The Manager, Wallardie Estate, Vandiperi yar (Wallardie Estate) v The Secretary, Kerala State Estate Labour Union, INTUC; Industrial Tribunal, Idukki; Samudravelu (Additional R3)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** ## **WP(C).No. 16118 of 2005 (R)** **------------------------------------------** **PETITIONER(S) : --------------------------** **THE MANAGER, WALLARDIE ESTATE, VANDIPERIYAR -685 533.** **BY ADVS. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SMT.PRIYA MAHESH** ## **RESPONDENT(S) :** - **-----------------------------** **1. THE SECRETARY, KERALA STATE ESTATE LABOUR UNION, INTUC, PEERMEDU-685 531.** **2. INDUSTRIAL TRIBUNAL, IDUKKI.** ## *** ADDITIONAL R3 IMPLEADED** **3. SAMUDRAVELU, CR.NO.2470, WALLARDIE ESTATE, VANDIPERIYAR.** - **ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 28.09.2005 IN I.A.NO.13747 OF 2005.** **R1 & R2 BY GOVERNMENT PLEADER SRI.SOJAN JAMES ADDL.R3 BY ADVS. SRI.P.RAMAKRISHNAN** ## **SMT.A.K.PREETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 16118 of 2005 (R)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT DATED 10.02.2000.** - **EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL JULY, 2000.** - **EXHIBIT P3: TRUE COPY OF THE FINDINGS OF THE ENQUIRY OFFICER DATED 04.12.1996.** - **EXHIBIT P4: TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT IN I.D.NO.108/99 DATED 12.11.2003.** - **EXHIBIT P5: WAGE SLIP OF THE PETITIONER FOR THE PERIOD ENDING ON 07.08.1994.** - **EXHIBIT P6: COPY OF CIRCULAR DATED 15.06.1994 ISSUED BY THE ASSOCIATION OF PLANTERS OF KERALA.** - **EXHIBIT P7: EXTRACT OF THE FILED CHECK ROLL FOR THE PERIOD 8TH JULY 1994 TO 7TH AUGUST 1994.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.V.ASHA, J.** ## **W.P.(C) No.16118 of 2005** ## **Dated this the 14[th] day of July, 2016** ## **JUDGMENT** The Manager of Wallardie Estate has filed this writ petition challenging Ext.P4 award of the Industrial Tribunal, Idukki in I.D. No. 108 of 1999, by which the termination of the services of the first respondent was found illegal and declared that he was entitled to be reinstated in service with all benefits. 2. I heard the learned counsel on either side. The contention of the learned counsel for the petitioner is that the Tribunal did not look into the evidence adduced in the domestic enquiry and it simply compared that evidence with the evidence before the Magistrate Court. According to the management the version of the delinquent itself was sufficient for the Tribunal to find the workman guilty of the charge of theft. On the other hand Smt.Preetha, the learned counsel for the respondents, stoutly opposed these contentions, asserting that the Tribunal did have jurisdiction only to decide the issue on the basis of evidence before it and the findings are to be rendered based on such evidence only. 3. The award which is under challenge arises out of a reference with respect to the validity of the domestic enquiry conducted by the W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** petitioner against the first respondent and with respect to the justifiability of the order of his dismissal. The workman had contended that the enquiry officer did not give him sufficient opportunity for defense, despite request, the said question was considered and as per preliminary order passed on 5.6.2003, it was found that after closing the evidence of the management, when the enquiry was posted for evidence of workman, the workman had submitted application for adjournment on the ground of illness of the union representative, who was his defense assistant. But the request for adjournment was rejected declaring the workman exparte and inquiry report was submitted thereafter finding the workman guilty of the misconduct. In those circumstances, after perusal of the enquiry file, on being satisfied of the illegal denial of opportunity to the workman to defend, the Tribunal found that the refusal to grant adjournment and setting the workman ex-parte on 30.11.1996, was not proper, especially when the enquiry was never prolonged at the instance of the workman. Since the Tribunal found that the inquiry held till 2.11.1995 i.e till the closing of evidence by the management was proper, without setting aside the inquiry, it allowed the workman to adduce evidence before the Tribunal. Simultaneously, the management was also allowed to adduce additional evidence if any. W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** 4. The workman was charge sheeted alleging that he committed theft of chemical articles worth Rs.19,397/- (Rupees Nineteen thousand three hundred and ninety seven only) from No.II Division Muster Store on 30.7.1994. The Police had registered a crime and the stolen articles were recovered and produced before the Court, which was numbered as C.C.No.419 of 1994 on the file of the First Class Magistrate Court, Peerumedu. In the domestic enquiry conducted, the first respondent was found guilty and the management dismissed him from service with effect from 13.3.1997. At the same time the delinquent workman who was the 1[st] accused and Sri.I.C. Paul, superior officer of the workman who was 2[nd] accused were acquitted by the criminal court by its judgment dated 13.5.1997. 5. Before the Enquiry Officer, the management had examined three witnesses. Before the Tribunal 2 witnesses were examined on the side of the delinquent workman. W1 and W2 were marked. The first respondent got examined himself as DW-1. Another workman was examined as DW-2. The management cross examined them. The inquiry file Ext M1 was marked on the side of management. The judgment in C.C. No.419 of 1994 was marked as W1. In the domestic inquiry, the version of MW1, who was the Manager stated that the theft occurred on 30.7.1994 and stolen articles were recovered by W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** Vandiperiyar Police on 3.09.1994 from the estate line room. MW2, Sri.I.C.Paul, Field Officer, was the 2[nd] accused before the criminal court. The Tribunal observed that MW2 had not said anything regarding the recovery of the stolen articles in his chief examination, though he stated that theft of articles occurred from the muster store and that it was only in the re-examination that he stated that the stolen articles were recovered by Police from the line room of workman. According to the third witness Sri.Jiji John, Field Officer, the recovery was from the bathroom of the workman. The recovery by the Police was after one month of the theft. From Ext.W1-the judgment in C.C.No.419 of 1994, the Tribunal found that MW3 was examined as PW2 before the Criminal Court and had turned hostile. He was a witness to the recovery mahazar Ext.P1, there. On a perusal of Ext.W1 judgment, Tribunal observed that none of the witnesses had deposed anything regarding the recovery of the stolen articles, when they were examined in the criminal case. It was noticed that none of the witnesses had stated in the domestic enquiry that recovery was made in their presence; their version was that the recovery was from the bathroom or line room. In those circumstances the Tribunal held that the alleged recovery of articles from the bathroom was quite improbable, since the bathroom was one shared by six families. W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** 6. It is seen from Ext.P3 inquiry report that the finding therein also was that the stolen articles were recovered from the bathroom. The recovery was stated to be on 3.9.1994, whereas the theft occurred on 30.7.1994. Tribunal found it unbelievable, as it had come out in evidence that the bath room was shared by 6 families and it was quite improbable that the workman was keeping the articles in such a bathroom for one month. The Tribunal further observed that the witnesses to the recovery mahazar Ext.P1 had turned hostile. At the same time Tribunal noticed the version of the workman that he carried the articles from the store in the jeep of a dealer Sri. John to his store, on direction of MW2-Sri.I.C.Paul and Police recovered the articles from his shop. At any rate the Tribunal found that there was no evidence to prove the charge against the workman and accordingly found that the order of his dismissal was illegal and therefore he was entitled to re-instatement with back wages. 7. On examination of the inquiry report as well as the award, I am unable to accept the contention raised by the petitioner that the Tribunal passed the award either by discarding the evidence adduced in the domestic inquiry or by relying on the evidence before the criminal court alone. It is true that the Tribunal has referred to the findings in the criminal case, which was available before it as W1. For W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** that reason it cannot be said that the findings of the Tribunal are perverse. Similarly it cannot also be said that the Tribunal was not correct in relying on the evidence adduced before the Tribunal without setting aside the enquiry report in toto. An examination of Exts.P4 award and P3 report would show that the Tribunal has considered the evidence adduced in the domestic inquiry. 8. The learned counsel for the petitioner relied on the judgment of the Apex Court in _**Nelson Motis Vs. Union of India and another** (1992 (2) LLJ 744)_ wherein the Apex Court elaborately considered the impact of the evidence adduced in a criminal case on the departmental proceedings and held that on the basis of the findings arrived at in criminal case, a delinquent employee cannot be absolved from the charges taking note of the difference in the burden of proof required in a criminal case which requires proof beyond reasonable doubt whereas in a domestic inquiry, preponderance of probabilities alone is sufficient. At the same time the learned counsel for the respondents relied on the judgment in _**G.M.Tank Vs. State of Gujarat and others** [(2006) 5 SCC 446],_ wherein relying on the judgment in _**Depot Manager, A.P.SRTC v. Mohd. Yousuf Miya** [(1997) 2 SCC 699]_ where, after discussing the purpose of departmental enquiry and of prosecution in a criminal case, a distinction was drawn in cases W.P.(C) No.16118 of 2005 **==> picture [14 x 9] intentionally omitted <==** where the witnesses examined in both are the same. In that case the very same witnesses were examined in the criminal case as well as in the departmental enquiry. The criminal court found that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. But in the departmental inquiry it was found otherwise. As the judicial pronouncement was made after a regular trial, it was held that it would be unjust and unfair to allow the findings recorded in the departmental proceedings to stand. In that case, it was held that the normal distinction between the departmental and criminal proceedings and burden of proof would not be applicable in such cases. Therefore if at all the Tribunal has relied on the evidence in the criminal case, it cannot be found bad in the light of the judgment in _**Depot Manager, A.P.SRTC** v._ _**Mohd. Yousuf Miya** (supra)._ In the above circumstances, I do not find any reason to interfere with the Tribunal's award. Hence the writ petition is dismissed. **==> picture [27 x 12] intentionally omitted <==** **P.V.ASHA JUDGE** rkc