the petitioner, in support of the grounds taken in the present writ petition has raised the following submissions:
1. There has not been compliance of the provisions of Section 33 (2)(b) of the Industrial Disputes Act as no specific permission in proper format was obtained, but only an application was filed before the Labour Court to seek permission for initiation of proceedings.
2. Punishment of dismissal is disproportionate to the charges.
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3. From 1990 till 2004 service record was impeccable.
4. Proper opportunity of hearing was not afforded to cross examine the witnesses as proceedings Exhibit X1 to X18 are farcical in order to overcome the aspect of non-compliance.
6. Learned counsel representing the Management supported the Award and submitted that by marking the presence of one of worker, there has been a loss of 18 Kg of leaves. The duty was so derelicted by petitioner No.2 that such an act would have in future, cause heavy losses. In fact, there was a mistrust. Application before the Labour Court was submitted and before ordering dismissal, steps required under the provisions of Section 33 (2)(b) of the Industrial Disputes Act was complied and duly noticed by the Labour Court.
7. I have heard learned counsel for the parties and
appraised the paper books.
8. I am of the view that the proceedings of the Enquiry Officer referred to in the preliminary order reveals that a number of opportunities were given to petitioner No.2 to cross examine
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the witnesses but no plausible explanation has come forth and therefore, the argument of the workman/petitioner No.2 does not merit acceptance on this point.
9. The list of charges extracted above, in _prima facie_ opinion of this Court, though coupled with the reference to the evidence, cannot be presumed to be proportionate. The charges cannot result in dismissal of the workman for the reason that he had been in employment since 1990 and there was no such complaint whatsoever, brought on record in the enquiry proceedings, noticing dereliction of duty or some other mistakes or the conduct.
10. As far as the order of dismissal is concerned, it can be passed only when there is a perpetual conduct, dereliction of duty or misconduct on behalf of the workman. No documentary evidence has been placed on record to remotely prove the loss of 18 Kg of leaf, which in my view could not have been valued more than Rs.2000/-.
11. Noticing all these facts disciplinary authority ought not to have passed the major punishment of dismissal, at the best,
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could have deferred the promotion of Selection Grade or much less withdrew the facility of increment. The reasoning assigned by the Labour Court also does not prove the stand of the Management, much less deal with the legal position. For the sake of brevity, the relevant portion of the finding of the Labour Court is extracted herein below :
“Certainly when a man is entrusted with the supervisory work of other staff, he is expected to show sincerity in his job and he shall not aid the staff by his conduct causing loss to the management. It is not the sum involved, but it is the matter that the management has lost confidence in the worker and when the management losses confidence in the worker, the management may not be able to run the establishment with the same worker. Having due regard to these factual situations, the punishment of dismissal from service is proper and there are no sufficient grounds available to interfere with the punishment imposed. So the conclusion is that the management is justified in the dismissal of the worker from their service.”
12. Such findings, in my view, are without reference to the charges or misconduct. Since all these events occurred long
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back, it would not be proper for this Court to order reinstatement, but certainly can compensate the worker taking into consideration the back-wages. Since petitioner No.2 remained out of service for a period of five years (from 2005 to 2020, till passing of the Award) and there is no evidence that he was gainfully employed during the period or pendency of the writ petition, I deem it appropriate that compensation in terms of money, in view of the judgment of Supreme Court in **B.S.N.L v. Bhurumal (2014) 7 SCC 177** , would be the most appropriate remedy.
13. Accordingly, findings of the Labour Court, are set aside. Minor punishment, at the best, holding of increment without cumulative effect could have been imposed. Though the compensation by calculating the back wages comes to more than Rupees Five Lakhs, I deem it appropriate to direct that the workmen/petitioner No.2 is entitled for a compensation of Rs.4,00,000/- (Rupees Four Lakhs only). The management is directed to pay the same within a period of two months from the date of receipt of a certified copy of this judgment. In case the
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compensation amount is not paid within the time granted, it will
entail into interest @6% per annum.
Writ petition is allowed on the aforementioned terms **.**
Sd/AMIT RAWAL JUDGE
sou.
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## **`APPENDIX OF WP(C) 623/2012`**
## `PETITIONER EXHIBITS`
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EXHIBIT P1: TRUE COPY OF THE CHARGE SHEET DATED
14.8.2004 ISSUED BY 2ND RESPONDENT TO 2ND
PETITIONER
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EXHIBIT P2: TRUE COPY OF THE FINDINGS OF THE DOMESTIC
ENQUIRY CONDUCTED BY P.K. DINESHKUMAR,
ADVOCATE, KALPETTA NORTH IN RESPECT OF
CHARGE OF MISCONDUCT ON THE 2ND
PETITIONER DATED 10.1.2005
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EXHIBIT P3: TRUE COPY OF THE PRELIMINARY ORDER DATED
21.5.2010 PASSED BY 1ST RESPONDENT IN ID
NO.20/2006
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EXHIBIT P4: TRUE COPY OF THE COMMON AWARD DATED
26.3.2011 PASSED BY 1ST RESPONDENT IN
ID.No.20/2006 AND 2/2011.
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