Allowed

The President v. K.Viswanathan

Kerala HC23 May 2008OP/24514/2001

Case brief

AI extract

What is this about?

This original petition challenged a Labour Court award reinstating a workman admitted summary dismissal for misappropriation. The High Court quashed the award, holding the Labour Court's findings on procedural irregularities were perverse. The Court held no specific separate opportunity for a statement of defence is required if an explanation was submitted earlier and fixed charges were vague. The

What did the court decide?

Ext. P3 award quashed and Labour Court directed to re-adjudicate the dispute in accordance with the observations.

The President Vs K.Viswanathan — Labour and Industrial Disputes | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930

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OP.No. 24514 of 2001(R)

PETITIONER:

THE PRESIDENT, THAZHAVA KSHEEROLPADAKA SAHAKARANA SANGHAM LTD., NO. Q.59(D), KADATHOOR, THAZHAVA.

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BY ADV. SRI.B.SURESH KUMAR SMT.C.G.PREETHA SMT.V.S.UMA

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RESPONDENTS:

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K. VISWANATHAN, THAYYIL PADINJATTATHIL KUTHIRAPANTHY P.O.., THAZHAVA.

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THE LABOUR COURT, KOLLAM.

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BY ADV. SRI.V.N.ACHUTHA KURUP (SR.)

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THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING:

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PETITIONER'S EXHIBITS: O.P.NO. 24514/2001.

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EXT.P1 TRUE COPY OF CLAIM STATEMENT DT. 3-8-1992. EXT.P2 REPLY DT. 30-10-1992.

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EXT.P3 AWARD DT. 27-9-1999 IN I.D. NO. 38/1992 OF LABOUR COURT, KOLLAM. EXT.P4 MINUTES OF THE MEETING DT. 28-2-1988. EXT.P5 MINUTES OF THE MEETING DT. 27-3-1988.

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EXT.P6 DO. DT. 17-7-1988.

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RESPONDENTS' EXHIBITS:

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EXT.R1(1) JUDGMENT IN C.C.NO. 548/93 DT. 31-1-2002.

[TRUE COPY]

P.S TO JUDGE.

S. Siri Jagan, J.

Dated this, the 23rd May, 2008.

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Petitioner is the management in I.D No. 32/1992 before the Labour Court, Kollam. He is challenging Ext. P3 award passed by the Labour Court in that I.D. The issue referred for adjudication was :

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“Dismissal of Sri. K. Viswanathan, Secretary of the Society.”

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Since the dismissal of the workman was after conducting a domestic enquiry, the Labour Court considered the validity of the enquiry as a preliminary point and came to the conclusion that the enquiry is not valid. Thereafter, apparently because of lack of prayer in the written statement for adducing evidence or probably because nothing further could have been done on the basis of the charge sheet issued, by Ext. P3 award, the Labour Court straight away directed the petitionermanagement to reinstate the workman in service with backwages. The petitioner is challenging that award in this original petition.

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One of the contentions raised by the petitioner in this original petition is that being a Secretary of a Co-operative Society, the 1^st respondent-workman is not a workman as defined in Section 2(s) of the Industrial Disputes Act. However, no such contention is seen raised by the petitioner before the Labour Court. Further, no evidence has been adduced before the Labour Court to prove that the duties and functions of the 1^st respondent is such that he is excluded from the purview of the definition of workman. As such, I am not inclined to entertain that contention in this original petition.

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The petitioner challenges the findings on merits also. According to the petitioner, the findings are totally perverse. The Labour Court found that the charge sheet is vague and therefore the disciplinary proceedings based on that charge sheet is vitiated. Secondly, the Labour Court found fault with the petitioner-

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O.P. No. 24514/2001.

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-: 2 :-

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management in not giving an opportunity to the workman to submit his statement of defence. According to counsel for the petitioner, both the findings are against the facts and law. Reading out the charges, which have been extracted in the award itself, learned counsel for the petitioner would argue that the charges are not at all vague. Further, the counsel would point out that the Labour Court has dealt with only the first charge whereas there were two other charges also in the memo of charges in respect of which there is not even a finding that the same are vague. Regarding the finding that the enquiry is vitiated for want of opportunity to the workman to submit a statement of defence, the counsel would argue that there is no such rule or procedure in domestic enquiries under the Industrial Disputes Act for providing an opportunity to submit statement of defence to the workman in the enquiry. Counsel would point out that initially, the workman was given a show cause notice to which the workman had filed an explanation on finding which unsatisfactory, domestic enquiry was ordered and a charge memo was issued to the workman in tune with the original show cause notice, which is perfectly in accordance with the procedure accepted by law in such matters.

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I have considered the rival contentions in detail.

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I shall first deal with the second finding of the Labour Court that the enquiry is bad for want of opportunity to the workman to submit a statement of defence. Apparently, the Labour Court was carried away by the procedure prescribed in disciplinary proceedings in State and Central Government services wherein the Rules provide for an opportunity to submit a statement of defence in the enquiry. No such procedure is recognised in industrial law. In domestic enquiry in industrial law, all what is required is a reasonable

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O.P. No. 24514/2001. -: 3 :-

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opportunity to the workman to defend himself. In this case, a show cause notice had been issued to the workman to which the workman had admittedly submitted an explanation. Thereafter, an enquiry was ordered and the show cause notice was reproduced as charge memo, on which only the enquiry was conducted. I do not find any procedural irregularity in the same simply because the workman was not given another opportunity to submit his statement of defence. The workman had submitted his explanation, which would form his statement of defence. Therefore, the finding regarding that issue by the Labour Court is clearly perverse and liable to be set aside. I do so.

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The second question is as to whether the charges are vague for which we have to go into the charges themselves, which have been reproduced in the award, which read thus:

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O.P. No. 24514/2001.

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-: 4 :-

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Perhaps, on a reading of the first paragraph alone one may come to the conclusion that, that charge is vague. But, in paragraph 2, there is a reasonable detailing of the charge to the effect that the workman had misappropriated an amount of Rs. 1,30,336.88. The second paragraph was not even adverted to by the Labour Court in the award. On the other hand, the finding has been rendered only on the basis of the first paragraph. That, I do not think is appropriate in the circumstances. The Labour Court ought to have considered the second paragraph also, which gives some details of the first charge and entered a finding as to whether the same is sufficient to clarify the charges. Such an attempt does not appear to have been made by the Labour Court. More over, that charge was on the basis of the findings in a departmental audit by the Co-operative Department which found out misappropriation to the tune of Rs. 1,08,703.63. In that audit report, the workman was implicated as the person responsible. The workman does not appear to have raised a contention in his explanation to the show cause notice or in the claim statement that the charges are vague although he says that the enquiry notice was vague. He understood the charge correctly while

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O.P. No. 24514/2001. -: 5 :-

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denying the charges. Further, from the enquiry report, a copy of which was made available to me at the time of hearing, I find that each misappropriation has been amply proved by adducing sufficient evidence. Further, apart from the first charge, there were two other charges also in the charge sheet, which cannot, by any stretch of imagination, be considered to be vague. Even assuming that the first charge is vague, the Labour Court was bound to consider the other two charges, which does not appear to have been done. For the above reasons, the award is liable to be set aside in respect of the first point also. I do so.

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In view of the above findings, I am satisfied that the award is not sustainable for the reasons mentioned above and the Labour Court is bound to re-adjudicate the issue in the light of the observations contained herein above. Accordingly, Ext. P3 award is quashed and the Labour Court is directed to re-adjudicate the dispute in accordance with the observations contained herein above. The original petition is allowed as above.

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S. Siri Jagan, Judge.

Tds/

O.P. No. 24514/2001.

-: 6 :-

S. Siri Jagan, J.

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O. P No. 24514 of 2001

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J U D G M E N T

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23rd May, 2008.

The President v. K.Viswanathan

Case brief

What is this about?

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The President v. K.Viswanathan

Case brief

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What did the court decide?

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