Shibu S. v. Leena Alex and Kollam Jilla Motor Engineering Employees Union (AITUC)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF MAY 2018 / 31ST VAISAKHA, 1940** **WP(C).No. 7052 of 2011** ## **PETITIONER :** **SHIBU S., KIZHAKKEMANGALATHU VEEDU, KOMALAM, VADAMAN P.O., ANCHAL, KOLLAM DISTRICT-691306.** ## **BY ADV.DR.PAULY MATHEW MURICKEN** ## **RESPONDENTS:** **1. LEENA ALEX, PRINCIPAL, ST.GEORGE CENTRAL SCHOOL, ANCHAL P.O., KOLLAM DISTRICT.** **2. THE SECRETARY, KOLLAM JILLA MOTOR ENGINEERING EMPLOYEES UNION (AITUC), AITUC OFFICE, THONIKKADU P.O., PUNALUR-691 333.** **R1 BY ADVS.SRI.TPM.IBRAHIM KHAN (SR.) SMT.ASHA ELIZABETH MATHEW R2 BY ADV. SRI.SAJU J.VALLYARA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 7052 of 2011** ## **APPENDIX** ## **PETITIONER(S)' EXHIBIT** **P1 A TRUE PHOTOCOPY OF THE AWARD DATED 5.12.2009 PASSED BY THE HONOURABLE INDUSTRIAL TRIBUNAL, KOLLAM IN INDUSTRIAL DISPUTE NO.8/2006** ## **RESPONDENT(S)' EXHIBIT** ## **NIL** **TRUE COPY P.S. TO JUDGE** **EL** **6.6.2018** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## W.P.(C) No.7052 of 2011 ----------------------------------------Dated this the 21[st] day of May, 2018 ## _**JUDGMENT**_ The petitioner is mainly aggrieved by the impugned Exhibit-P1 award dated 5.12.2009 rendered by the Industrial Tribunal, Kollam, in Industrial Dispute No.8 of 2006 whereby it was held that the order issued by his employer dismissing him from service as a bus cleaner is justifiable and that no interference of the Tribunal is necessitated on the said industrial dispute, etc. 2. It is the case of the petitioner that he had entered service of the first respondent management (School) as bus cleaner on 10.6.1992 for a salary of Rs.2,100/- per month. That later he was denied his employment on 24.8.2005 due to the claim of increase in wages and other allowances. The petitioner through his Union (second respondent) had taken up the matter with the Deputy Labour Officer, Punalur, seeking his reinstatement to the service of the management. The management put up the the plea that it is running a school having more than 1500 students and that 60 employees are working as teaching and non-teaching staff. The petitioner was a cleaner of the bus of the school and that he had committed serious misconduct against the founder-Manager of the school, one Sri.Yohannan, who was : **:2::** W.P.(C) No.7052/11 aged more than 72 years old. Based on the serious misconduct committed by the petitioner, the management had suspended him from service as per order dated 24.8.2005 and charge memo was issued to him and a domestic enquiry was conducted through an Advocate. Though the petitioner had appeared for the first three days of the domestic enquiry proceedings, thereafter, he had chosen not to participate in the enquiry proceedings. The founder Manager of the school had tendered evidence as DW1. The enquiry officer found that the evidence adduced by the management would show that the petitioner is guilty of the alleged charges. Thereafter, the school management had issued orders dismissing the petitioner from service on 6.1.2006. The second respondent herein, who is the Union, to which the petitioner belong had raised an industrial dispute and the State Government had issued G.O.(Rt) No.1763/2006/LBR dated 29.7.2006 referring the industrial dispute for adjudication by the Industrial Tribunal, Kollam. The said Industrial Tribunal, Kollam, had registered the industrial dispute as I.D.No.8 of 2006. The Union had espoused the petitioner in the said industrial dispute and the petitioner had not chosen to get himself impleaded in the said proceedings. 3. Before the Industrial Tribunal, the Union did not chose to appear and adduce evidence and therefore, the Industrial Tribunal was constrained to set the said Trade Union ex-parte. The domestic enquiry : **:3::** W.P.(C) No.7052/11 officer had adduced evidence before the Industrial Tribunal as MW1. After perusal of the evidence adduced by the management, the Industrial Tribunal came to the considered conclusion that there is clear evidence to establish and prove the misconduct committed by the workman as against the founder Manager of the school. It has come out in evidence before the domestic enquiry officer that the petitioner had abused and misbehaved with the founder Manager of the school, who was more than 72 years old. The Industrial Tribunal was satisfied that the said evidence would clearly prove the misconduct of the workman and that no interference is called for the order of dismissal which imposed on the workman. Exhibit-P1 is the award dated 5.12.2009 rendered by the Industrial Tribunal, Kollam, in that regard. It is this award at Exhibit-P1 which is under challenge in this Writ Petition. The prayers in this Writ Petition filed on 4.3.2011 are as follows : _“(i) Call for the records leading to the case and issue a writ of certiorari or any other appropriate writ, direction or order quashing/setting aside Ext.P1; (ii) issue a declaration declaring that the petitioner is entitled to be reinstated in service as school bus cleaner of St.George Central School, Anchal, with continuity of service and back wages and other allowances or in the alternative set aside Ext.P1 and remand the matter for fresh consideration of the Hon'ble Industrial Tribunal, Kollam, and to allow the petitioner to adduce evidence and to contest the matter on merits ; (iii) issue such other writ, direction or order as this Hon'ble Court may deem fit and proper on the facts and circumstances of the case and allow this Writ Petition with all costs.”_ 4. Heard Dr.Pauly Mathew Muricken, learned counsel appearing for the petitioner-workman and Smt.Asha Elizabeth Mathew, W.P.(C) No.7052/11 : **:4::** learned counsel appearing for R1 (management) and Sri.Saju J. Vallyara, learned counsel appearing for R2 (Trade Union). 5. It is pointed out by Dr.Pauly Mathew Muricken, learned counsel appearing for the petitioner-workman, that the cause of the petitioner was espoused by the Trade Union (Second respondent) and for no valid reason, the Trade Union concerned (R2) had not turned up before the Tribunal to give evidence and accordingly, the Tribunal had set the Union as ex-parte. In these circumstances, it is prayed by the learned counsel appearing for the petitioner-workman that the impugned Exhibit-P1 ex-parte award may be set aside and the matter may be remitted to the Industrial Tribunal with a direction to grant a reasonable opportunity to the petitioner to establish his case. Dr.Pauly Mathew Muricken, learned counsel appearing for the petitioner- workman, would place reliance on the judgments of the Apex Court in the decisions as in _**Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others**_ [ _1980 (Supp) Supreme Court Cases 420]_ and _**Anil Sood v. Presiding Officer, Labour Court II**_ [ _(2001) 10 Supreme Court Cases 534],_ to conduct for the position that this Court under Article 226 of the Constitution of India has adequate powers to set aside an ex-parte award and remit the matter to the Industrial Tribunal/Labour Court concerned for fresh adjudication on merits after hearing the affected parties. It is pointed out by the petitioner's counsel that in this case the : **:5::** W.P.(C) No.7052/11 workman had no opportunity whatsoever to defend his case inasmuch as he had fully trusted and believed that his Trade Union would espouse his powers properly and effectively and under this bonafide belief the petitioner was advised that there is no necessity to get himself impleaded in the said industrial dispute proceedings as the Trade Union would effectively espouse his grievances. Later, the petitioner came to know that the Trade Union was set ex-parte and as it had not turned up to give evidence and the petitioner had came to know about the impugned Exhibit-P1 ex-parte award on 12.1.2011 when he had received a copy of the award and thereafter, the petitioner had immediately taken steps to file the instant Writ Petition. For these reasons, it is stated by the petitioner's counsel that this Court, without entering into the merits of the controversy, may remit the matter to the Industrial Tribunal concerned for fresh adjudication after affording opportunity of being heard to the petitioner- workman. The said plea is opposed by the learned counsel appearing for the management. 6. After hearing both sides, this Court is of the view that the petitioner- workman has not made out any grounds on the merits of the matter to show that the findings made by the Industrial Tribunal that the charges of misconduct alleged against the workman proved is in any manner tainted by perversity or illegality. The allegation raised against the petitioner was that he had misbehaved and had grossly abused the : **:6::** W.P.(C) No.7052/11 founder-Manager of the school, who was 72 years old. The petitioner was suspended from service as per order dated 24.8.2005 and a domestic enquiry was ordered to be conducted and an Advocate was appointed as enquiry officer. A reasonable opportunity was provided to both sides by the domestic enquiry officer. The enquiry officer had conducted the enquiry for 4 days. Though the petitioner- workman had appeared in the first three days, he had later left the place neglecting to participate in the enquiry without even signing the enquiry proceedings. These factual aspects adverted to by the Tribunal are in no manner controverted by the petitioner-workman. Thereafter, the enquiry proceedings are duly completed, after the management had adduced evidence to MW1. MW1 had clearly given evidence about the gross misbehaviour of the petitioner that the petitioner had used abusive words and had misbehaved to the founder Manager. It is on these aspects that the Tribunal has come to the considered conclusion that the charges of misconduct as against the workman are sufficiently proved. The said findings does not require any interference at the hands of this Court. The said findings arrived at by the Industrial Tribunal does not require any interference at the hands of this Court. 7. However, Dr.Pauly Mathew Muricken, learned counsel appearing for the petitioner-workman, would submit that the petitioner who had entered service as bus cleaner of the school on 10.6.1992 had : **:7::** W.P.(C) No.7052/11 about 14 years of service before his dismissal as per the order dated 6.1.2006 and that it is urged by the petitioner's counsel that the Tribunal should at least have considered the grant of some compensation/ monetary benefits. 8. On these basis, it is urged by the petitioner's counsel that even if this Court is not inclined to disturb the said findings regarding the proof of charges against the workman, this Court may remit the matter to the Industrial Tribunal for considering the limited question as to whether or not the petitioner could be awarded some compensation/ monetary benefits in lieu of reinstatement taking into consideration his past 14 years of service with the school management. 9. The scope and ambit of the powers of the Labour Court/Industrial Court to set aside an ex-parte award, if sufficient cause is shown, has been enunciated by the Apex Court in the decisions as in _**Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others**_ reported in _[1980 (Supp) SCC 420]_ and _**Anil Sood v. Presiding Officer, Labour Court II**_ reported in _[(2001) 10 SCC 534]_ . In _**Grindlays Bank's**_ case (supra) reported in _1980 (Supp) SCC 420_ , the Apex Court examined some provisions contained in the Industrial Disputes Act and held that Industrial Disputes Act confers ample power upon the Tribunal and other authorities to devise its own procedure in the interest of justice of the case and this includes all powers which : **:8::** W.P.(C) No.7052/11 bring about an adjudication of an existing industrial dispute and while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of the civil court conferred upon it are clearly set out. In _**Anil Sood's**_ case (supra), reported in _(2001) 10 SCC 534_ , the Apex Court held that the aspect that the party against whom an award is to be made has to be given due opportunity to defend is a matter of procedure and not that of power in the sense in which the language is adopted in Sec.11 of the Industrial Disputes Act and when matters are referred to the Tribunal or court they have to be decided objectively and the Tribunals/Courts have to exercise their discretion in a judicial manner without arbitrariness by following the general principles of law and rules of natural justice. The power to proceed ex-parte is available under Rule 22 of the Central Rules which also includes the power to inquire whether or not there was sufficient cause for the absence of a party at the hearing, and if there is sufficient cause shown which prevented a party from appearing, then if the party is visited with an award without a notice, that is a nullity and therefore the Tribunal will have no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex-parte award, etc. 10. In _**Sangham Tape Company v. Hans Raj**_ , reported in _(2005) 9 SCC 331,_ it was held by the Apex Court that while an Industrial Court will have jurisdiction to set aside an ex-parte award but having : **:9::** W.P.(C) No.7052/11 regard to the provision contained in Sec.17A of the Industrial Disputes Act, 1947, an application therefore must be filed before the expiry of 30 days from the publication thereof and till then, Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto that date, it has the power to entertain an application in connection with such dispute. Once an award becomes enforceable in terms of Sec.17A of the Act, the Labour Court or the Tribunal, as the case may be, does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words it was held that upon expiry of the 30 days from the date of publication of the award in the Gazette, the same having become enforceable, the Labour Court would become functus officio. It was also held by the Apex Court in _**Sangham Tape Company v. Hans Raj**_ , reported in _(2005) 9 SCC 331_ that in the earlier decision of the Apex Court in Grindlays Bank's case (supra) reported in _(1980) Supp. SCC 420_ , that on facts the application to set aside the impugned ex-parte award was filed within the requisite 30 days. So it can be seen that in _Sangham Tape Company'_ s case (supra), the Apex Court has held that the application for recall of an ex-parte order could be entertained by an Industrial Court/Tribunal/ Labour Court only if such an application is filed before the expiry of 30 days from the date of pronouncement/publication of the award. A contrary view was taken by the Apex Court in the case in _**Radhakrishna**_ : **:10::** W.P.(C) No.7052/11 _**Mani Tripathi v. I.H.Patel & another**_ reported in _(2009) 2 SCC 81_ . In view of the apparent conflict in the view taken in that regard in the aforecited two reported decisions, later the Apex Court in the case in _**Haryana Suraj Malting Ltd. v. Phool Chand**_ , reported in _(2012) 8 SCC 579_ , had ordered that the said case be referred for consideration of a Larger Bench in order to resolve the abovesaid conflict. 11. In the facts of this case, it is not in dispute that the petitioner-workman was not impleaded as a party in the industrial dispute concerned. It was also not in dispute that the worker became aware of the award for the first time only on 12.1.2011. On the facts of this case, the petitioner has not made any application before the Tribunal for setting aside the impugned award, as he was not a party thereto. On the other hand, the petitioner-workman has filed the Writ Petition challenging the legality and correctness of the award and advanced the contention that this Court may remit the matter to the Industrial Tribunal concerned for consideration of the limited aspect regarding the punishment. Therefore, the mere fact that the petitioner has not made an application to set aside the impugned award before the Industrial Tribunal within 30 days from the date of the award will not in any manner trammel the constitutional powers of judicial review under Article 226 of the Constitution of India, conferred on this Court. Without entering into the merits of the plea made by the petitioner, this Court : **:11::** W.P.(C) No.7052/11 is of the view that the said matter regarding justifiability and proportionality of the penalty and whether some monetary compensation could be granted to the petitioner, requires serious re-consideration by the Tribunal. This Court would unequivocally and categorically hold that the findings made by the Tribunal that the charges levelled against the workman does not require any interdiction and the matter is remitted to consider the punishment and whether some monetary benefits could be granted to the petitioner by the school management, so as to discharge/terminate him from service from the date of the dismissal order. It is only for the consideration of that limited aspect, the matter is remitted. Accordingly, the matter will stand remitted to the Tribunal for the limited aspect. The petitioner will be given liberty to file an application to get himself impleaded in the Industrial Dispute and the Tribunal may adjudicate the abovesaid limited plea made by the petitioner. The Tribunal will issue notices to the Management as well as Trade Union and thereafter, after hearing all the parties to decide some monetary benefits/compensation could be given to the petitioner considering his past service of 14 years under the school management, so as to discharge/terminate him from service from the date of the dismissal order. Orders in this regard should be passed within a period of 3-4 months from the date of production of a certified copy of this judgment. It is further made clear that the fact that the findings : **:12::** W.P.(C) No.7052/11 regarding the proved charges does not require any interdiction will not in any manner hinder the Tribunal from independently considering the question whether compensation/monetary benefits could be granted to the petitioner-workman, as aforestated. It is also made clear that the powers of the Industrial Tribunal/Labour Court conferred under Sec.11A of the Industrial Disputes Act is wide enough to consider the plea made by the petitioner. The Registry will forward a copy of this judgment to the Tribunal concerned at the cost of the petitioner. With these observations and directions, the Writ Petition (Civil) will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl/bkn