The Manager, Arrapetta Estate, Harrisons Malayalam Ltd. v. Susheela, V. Venugopal & The Labour Court, Kannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **W.A.No.40 OF 2020** **AGAINST THE JUDGMENT IN W.P(C).17884/2013(I) DATED 04.04.2018 OF HIGH COURT OF KERALA** ## **APPELLANT/ PETITIONER IN WP(C):** **THE MANAGER, ARRAPETTA ESTATE, HARRISONS MALAYALAM LTD., MEPPADI P.O., WAYANAD-673577, KERALA, REPRESENTED BY ITS SENIOR MANAGER (LEGAL) MR. SUMITH BABU.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.M.GOPIKRISHNAN NAMBIAR** ## **RESPONDENTS/ RESPONDENTS IN W.P(C):** **1 SMT.SUSEELA, PF NO.4461, ARAPETTA ESTATE, NEDUMPALA DIVISION, MEPPADI P.O., WAYANAD-673577. 2 V. VENUGOPAL, GENERAL SECRETARY, KOZHIKODE DISTRICT PLANTATION LABOUR CONGRESS, MEPPADI P.O., WAYANAD-673577.** **3 THE LABOUR COURT, KANNUR-670101, KERALA.** **R1-R2 BY ADV. SRI.P.K.RAMKUMAR R3 BY SR.GOVT.PLEADER SRI.T.RAJASEKHARAN NAIR.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2020, THE COURT ON 20-03-2020 DELIVERED THE FOLLOWING:** **- 2 -** **W.A.No.40 of 2020** **K. Vinod Chandran & P.V.Kunhikrishnan, JJ. -----------------------------------------W.A.No.40 of 2020 -----------------------------------------Dated, this the 20[th] day of March, 2020** ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The appeal is against the judgment of the learned Single Judge affirming the award of the Labour Court in a reference made by the Government. The industrial dispute referred for adjudication is “** _**whether the dismissal of Smt.Susheela, worker by the management of Arepetta Estate, Meppadi, Wayanad is justifiable? If not, what relief she is entitled to**_ **?”.** **2. The Labour Court found that the dismissal of the employee pursuant to disciplinary proceedings was not justifiable. The Labour Court directed reinstatement of the worker in service with entire back-wages. The learned Single Judge affirmed the said order.** **3. The appeal is filed on two counts. One, there was sufficient evidence to show that the property occupied by the worker was that of the management. There was a suit for recovery of the said property which has been decreed, which decree was produced before the Labour Court in evidence. The worker hence, was guilty of insubordination and disobedience** **- 3 -** **W.A.No.40 of 2020** **for reason of the property not being handed over despite a demand made by the Company. It was also argued by learned Senior Counsel Sri.E.K.Nandakumar appearing for the Company that even if reinstatement can be ordered, it cannot automatically lead to the entire back-wages being paid as has has held in** _**2018 SCC Online SC 1587**_ **[** _**Management of Regional Chief Engineer, P.H.E.D. v. Their Workmen**_ **]. In any event, there can be no back-wages granted to the worker after the award especially since she failed to aver and prove that she was not employed after her dismissal from service.** **4. Sri.P.K.Ramkumar, learned Counsel appearing for the worker would, however, point out that grave injustice has been caused by the dismissal of the worker. When there was a property dispute pending between the management and the worker, there was no warrant for initiating a disciplinary enquiry, that too on cooked up charges. The attempt was only to coerce the worker into vacating the property wherein she had been residing for long with her family, also carrying on cultivation. The worker is entitled to full back-wages till her age of superannuation which is on 31.12.2017 (58 years). The worker has not been paid any benefits by the Company till date, is the submission.** **- 4 -** **W.A.No.40 of 2020** **5. Pursuant to the charge sheet issued an enquiry was conducted against the worker. On the dispute being referred to the Labour Court, the management produced the enquiry report to justify the dismissal of the worker. The Labour Court by a preliminary order dated 08.07.2011, found that the enquiry conducted was in compliance with the principles of natural justice. The finding of the Enquiry Officer was found to be perverse and the report was hence, set aside. The management had raised a pleading in the written statement for an opportunity to adduce fresh evidence, which was granted. Neither the worker nor the management challenged the said order. We say this specifically because having found the enquiry to be carried out in compliance of the principles of natural justice and in the teeth of the finding that the conclusion of the Enquiry Officer was perverse, there was no scope for further evidence to be adduced. The worker, before the Labour Court at the final stage pleaded for consideration under Section 11A of the Industrial Disputes Act, 1947 [for brevity “ID Act”] alone. The management having not challenged the preliminary order nor having sought for liberty to challenge it along with the final order, cannot now rely on the enquiry report.** **- 5 -** **W.A.No.40 of 2020** **The worker also did not challenge the preliminary order. We have to base our conclusion as has been done by the learned Single Judge, on the evidence adduced, which however we are not to deal with, as an appellate Court. The learned Single Judge has elaborately considered the evidence and we need not repeat what has been stated by the learned Single Judge on the evidence.** **6. The charge-sheet was quoted in the award and the learned Single Judge and the charges are as hereunder:** **“1) Wilful insubordination or disobedience whether alone or in combination with another or others of any lawful and reasonable order of a superior?** - **2) Theft, fraud or dishonesty in connection with the employer's business or property?** - **3) Wilful damage to or loss through negligence of the employer's goods or property?”** **We do not have the benefit of seeing the charge-sheet and hence, have not seen the statement of allegations which led to the above charges. The management's contention before the Labour Court, the learned Single Judge and before us hence, has to be taken note of. It was the case of the management that the subject land was allotted to the mother of the worker for the limited purpose of effecting paddy** **- 6 -** **W.A.No.40 of 2020** **cultivation/farming and later it was allotted to the worker herself. The allegation is that the worker without permission from the management unauthorisedly constructed a temporary shed in the property and disobeyed the instructions of the management to remove such unauthorised temporary constructions. This is the crux of the allegation, on which the above charges are levelled. We immediately notice that the said statement of allegations would not lead to any charge of theft, fraud or dishonesty in connection with the employer's business or property nor is there any allegation of wilful damage or loss caused to the employer's goods or property by reason of negligence of the employee. Wilful insubordination and disobedience of lawful and reasonable order is the only charge which could survive on the ground of an unauthorised construction having been made and the same having not been removed despite instructions issued by the management.** **7. The worker deposed as WW-1 and produced Exhibits W-1 to W-10 documents. The Field Officer, the Assistant Field Officer and the Assistant Manager (Survey) deposed on behalf of the management as MW-2, MW-3 and MW-4. MW-1 was the Enquiry Officer. Exhibits M1 to M9 were the documents marked** **- 7 -** **W.A.No.40 of 2020** **on behalf of the management. The Labour Court and the learned Single Judge according to us, rightly refused to look into the enquiry report since the same had been set aside at the preliminary stage and the Management with the permission of the Court, adduced fresh evidence to establish the charge levelled of misconduct.** **8. The worker produced various documents to show that she, rather her husband, had been in possession of the property and there was a** _**pucca**_ **residential building constructed in the property in which she was residing along with her family. The worker also had a contention that the property belonged to the State, being 'vested forest' and the Company does not have any claim on that. We need not look into the title of the property since as of now there is a decree permitting the management to recover the plaint schedule property from the worker and her husband. We have to pertinently observe here that there is no allegation of unauthorised occupation of the property. Even according to the management, the worker was in permissive occupation of the property, which occupation was also not in connection with her employment with the management.** **- 8 -** **W.A.No.40 of 2020** **9. The specific contention of the management was that as per Exhibits M3 and M4 dated 21.09.1990 the mother of the worker and the worker had requested the management to assign the property to the worker for the purpose of carrying on cultivation. There is no case set up by the management that this is in connection with the employment of the worker. Hence the employment of the worker with the management cannot be mixed up with the permissive occupation of the subject property.** **10. The allegation, we reiterate, is that an** **unauthorised temporary shed was constructed and the same was not removed despite instructions. The worker produced Ration Cards for various periods starting from 1985 to 2001, Exhibits W2, W3 and W4, to prove residence in the building situated in the property. The extract of the assessment registers of the building were produced as Exhibits W5 and W6 between 1994-95 to 1998-99 and 1989-90 to 1993-94. The building tax receipts were produced as Exhibit W10 series. This clearly establishes that there was a** _**pucca**_ **building in the property which had been numbered and the worker's husband paying tax with respect to that building.** **- 9 -** **W.A.No.40 of 2020** **11. Exhibit W9 is the Commission Report in the suit; marked by the worker, who deposed as WW-1. The Commission Report indicates that when the property was inspected and measured, a residential building was seen therein having age of 10 to 12 years with roof paved with tiles and asbestos. The building number with the ward number in which the house is situated, was specifically noticed in the Commission Report. In such circumstances, it cannot be said that there was a temporary shed constructed without authorisation from the management. There is no evidence led, to the effect of such a construction having been made in the property nor did the Commissioner who inspected the property, on the orders of the Civil Court, notice any such temporary construction. On the other hand it is established that the building which existed in the property existed at least from the year 1989 onwards.** **12. In this context, it is also pertinent that there is nothing produced by the management to prove the terms of the permission granted to the worker when the subject property was put in her possession. There is no agreement seen produced nor is there a pleading that there was a specific prohibition in making any construction in the** **- 10 -** **W.A.No.40 of 2020** **property. Further, nothing is produced to show that there was a demand for recovery of the property or at least a demand for the removal of the alleged temporary shed constructed in the property.** **13. The suit for recovery was numbered as O.S.No.218 of 2000 before the Munsiff's Court, Kalpetta. The show cause notice is also said to have been issued in the same year. The management is unable to tell us the exact date on which the suit was filed and the enquiry initiated. Being contemporaneous actions, we have to accept the contention of the worker that the disciplinary proceeding was intended as a coercive attempt of eviction from the property which the worker had been occupying for long and residing in.** **14. Less said the better, about the evidence led by the management. The learned Single Judge has elaborately noticed the discrepancies in the evidence of MW-2 to MW-4, who deposed on behalf of the management. The witnesses were not clear as to the boundaries of the property, lie of the property or its extent. In fact, the proof affidavit of all the witnesses indicated that the property had an extent of 0.70 cents, which is hardly 300 square metres. There was an explanation offered that it was a mistake committed and** **- 11 -** **W.A.No.40 of 2020** **actually the extent is 70 cents. Even the said extent is not correct, since the judgment and decree in the suit indicates the property to be of 32.5 cents. The management produced the decree in the suit which, as of now, is said to be pending in appeal before this Court. As we noticed, we are not concerned with the title of the property and we are only concerned with the dispute as to whether the dismissal of the worker was justifiable.** **15. We reiterate, only to emphasise that the charge which could survive on the basis of the statement of allegations raised by the management before the Labour Court and the learned Single Judge as also before us, is wilful insubordination or disobedience. The worker has already been found to be in permissive occupation of the property, the terms of which have not been disclosed. Nor is there a contention of any such terms having been reduced to writing. The fact that the worker had been residing in a** _**pucca**_ **residential building constructed in the property which stood as such from 1989 at least, has been established in the evidence of the worker. There is no evidence led as to the temporary construction alleged in the property. None of the witnesses of the management speak of the same. There is also** **- 12 -** **W.A.No.40 of 2020** **nothing produced to show that there was a demand by the management for surrender of the property or for removal of the alleged temporary shed in the property. There could hence, be no question of an insubordination or disobedience on the set of allegations as attempted to be proved in evidence by the management.** **16. There is also no pleading to the effect that the worker was put in possession of the property, by virtue of her employment. That being so the dispute with respect to the property cannot have any bearing on the employment of the worker. Both are distinct and different and the status, the respondent has, as the employee of the management cannot be affected by her conduct as a permissive occupant of a property of the management. We perfectly agree with the judgment of the learned Single Judge which affirmed the order of the Labour Court.** **17. The next question is as to whether the worker is entitled to the full back-wages. As has been found in** _**Management of Regional Chief Engineer, P.H.E.D.**_ **, a workman should plead and prove with the aid of evidence that after his dismissal from service he was not gainfully employed anywhere and had no earning to maintain himself or/and his** **- 13 -** **W.A.No.40 of 2020** **family. In the present case, in the claim statement the worker had specifically in paragraph 3 stated that “** _**the income derived from the Company's work was the only livelihood of the worker subjected under dismissal**_ **” (sic). The management in its written statement in para 12 specifically dealt with para 3 of the claim statement. The quoted statement of the worker has not been denied by the management. We also see that in her chief examination as WW-1 the worker has specifically stated:** **"** എസ�റ�ല� ല��ഴ��ല�ല� എന�ക� യ�ല��ര വ�ധ ല��ഴ�സ�� വരമ�നമ�ർഗസമ� ഇല **“” .” In cross-examination, there is no suggestion made or question asked by the management as to the worker having any other alternative employment or income. Hence, it can be safely presumed that the worker had pleaded the fact that she had no other employment which was not controverted. The management had no case that the worker was gainfully employed after her dismissal and in the absence of such a pleading, there could also be no proof offered.** **18. We also notice the decision in** _**(2013) 10 SCC 324**_ **[** _**Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya**_ **], wherein the Hon'ble Supreme Court had held that when there is wrongful or illegal termination, a** **- 14 -** **W.A.No.40 of 2020** **reinstatement entitles the employee to claim full back-wages. The conduct of the employer and the sufferings of the employee are relevant factors in the consideration of such back-wages. The denial of back-wages, it was held, would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back-wages. It was held that when an employer wants to deny back-wages or contest the employee's entitlement, it has to be pleaded and proved that the employee was gainfully employed during the intervening period. There is no pleading and, of course, no proof offered of the worker having been employed after her dismissal.** **19. We have already found that none of the charges levelled against the worker survives on the basis of the statement of allegations made. The permissive occupation of the property was also held to be not in connection with the employment. The dispute with respect to the property and its occupation cannot lead to allegations of misconduct, which has to be related to the specific employment of the worker with the management. The management had raised a civil dispute against the worker with respect to the property and simultaneously initiated disciplinary proceedings on charges** **- 15 -** **W.A.No.40 of 2020** **which have been held to be unsustainable. The management also proceeded with the same and dismissed the employee, which dismissal has been found by us to be unjustified and in the facts and circumstances, has to be declared to be a wrongful and illegal termination. The entitlement of the workmen for entire back-wages cannot, hence, be denied to the worker.** **20. The next question as argued by the learned Senior Counsel is as to the entitlement of the worker for back-wages after the order of reinstatement. A writ petition was filed by the management and there was a stay obtained. The worker, hence, had a remedy under Section 17B of the ID Act, which was not availed. The learned Counsel for the worker submits that though there was no application made for reinstatement or wages in lieu of reinstatement, the employer has the liability to pay back-wages when no reinstatement has been ordered.** **21. We have to look at Section 17B of the ID Act, which speaks of payment of full wages to workman pending proceedings in higher Courts. When reinstatement is ordered by a Court or Tribunal and the employer challenges the said proceedings, Section 17B requires the employer to pay the workman, during the pendency of the proceedings before the** **- 16 -** **W.A.No.40 of 2020** **High Court or the Supreme Court, full wages last drawn, if the workman is not employed elsewhere during the period and an affidavit by such workman had been filed to that effect in such Court where the challenge is raised. In the present case, we have to notice that at the writ petition stage or in the Writ Appeal there is no affidavit filed by the worker prior to her date of superannuation declaring under oath that she is not in any alternative employment. In such circumstances, the management was also not liable to plead or prove otherwise. Accordingly, we, while dismissing the Writ Appeal, direct the management to pay the entire back-wages from the date of dismissal till the date of award of the Labour Court and the worker shall not be entitled to any back-wages from the date of award till the date of her superannuation. However, the worker shall be entitled to the retirement benefits as computed on the date of her superannuation on the basis of notional fixation of last pay drawn in the interregnum between the date of award and the date of superannuation.** **22. We had directed deposit of Rs.10,00,000/[Rupees ten lakhs] before the Labour Court. The worker shall hence, approach the Labour Court with a claim petition** **- 17 -** **W.A.No.40 of 2020** **immediately and even otherwise the management would be entitled to file a statement before the Labour Court showing the exact amounts due as back-wages from the date of dismissal to the date of award, as also the retirement benefits, on the basis of the notional fixation of last pay drawn. The said amounts shall be paid to the worker and the balance, if any, refunded to the management, by the Labour Court.** **23. The observations in the judgment in this Writ Appeal are confined to the matter in dispute here, which is purely a labour dispute and does not at all govern the civil dispute with respect to the subject property.** **The Writ Appeal stands partly allowed with the above directions. The parties to suffer their respective costs.** **Sd/K. Vinod Chandran Judge** **Sd/P.V.Kunhikrishnan Judge** **Vku/-** **[ true copy ]**