The Manager, M/S Alleppey Company Limited v. Labour Court, Kollam and B. Girish

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938** **OP(LC).No. 237 of 2010 (O) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN ID 37/2007 of LABOUR COURT, KOLLAM DATED 22.07.2010** **PETITIONER(S)/PETITIONER: ------------------------** **THE MANAGER, M/S.ALLEPPEY COMPANY LIMITED,, POST BOX NO.2602, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.V.S.AFSAL KHAN** **RESPONDENT(S):** **--------------** **1. THE LABOUR COURT, KOLLAM.** **2. B.GIRISH, LAKSHMI NIVAS,** **SANATHANAM WARD, MULLACKAL,, ALAPPUZHA.** **R,R2 BY ADV. SRI.A.JAYASANKAR R, BY ADV. SRI.MANU GOVIND R BY GOVERNMENT PLEADER** **THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(LC).No. 237 of 2010 (O) ---------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF MEMO DTD. 18.8.05 ISSUED TO THE 2ND RESPONDENT. EXT.P2 COPY OF THE REPLY DTD. 22.8.05 FILED BY THE 2ND RESPONDENT. EXT.P3 COPY OF CHARGE MEMO DTD. 6.9.05 ISSUED TO THE 2ND RESPONDENTS EXT.P4 COPY OF THE ENQUIRY REPORT CONDUCTED BY ADVOCATE P.P.BAIJU EXT.P5 COPY OF THE CLAIM STATEMENT DTD. 29.11.07 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P6 COPY OF THE COUNTER STATEMENT DTD. 24.1.08 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7 COPY OF THE PRELIMINARY AWARD DTD. 22.7.10 PASSED BY THE 1ST RESPONDENT IN I.D NO. 37/07 EXT.P8 COPY OF THE ENQUIRY REPORT CONDUCTED BY THE ENQUIRY OFFICER AGAINST R. MURALI EXT.P9 COPY OF THE AWARD DTD. 31.7.08 PASSED BY THE 1ST RESPONDENT IN I.D NO.27/07** ## **EXT.P10 COPY OF SPECIAL AUDIT REPORT DTD. 5.9.05** **RESPONDENTS EXHIBITS: NIL // TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== O.P.(L.C) No.237 of 2010 - B** ## **====================== Dated this the 26[th] day of September, 2016** ## **J U D G M E N T** The petitioner Management challenge the preliminary order passed by the Labour Court. On apprehension of a preliminary objection being raised as to the challenge against the preliminary award, the learned Counsel, at the outset, places before me a decision of a Division Bench of this Court in **St. Thomas Mission Hospital** v. **State of Kerala [2007(2) KLT 415]** . The Division Bench in the aforesaid decision categorically held that; though it is an accepted position that a preliminary award passed on the sustainability of a domestic enquiry can also be challenged at the stage of the challenge against the final award, there could be cases, where a challenge at the preliminary stage could also be entertained by this Court under Article 226 **2** O.P.(L.C) No.237 of 2010 - B of the Constitution of India. 2. The four grounds in the said case were; (1) the non-issuance of a charge sheet (2) the denial of representation by a lawyer (3) bias of the Enquiry Officer and (4) certain petitions having not been accepted by the Enquiry Officer. This Court examined the issue with reference to the enquiry files and found that there was a detailed show cause notice, in which the charges were clearly laid out. The denial of representation by a lawyer was found to be against the workman, as held by the Hon'ble Supreme Court. The bias of the Enquiry Officer was on the ground that the Enquiry Officer was a lawyer representing the Management, which again on the strength of precedents was negated. As to the factual ground on certain objections having been rejected, the Division Bench read through the enquiry report and found that there were valid reasons given by the Enquiry Officer and hence there could be no fault found on the said ground. Having held all the grounds, which the Labour **3** O.P.(L.C) No.237 of 2010 - B Court found to have vitiated the enquiry, to be bad and perverse the Division Bench interfered with the preliminary finding and directed the Labour Court to consider the sustainability of the findings in enquiry report and the justification for the punishment imposed; holding the enquiry to be one properly held. 3. In the present case, three issues were raised as preliminary issues (1) the maintainability of the reference on the ground that the employee was a supervisor (2) the sustainability of the domestic enquiry on the ground that the workman had found bias in the conduct of the enquiry and had refused to participate in the same and (3) whether the findings are supported by valid evidence. 4. On the ground of the employee being not a workman, the Management led no evidence and the issue was answered against them. The bias against the Enquiry Officer alleged by the workman was found against him and in favour of **4** ## O.P.(L.C) No.237 of 2010 - B the Management. On the question of the findings, the Labour Court held that the same is perverse and does not emanate from the evidence led. 5. This Court sitting in the extra ordinary jurisdiction under Article 226 cannot re-appreciate evidence led at the enquiry and substitute the findings of the Labour Court. In any event, it is to be noticed that the Management has an opportunity to lay fresh evidence before the Labour Court as has been granted in the preliminary order itself. The allegations of misconduct against the workman, was the passing of bills to the transporting contractors far in excess of that actually entitled to them. It was alleged that based on certain photo copies of bills submitted by the transporting contractor, the workman had sanctioned amounts without verifying the originals. An audit report was also placed reliance on to advance the case of the Management. 6. The Court having looked into the evidence found that though the photocopies of the bills submitted by the **5** O.P.(L.C) No.237 of 2010 - B transporting contractor before the workman was produced, there was nothing to show that the workman himself had sanctioned the said amounts since the workman's signature was absent in the photo copies. Further it was also held that the L.C.L vendor declaration bills, in original were not produced by the Management. When the allegation is specifically as to the verification having not been made with the original vendor bills, it was incumbent upon the Management to produce the originals to show that the photo copies differed from the originals and the sanction made was far in excess of the original bills. 7. It was also found that the auditor also had not examined the original bills while dealing with the issue. The loss caused to the Management coming to Rs.19,69,389/- was not established by the vendor bills produced before the Court. The photo copies of the vendor bills amounted only to Rs.12,000/-. This Court does not find any reason to interfere with the findings of the Labour Court, especially since the Management has **6** O.P.(L.C) No.237 of 2010 - B admittedly not produced the originals in verification of which the amounts had to be sanctioned by the workman as specifically alleged by the Management. In such circumstance, this Court is unable to cause any interference of Ext.P6, but however, this shall not in any manner affect the right of the Management to substantiate the charges before the Labour Court by leading satisfactory evidence. The original petition would stand dismissed. The Labour Court shall expedite the matter. No costs. **Sd/K. VINOD CHANDRAN, JUDGE** SB/26/09/2016 // true copy // P.A to Judge