WA Nos. 752 & 990 of 2023 (K. Premaraj v The Managing Director, MIMS Hospital; Labour Court, Kozhikode) and (The Managing Director, MIMS Hospital v K. Premaraj; Labour Court, Kozhikode)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** **WA NO.752 OF 2023** **JUDGMENT IN WP(C) 6840/2021 OF HIGH COURT OF KERALA DATED 3.3.2023** **----------------** ## **- APPELLANT/PETITIONER :** K.PREMARAJ, AGED 41 YEARS MAKKANHIRATTE HOUSE, ERAMALA (PO) KOZHIKODE, PIN – 673 501 BY SRI.K.PREMARAJ (Party-In-Person) ## **- RESPONDENTS/RESPONDENTS :** 1 THE MANAGING DIRECTOR, MIMS HOSPITAL, GOVINDAPURAM (PO), KOZHIKODE, PIN – 673 016 2 LABOUR COURT, KOZHIKODE, CIVIL STATION, KOZHIKODE, PIN – 673 020 BY ADVS. V KRISHNA MENON P.VIJAYAMMA(K/116/1970) J.SURYA(K/1007/2005) THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 18.12.2023 ALONG WITH WA.990/2023, THE COURT ON 15.2.2024 DELIVERED THE FOLLOWING: WA Nos.752 & 990 OF 2023 -: 2 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024/26TH MAGHA, 1945** **WA NO.990 OF 2023 JUDGMENT IN WP(C) 11595/2021 OF HIGH COURT OF KERALA DATED 3.3.2023** **-------------------** ## **- APPELLANT/PETITIONER :** MANAGING DIRECTOR MIMS HOSPITAL, (NOW ASTER MIMS HOSPITAL) GOVINDAPURAM, MINI BYEPASS ROAD, KOZHIKODE, PIN – 673 016. BY ADVS. V.KRISHNA MENON P.VIJAYAMMA J.SURYA ## **- RESPONDENTS/RESPONDENTS :** 1 K.PREMARAJ MECHKANJIRATTU, ERAMALA P.O., VADAKARA, PIN – 673 501 2 LABOUR COURT KOZHIKODE – 9 BY SRI.K.PREMARAJ(Party-In-Person) THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 18.12.2023 ALONG WITH WA.752/2023, THE COURT ON 15.02.2024 DELIVERED THE FOLLOWING: WA Nos.752 & 990 OF 2023 -: 3 :- ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** **----------------------------------------------------------------------W.A. Nos.752 and 990 of 2023 ----------------------------------------------------------Dated this the 15[th] day of February, 2024** ## **JUDGMENT** ## **Anu Sivaraman, J.** These appeals are preferred against a common judgment dated 3.3.2023 in W.P.(C) Nos.6840 and 11595 of 2021. The first of the writ petitions was filed by the employee seeking award of full back wages, while W.P.(C) No.11595/2021 was filed by the Management against the award of the Labour Court, by which, the punishment of dismissal was found to be excessive and granting monetary compensation of an amount of Rs.6,47,400/-. The facts of the case and the several rounds of litigation involved are discussed in detail by the learned Single Judge. 2. The learned Single found that the Labour Court had considered the materials on record and come to the conclusion that the order of dismissal of the 1[st] respondent in W.P.(C) No.11595/ 2021 is not justified by finding that the punishment awarded is grossly disproportionate to the proved charges. It was found that Section 11-A of the ID Act provides ample power to the Labour Court to re-appreciate the evidence adduced in the enquiry and that WA Nos.752 & 990 OF 2023 -: 4 :- the Labour Court had not placed reliance on any materials which were not on record and no fresh evidence had been taken. It was, therefore held that the Labour Court was justified in passing an award holding that denial of employment to the workman is not justified and he is entitled to monetary compensation. It was further held that it will be open to the petitioner in W.P.(C) No.11595/2021 to raise all contentions before the Labour Court as to the maintainability of Ext.P3 complaint and the jurisdiction of the Labour Court to entertain such complaint. 3. The learned counsel for the appellant in W.A. No.990/2023 submits that the crucial argument raised by the Management that in a case where the Labour Court had specifically found that the enquiry was properly conducted and was in full compliance with the principles of natural justice, then the power under Section 11-A would be confined to considering whether the punishment was shockingly disproportionate to the proven charges alone was completely omitted to be considered by the learned Single Judge. Referring to the findings at paragraphs 16 to 22 of Ext.P2 award, it is urged that the contentions raised on both sides were specifically considered and the Labour Court found that “the impugned domestic enquiry was fairly and properly conducted following the principles of natural justice and it does not require WA Nos.752 & 990 OF 2023 -: 5 :- any interference.” Thereafter, an order was passed holding that the enquiry officer had conducted the domestic enquiry complying with the principles of natural justice. However, on the question of whether the punishment imposed on the workman is grossly disproportionate or excessive, the Labour Court again proceeded to consider the evidence adduced in the enquiry and came to a completely unjustified conclusion that only two of the eight charges were actually proved in the enquiry, which is against the finding that all charges stood proved. Thereafter, the Labour Court held as follows :- “punishment of dismissal is certainly disproportionate and excessive particularly in view of the fact that the workman does not seem to have had any previous punishment.” Thereafter, it was found that the workman had completed 60 years of age and an amount of Rs.6,47,400/- was, therefore, directed to be paid as monetary compensation. 4. The learned counsel appearing for the appellant Managing Director in W.A. No.990/2023 submits that it is only in a case where the enquiry is found to be vitiated in some manner that there would be any question of the Labour Court re-appreciating the evidence adduced before the enquiry officer and in a case where the enquiry is found to be properly conducted and in compliance with the principles of natural justice, the only option WA Nos.752 & 990 OF 2023 -: 6 :- open would be to consider the question of proportionality of punishment alone. It is submitted that it is only where the punishment is shockingly disproportionate to the proven charges that the Labour Court would be enabled to substitute the punishment awarded in a properly constituted enquiry. In the facts of the instant case, it is contended that the very action of the Labour Court in having considered the enquiry on its merits after finding that it had been properly conducted was _per se_ misconceived and a perverse exercise. 5. The learned counsel also places reliance on the decisions in **South Indian Cashew Factories Workers' Union** v. **Kerala State Cashew Development Corporation Ltd.** [2006 (2) KLT 834 (SC)], **Usha Breco Mazdoor Sangh** v. **Management of Usha Breco Limited and another** [(2008) 5 SCC 554], **Regional Manager, UPSRTC, Etawah and others** v. **Hoti Lal and another** [2003 Lab. I. C. 757]. 6. It is further contended by the learned counsel for the Managing Director that since the specific allegation of the workman in Ext.P3 petition filed under Sections 340 and 195 of Cr.P.C. produced along with W.P.(C) No.11595/2021 was that forged documents were produced before the Labour Court by the Management, it is submitted, relying on the decision of the Apex WA Nos.752 & 990 OF 2023 -: 7 :- Court in **Iqbal Singh Marwah and another** v. **Meenakshi Marwah and another** [(2005) 4 SCC 370] that Section 195 Cr.P.C. would be wholly inapplicable in the facts of the case since the said provision would be applicable only where the forgery is committed while the document is _custodia legis_ and not otherwise. It is further contended that all the contentions of the appellant in W.A. No.752/2023 had been considered by the Judicial Magistrate of the First Class, Kunnamangalam in Crl.M.P. No.6000/2015 and the Crl.M.P. was dismissed, against which a revision is also pending before this Court. _7_ . The workman appearing in person would, on the other hand, contend that on 22.12.2004 after drinking tea in the 1[st] respondent's establishment, the workman fell down. Traces of lead were found in his body in a medical examination conducted at Amritha Hospital on 23.12.2004. The workman submitted a police complaint on 7.1.2005 pointing out these facts and on the very next day, that is, on 8.1.2005, the first charge memo was issued against him and he was ultimately removed from employment. It is submitted that clear and cogent evidence had been adduced before the Labour Court including the evidence of WW2, Shaji E.V., Ext.P4 toxicology report of the Amrutha WA Nos.752 & 990 OF 2023 -: 8 :- Hospital, Ernakulam, Ext.P7 letter, Ext.P8 order in R.P. No.853/ 2015 in W.A.No.1897/2015. Several other instances and discrepancies in the enquiry report are pointed out and it is contended that false evidence was given and forged documents were placed before the Labour Court by the Management and therefore, the workman was entitled to full back wages and for compensation as claimed by him. The workman appearing in person has also made available a note of arguments specifically pointing out his contentions with reference to the sentences and page numbers in the paper book. 8. The party in person also referred to the judgments of the Apex Court in **M/s.Bandekar Brothers Pvt. Ltd. and another** v. **Prasad Vassudev Keni, etc.** [(2020) 20 SCC 1], **Ashok Gulabrao Bondre** v. **Vilas Madhukarrao Deshmukh and others** [(2023) 9 SCC 539] in support of his contention that the Labour Court has to proceed against the Management on the basis of Ext.P3. Further, reliance was also placed on the judgments in **Parry & Co. Ltd.** v. **P. C. Pal & others** [1970 AIR 1334], **Deepali Gundu Surwase** v. **Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others** [(2013) 10 SCC 324], **General Manager, Electrical, Rengali Hydro Electric** WA Nos.752 & 990 OF 2023 -: 9 :- **Project, Orissa and others** v. **Sri Giridhari Sahu and others** [(2019) 10 SCC 695] and contends that where the entire proceedings were vitiated by extraneous considerations and fraud, the workman would be entitled to full back wages and compensation as claimed by him. 9. Having considered the contentions advanced on both sides and having perused Ext.P2 award as well as the judgment of the learned Single Judge, we find that the Labour Court had specifically entered a finding that the enquiry proceedings had been properly conducted in compliance with the principles of natural justice. 10. Section 11-A of the ID Act reads as follows :- “ **11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.** - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: WA Nos.752 & 990 OF 2023 ## -: 10 :- Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.” 11. The provision grants the Labour Court power to take evidence and to consider the legality of the enquiry only in cases where the enquiry is not found to be properly conducted or the findings are not supported by any material. Once a finding is entered that the enquiry proceedings are proper and held in compliance with the principles of natural justice, then the exercise under Section 11-A would only be to consider whether the punishment imposed is shockingly disproportionate. The judgments relied on are authority on the point that it is only where the Labour Court is convinced that the punishment awarded is shockingly disproportionate to the proven charges that the award of another punishment or of back wages in lieu of reinstatement can be directed. 12. In the instant case, the Labour Court has clearly gone wrong in entering into an exercise of re-appreciation of the evidence adduced in the enquiry, after specifically finding that the enquiry had been properly conducted and was in accordance with the principles of natural justice. Further, the finding that WA Nos.752 & 990 OF 2023 -: 11 :- the punishment is excessive or shockingly disproportionate is also not supported by any material. The judgment of the learned Single Judge is, therefore, set aside to that extent. However, in view of the fact that the back wages have been limited to an amount of Rs.6,47,400/- and since the said amount has also been deposited by the appellant Managing Director as a condition for admission of this appeal, we are of the opinion that this is a fit case to exercise our discretionary jurisdiction and permit the workman to withdraw the amount awarded by the Labour Court as back wages so as to give a quietus to the issue. 13. The remaining question is with regard to the allegations raised by the workman in Ext.P3 petition produced in W.P.(C) No.11595/ 2021. The decision of the Apex Court in **Iqbal Singh Marwah and another** v. **Meenakshi Marwah and another** is clearly an authority on the point that the provisions of Section 195(1)(b)(ii) of the Cr.P.C. would be attracted only when there is a forgery or falsification in respect of a document after it has been produced or given in evidence in a proceeding before any court, that is, during the time when the document was in _custodia legis._ It was clearly held that if such offence is committed prior to the production of the document or giving in WA Nos.752 & 990 OF 2023 -: 12 :- evidence in court, no complaint by court would be necessary and a private complaint would be maintainable. In the above view of the matter, Ext.P3 petition in W.P.(C) No.11595/2021 filed seeking the Labour Court to submit a report to the Magistrate to take criminal action against the Managing Director would not be maintainable since the allegation is specifically that a forged document had been produced in evidence. We, therefore, are of the view that Ext.P3 petition is not maintainable before the Labour Court in view of the contentions raised. However, the contentions of the parties in the pending Criminal Revision Petitions arising from the private complaint filed by the workman are left open. With regard to the contentions of the appellant in W.A. No.752/2023, we find that the learned Single Judge had considered the contentions of the workman and found that the prayers in W.P.(C) No.6840/2021 cannot be granted. From an anxious consideration of the pleadings on record, the arguments and the argument notes placed before us as well as the decisions relied on by the party appearing in person, we do not find that the workman is entitled to the prayers sought for by him in the writ petition. We find no merit in the contentions urged. W.A. No.752/2023 is, therefore, dismissed. WA Nos.752 & 990 OF 2023 -: 13 :- However, considering the chequered history of litigation between the parties and the fact that the party has been conducting the litigation for a long time, the workman shall be at liberty to draw the amount already deposited as back wages pursuant to interim order of this Court, with accrued interest, which shall be released to him on production of a copy of this judgment. **Sd/ANU SIVARAMAN** **Sd/C. PRATHEEP KUMAR JUDGE** Jvt/9.1.2024