Remani Amma and others v. Western India Cashew Company Pvt Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944`** ## **`WP(C) NO. 1945 OF 2022`** ## **`PETITIONERS:`** ``` 1REMANI AMMA KOYIKKAL THEKKATHIL, ADHINADU NORTH P.O, K S PURAM, KARUNAGAPALLY. 2GEETHA G, MANETHU PADEETTATHIL, ADHINADU SOUTH, KATTIL KADAV P.O. KARUNAGAPALLY. 3GEETHA R, KARALIL VADAKKATHIL, ADHINADU NORTH P.O. K.S PURAM, KARUNAGAPALLY. ``` ``` BY ADVS. V.PREMCHAND SURYA MOHAN P. ``` ## **`RESPONDENTS:`** ``` 1THE PROPRIETOR WESTERN INDIA CASHEW COMPANY PVT LTD, CORPORATE OFFICE P.B. NO 75, BEACH ROAD, KOCHI-691 001. 2THE MANAGER, WESTERN INDIA CASHEW COMPANY PVT LTD, PUTHENTHERUVU FACTORY, K S PURAM P.O., KARUNAGAPALLY – 691 001 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 1945 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** This is the second round of litigation arising out of a dispute pertaining to the employment of the petitioners in grading and packing section of the respondent - management. 2. Petitioners, three in number were the workers who had worked with respondent No.2 from 1988 to 1996 under the occupation of Kerala State Cashew Development Corporation. On account of denial of employment by the manager of factory to the petitioners, union had taken up industrial dispute before the District Labour Officer, Kollam. On the basis of that, a show cause notice dated 02.11.2012 was issued to the petitioners on some allegations and thereafter, were suspended from the service. An advocate was appointed as Enquiry Officer to conduct a domestic enquiry. They were found guilty of the charges and dismissed from the service with retrospective effect. The allegation against the workers were that they obstructed other workers who were willing to work and had caused huge loss to the management. The case set out by the union in I.D.No.23/2014 was that 26.10.2012 was a ``` WP(C) NO. 1945 OF 2022 ``` ``` 3 ``` public holiday owing to the Bakried the factory was closed and on the next day the workers when reached the factory were denied the employment, whereas, the management contended that the workers boycotted the work on 27.10.2012 as they were denied work on 26.10.2012. They illegally assembled outside the factory on 27.10.2012, disobeyed the orders of the supervisors and the manager and when the willing workers came out of the factory for tea, they were abused and manhandled by the delinquent workers. The other workers were prevented from re-entering the factory resulted into disruption of work and loss. 3. Before the Labour Court, Enquiry Officer entered the witness box and gave evidence as MW1 proved the report and proceedings were exhibited as M1 and M2. Labour Court after analysing the facts and circumstances and considering the enquiry report concluded that in the original show cause notice issued to the workers, management had not established any case of suffering of loss of Rs.10 lakhs. The author of Ext.M3 a test certificate prepared by one Sri.Sanoosh Chandran, Quality Assurance Officer, was not examined, thus, the aforementioned ``` WP(C) NO. 1945 OF 2022 ``` ``` 4 ``` document remained unproved. The Labour Court vide preliminary award dated 30.01.2018 set aside the enquiry proceedings which was assailed by the management in W.P.(C).No.12490/2018. Learned Single Bench of this Court vide judgment dated 05.05.2020 on consideration of the matter set aside the preliminary award and directed the Labour Court to reconsider the issue on the basis of the available evidence and pass fresh orders in accordance with law, after hearing both sides. 4. The aforementioned judgment was assailed by the union in W.A.No.857/2020. The Division Bench of this Court vide judgment dated 22.06.2021 upheld the order of the Single Bench and dismissed the appeal. It is in that background the Labour Court vide preliminary award dated 08.09.2021 found that the domestic enquiry was legal and proper and the court can only decide whether dismissal was proportionate and proved the misconduct, vide separate award dated 27.10.2021 found the punishment imposed to be correct. 5. Learned counsel appearing on behalf of the petitioner workmen in support of the grounds taken in the writ petition raised ``` WP(C) NO. 1945 OF 2022 ``` ``` 5 ``` the following submissions: i. The finding of the Labour Court that it had no wide and unlimited powers under Section 11A of the Industrial Dispute Act, 1947 is absolutely erroneous and against the law. It is settled law that the Labour Court can always examine the matter particularly when there is an order of remand. In other words, Labour Court has a wide power to go into the illegality or irregularity in the enquiry with interdiction in the proviso that court cannot rely upon material which do not form part and parcel of the record. ii. The question of misconduct was not properly proved either in the enquiry report or by the Labour Court. The powers under Section 11A of the Act has not been exercised by the Labour Court. iii. Labour Court thoroughly failed to appreciate the contention of the petitioners as the punishment of dismissal was wholly disproportionate to the allegation as petitioners had unblemished service and had no ``` WP(C) NO. 1945 OF 2022 ``` ``` 6 ``` antecedents of any misconduct. In support of the contention relied upon the judgment of the Division Bench of this Court in _**Kochi Port Trust and Another**_ v. _**R.Krishna Moorthy**_ [2017 (3) KHC 446] where in similar circumstances a maximum punishment was imposed but the Single Bench found that once the person who was assaulted was not produced, extreme punishment could not have been accorded. iv. Ext.M3 has not been proved, the genesis of the award of the Labour Court in upholding the enquiry as well as the punishment had been on Ext.M3 certificate dated 08.11.2012 prepared by Sri.Sanoosh Chandran, Quality Assurance Officer, but the author of the aforementioned test report has not been examined. In other words, the veracity of the document has not been proved in accordance with law and therefore, it cannot be looked into for arriving at the finding of the loss. 6. This Court on 24.03.2022 noticed that the respondent management had been served but there was no appearance and ``` WP(C) NO. 1945 OF 2022 ``` ``` 7 ``` posted the matter for 20.06.2022. Arguments have been heard. 7. The facts as noticed above with regard to the allegations of misconduct stopping the employees in re-entering the factory premises on 27.10.2012, suspension, dismissal from the service are not in dispute. It would be apt to produce relevant portion of the finding rendered by the Single Bench of this Court: 15. In the case on hand, it is undisputed that a proper charge was framed and an enquiry was held by the employer after granting all opportunities to the delinquents to defend themselves. If that be the case, the Court could have interfered with the findings or conclusions reached by the Enquiry Officer at the domestic enquiry only if the conclusion arrived at is perverse and is not supported by any evidence. Having gone through the enquiry report, I am of the view that no case is made out to conclude that the domestic enquiry suffers from any procedural lapse or that it was conducted in violation of the principles of natural justice thereby causing any manner of prejudice to the workers. Insofar as the objectionable acts committed outside the factory premises are concerned, the Management had relied on the oral evidence of MW 1 to 6, out of which MW1 to 4 were supervisors/Managers and MW 5 and 6 were workers of the factory and this was accepted by the Enquiry Officer to arrive at the finding. The Labour Court has, however, set aside the report on the sole ground that Exhibit M6 photographs were not sufficient to fix their identity. Such an ``` WP(C) NO. 1945 OF 2022 ``` ``` 8 ``` approach does not appear to be proper. Furthermore, the question as to whether huge loss was sustained by the Management consequent to the acts of the workmen was only an incidental issue and for the mere fact that the person who prepared Exhibit P3 was not examined was no reason to unsettle the entire enquiry. The finding on the preliminary issue that the enquiry is vitiated for violation of the principles of natural justice cannot therefore be sustained. I am of the view that the order is liable to be interfered with for the above reasons.” 8. The aforementioned findings have been upheld by the Division Bench. The pith and substance of the judgment of this Court reveals that as far as the huge loss allegedly sustained by the management consequent to the acts of workmen was only incidental issue and it was not a reason to unsettle the enquiry report. Testimony of MW1 clearly proved the misconduct committed by the delinquent employees – petitioners inside the plant whereas M4 was not an eyewitness, he saw the incident through M6 document. It was not the case of the delinquent employees that any of the witnesses examined from the management side had any personal vengeance, rather during the course of evidence they admitted that as the union leaders, they ``` WP(C) NO. 1945 OF 2022 ``` ``` 9 ``` were in the forefront of the boycott called by the union. But the testimony of having not hurled abuses or threats have not been disbelieved stated through MW1, MW5 and MW6. Delinquent employees appeared as WW2, WW3, WW4 but failed to establish their innocence and rather WW2 and WW3 deposed that delinquent employees are close friends. In the absence of any evidence to the contrary, the Labour Court in the preliminary award rightly upheld the enquiry and in the final award found the punishment of dismissal to be proportionate with charges as it was a case of serious misconduct. The retention of the employees may result into re-occurrence of incidents and uncongenial atmosphere which may ultimately cause loss to the management. But from the evidence brought on record particularly M3 in the preliminary award of the Labour Court while upholding the enquiry and punishment loss to the management had not been the ground for rejecting the reference. This is precisely what has been noticed by the Single Bench while setting aside the earlier preliminary award. 9. There is no dispute to the ratio decidendi culled out in the judgment referred to above, the said judgment was cited on ``` WP(C) NO. 1945 OF 2022 ``` ``` 10 ``` account of the fact that Ext.M3 in the absence of the examination of the author of the test report could not have been looked into. For the sake of repetition, neither in the preliminary award or in the final award Labour Court formed the opinion that there was loss to the management. Therefore, the ratio would not be applicable in the present case. I do not find any justification warranting interference under Article 226 of the Constitution of India to defer with the findings of the Labour Court rendered in the preliminary award and in the final award Exts.P4 and P5 dated 8.09.2021 and 27.10.2021. This writ petition sans merit and accordingly dismissed. **Sd/AMIT RAWAL JUDGE** nak ``` WP(C) NO. 1945 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 1945/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE ENQUIRY REPORT DATED 15.2.2013 SUBMITTED BY THE ENQUIRY OFFICER ``` ``` Exhibit P2 ``` ``` TRUE COPY OF THE JUDGMENT DATED 5.5.2020 WPC NO 12490/2018 OF THIS HON'BLE COURT ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE JUDGMENT DATED 5.5.2021 IN WA NO 857/2020 OF THIS HON'BLE COURT ``` ``` Exhibit P4 ``` ``` TRUE COPY OF THE ORDER DATED 8.9.2021 BY THE LABOUR COURT, KOLLAM IN IA 143/2021 ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE AWARD DATED 27.10.2021 BY THE LABOUR COURT, KOLLAM IN IA 23/2014 ```