WP(C) No. 23578 of 2010 (The Manager, Wallardie Estate Vandiperiya, Idukki District v. General Secretary, KSEW Union, Peerumedu, and The Industrial Tribunal, Idukki)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** ## **WP(C) NO. 23578 OF 2010** ## **AGAINST THE ORDER/JUDGMENTID 21/2003 OF INDUSTRIAL TRIBUNAL,** ## **IDUKKI** ## **PETITIONER:** THE MANAGER,WALLARDIE ESTATE VANDIPERIYAR, IDUKKI DISTRICT-685533. BY ADVS. SRI.E.K.NANDAKUMAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI ## **RESPONDENTS:** 1 GENERAL SECRETARY,KSEW UNION PEERUMEDU, IDUKKI DISTRICT-685531. 2 THE INDUSTRIAL TRIBUNAL IDUKKI-685531. BY ADVS. SMT.A.K.PREETHA - R1 SRI.M.R.RAJESH SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23578 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C).No. 23578 of 2010** **---------------------------------------------Dated this the 11[th] day of November, 2022** ## **JUDGMENT** This writ petitioner is filed challenging Ext.P1 award passed by the Industrial Tribunal, Idukki in ID No.21/2003. The Government of Kerala as per G.O. (Rt)No.1201/2003/LBR dated 8.5.2003 referred the following dispute for adjudication to the Tribunal: “Whether the dismissal of Shri.Krishnan, No.3274, driver is justifiable? If not, what relief the worker is entitled to?”. 2. The Tribunal as per Preliminary order dated 25.11.2005 held that the domestic enquiry conducted is in violation of the principles of natural justice and the same was set aside. Thereafter the parties were allowed to adduce evidence. The Management had examined the field officer and the group manager of the management estate as MW2 and MW3 to establish the misconduct WP(C) NO. 23578 OF 2010 3 alleged against the workman. The workman was examined as WW1. After going through the available evidence, the Tribunal found that the workman is entitled for reinstatement with continuity of service and 50% back wages. Aggrieved by the same, the Management in ID No.21/2003 filed this writ petition. 3. Heard counsel appearing for the petitioner and the counsel appearing for the 1[st] respondent. 4. Counsel for the petitioner contended that there is no proper appreciation of the evidence available by the Tribunal before ordering reinstatement. The counsel submitted that a reading of the impugned award will show that the evidence available in this case was not considered. In other words, the counsel submitted that this Court can interfere with the award under Article 226 of the Constitution of India because there is absolutely no appreciation of the evidence by the Tribunal. The counsel also submitted that the back wages is ordered without any basis. The counsel relied on the judgment WP(C) NO. 23578 OF 2010 4 of the Apex Court in _**Management of Regional Chief Engineer, Public Health and Engineering Department, Ranchi v. Their workmen represented by District Secretary**_ [2019 (18) SCC 814]. 5. The counsel appearing for the 1[st] respondent submitted that the Tribunal after considering the entire available evidence concluded that the workman is entitled for reinstatement. The counsel submitted that the back wages will follow after reinstatement. The counsel submitted that, there is nothing to interfere with the impugned award invoking the powers under Article 226 and 227 of the Constitution of India. 6. This Court considered the contention of the petitioner and the first respondent. The Tribunal after a detailed enquiry found that the domestic enquiry is in violation of the principles of natural justice. Thereafter the parties were allowed to adduce evidence. Based on the available evidence, the Tribunal considered the matter in detail. It will be beneficial to extract the WP(C) NO. 23578 OF 2010 5 ## relevant portion of the award: _“The workman submitted exhibit M4 explanation denying the misconduct alleged against him. The field officer who was examined as MW2 has stated in his evidence that on 10-3-2001 at 9 O' Clock in the night he received an anonymous phone call informing that people had gone to field No.12 for stealing grevillea trees. Along with his assistant he had gone to the field and found some people cutting the trees. He had also seen a lorry parked on the side of the road. In order to prevent the theft he had gone back and sought the help of the workers. At that time he had seen the lorry coming along the road in field No.7. MW2 and his assistant Benny Mathew had gone on motorcycle and obstructed the lorry. On searching the lorry, it was seen that 27 pieces of grevillea wood were seen in the lorry. There were 3 temporary workers and a factory worker in the lorry. One Subramanian was driving the lorry. He had entrusted the lorry to six workers. Afterwards the Asst. Manager was informed about the incident. On the following day MW2, Benny Mathew and the Asst. Manager had gone to the Vandiperiyar Police Station for submitting the complaint. When the police was recording the complaint, the Asst. Manager had gone back to the estate. At that time the estate manger had telephoned to the Police Station and informed that the lorry and the wooden logs were forcibly taken out from the estate premises. The manger informed him that the workman and a_ WP(C) NO. 23578 OF 2010 6 _temporary worker of No.2 division had taken out the lorry from the estate premises. The estate gate watching was given on contract and the contractor's work was the watcher in the estate gate. When MW2 had returned from the police station, he enquired to the gate watcher why he had permitted the lorry to be taken out from the estate. Then the gate watcher told him that the workman had told him that the Asst.Manager and the field officer had asked the worker to take the lorry to the police station. The workman had taken out the lorry from the estate for tampering with the evidence with respect to the theft of the grevillea trees from the estate. The workman was not given any direction to take the lorry to the police station. The Sub Inspector of Police and the police constables had chased the lorry in a jeep and found the same near the mount estate. MW2 had submitted exhibit M2 complaint to the manger. MW3 had stated in his evidence that on 10-3-2001 the Asst. Field officer Shri.Benny Mathew informed him that the Asst. Field officer had obtained information about the theft of trees at about 9 P.M. and himself and his assistant had blocked the lorry which was transporting the wooden logs. He directed the assistant field officer to submit complaint to the police. The lorry was blocked near the labour lines of No.2 division. 5 watchers were entrusted to protect the lorry. The line unit of the workman is near the place where the lorry was blocked. On 11-32001 Baby Mathew and the Asst.Manger had gone to_ WP(C) NO. 23578 OF 2010 7 _the Police Station for submitting complaint. At about 11 O'Clock on 11-3-2001 a watcher had informed MW3 that the lorry was taken away from the estate. The watcher told him that one Subramanian had forcibly taken away the lorry from the estate. He contacted Baby Mathew at Police Station and informed him about the matter. The vehicles are taken out from the estate through the main gate. The watching duty of the main gate was given on contract to Ramer. The worker of Ramer, Rajamuthu was on duty when the lorry was taken out through the main gate of the estate. On enquiry Rajamuthu told him that driver Krishnan had taken the lorry to the main gate and told him that Baby Mathew, Asst. Manager directed driver Krishnan to take the lorry to the police station. The gage watcher permitted the lorry to be taken through the main gate as he did not disbelieve the words of driver Krishnan. When the Asst.Manager returned from the Police Station, he had seen Krishnan driving the lorry. From the evidence of MW2 and MW3 it can be seen that they had no direct knowledge with respect to the incident. Both of them had not seen the workman forcefully taking out the lorry from the estate. The management has not examined any of the six watchers who were entrusted to protect the lorry or the main gate watcher, Rajamuthu or any other person who had actually seen the workman taking out the lorry forcefully from the estate. The workman who was examined as WW1 has stated in his evidence that he did not take away the_ WP(C) NO. 23578 OF 2010 8 _lorry forcefully from the estate. In the absence of any direct evidence to prove the misconduct alleged against the workman, I hold that the management has no succeeded in proving the misconduct alleged against the workman._ _As the management has not been able to prove the misconduct alleged against the workman, the normal relief eligible to the workman is reinstatement in service with back wages and all other benefits. However, at present the tea estates are facing very acute financial difficulties due to low price of tea. Taking into account the present plight of the tea industry the relief due to the workman is restricted to reinstatement in service with 50% back wages and continuity of service._ _In the result, an award is passed directing the management to reinstate the workman in service with continuity of service and 50% back wages.” [SIC] [underline supplied]_ 7. From the above finding of the Tribunal, it is clear that the Tribunal considered the matter in detail and ordered reinstatement. It is finding of facts. Moreover, the petitioner management already reinstated the workman to avoid payment of wages as per Section 17B of the Industrial Disputes Act. The counsel for the WP(C) NO. 23578 OF 2010 9 1[st] respondent submitted that the workman is already retired now. At this distance of time, according to me, the above finding regarding the reinstatement of the workman need not be interfered invoking the powers under Article 226 of the Constitution of India. As far as the order directing to pay 50% back wages is concerned, there is no detailed discussion by the Tribunal. The legal position is settled by several decisions of this Court regarding the payment of back wages when reinstatement is ordered. In _**Management of Regional Chief Engineer's**_ case ( _supra_ ), the Apex Court considered this point in detail. It will be better to extract the relevant portion of the above decision: _“10. In our considered opinion, the courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service._ WP(C) NO. 23578 OF 2010 10 _11. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee._ _12. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. SEB v. Jarina Bee, Haryana Roadways v. Rudhan Singh, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, J.K. Synthetics Ltd. v. K.P. Agrawal, Metropolitan Transport Corpn. v. V. Venkatesan, Jagbir Singh v. Haryana State Agriculture Mktg. Board and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalayas._ _13. The Court is, therefore, required to keep in_ WP(C) NO. 23578 OF 2010 11 _consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.”_ In the light of the above dictum, it is clear that there is no consideration by the Tribunal before ordering back wages. In the light of the above decision of the Apex Court, this Court is forced to set aside that part of the award which ordered 50% back wages. Therefore, this writ petition is allowed in part in the following manner: i) The order allowing 50% back wages as per Ext.P1 is set aside after confirming all other findings of the Industrial Tribunal. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 23578 OF 2010 12 ## **APPENDIX OF WP(C) 23578/2010** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AWARD DATED 21.12.2006 IN ID NO.21/2003 PASSED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE CLAIM STATEMENT DATED 10.10.2003 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT IN ID NO.21/2003 RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE