W.P.(C) Nos.11831 of 2009 and 17078 of 2009 (Elizabeth Philip v Industrial Tribunal, Idukki; Aisha v Swarnagiri Estate)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ## **`W.P.(C)NO.11831 OF 2009`** ``` AGAINST THE AWARD DATED 28.01.2009 IN ID.NO.5 OF 2007 OF THE INDUSTRIAL TRIBUNAL, IDUKKI ``` ## **`PETITIONER:`** ``` Mrs.ELIZABETH PHILIP ``` ``` MANAGER, SWARNAGIRI ESTATE, 62[nd] MILE, SPRING VALLEY P.O., KUMILY. ``` ``` BY ADVS. SMT.A.K.PREETHA SRI.M.R.RAJESH ``` ## **`RESPONDENT/S:`** ## **`1 INDUSTRIAL TRIBUNAL, IDUKKI`** ``` 2SMT.AISHA, C.R. O.1633/42 SWARNAGIRI ESTATE, W/O.SALIM, PULICKALPEEDIKAYIL, 62ND MILE,, VANDIPERIYAR P.O., KUMILY. BY ADV SRI.BIJU .C. ABRAHAM ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.07.2023, ALONG WITH WP(C).17078 of 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WP(C) Nos.11831 & 17078 of 2009 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ``` W.P.(C)NO.17078OF 2009 ``` ``` AGAINST THE AWARD DATED 28.01.2009 IN ID.NO.5 OF 2007 OF THE INDUSTRIAL TRIBUNAL, IDUKKI ``` ``` PETITIONERS: ``` ``` 1AISHA, W/O.SALIM SWARNAGIRI ESTATE, PULICKALPEEDIKAYIL, 62ND MILE, VANDIPERIYAR P.O., KUMILY. ``` ``` BY ADVS. SRI.BIJU .C. ABRAHAM SRI.BIJU PAUL ``` ## **`RESPONDENT/S:`** **1.** **`Mrs.ELIZABETH PHILIP MANAGER, SWARNAGIRI ESTATE, 62[nd] MILE, SPRING VALLEY P.O., KUMILY.`** **2.** **`INDUSTRIAL TRIBUNAL, IDUKKI`** ``` BY ADVS. SMT.A.K.PREETHA SRI.M.R.RAJESH ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.07.2023, ALONG WITH WP(C).11831 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 WP(C) Nos.11831 & 17078 of 2009 ## **JUDGMENT** Since a common issue is raised, these writ petitions are heard together and are being disposed of by this common judgment. 2. W.P.(C)No.11831 of 2009:- The petitioner, who is the Manager of Swarnagiri Estate in Kumily, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 award dated 28.01.2009 of the Industrial Tribunal, Idukki in I.D.No.5 of 2007 in relation to the disciplinary proceedings initiated against the 2[nd] respondent herein, who was a worker in Swarnagiri Estate. The misconduct levelled against the worker was ‘go-slow’ in the work on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants each, disregarding the instructions of the Manager to prune 45 plants each. On the ground that the explanation offered by the worker to the memo of charges was not satisfactory, an Enquiry Officer was appointed. Before the Enquiry Officer, witnesses were examined and documents were marked by both sides. The Enquiry Officer submitted a report in which it was found that the worker had committed ‘go-slow’ on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants each, disregarding the 4 WP(C) Nos.11831 & 17078 of 2009 instruction of the Manager to prune 45 plants each. After the procedural formalities, the worker was imposed with a punishment of dismissal from service. Challenging the order of dismissal, a dispute was raised, which was referred for adjudication before the Industrial Tribunal, Idukki, vide G.O(Rt.)No.3293/2006/LBR dated 22.12.2006. In I.D.No.5 of 2007 before the Industrial Tribunal, Idukki, the Enquiry Officer was examined as MW1 and the file containing the enquiry proceedings, report, etc., was marked as Ext.M1. After considering the pleadings and evidence on record, the Industrial Tribunal arrived at a conclusion that the misconduct alleged against the worker that she committed ‘go-slow’ on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants, disregarding the instruction of the Manager to prune 45 plants each on those days, stands proved. The Tribunal noticed that the management has not raised an allegation that the past service of the worker was not good. The Tribunal held that the punishment of dismissal awarded to the worker is shockingly disproportionate to the gravity of the misconduct proved against her. Therefore, the Tribunal held that a loss of 50% of the back wages is adequate for the misconduct proved against the worker. By Ext.P1 award dated 30.04.2003 Iin I.D.No.5 of 2007, the management was directed 5 ## WP(C) Nos.11831 & 17078 of 2009 to reinstate the worker with 50% back wages and continuity of service. Ext.P1 award of the Tribunal, converting the order or dismissal into one for reinstatement of the worker with 50% back wages with continuity of service, is under challenge in this writ petition seeking a writ of certiorari. The petitioner has also sought for an alternative relief, i.e., a writ of mandamus commanding the 1[st] respondent Industrial Tribunal to take up I.D.No.5 of 2007 to its file and reconsider the issue of proportionality of punishment, in accordance with law. 3. On 08.04.2009, when this writ petition came up for admission, this Court issued notice to the respondents. This Court granted an interim order staying Ext.P1 award to the extent of granting 50% of the back wages to the worker. 4. W.P.(C)No.17078 of 2009:- The 2[nd] respondent worker in W.P.(C)No.11831 of 2009 has filed this writ petition challenging Ext.P11 preliminary order dated 28.11.2008 of the Industrial Tribunal, Idukki in I.D.No.5 of 2007, wherein the Tribunal found that the management has succeeded in proving the misconduct alleged against the worker that she committed ‘go-slow’ in work on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants, disregarding the instruction of the Manager to prune 45 6 WP(C) Nos.11831 & 17078 of 2009 plants each on those days, and also Ext.P13 award dated 28.01.2009 of the 2[nd] respondent Tribunal to the extent it upheld the finding of the Enquiry Officer and disallowed her 50% of the back wages on reinstatement in service. 5. On 22.06.2009, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. 6. Heard the learned counsel for the petitioner in the respective writ petitions and also the learned counsel for the party respondent. 7. The issue that arises for consideration in these writ petitions is as to whether any interference is warranted in the award of the Industrial Tribunal dated 28.01.2009 in I.D.No.5 of 2007 [Ext.P1 in W.P.(C)No.11831 of 2009 and Ext.P13 in W.P.(C)No.17078 of 2009] and also the preliminary order dated 28.11.2008 of the Industrial Tribunal in I.D.No.5 of 2007 [Ext.P11 in W.P.(C)No.17078 of 2009]. 8. In **M.P. Electricity Board v. Jagdish Chandra Sharma [(2005) 3 SCC 401]** , after referring to **Bharat Forge Co. Ltd.** (supra) and **Mahindra and Mahindra Ltd.** (supra), the Apex Court reiterated that the jurisdiction under Section 11A of 7 WP(C) Nos.11831 & 17078 of 2009 the Industrial Disputes Act, 1947 to interfere with punishment when it is a discharge or dismissal can be exercised by the Labour Court only when it is satisfied that the discharge or dismissal is not justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution of India only when it finds that the punishment imposed is shockingly disproportionate to the charge proved. In **U.P. State Road Transport Corporation v. Subhash** **Chandra Sharma and others [AIR 2000 SC 1163]** the Apex Court, after referring to the scope of interference with punishment under Section 11A of the Industrial Disputes Act, held that the Labour Court was not justified in interfering with the order of removal from service when the charge against the employee stood proved. It was also held that the jurisdiction vested with the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily. It was necessary, in a case where the Labour Court finds the charge proved, it has to arrive at a conclusion that the punishment was shockingly disproportionate to the nature of the charge found proved before it could interfere to reduce the punishment. 8 WP(C) Nos.11831 & 17078 of 2009 9. In **Canara Bank, Circle Office, TVM v. D.S. Mohini and others [2019 (2) KLT SN 69 : 2019 KHC 199]** a Division Bench of this Court reiterated the settled position that the High Court is not a court of appeal in respect of an award passed by the Labour Courts or Industrial Tribunals. 10. In the instant case, the charge levelled against the worker was that she committed ‘go-slow’ in work on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants, disregarding the instruction of the Manager to prune 45 plants each on those days. The finding of the Enquiry Officer in Ext.P6 findings dated 07.02.2004 is based on the oral testimony of the Manager of the Estate as MW1 and also the oral testimony of Supervisor Mani, who was examined as MW2. MW2 Mani has stated that on the days in question, he counted the plants pruned, as the workers were doing the work indifferently. The document marked on the side of the management as Ext.M4 is a workbook maintained by Supervisor Bhaskaran, for the period from August, 1999 to December, 2000. Supervisor Salim, who is the husband of the delinquent worker, was examined as WW1. According to Salim, a worker has to prune a minimum of 35 plants per day. The delinquent worker Ayisha maintained in Ext.M2 reply dated 9 WP(C) Nos.11831 & 17078 of 2009 23.02.2003 to Ext.M1 memo dated 21.2.2003 issued by the management that she had completed her work of pruning, as directed by the management. However, in Ext.M2 reply, the delinquent worker did not specifically state how many plants were pruned by her on those days. Before the Industrial Tribunal, the Enquiry Officer was examined as MW1 and the file containing the enquiry proceedings, statement of witnesses, documents, enquiry report, etc., was marked as Ext.M1. After perusing the file and considering the oral testimony of the Enquiry Officer as MW1, the Industrial Tribunal in Ext.P11 preliminary order arrived at a conclusion that the Enquiry Officer conducted the enquiry properly and in compliance with the principles of natural justice and that, the management has succeeded in proving the misconduct alleged against the worker that she committed ‘go-slow’ in work on 07.02.2003 and 08.02.2003 by pruning only 21 cardamom plants, disregarding the instruction of the Manager to prune 45 plants each on those days. 11. However, in the award dated 28.01.2009 in I.D.No.5 of 2007 [Ext.P1 in W.P.(C)No.11831 of 2009 and Ext.P13 in W.P.(C)No.17078 of 2009] the Industrial Tribunal held that the punishment of dismissal awarded to the worker is shockingly 10 WP(C) Nos.11831 & 17078 of 2009 disproportionate to the gravity of the misconduct proved against her. Therefore, the Tribunal held that a loss of 50% of the back wages is adequate for the misconduct proved against the worker. In the Award, the Industrial Tribunal noticed that the management has not raised an allegation that the past service of the delinquent worker was not good. 12. During the course of arguments, the learned counsel for the management would submit that, as noticed by the Industrial Tribunal in the impugned award, the management has not raised an allegation that the past service of the delinquent worker was not good. On a query made by this Court, the learned counsel would submit that, since the interim order of stay granted by this Court on 08.04.2009 in W.P.(C)No.11831 of 2009 is an order staying Ext.P1 award dated 28.01.2009 in I.D.No.5 of 2007 to the extent of granting 50% of the back wages to the worker, the worker has already been reinstated in service. 13. Considering the nature of the charge found against the delinquent worker and taking into consideration the fact that the management has not raised an allegation that the past service of the delinquent worker, for about 28 years, was not good and that, the award of the Industrial Tribunal in I.D.No.5 of 2007, 11 WP(C) Nos.11831 & 17078 of 2009 ordering the reinstatement of the delinquent worker is one passed on 28.02.2009, nearly 5 years after her dismissal from service on 27.05.2004, this Court finds that the order of reinstatement of the worker should be with 75% back wages and continuity of service, instead of 50% back wages and continuity of service; otherwise, the punishment would be shockingly disproportionate to the nature of the charge found proved against the worker. In the result, the award dated 28.01.2009 of the Industrial Tribunal, Idukki in I.D.No.5 of 2007 [Ext.P1 in W.P.(C)No.11831 of 2009 and Ext.P13 in W.P.(C)No.17078 of 2009] is modified to the above extent. The writ petitions are disposed of as above. Sd/- ## **ANIL K. NARENDRAN, JUDGE** bkn/- 12 WP(C) Nos.11831 & 17078 of 2009 ``` APPENDIX IN WP(C)No.11831 OF 2009 ``` ## **`PETITIONER’S EXHIBITS:`** ``` EXT.P1: TRUE COPY OF THE AWARD PASSED BY THE 1[ST] RESPONDENT IN I.D.NO.5 OF 2007 DATED 28.01.2009. ``` ``` EXT.P2: TRUE COPY OF THE NOTICE ISSUED BY THE PETITONER TO THE 2[ND] RESPONDENT DATED 28.03.2009. ``` 13 WP(C) Nos.11831 & 17078 of 2009 ``` APPENDIX IN WP(C)No.17078 OF 2009 ``` ## **`PETITIONER’S EXHIBITS:`** ``` EXT.P1: TRUE COPY OF THE CHARGE SHEET DATED 30.04.2003 EXT.P2: TRUE COPY OF THE EXPLANATION DATED 01.03.2004 EXT.P3: TRUE COPY OF THE DEPOSITION OF THE MANAGEMENT WITNESSES EXAMINED AS MW-1 IN THE ENQUIRY. ``` ``` EXT.P4: TRUE COPY OF THE DEPOSITION OF THE MANAGEMENT WITNESSES EXAMINED AS MW-2 IN THE ENQUIRY. ``` ``` EXT.P5: TRUE COPY OF THE DEPOSITION OF THE PETITIONER’S WITNESS ``` ``` EXT.P6: TRUE COPY OF THE FINDINGS OF THE ENQUIRY OFFICER DATED 07.02.2004. ``` ``` EXT.P7: TRUE COPY OF THE ORDER OF DISMISSAL ``` ``` EXT.P8: TRUE COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER. ``` ``` EXT.P9: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1[ST] RESPONDENT. ``` ``` EXT.P10: TRUE COPY OF THE DEPOSITION OF THE ENQUIRY OFFICER BEFORE THE 2[ND] RESPONDENT. ``` ``` EXT.P11: TRUE COPY OF THE PRELIMINARY ORDER DATED 28.11.2008 IN I.D.NO.5 OF 2007 PASSED BY THE 2[ND] RESPONDENT. EXT.P12: TRUE COPY OF THE JUDGMENT DATED 05.01.2009 PASSED BY THIS COURT IN WPC.NO.350 OF 2009 ``` ``` EXT.P13: TRUE COPY OF THE FINAL AWARD DATED 28.01.2009 OF THE 2[ND] RESPONDENT TRIBUNAL IN ID.NO.5 OF 2007. ``` ``` EXT.P14: TRUE COPY OF THE LETTER DATED 28.03.2009 ISSUED BY THE 1[ST] RESPONDENT. ```