W.P.(C).No.346 of 2005 (N)

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WP(C).No. 346 of 2005(N) ------------------------ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 346/05. ## APPENDIX ## PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD IN ID.NO.16/99 BY R2. P2. COPY OF THE CLAIM STATEMENT BY R1 BEFORE R2. P3. COPY OF THE WRITTEN STATEMENT BY THE PETITIONER BEFORE R2 DTD.9.11.00. ## Sdk+ ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## W.P.(C).No.346 of 2005 ================== Dated this the 31[st] day of March, 2008 J U D G M E N T The petitioner is the management in I.D.No.16/1999 before the Labour Court, Kollam. He is challenging Ext.P1 award of the Labour Court in that I.D. 2. The issue referred for adjudication was: “Whether the dismissal of Sri.R.Mohan, General attendant, MC.Dowell & Company, Vernad, Cherthala is justifiable? If not, what benefits he is entitled to?” 3. Since the dismissal of the workman was after conducting a domestic enquiry, the Labour Court considered the question of validity of the enquiry and, found that there is no reason to discard the enquiry report and the findings of the enquiry officer. However, the Labour Court exercised its powers under Section 11A of the Industrial Disputes Act and directed reinstatement of the workman treating the period from 1.3.1997 till the date of award as leave without allowances. The petitioner is aggrieved by that apart of Ext.P1 award whereby the Labour Court directed reinstatement of the workman. 2 w.p.c.346/05 4. According to the petitioner, the Labour Court erred in exercising the powers under Section 11A, in view of the gravity of the misconducts proved against the workman. He submits that the misconducts alleged against the workman were assault against a co-worker resulting in hospitalisation of the co-worker, which is serious enough to warrant the punishment of dismissal. The counsel for the petitioner relies on the decision of the Supreme court in _**VERMA.L.K.** v._ _**H.M.T., LTD.**_ [2006-I-LLJ 1074], in which the Supreme Court held that even a verbal abuse of a fellow employee is sufficient for inflicting the punishment of dismissal. The petitioner, therefore, seeks quashing of Ext.P1 award to the extent it interferes with the punishment of dismissal imposed on the workman. 5. The counsel for the workman points out that the Labour Court has interfered with the punishment on specific materials on record which cannot be found to be perverse in any manner, without finding which, this Court may not interfere with the discretion exercised by the Labour Court in that matter. 6. I have considered the rival contentions in detail. 7. Since the validity of the punishment of dismissal 3 w.p.c.346/05 depends on the gravity of the misconducts proved against the workman, I shall first note the misconducts proved against the workman. The charges were based on the following incident. While the workman was doing duty on 9.7.1996 in the shift from 4 p.m. to 12 midnight, at around 4.45 p.m. he went to the general stores premises without permission and abused one Sri.N.S.Prasad, a co-worker, who was standing in front of the store, he assaulted Sri.Prasad without any provocation and also spit on his face. While Sri.Prasad was sitting inside an auto rickshaw for being transported to the hospital, the workman again assaulted him without any provocation. The said Sri.Prasad had to be hospitalised because of the assault. 8. The above incident resulted in framing of the following charges: - “1. Absence from place of work without permission - Sub Clause (g) of Clause 30(i). 2. Riotous and disorderly behaviour or any act subversive of good behaviour or discipline during working hours - Sub Clause (i) of Clause 30(1). 3. Fighting, quarreling, using abusive language, assaulting attempting bodily injury to another person - Sub Clause (z) of Clause 30(1). 4. Threatening or intimidating or using any force or violence 4 w.p.c.346/05 against any employee of the company - Sub Clause (aa) of clause 30(i). 5. Commission of any act subversive of discipline or good behaviour in the premises of the establishment - Sub clause (a h) of Clause 30(i).” ## Since no challenge has been made in any other aspect, I need only consider whether these proved misconducts are sufficient to warrant the punishment of dismissal on the workman. The Labour Court has exercised its powers under Section 11A of the Act on the following reasons; “So it is obvious that the charge is based on an assault against a co-worker and it is seen from the judgment of the Criminal Court that the aggrieved person has settled the matter with the delinquent worker. However, being an incident that took place in the company premises, it will have some repercussion on the discipline of the workers as is now contended by the management. The delinquent worker, it appears that suffering from some mental problems and was undergoing treatment. Few medical certificates and a discharge summary were produced. However, no attempt was made to prove these documents and the worker has also not gone to the box [sic] prove the document. In spite of it, these documents, the genuineness of which are not disputed cannot be totally ignored. The fact that the injured who is the defect complaint [sic] in the criminal case has settled the matter with the delinquent is also a mitigating circumstance, while considering the penalty to be imposed. The incident was in 1996 and 8 years have already elapsed. No previous misconduct or punishment is alleged against the worker. Considering the above, the penalty of dismissal appears to be grossly disproportionate and unjustified. So the period from 1.3.1997 till the date of award will be treated as leave without any allowance and he will be reinstated within one month. Point found accordingly.” I am not satisfied with the reasons given by the Labour Court as 5 w.p.c.346/05 sufficient to warrant interference in exercise of powers under Section 11A. It is settled law that the jurisdiction under Section 11A of the Industrial Disputes Act is not a jurisdiction in exercise of sympathy. The misconducts proved against the workman are very serious in nature. In the decision in _**Verma's case**_ (supra) the Supreme court has went to the extent of holding that mere verbal abuse against a co-worker is sufficient for inflicting the punishment of dismissal. In that decision, several other decisions of the Supreme Court, more or less to the same effect have been relied upon also. The documents relied on by the Labour Court were not even introduced in evidence. As such, he could not have relied upon those documents in this case to come to the findings arrived at. Therefore, I am satisfied that the Labour Court has exceeded its jurisdiction in interfering with the punishment under Section 11A. I hold that the punishment of dismissal could not have been interfered with by the Labour Court since the gravity of the misconducts proved against the workman was serious enough to warrant the punishment of dismissal. However, taking a lenient view, I direct that the punishment of dismissal be converted into that of a discharge enabling the 6 w.p.c.346/05 workman to get retirement benefits. While doing so, I also note that the during the pendency of the writ petition the workman had received wages under section 17B of the Act for 36 months at the rate of Rs.4142/- per month. The writ petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge