Saidalavi M.P. v. The Manager, Chullika Estate

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH`** ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` WP(C) NO. 24307 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 04.12.2009 IN ID NO.29 OF 2004 OF LABOUR COURT, KANNUR PETITIONER: ``` ``` SAIDALAVI M.P. ``` ``` AGED 60 YEARS, MULLAPPALLY,, CHULLIKKA ESTATE, MEPPADI P.O.,, WAYANADU (S), PIN-673 577. BY ADV SRI.MATHEW KURIAKOSE ``` ## **`RESPONDENT:`** ``` THE MANAGER, CHULLIKA ESTATE MEPPADI, P.O.WAYANAD DISTRICT,, PIN-673 577. BY ADVS. P.BENNY THOMAS P.GOPINATH (SR.) A.K.JAYASANKAR NAMBIAR K.JOHN MATHAI E.K.NANDAKUMAR (SR.) ``` ``` SRI.JAI MOHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P(C) No.24307 OF 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 27[th] day of May, 2024** The petitioner was working in the respondent estate for a long period before he was issued show cause notice on 28.07.2001, alleging that the petitioner despite the direction given by the higher authority, failed to report for duty at a particular place and absented from duty without any valid reason. The petitioner submitted a reply to the notice. However, the explanation offered by the petitioner was not found satisfactory and therefore, the charge sheet dated 22.01.2002 was issued containing the following charges. “The delinquent who is employed as a permanent employee of the estate has been deputed as estate main gate watcher from 25.01.2001 onwards, but contrary and in violation of the instructions, the delinquent failed to report for duty and absented from duty without any reason and without leave application and thereby committed ``` W.P(C) No.24307 OF 2010 ``` ``` 3 ``` misconduct as per 22(a) and (c) of the standing orders applicable to workmen.” 22(a) Disobeying the lawful instruction and direction of a Supervisor. 22(c) Habitual absence from duty. 2. The enquiry was conducted against the petitioner workman, and Mr.P.Anupaman, B.A, L.L.B, Advocate, was appointed as the enquiry officer. 3. The petitioner denied charges and filed a reply to the charge sheet. Enquiry commenced on 18.04.2002 and Management witness MW1 was examined on that day. Thereafter, the enquiry was adjourned to 22.04.2002 on which date MW1 was cross-examined and the enquiry was adjourned to 03.05.2002 for further evidence. On 03.05.2002 the delinquent requested for adjournment and the enquiry was adjourned to 06.05.2002. On 06.05.2002, Management witness MW2 was examined and the enquiry was adjourned to 13.05.2002 for delinquent’s evidence. On 13.05.2002 the delinquent requested to hold the enquiry at the estate office. Therefore, the enquriry was ``` W.P(C) No.24307 OF 2010 ``` ``` 4 ``` adjourned to 20.05.2002 at estate office. On 20.05.2002, workman witness WW1 & WW2 were examined and the enquiry was posted to 31.05.2002 for worker’s statement. The worker filed a statement on 31.05.2002 and hence the enquiry was closed for findings. 4. Before the enquiry was closed, the petitioner workman filed an application to allow him to be represented by A.J Antony, Advocate. The said request was rejected by the Management. The enquiry officer denied the request of the petitioner to be represented by a lawyer on the ground that the Management was not represented by a presenting officer, qualified in law and the charges were not complicated. The petitioner workman was allowed to bring his union representative, but in the enquiry, he stated that he was not willing to be represented by a union representative. The enquiry officer held that the petitioner workman himself was an office bearer of the Trade Union. The delinquent fully participated in the enquiry and he had already ``` 5 ``` ``` W.P(C) No.24307 OF 2010 ``` cross-examined the Management witnesses and examined witnesses on his side, and therefore, at this belated stage, there was no requirement to allow the petitioner workman to be represented by a lawyer. The enquiry officer submitted Ext.P1 enquiry report on 29.06.2002 and found the charges levelled against the petitioner workman proved beyond reasonable doubt. 5. After considering the enquiry report and the reply of the workman, the Management inflicted the punishment of dismissal from service on the petitioner. The petitioner raised an industrial dispute and the Government referred the dispute for adjudication as per Government Order dated 19.06.2003 to the Labour Court, Kannur. The dispute referred for adjudication would read as under “whether the denial of employment to Sri.Saidalavi, General worker of Chullikka Estate (P.F No.607) from 25.07.2001 and subsequent dismissal from service from 16.08.2002 is justifiable? If not, what relief he is entitled to?” 6. Before the Labour Court, petitioner workman ``` W.P(C) No.24307 OF 2010 ``` ``` 6 ``` ## raised primarily two issues: 1. The issue of violation of the principles of natural justice and the petitioner workman was denied the assistance of a legal practitioner, though the enquiry officer was an Advocate. 2. The punishment of dismissal inflicted on the petitioner by the Management was grossly unjustified. 7. The 1[st] issue was framed as the preliminary issue. The Labour Court vide Ext.P2 order dated 09.10.2009 decided the preliminary issue and rejected the contention of the petitioner that there was violation of the principles of natural justice in denying the petitioner’s request to be represented by an Advocate. The Labour Court was of the opinion that the charge was not a complicated one and the petitioner was a layman and he was holding the office and the union also. He had fully examined and cross-examined the witnesses. Therefore, the Labour Court rejected the preliminary issues framed. 8. So far as the question of disproportionate ``` 7 ``` ``` W.P(C) No.24307 OF 2010 ``` punishment of dismissal is concerned, the Trial Court rejected the said ground also vide judgment dated 04.12.2009 in Ext.P2. 9. The learned counsel for the petitioner submits that when the enquiry officer or presenting officer are legally qualified person well versed in law, the workman request for representation by a legal practitioner ought not to have been denied. In the present case, the enquiry officer was an advocate and therefore, there was violation of principles of natural justice in conducting domestic enquiry against the petitioner workman as he was not adequately represented before the enquiry officer as the enquiry officer had rejected the petitioner‘s request for to be represented by a legal practitioner. Learned counsel for the petitioner in support of his contention has placed reliance on the judgment of the Supreme Court in the case of **Professor Ramesh Chandra v. University of Delhi and others** [2015(5) SCC 549]. He has also placed reliance on a Division Bench judgment of this Court in ``` 8 ``` ``` W.P(C) No.24307 OF 2010 ``` the case of **Vaikom Taluk Co-operative Agricultural and Rural Development Bank Ltd v.Anilkumar and others** [ 2020(4) KHC 81]. 10. On the other hand, learned counsel for the respondent estate has submitted that the principles of natural justice are not the rules in a straitjacket formula. He submits that the charges are not complicated, which are of simple nature as in this case, and if the enquiry officer or the presenting officer are legally qualified person, it is not required to allow the workman to be represented by a legal practitioner. In the present case, the petitioner has fully crossexamined the management witnesses and he has read the evidence and examined his witnesses as well. He filed statement after the enquiry was closed and thereafter, considering the evidence on record, the enquiry officer has come to the conclusion that the charge against the petitioner was proved beyond reasonable doubt. The submission of the learned counsel for the respondent estate is that, there was no ``` W.P(C) No.24307 OF 2010 ``` ``` 9 ``` violation of the principles of natural justice has committed on behalf of the petitioner. 11. In respect to the said second submission that the punishment inflicted was disproportionate to the charge, the learned counsel for the respondent submitted that the charge of disobedience and willful absence from duty is a serious charge and attracts maximum penalty of punishment. The Management having considered the facts and and circumstances of the case has decided to inflict the maximum penalty or punishment and therefore, this Court in exercise of its jurisdiction under Article 227 may not interfere with the quantum of punishment inflicted on the petitioner. In support of his contention, learned counsel for the respondent has placed reliance on the judgment of the Supreme Court in case of **Rajasthan Marudhara Garamin Bank and another v. Ramesh Chandra Meena and another** [2022(3) SCC 44] as well as **Chairman, State Bank of India and another v. M.J James** [2022(2) SCC 301]. ``` W.P(C) No.24307 OF 2010 ``` ``` 10 ``` 12. I have considered the submissions and the record of the writ petition. The charge against the petitioner was disobedience of the orders of the superior authority and willful absence from duty. It can be seen that the charge was not a complicated charge, where detail cross-examination was required. The petitioner has not denied that, he was not absent from duty, where he was posted ie., at the gate of the estate. It has not been the case of the petitioner that the petitioner did not join the duty because of the circumstances beyond his control. 13. The judgment in the case of **Ramesh Chandra** (supra), relied on by the learned counsel for the petitioner would suggest the charge against the Professor of Delhi University were serious and therefore, it was held that when the enquiry officer or the presenting officer were legally qualified persons, the petitioner’s request to be represented by a man trained in law should not have been denied. The contention raised by the petitioner in the said case had ``` W.P(C) No.24307 OF 2010 ``` ``` 11 ``` ## been noted in paragraph 6 of the judgment, which would read as under: “6. Another ground taken by the learned counsel for the appellant was that there were illegalities in the conduct of the inquiry. According to him the appellant requested the assistance of a legal practitioner as the presenting officer as well as the Inquiry Officer was legally qualified person regularly engaged in disciplinary proceedings but the said request was declined. It was further submitted that the appellant was not given opportunity for examination of witness and there was no legal evidence before the Inquiry Officer to bring home the charges. We have gone through the inquiry report(s) submitted by the Inquiry Officer and other records. The aforesaid submission advanced appellant will be discussed at an appropriate stage.” ## 14. The conclusion arrive at by the Supreme Court is in paragraph 30, which would read as under: “30. In view of the law laid down by this Court, we are of the view that if any person who is or was a legal practitioner, including a retired Hon'ble Judge is appointed as Inquiry Officer in an inquiry initiated against an employee, the denial of assistance of legal practitioner to the charged employee would be ``` W.P(C) No.24307 OF 2010 ``` ``` 12 ``` unfair.” 15. However, in the case of **Chairman, State Bank of India** (supra), the judgment relied on by the learned counsel for the respondent, the enquiry officer was an advocate and the request of the delinquent employee to be represented by a legal practitioner was rejected by the enquiry officer. The Supreme Court considered that whether there was breach of the principles of natural justice, which caused prejudice to the delinquent employee in denying his request to be represented by a legal practitioner. 16. The Supreme Court held that the principles of natural justice envisages two aspects; (1) No person shall be a Judge in his own cause and, (2) None shall be condemned unheard. The Supreme Court in the said decision has held that if the charges are not complicated, the request of the delinquent to be represented by a legal practitioner can be denied and it could not be said that there was violation of the principles of natural justice. It would be apt to extract paragraph 26 of the said judgment, which would read ``` W.P(C) No.24307 OF 2010 ``` ``` 13 ``` ## as under: “26. Thus, the right to be represented by a counsel or agent of one's choice dis not an absolute right but one which can be controlled, restricted, or regulated by law, rules, or regulations. However, if the charge is of severe and complex nature, then the request to be represented through a counsel or agent should be considered. The above proposition flows from the entitlement of fair hearing, which is applicable in judicial as well as quashi-judicial decisions.” 17. Similar view has been taken in **Rajasthan Marudhara Garamin Bank** (supra). 18. Considering the latest judgment of the Supreme Court in **Chairman, State Bank of India** (supra) and **Rajasthan Marudhara Garamin Bank** (supra), I am of the opinion that the charges leveled against the petitioner in charge sheet were not complicated and no prejudice has been caused to the petitioner by denying his request to be represented by a legal practitioner and therefore, I am of the view that the view taken by the Labour Court is neither arbitrary nor against law, which requires inference by this Court in exercise of its ``` W.P(C) No.24307 OF 2010 ``` ``` 14 ``` power under Article 227 of the Constitution of India. The contention of the learned counsel for the petitioner is that the punishment of dismissal inflicted on the petitioner was highly disproportionate, it may be said that the punishment of dismissal is provided if a workman disobeyed the order of the superior authority and absent himself from duty unauthorisedly. When charges are proved beyond reasonable ground, this Court is not empowered to interfere with the quantum of punishment as it does not shock the conscience of the Court. Therefore, I find no ground to interfere in the impugned order of the Labour Court. This writ petition is hereby dismissed. ## **Sd/-** ## **DINESH KUMAR SINGH** ## **JUDGE** AP ``` W.P(C) No.24307 OF 2010 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 24307/2010`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF THE ENQUIRY REPORT DATED 29.06.2002. ``` ``` Exhibit P2 ``` ``` Exhibit P2TRUE COPY OF THE AWARD DATED 04.12.2009 IN I.D No.29/2004 OF THE LABOUR COURT, KANNUR Exhibit P2(A)TRUE COPY OF THE ORDER ON PRELIMINARY POINT DATED 09.10.2009 IN I.D NO.29/2004 OF THE LABOUR COURT, KANNUR. ``` ``` RESPONDENT EXHIBITS Exhibit R1(a) ``` ``` TRUE COPY OF THE REQUEST DATED 07.07.2017 SUBMITTED BY THE RESPONDENT HEREIN ``` ``` Exhibit R1(b) ``` ``` TRUE COPY OF THE GRATUITY SETTLEMENT STATEMENT DATED 07.07.2017 SENT BY THE PETITIONER MANAGEMENT TO THE RJAGIRI RUBBER AND PRODUCE CO.LTD. ESTATE WORKERS GRATUITY TRUST. ``` ``` Exhibit R1(c)TRUE COPY OF THE RECEIPT OF CONFIRMATION DATED 20.09.2017 ACKNOWLEDGED BY THE RESPONDENT HEREIN. ```