The President, Oil Palm Plantation Staff Congress, I.N.T.U.C., Valacode P.O., Punalur v. The Managing Director, Oil Palm India Ltd., Vettel Estate, Muttambalam P.O., Kottayam; The Labour Court, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WP(C).No. 15563 of 2005 (C)** **----------------------------------------** ## **PETITIONER :** ## **---------------------** **THE PRESIDENT, OIL PALM PLANTATION STAFF CONGRESS, I.N.T.U.C., VALACODE P.O., PUNALUR.** **BY SRI.C.P.SUDHAKARA PRASAD (SENIOR ADVOCATE) ADVS.SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT** ## **RESPONDENTS :** **-------------------------** ## **1. THE MANAGING DIRECTOR,** **OIL PALM INDIA LTD., VETTEL ESTATE, MUTTAMBALAM P.O., KOTTAYAM.** ## **2. THE LABOUR COURT, KOLLAM.** **R1 BY ADVS. SRI.E.K.NANDAKUMAR SMT.PRIYA MAHESH R2 BY GOVERNMENT PLEADER SRI.V.K.RAFEEQ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 15563 of 2005 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** - **EXT.P1 : TRUE COPY OF CHARGE SHEET DATED 02.09.1993 ISSUED BY THE 1ST RESPONDENT TO THE WORKMAN.** - **EXT.P2 : TRUE COPY OF ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER.** - **EXT.P3 : TRUE COPY OF THE PRELIMINARY ORDER OF THE LABOUR COURT, KOLLAM DATED 21ST DECEMBER, 2004 PRONOUNCED ON 9TH SEPTEMBER, 2004.** - **EXT.P4 : TRUE COPY OF FINAL AWARD DATED 21.012.2004 PASSED BY THE LABOUR COURT, KOLLAM.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **EXT.R1(A): TRUE COPY OF THE NOTICE ISSUED TO THE WORKMEN DATED 17.08.1993.** - **EXT.R1(B): TRUE COPY OF THE REPLY DATED 20.08.1993 SUBMITTED BY THE WORKMEN.** - **EXT.R1(C): TRUE COPY OF THE LETTER DATED 13.08.1994 ISSUED TO THE WORKMEN.** **EXT.R1(D): TRUE COPY OF THE AWARD OF THE LABOUR COURT IN I.D.NO.93/95 DATED 24.02.2003 IN THE DISPUTE RAISED BY THE VEHICLE HELPER.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.D. RAJAN, J.** ------------------------------------------W.P (C) No.15563 of 2005 ---------------------------------------------Dated this the 15[th] day of July, 2014 ## **JUDGMENT** This writ petition is filed by the President of Oil Palm Plantation Staff Congress to quash Exts.P3 and P4 passed by the 2[nd] respondent, under Articles 226 and 227 of the Constitution of India . The first respondent is the Company, where the petitioner's union is functioning. Petitioner raised an industrial dispute against the first respondent which was referred to Labour Court, Kollam. A member of the petitioner's Union, one Sri. K.K. Rajendra Prasad was the driver of the 1[st] respondent in the Yeroor Estate from 1984 onwards and on 16.8.1993, he took the school bus attached to the 1[st] respondent to a workshop for changing its tyres and thereafter, he left the place. One Hakkim, the workshop boy W.P.(C)No.15563/05 2 had driven the bus in the presence of vehicle helper of the company and met with an accident in which three persons were died and six persons sustained serious injuries. The Police charge sheeted the driver of the vehicle u/s.180 of Motor Vehicles Act and it ended in acquittal. But, Sri. Hakkim was charge sheeted u/s.279, 377, 338 and 304A of IPC and u/s.3(1) of the Motor Vehicles Act. Subsequently, the 1[st] respondent initiated disciplinary action against the workman and conducted an enquiry and he was found guilty, and dismissed from the service. Against that, he approached the Labour Court, Kollam where the finding was confirmed. 2. The learned counsel for the petitioner contended that the worker employee was not served with the copy of the enquiry report and the punishment of dismissal imposed on the workman is disproportionate to W.P.(C)No.15563/05 3 the gravity of misconduct. But, the 1[st] respondent in its counter affidavit strongly denied the above contention and contended that the enquiry was conducted, after complying with all statutory formalities and therefore, there was no illegality in the proceedings adopted by the enquiry officer. After conducting the enquiry, the disciplinary authority served a copy of the enquiry report to the workman. 3. The incident occurred on 16.8.1993 was admitted by the petitioner and he contended that the worker was present at the workshop till 10.45 a.m. on that day. Thereafter, the incident was occurred. Subsequent to that, the 1[st] respondent issued a charge sheet and conducted an enquiry, as the explanation given by the petitioner was not satisfactory. In the above incident, the worker was suspended on 17.8.1993 and Adv. Jose Philip 4 W.P.(C)No.15563/05 was appointed as enquiry officer to enquire about the charges. It is clear that on 2.9.1993 Ext.P1 charge sheet was issued to the workman. Thereafter, the enquiry officer proceeded with the enquiry. Witnesses were examined and finally after adjudication, the workman was found guilty. The enquiry report was challenged by the worker on the ground that the enquiry officer was not impartial, moreover, enquiry officer asked several irrelevant questions during the examination of Rw1 and finally enquiry report was not furnished to him. But, the Labour Court considered the above argument and concluded that the questions were asked only to enable the delinquent to explain the circumstances brought out in evidence against him. The answers given were not considered by the enquiry officer to fix the liability and he declined to interfere in the findings of the disciplinary W.P.(C)No.15563/05 5 authority. 5. I have considered the explanation given by the workman in which it is stated that the reason for his absence on that day was that, he had taken appointment to consult a doctor and therefore, he entrusted the vehicle to the helper, one Vanarajan and left the place. There was no further explanation from his side about the incident. According to the 1[st] respondent, the entrustment of the vehicle to the helper was without the knowledge of the management. It is the responsibility of the driver to discharge his duty as entrusted to him and he cannot evade from that duty. Now, the petitioner again challenges the above aspect on the ground that the charge levelled against the the petitioner is ambiguous, vague, perverse and arbitrary. Moreover, no separate statement of allegations was issued to the worker. The petitioner W.P.(C)No.15563/05 6 further contended that the disciplinary authority has violated the directions contained in various decisions. It is an established principle that a delinquent employee has the right to receive copy of the enquiry report before the disciplinary authority arrives at a conclusion with regard to the charges levelled against him. Admittedly, the copy of the enquiry report was not made available to the worker before the disciplinary authority has taken the decision against the worker. This aspect of the matter was not given due importance in Exts.P3 and P4. According to the petitioner, the person, who is expected to take over charge of the vehicle in the absence of the Driver in the workshop, is the vehicle helper. Though he was dismissed initially, he has been reinstated thereafter. If the vehicle helper can be reinstated in service, it is crystal clear that the punishment meted out to the workman is highly W.P.(C)No.15563/05 7 disproportionate to the gravity of misconduct. But, I have perused Ext.R1(c). On a reading of Ext.R1(c), it is clear that , the 1[st] respondent had given the copy of the enquiry report to the workman and three days' time was granted to him to submit an explanation. But, there was no response from the side of the workman, in such a background, the management imposed the punishment. 6. Apex Court in **Managing Director, ECIL** v. **B. Karunakar** [ 1993 (4) SCC 727] held as follows: (para 26, 27 and 28) The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be W.P.(C)No.15563/05 8 considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. It will thus be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends W.P.(C)No.15563/05 9 when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that "where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is 10 W.P.(C)No.15563/05 dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. 7. In Ext.R1(c), it is stated that three days' time was granted to the workman to show cause against the enquiry report. Thereafter, the disciplinary authority considered the enquiry report and came to a conclusion with regard to the guilt of the workman and proposed to award penalty. While the right to represent against the findings in the report is part of the inquiry, the right to make representation on the report of the enquiry officer W.P.(C)No.15563/05 11 is the second stage when the disciplinary authority has considered the findings in the report. Even after the amendment, the Constitution Bench concluded that the right to receive report of the enquiry officer is the essential part of the disciplinary proceedings. The principles of natural justice requires that the delinquent employee should have given an opportunity to reply the enquiry officer's finding. Apex Court in **Managing ' Director, ECIL s case** (supra) specifically settled the position that the disciplinary authority has to consider the representation of the employee against the enquiry report, before it arrives at its conclusion with regard to his guilt. 8. The compliance of serving copy of the enquiry report to the worker was dealt with by the Labour Court in its judgment as follows: “I have meticulously considered the report of enquiry and nowhere it is seen that the enquiry W.P.(C)No.15563/05 12 officer solely relied any portion of the answers given by the worker. As such there is no prejudice caused to the delinquent by such questioning by the enquiry officer. The 3rd contention is that the copy of the enquiry report was not served on the delinquent. The management states that the copy of the report was served and the explanation of the worker was called for. This was affirmed in the written statement filed by the management also. In the claim statement filed by the worker there was no allegation that the copy of enquiry report was not served. Only by way of replication it was so stated and in the argument note filed by the union, this point is seriously noted and a decision of the Hon'ble Supreme Court reported in 1994 (1) LLJ 162 (Managing Director, CCIL, Hyderabad v. B. Karunakar) is relied on. But while so contending the worker himself has produced a notice dated 13.8.1994 issued by the management to the worker wherein it is stated : ത�ങള�� എത�ര�യ� ഉനയ�ച�ര���ന ആരര�പണങള സ�ശയ�ത�തമ�യ� തതള�ഞ�ര�� �നത�യ� എന��യറ� ഓഫ�സര �ണ�ര���ന�. ട� റ�ര'�ര(�ത) ര��'� ഇത� സഹ�ത� ഉളട�� ത-യ�ത�ര���ന�. .........” 9. Here, the inquiry officer and the disciplinary authority are different persons and the copy of the enquiry report was served on the worker. Therefore, the contention advanced by the petitioner that the worker was not served with the enquiry report is not sustainable in W.P.(C)No.15563/05 13 law. A copy of the report was already served to the workman and he prayed for leniency in punishment. There is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd W.P.(C)No.15563/05 14