The Secretary, Cochin Co-operative Hospital Society Ltd. v. Labour Court, Ernakulam and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.18354 OF 2010(T)** **AGAINST THE ORDER/JUDGMENT IN ID 32/2006 DATED 12-08-2009 OF LABOUR COURT, ERNAKULAM** ## **PETITIONER/S:** **THE SECRETARY,COCHIN CO-OP;HOSPITAL HOSPITAL SOCIETY LTD,NO.288,GANDHI NAGAR,, ERNAKULAM.** **BY ADVS.** **SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN** ## **RESPONDENT/S:** **1 LABOUR COURT,ERNAKULAM AND ANOTHER** **2 SMT.K.A.ANNAMMAPLOT NO.275LIGGANDHI NAGAR,ERNAKULAM,KOCHI-20.** **R2 BY ADV. SRI.ASOK M.CHERIAN R2 BY ADV. SRI.S.KANNAN R2 BY ADV. SRI.SANTHOSH G. PRABHU** ## **OTHER PRESENT:** **SMT. N.R. REESHA, FOR THE PETITIONER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.18354 OF 2010(T)** 2 ## **JUDGMENT** ## **Dated this the 18th day of November 2019** This writ petition has a long checkered history. The Cochin Co-operative Hospital Society, a Co-operative Society registered under the Kerala Co-operative Societies Act, is before this Court challenging Exts.P22 and P23 award of the Labour Court, Ernakulam. The 2[nd] respondent was an employee of the Society. She was appointed as an X-ray technician in the year 1972. On the ground that Exts.P1 and P2 circulars issued by the Registrar of Co-operative Societies directing appointment of persons having required qualifications alone as an X-ray technician, the petitioner was required to produce the certificates evidencing the possession of such qualifications. It appears that the 2[nd] respondent did not respond. It is submitted that a resolution had been taken by the Managing Committee of the Society on 23.08.1999 to relieve the 2[nd] respondent from duties of X-ray technician and to deploy her as an attender. This was followed by Ext.P5 communication dated 30.08.2001, relieving the 2[nd] **WP(C).No.18354 OF 2010(T)** 3 respondent from the post of X-ray technician and accommodating her as attender. The 2[nd] respondent had taken up the matter before the Joint Registrar of Co-operative Societies who had rescinded the resolution. The matter was taken up in appeal before the Government by the petitioner Society and Ext.P6 order dated 04.09.2003 was issued by the Government rejecting the appeal preferred by the petitioner Society and confirming the rescinding of the resolution. 2. Thereafter, Ext.P7 order of suspension was issued on the petitioner and Ext.P8 memo of charges was also served. It is stated that no reply had been submitted to Ext.P8 memo of charges and repeated communications issued to the 2[nd] respondent requiring her to submit a reply. By Ext.P10 dated 18.11.2004, the 2[nd] respondent informed the petitioner that she had submitted a statement of defence on 02.11.2004 by registered post with acknowledgment due and the same had been refused by the petitioner and that as such, she was not liable to make any further reply. It appears that thereafter, an enquiry officer was appointed, who issued a notice to the 2[nd] respondent to appear for an enquiry by Ext.P14. The 2[nd] respondent sent a reply to the enquiry **WP(C).No.18354 OF 2010(T)** 4 officer stating that in view of the orders of the Joint Registrar rescinding the resolution and the rejection of the appeal by the Government which had been challenged by the Society before this Court in a writ petition which had also been dismissed, the addressing of the 2[nd] respondent as an attender of the hospital was completely misconceived and that she is entitled to compensation for humiliation and for costs. 3. It appears that thereafter without any further notice to the 2[nd] respondent, Ext.P15 enquiry report had been prepared, finding her guilty of the charges leveled. On the basis of the same, Ext.P16 notice was again issued to the 2[nd] respondent, pursuant to which, a reply has been submitted by her. Ext.P17 order dated 22.03.2005 was passed, dismissing the 2[nd] respondent from service with retrospective effect from 06.09.2004. A dispute was raised by the 2[nd] respondent which was referred for adjudication by Ext.P18 order of the Government to the Labour Court, Ernakulam. Thereafter, Ext.P19 claim statement was filed to which Ext.P20 written statement and Ext.P21 replication were filed. 4. On considering the contentions, Ext.P22 preliminary order was issued by the Labour Court. It was **WP(C).No.18354 OF 2010(T)** 5 found that the action of the respondents in having proceeded to terminate the 2[nd] respondent without a written statement of defence having been placed on record by her and without considering her contentions as against the proposed action was bad in law. It was found that the action of the enquiry officer in having proceeded with the enquiry proceedings without affording a further opportunity to the 2[nd] respondent, to submit a reply to the action proposed against her shows that the enquiry officer was biased against the work man. It was found that the refusal on the part of the enquiry officer to inform the workman about the enquiry was not proper and that as such the enquiry was not conducted in compliance with the principles of natural justice and that the enquiry is vitiated. 5. The preliminary order was passed on 12.08.2009. It appears that even thereafter, no attempt had been made by the petitioner to adduce evidence in order to sustain the order of dismissal passed by it. Therefore, Ext.P23 award was rendered on 23.09.2009. The Labour Court found that the action of the management in not having adduced any evidence to prove the alleged charge against the workman **WP(C).No.18354 OF 2010(T)** 6 and in not having substantiated the order of dismissal by adducing further evidence would be fatal to its case. It was found that the workman had 33 years of service as X-ray technician and that there was no disciplinary proceedings of any nature against her before the alleged proceedings. Taking note of the order of the Joint Registrar, rescinding the resolution relieving the 2[nd] respondent from the post of X-ray technician and the upholding of the said order by the Government as well as by this Court, it was found that the workman was entitled to be reinstated in service. However, taking note of the fact that the workman had attained the age of superannuation on 31.05.2007, the management was directed to give all benefits to her as if she had continued in service from the date of her termination till the date she attained superannuation as X-ray technician and to disburse all service and retirement benefits. 6. The learned counsel for the petitioner submits that the 2[nd] respondent had been given multiple chances to submit a reply to the memo of charges issued against her and it was only on account of the refusal on the part of the 2[nd] respondent to submit a proper reply that the dismissal order **WP(C).No.18354 OF 2010(T)** 7 came to be passed as against her. It is therefore contended that there is no denial of opportunity to present her case and that the finding in Ext.P22 to the effect that the principles of natural justice stood violated in the issuance of the dismissal order were completely unfounded. It is contended, relying on a decision of the Apex Court in **State Band of India And Others v. Narendra Kumar Pandey [(2013)2 SCC 740]** that in cases, where an opportunity is given to the delinquent officer to submit a statement of defence and he refuses to do so, interference with the order of dismissal on that ground would not be justified. 7. It is further contended by the learned counsel for the petitioner that even in case the Labour Court had come to the conclusion that the proceedings against the 2[nd] respondent were vitiated, the proper course open to the Labour Court was to remand the matter to the disciplinary Authority for conduct of an enquiry in accordance with law and that in the said view of the matter, Ext.P23 award is completely unjustifiable. The learned counsel places his reliance on two decisions of the Apex Court in **State of** **WP(C).No.18354 OF 2010(T)** 8 **Punjab and others v. Dr.Harbhajan singh Greasy [ JT 1996(5) SC 403] and Board of Management of S.V.T Education Institution and another v. A Reghupathy Bhat and others [ JT 1997(2) SC 523].** 8 **.** The learned counsel appearing for the 2[nd] respondent, on the other hand, contended that Ext.P22 preliminary order and Ext.P23 award of the Labour Court are issued perfectly in accordance with law and after considering the contentions advanced on either side. It is submitted that there is absolutely no error of jurisdiction or of law or procedure which would warrant interference with Exts.P22 and P23 and that as such the writ petition is liable to be dismissed. The question with regard to the jurisdiction of the Labour Court to consider the matter of termination of a workman employed by a co-operative society concerned has attained finality by the decision of the Apex Court in **K.A.Annamma v. Cochin Co-operative Hospital Society** **Ltd. [2018(1) KLT 414].** In the instant case, it is contended that there is no further ground available for a challenge as against Exts.P22 and P23 at the instance of the employer. It **WP(C).No.18354 OF 2010(T)** 9 is submitted that the resolution adopted by the managing committee of the society to relieve the 2[nd] respondent from the post of X-ray technician and to accommodate her on a contract basis as an attender had been rescinded by the Joint Registrar on 16.01.2002 and the appeal preferred by the employer against the said order had been rejected by the Government by G.O dated 04.09.2003. The writ petition attempted against the government order had also been dismissed by this Court. 9. In the above circumstances, it is contended that the proceedings in the enquiry against the 2[nd] respondent would clearly shows that it was only an attempt to get over the orders of the Joint Registrar and the Government, even after an unsuccessful challenge before this Court. It is therefore, contended that the award of the Labour Court was only just and proper of the facts and circumstances of the case and it is not amenable to a challenge before this Court, since, what is attempted in the writ petition is appreciation of the factual aspects which have been settled in the impugned order and award. 10. On the question of the procedure to be adopted by **WP(C).No.18354 OF 2010(T)** 10 the Labour Court on finding that the enquiry stood vitiated, the learned counsel places reliance on the decisions of the Apex Court, in **Workmen v. Motipur Sugar Factory [AIR 1965 SC 1803].** The Apex Court held that a defective enquiry stands on the same footing as no enquiry. Relying on the pronunciation on the question of law in earlier decisions, the Apex Court summed up the legal position as follows. _“_ If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so, the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Therefore, we are satisfied **WP(C).No.18354 OF 2010(T)** 11 that no distinction can be made between cases where the enquiry has in fact been held . We must therefore reject the contention that as there was no enquiry in this case it was not open to the respondent to justify the discharge before the tribunal.” 11. Thereafter, in the decision in **Neetha Kapalish v. Presiding Officer [(1999) 1 SCC 517],** it was held that in cases where the enquiry is not held or where the enquiry held is found to be defective, the tribunal can call upon the employer to justify the action taken against the workmen and to show, by fresh evidence that the termination or dismissal was proper. It was further held that if the management does not adduce evidence by availing this opportunity, it cannot challenge the subsequent proceedings on the ground that it should have been given that opportunity. In **D.C. & G.Mills** **v. L.B.Singh [AIR 1972 SCC 1031],** it was held that the management can avail of the opportunity to adduce evidence in support of the order of termination at any time during the pendency of the dispute. However, in **Shambu Nath Goyal v. Bank of Baroda [(1983)4 SCC 491],** it was held that such opportunity to defend the order of termination should be availed at the first possible instance, that is at the stage of **WP(C).No.18354 OF 2010(T)** 12 filing the written statement against the claim statement itself and that if such an opportunity is not availed, it cannot be sought for at any later stage in the proceedings. **In Karnataka State Corporation v. Lakshmidevamma** **[(2001)5 SCC 433]** , a five Judge Bench of the Apex Court resolved the difference of opinion between the decisions in **D.C. & G.Mills** and **Shambu Nath Goyal** (supra). The law laid down in **Shambu Nath Goyal** (supra) was upheld by the majority judgment. In paragraph 17 of **Karnataka State Road Transport Corporation v. Lakshmidevamma(Smt.) And Another [(2001)5 SCC 433],** it was held as follows. “Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this Court in Shambu Nath Goyal case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission o illegality in its domestic enquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambu **WP(C).No.18354 OF 2010(T)** 13 ## Nath Goyal case is just and fair.” 12. The law therefore stands settled that when an enquiry found to be vitiated, the employer can seek an opportunity to substantiate the order of dismissal or termination by adducing fresh evidence in support of such order before the Labour Court or Tribunal itself provided that it seeks such an opportunity at the first available instance. In the instant case, it appears that no opportunity to adduce evidence in support of the order had been sought by the petitioner in the written statement filed before the Labour Court. Even so, a preliminary order had been passed by the Labour Court, finding that the enquiry held against the 2[nd] respondent was vitiated by non compliance with the principles of natural justice. At that stage, the petitioner could have sought for an opportunity to adduce evidence in support of the order of termination, since, the preliminary order was passed apparently to give the employer that opportunity. This was not done. 13. In the above view of the matter, I am of the opinion that the challenge raised by the petitioner as against Ext.P23 award of the Labour Court cannot be entertained by this **WP(C).No.18354 OF 2010(T)** 14 Court, in view of the fact that no attempt had been made to adduce evidence in support of the order of termination, as regards the challenge against Ext.P22, the challenge is based on purely factual aspects of the matter. No error of jurisdiction, error of law or erroneous exercise of the statutory authority has been brought to the notice of this Court, which would justify any interference with the findings of the Labour Court, which are essentially findings of fact. In the above view of the matter, the prayers sought for in this writ petition cannot be granted. Writ petition fails and this writ petition is accordingly dismissed. **Sd/-** **ANU SIVARAMAN** Dxy **JUDGE** **WP(C).No.18354 OF 2010(T)** 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 06.07.1999 ISSUED BY THE DIRECTOR OF RADIATION SAFETY.** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 26.07.1999 ISSUED BY THE REGISTRAR OF CO-OP.SOCIETIES.** - **EXHIBIT P3 TRUE COPY OF THE ORDER, G.O. DATED 19.05.2001 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR DATED 11.07.2001 ISSUED BY THE REGISTRAR OF CO-OP.SOCIETIES.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 30.8.2001 ISSUED BY THE PETITIONER SOCIETY.** - **EXHIBIT P6 TRUE COPY OF THE ORDER, G.O. DATED 04.09.2003 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 04.09.2003 ISSUED BY PETITIONER SOCIETY.** - **EXHIBIT P8 TRUE COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED 30.09.2004 ISSUED BY THE PETITIONER SOCIETY TO THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE MEMO DATED 09.11.2004 ISSUED BY THE PETITIONER SOCIETY TO THE 2ND RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 18.11.2004 SENT BY THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE MEMO DATED 25.11.2004 ISSUED BY THE PETITIONER SOCIETY TO THE 2ND RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 09.12.2004 SENT BY THE 2ND RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 03.01.2005 ISSUED BY THE SECRETARY, DISCIPLINARY** **WP(C).No.18354 OF 2010(T)** 16 **SUB COMMITTEE.** **EXHIBIT P14 TRUE COPY OF THE REPLY DATED 25.01.2005 SUBMITTED BY THE 2ND RESPONDENT.** - **EXHIBIT P15** - **TRUE COPY OF THE ENQUIRY REPORT DATED 24.02.2005 SUBMITTED BY THE ENQUIRY OFFICER.** - **EXHIBIT P16 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 02.03.2005 ISSUED BY THE DISCIPLINARY SUB COMMITTEE.** - **EXHIBIT P17 TRUE COPY OF THE ORDER DATED 22.03.2005 ISSUED BY THE DISCIPLINARY SUB COMMITTEE OF THE SOCIETY.** - **EXHIBIT P18 TRUE COPY OF THE ORDER, G.O. DATED 27.09.2006 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P19 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE 2ND RESPONDENT BEFORE THE LABOUR COURT.** - **EXHIBIT P20 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE LABOUR COURT.** - **EXHIBIT P21 TRUE COPY OF THE REPLICATION FILED BY THE 2ND RESPONDENT BEFORE THE LABOUR COURT.** - **EXHIBIT P22 TRUE COPY OF THE PRELIMINARY ORDER PASSED BY THE LABOUR COURT, ERNAKULAM DATED 12.08.2009 IN I.D.NO.32/2006.** - **EXHIBIT P23** **TRUE COPY OF THE AWARD DATED 23.09.2009 PASSED BY THE LABOUR COURT, ERNAKULAM IN I.D.NO.32/2006.**