Shri C.S. Joseph v. C. Vasudevan and Labour Court, Ernakulam (WP(C) No. 32712 of 2008 (T) & WP(C) No. 35965 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936** ## **WP(C).No. 32712 of 2008 (T)** **----------------------------** **ID.NO. 2/2006 OF LABOUR COURT, ERNAKULAM** **----------------** **PETITIONER :** **-----------------------** **SHRI. C.S.JOSEPH, C.S.BROTHERS, 34/232, BYE PASS, EDAPPALLY, KOCHI-24.** **BY ADVS.SRI.PAULSON C.VARGHESE SRI.E.A.BIJUMON** **RESPONDENT(S):** **----------------------------** **1. C.VASUDEVAN, KALATHIL VEEDU, VITHANASSERY, NENMARA.P.O, PALAKKAD-678 508.** ## **2. LABOUR COURT, ERNAKULAM, COCHIN-31.** **R1 BY ADVS. SRI.K.P.MADHU SRI.M.V.KISHORE KUMAR R2 BY GOVERNMENT PLEADER SRI.V.K.RAFEEQ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2014, ALONG WITH WPC.NO. 35965/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.32712/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE CLAIM STATEMENT DATED 7/8/2006 FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT** - **P2 COPY OF THE WRITTEN OBJECTION DATED 17/10/2006 FILED BY THE PETITIONER.** - **P3 COPY OF THE AWARD DATED 29/04/2008 IN ID.NO.2/2004, PASSED BY THE HON'BLE LABOUR COURT, ERNAKULAM.** - **P4 COPY OF THE LETTER DATED 30/07/2008 ISSUED BY THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.32712 of 2008 & 35965 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 31[st] day of October, 2014** ## **J U D G M E N T** The parties in the above writ petitions are the same; the petitioner, being the management and the 1[st] respondent being the workman. While the former writ petition challenges the award of the Labour Court, the latter assails rejection of an application made under Section 33(2)(b). The workman raised an industrial dispute with respect to the alleged denial of employment and the Government referred the issue, which was adjudicated as I.D No.2/2006 by the Labour Court, Ernakulam. The award passed dated 25.04.2008 is the subject of challenge in the former writ petition. 2. The workman alleged that he was working as a “Joint Clerk” in the management, which is a transport contract/commission agency. The employment is stated to have commenced from 27.11.1985 and the W.P(C)32712/2008& 35965/2009 : 2 : denial is alleged from 05.03.2005. The cause according to the workman is the demand for a regular payment of salary, which was in arrears. The management contended that the engagement of the workman was not a regular employment and the workman had been so engaged by other transport contract agencies also. In fact, the specific contention raised was that the workman was engaged for the benefit of drivers of the lorries, which were carrying goods into the city. The workman was acting as guide to facilitate the lorries to reach their correct destination. Remuneration was alleged to have been paid only for the specific work carried out. 3. The contention raised by the management, went contrary to Ext.W1 certificate, issued by the management; in which the workman was certified as employed in the capacity of “Joint Clerk”, in the management establishment, from 27.11.1985 to 28.02.2005. Ext.W1 was marked by the workman and W.P(C)32712/2008& 35965/2009 : 3 : there was no serious dispute raised, with respect to the genuineness of the same; in the cross-examination of the workman. The evidence of the workman, who was examined as WW1, also could not be shaken in crossexamination. 4. The plea of the management regarding the constitution of the firm was found to be a falsehood on the basis of the documents produced by the management itself. The management had specifically contended that the establishment was a partnership firm of seven partners, who were brothers. However, the partnership deed produced by the management, on the request of the workman, was found to be not a registered deed and also comprising only of two partners. The assertion of the management that the books of accounts would disprove the case of the petitioner was not substantiated by production of the same. 5. The workman also produced documents, W.P(C)32712/2008& 35965/2009 : 4 : pertaining to his personal affairs, being the life insurance policy, savings bank pass book and driving licence, which indicated the workman having shown his official address; as that of the management establishment. The documents were found to be of a period, long earlier to the industrial dispute. Ext.W6 and W7 indicated payments made to and on behalf of the management by other agencies, through the workman. While there was overwhelming evidence in favour of the workman's employment with the management, the management thoroughly failed to prove the specific stance it took before the Labour Court. The workman was found to be entitled to reinstatement and backwages. 6. The findings of the Labour Court as extracted hereinabove would indicate that there is no scope for interference by this Court in the instant proceedings. Evidence cannot be re-appreciated by this Court and it cannot at all be said that the findings are in W.P(C)32712/2008& 35965/2009 : 5 : any manner, perverse or unreasonable. The order of reinstatement and backwages is a direct consequence of the denial of employment being found established by the Labour Court. This Court would not venture to modify the same in any manner, nor is it competent for this court to do so in the teeth of the weighty evidence led by the workman; which was practically not challenged by the management. W.P(C) No.32712/2008 would stand dismissed. 7. Pursuant to the award in I.D No.2/2006 the workman was reinstated with back wages. However, the workman claimed that the back wages were not paid in full and proceedings were said to be pending under Section 33C(2) of the Industrial Disputes Act,1947 (hereinafter referred to as “I.D Act” only). The reinstatement, in any event is admitted. But there were disputes with respect to the conduct of the management, even after reinstatement. Meanwhile the management W.P(C)32712/2008& 35965/2009 : 6 : initiated a domestic enquiry by issuance of memo of charges, in fact two of them; Exts.P1 and P2. 8. By Ext.P1, the charges alleged were idling, without doing any work from 11.08.2008, refusing to carry out the duties assigned to the workman and causing obstruction to the smooth functioning of the establishment as also causing financial loss. Ext.P2 levelled charges of misleading the management, working in other establishments on unauthorised absence and causing disrepute to the management establishment by reason of the indiscipline of the workman. The charge sheets dated 14.11.2008 and 27.11.2008 were replied to by the workman. Not being satisfied, the management appointed an enquiry officer. The enquiry report produced at Ext.P3 found all the charges levelled in both the charge sheets to be proved. After affording an opportunity for objections against the enquiry report, the management had issued dismissal order punishing the W.P(C)32712/2008& 35965/2009 : 7 : workman for the said misconduct. 9. The workman has also been paid wages for one month under Clause (b) of sub-section (2) of section 33 of the I.D Act and an application produced at Ext.P4 was filed before the District Labour Officer, Ernakulam. This was necessitated since, the workman had filed a complaint before the DLO, Ernakulam, on 03.02.2009 alleging harassment of the workman by not paying him wages as entitled to him and for having kept him outside the office without assigning any specific job. The DLO, however, rejected the application, filed by the management, by Ext.P5. 10. Ext.P5 relied on a report of the Assistant Labour Officer, Ernakulam who had conducted an enquiry into the complaint made by the workman. The report is alleged to have stated that; when the ALO inspected the premises of the management, it was found that the employee was sitting in a stool outside the office W.P(C)32712/2008& 35965/2009 : 8 : room and was not alloted with any work. It was found that no registers, as warranted under the Kerala Shops and Commercial Establishments Act, 1960 or Minimum Wages Act, 1948 were maintained. The allegation of nonpayment of wages regularly and fully was also noticed. 11. The DLO placed reliance on the said report of the ALO and found that the reinstatement ordered in I.D 2/2006 was not being complied with, in its true spirit. The workman was found to have been not paid the wages as envisaged. The non-compliance of various labour laws and the prosecutions filed before the jurisdictional Magistrate Court for violations detected under the Kerala Shops and Commercial Establishment Act and the Minimum Wages Act was also noticed. A claim filed under Section 15 of the Payment of Wages Act, by the workman was also referred to. It was found that the dismissal of the workman was a pre-meditated one and hence the approval under Section 33(2)(b) was declined. W.P(C)32712/2008& 35965/2009 : 9 : 12. In examining the order of the District Labour Officer, one has to necessarily look at the scope of the powers under Section 33 of the ID Act conferred on the authority or the Court, before whom a conciliation proceeding or dispute is pending. The jurisdiction of such authority, Court or Tribunal has been succinctly stated in **Lalla Ram v. D.C.M Chemical Works Ltd. And another [(1978) 3 SCC 1]** Paragraph 12 reads thus: “In proceedings under Section 33(2)(b), the jurisdiction of the Tribunal is confined to the enquiry as to (a) whether a proper domestic enquiry in accordance with the relevant rules,Standing Orders and principles of natural justice has been held; (b) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (c) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee W.P(C)32712/2008& 35965/2009 : 10 : regard being had to the settled position that though generally the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Industrial Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, yet an inference of mala fides may, in certain cases, be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (d) whether the employer has paid or offered to pay wages for one month to the employee; and (e) whether the employer has, simultaneously or within such reasonably short time as to form part of the same transaction, applied to the authority before which the industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant approval which would relate back to the date of dismissal. If the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it W.P(C)32712/2008& 35965/2009 : 11 : whether there was justification for dismissal. If it so finds it will grant approval of the order of dismissal which would relate back to the date of dismissal, provided the employer had paid or offered to pay wages for one month to the employee and the employer had, within the time indicated above, applied to the proper authority for approval.” 13. The very same principle was reiterated in **Cholan Roadways Ltd. v. G. Thirugnanasambandam** **[AIR 2005 SC 570]** . The Jurisdiction of the Industrial Tribunal under Section 33(2)(b) was found to be a limited jurisdiction, incapable of being equated with that of Section 10. Quoting the decision in **Martin Burn Ltd. v. R.N. Banergee AIR 1958 SC 79** , it was held that “the Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission W.P(C)32712/2008& 35965/2009 : 12 : or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceedings before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act.” 14. This Court is of the opinion that in considering the issue, the DLO had completely misdirected himself. The consideration had been confined to whether the award of the Labour Court in I.D 2/2006 was implemented in its true letter and spirit. The implementation of the award, definitely, could be agitated by the workman before the Labour Court itself under Section 33C(2) and non-payment of wages as per the Payment of Wages Act or the Minimum Wages Act could also be taken up before the appropriate authorities constituted under the said enactments. The DLO specifically noticed the many proceedings pending under the various enactments. For violation or non-compliance W.P(C)32712/2008& 35965/2009 : 13 : of labour laws, the management is also seen to have been prosecuted under the provisions of the Kerala Shops and Commercial Establishments Act. The proceedings noticed by the DLO, under the various enactments, had also not concluded. These antecedents or alleged omissions of the management and the treatment of the workman, were the subject of various proceedings and that cannot result in denial of approval to the dismissal order passed by the management. On those grounds, the DLO could not have rejected the approval. 15. What is intended by Section 33(2)(b) is a prima facie consideration of whether the enquiry held was proper and in compliance with the principles of natural justice. Such a consideration would necessarily be confined to the validity of the domestic enquiry, especially since, the order of dismissal would definitely be liable to challenge in terms of the I.D Act. The DLO has totally missed the said point. W.P(C)32712/2008& 35965/2009 : 14 : 16. The effect of a rejection under Section 33 (2)(b) has been found by the Hon'ble Supreme Court to be one resulting in rendering the order of dismissal void, entitling the workman to continue in employment. Both parties admit that the workman is no longer in the employment of the management establishment. The workman has not chosen to initiate any proceedings or even file a writ petition under Article 226 for continuance in the employment; the latter of which proceeding was found to be perfectly within the bounds of law; in **Tamil Nadu State Transport Corporation v. Neethivilangan [2001(9) SCC 99]** . 17. An order of rejection under Section 33(2) (b) could also be challenged under Article 226, since there is no other remedy provided. In the normal circumstances, having found the DLO to have misdirected itself, this Court would have set aside the order and remanded the same for fresh consideration. But in the W.P(C)32712/2008& 35965/2009 : 15 : context of the workman, having not raised any specific complaint under under Section 33A or even sought for continuance under Article 226; such remand would be unnecessary. The workman has also not raised any allegation against the domestic enquiry conducted or the validity of the same. The validity of the enquiry can be looked into by this Court itself. Charge sheets were issued to the delinquent employee and he was given an opportunity to reply to the same. Not being satisfied by the reply, an enquiry was ordered wherein an independent person was appointed as an enquiry officer. The workman had participated in the enquiry and examined himself and three other persons being WW1 to WW4. The management had examined 8 witnesses and marked 19 documents. There is no allegation that the workman was not allowed to looked into or supplied with the copies of the documents or not permitted to cross-examine the witnesses. The enquiry report was also W.P(C)32712/2008& 35965/2009 : 16 : forwarded to the workman for his objections, the workman was afforded an opportunity to show cause as to the punishment intended to be imposed. The validity of the enquiry, prima facie is unassailable. The rejection of approval hence, has to be set aside. Ext.P5 hence would stand set aside and there would be an approval of the dismissal under Section 33(2)(b), but, however, subject to any dispute raised on that count. The workman in the said proceedings would also be entitled to challenge the enquiry and the authority adjudicating the dispute would be entitled to look into it de hors the prima facie findings entered into by this Court herein. W.P(C)35965/2009 hence stands allowed setting aside Ext.P5. W.P(C) No.32712/2008 is dismissed. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge