V. Somasekharan v. Presiding Officer, Labour Court, Ernakulam and KSRTC & The Assistant Transport Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935 WP(C).No. 18648 of 2010 (E) ---------------------------ID 3/2008 of LABOUR COURT, ERNAKULAM PETITIONER(S): -------------------------- V.SOMASEKHARAN, AGED 59 YEARS, SON OF VELU, EX-CONDUCTOR, KERALA STATE ROAD TRANSPORT CORPORATION, ANGAMALI, RESIDING AT SOUBHAGYA, U.C.COLLEGE P.O., ALUVA-683 102. BY ADVS.SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH SMT.ATHIRA A.MENON RESPONDENT(S): ---------------------------- 1. THE PRESIDING OFFICER, LABOUR COURT, ERNAKULAM. 2. KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS, MANAGING DIRECTOR TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 3. THE ASSISTANT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, ANGAMALLY. BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY GOVERNMENT PLEADER SRI. JAMES MATHEW KADAVAN BY SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18648 of 2010 ## APPENDIX ## EXHIBITS P1TRUE COPY OF GO (Rt).NO.300/2008/LBR DATED 11.2.2008 ISSUED BY GOVERNMENT OF KERALA P2TRUE COPY OF STATEMENT OF CLAIMS DATED 10.3.2008 SUBMITTED BY PETITIONER BEFORE R1 IN I.D.NO.3 OF 2008 P3TRUE COPY OF COUNTER STATEMENT FILED BY 2ND AND 3RD RESPONDENTS BEFORE R1 IN I.D.NO.3 OF 2008 P4TRUE COPY OF PRELIMINARY ORDER DATED 12.10.2009 PASSED BY R1 IN I.D. NO. 3 OF 2008 P5TRUE COPY OF PROCEEDINGS DATED 2.11.2009 PASSED BY R1 IN I.D. NO.3 OF 2008. //True Copy// P.A. To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 18648 of 2010 - - - - - - - - - - - - - - - - Dated 3[rd] March, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner was suspended in the year 2002 on an allegation of having issued “dead tickets” while he was acting as a conductor in a super fast bus operating between AngamalyThiruvananthapuram. The allegation was that he had, by the said misconduct, misappropriated Rs.786/- being the charge of the tickets so issued. The petitioner was once suspended and an enquiry was initiated in the year 2002 itself. The domestic enquiry concluded in finding the petitioner guilty and the disciplinary authority, accepting the findings of the Enquiry Officer, removed him from service. The petitioner was unsuccessful in an appeal filed before the Department. But the enquiry itself was set aside in a departmental revision. A fresh enquiry was directed in the **WP(C).18648/10** 2 revisional order, which proceedings has given rise to the present proceedings. 2. Admittedly, a fresh enquiry was conducted and the petitioner was again dismissed from service. The petitioner raised a dispute under the Industrial Disputes Act, 1947 (for short 'ID Act') before the Government which dispute was referred by Ext.P1. Petitioner has produced the Claim Petition preferred by him before the Tribunal as also the counter statement filed by the Management as Exts.P2 and P3. On the petitioner raising preliminary objection with respect to the enqiry conducted, Ext.P4 preliminary order was passed wherein the enquiry was found to have been conducted in violation of principles of natural justice. The Tribunal clearly found that the enquiry held was a farce and had been proceeded with, without applying the principles of natural justice. The Enquiry **WP(C).18648/10** 3 Officer's report hence, was set aside as per the preliminary order dated 12.10.2009. 3. Subsequently, by proceedings dated 2.11.2009, the Tribunal recorded the request of the Management for adducing fresh evidence before the Tribunal to prove the charges levelled against the petitioner and the same was allowed, though it was specifically noticed that there was no prayer in the written statement for adducing fresh evidence to substantiate the charges; on the enquiry being set aside. 4. The KSRTC, who is the employer has filed a counter affidavit asserting their right to adduce fresh evidence to substantiate the charges levelled against the petitioner, since the enquiry was found to be one held in violation of principles of natural justice. The counter affidavit also speaks of 34 punishments 4 ## **WP(C).18648/10** imposed on the petitioner on different occasions. That however, is not germane for consideration of the specific dispute raised in the present writ petition nor can it sway this Court in considering the issue whether the employer ought to have raised a prayer for adducing fresh evidence in the written statement itself. 5. The learned counsel for the petitioner relies on the judgment of this Court in **President, Edayar Ksheerotpadana Sahakarana Sangham v. Industrial Tribunal, Alappuzha (2007** **(2) KHC, 200)** wherein the judgments of this Court and the Honourable Supreme Court and were noticed to reiterate the law on the subject; being that, the Management has to exercise its right of seeking opportunity to lead fresh/additional evidence on the first available opportunity, which is in the written statement **WP(C).18648/10** 5 filed in the dispute referred to the Tribunal under Section 10 of the ID Act, that too immediately after the workman alleges defect in the enquiry proceedings under Section 33 of the ID Act. Once the employer has failed to exercise such right at the appropriate opportunity, viz., immediately on the workman challenging the enquiry proceedings as defective; then such right could no longer be exercised at a later stage, is the finding. 6. In the present case, in paragraph 12 of the statement of the Claim filed by the workmen, the workmen has challenged the enquiry itself as one vitiated by serious infirmities on account of principles of natural justice and denial of reasonable opportunity. Though in the impugned order it is specifically stated that the employer has not sought for any opportunity, it is to be noticed that there is a specific prayer **WP(C).18648/10** 6 in paragraph 9 which reads as under: “Even then, in abundant caution, without prejudice to the above stated facts, the management prays that if this Honourable Court found that the enquiry was not good and if the enquiry report is not to be proceeded with, this opposite party the management may be allowed to conduct a fresh enquiry without affecting his present status of dismissed workman.” 8. The learned counsel for the petitioner would contend that the said prayer is for a fresh enquiry to be conducted by the employer itself and not for adducing fresh evidence before the Tribunal. Such a narrow and technical view cannot be taken by this Court. Since the prayer made being for a fresh enquiry, it cannot be disputed that the same could be carried on only before the Tribunal and not by the employer itself. In such circumstances, Ext.P5 is not liable to be interfered with, despite the fact 7 ## **WP(C).18648/10** that it notices that there is no prayer to conduct a fresh enquiry in the written statement; since that statement is found to be incorrect on the basis of the documents produced by the workmen/petitioner himself. The writ petition hence, stands dismissed directing the Labour Court, Ernakulam, to expeditiously adjudicate the dispute and pass final orders within three months from the date of appearance of parties before it. Parties shall appear before the Labour Court on 17.3.2014. Parties shall suffer their respective costs. ## **Sd/-** ## **K.VINOD CHANDRAN, Judge** Mrcs