Dismissed

P.Gopalakrishnan v. Kerala Distelleries, Rep. by G.M. and

Kerala HC3 Oct 2016OP(LC)/209/2010

Case brief

AI extract

What is this about?

The labour court petition was dismissed. The court held the Industrial Tribunal correctly found the workman guilty of habitual absenteeism, upheld the barring of increments, and the dismissal of the workman, finding no error in the proceedings despite procedural irregularities corrected by allowing fresh evidence.

What did the court decide?

The writ petition filed by the workman is dismissed with no costs.

P.Gopalakrishnan Vs Kerala Distelleries, Rep. by G.M… — Service and Employment | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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OP(LC).No. 209 of 2010 (O)

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--------------------------ID. NO.2/2007 OF INDUSTRIAL TRIBUNAL, PALAKKAD.

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PETITIONER:

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P. GOPALAKRISHNAN, AGED 37 YEARS, S/O.S. PAPPU, PUZHAKKAL HOUSE, PAMPANPALLAN, KANJIKODE, PALAKKAD DISTRICT.

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BY ADVS.SRI.P.RAMAKRISHNAN, SRI.T.C.KRISHNA.

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RESPONDENT(S):

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1. KERALA DISTILLERIES, K. PUDUR, KANJIKKODE, PALAKKAD- 678 621, REPRESENTED BY ITS GENERAL MANAGER.

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2. INDUSTRIAL TRIBUNAL, PALAKKAD - 678 001.

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R1 BY ADVS. SRI.P.BENNY THOMAS, SRI.P.GOPINATH MENON, SRI.K.JOHN MATHAI, SRI.E.K.NANDAKUMAR. R2 BY GOVT. PLEADER SMT.VINEETHA HARIRAJ.

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THIS OP (LABOUR COURT) HAVING BEEN FINALLY HEARD ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(LC).No. 209 of 2010 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE G.O.(RT) NO.1880/2008/LBR DATED 15/07/2008. EXT.P2 COPY OF THE FIRST ENQUIRY REPORT OF THE ENQUIRY OFFICER DATED 09/12/2004.

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EXT.P3 COPY OF THE 2ND ENQUIRY REPORT OF THE ENQUIRY OFFICER DATED 12/09/2005.

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EXT.P4 COPY OF THE PRELIMINARY ORDER OF THE INDUSTRIAL TRIBUNAL, PALAKKAD DATED 20/10/2010.

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EXT.P5 COPY OF THE AWARD OF THE INDUSTRIAL TRIBUNAL, PALAKKAD DATED 04/06/2010.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K. Vinod Chandran, J

O.P(LC) No.209 of 2010-O

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Dated this the 03^rd day of October, 2016

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JUDGMENT

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Two punishments, one of barring of three increments

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and the other of dismissal of the workman, was referred for adjudication. The Industrial Tribunal, by a common award, decided the issues; but, however, dealt with them separately. Both the punishments were imposed by the management on allegations of misconduct of unauthorised absence.

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Exhibit M1 was the files relating to the first domestic

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enquiry, which led to the punishment of barring of three increments.

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The misconducts alleged, under the Standing Orders, were:

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S.O.No.20.23 Habitual absenteeism without leave; 20.40 Obtaining leave on false pretext or unauthorized leaving or absence from the work spot; 20.42 Breach of one or more provisions of the Standing Orders or any rule in force in the distillery or any act subversive of discipline; and 20.45 Deliberate abuse of any leave, privilege, concessions or benefits.

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OP(LC) No.209 of 2010 - 2 -

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The misconduct of unauthorised absence alleged was for the period between 14.06.2004 and 17.07.2004. The workman had alleged that the Enquiry Officer was not impartial; but, however, the Tribunal found that there was no specific aspect pointed out of such partiality having been shown at the enquiry. The allegation of partiality was raised on the ground that the Enquiry Officer rejected the workman's request for production of certain documents. The documents sought for were the leave letters of all other employees

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and the muster roll for three years. The Tribunal found that the leave letters of other employees were irrelevant. The muster roll though relevant, the extracts of the same for the months of June and July, 2004 were alone produced. These disclosed the unauthorised absence alleged against the workman for the specific period. However, there was also an allegation of unauthorised absence for the years 2002 and 2003, which was alleged to show that the workman was a habitual absentee. The non-production of the entire muster roll was found to have not proved the said charge.

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The proceedings with respect to the unauthorised absence specifically alleged between 14.06.2004 to 17.07.2004 was found to be proper. Looking at the evidence adduced, it was

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found that the workman had admitted the absence; but had claimed that he had sufficient reason, i.e., illness, to have absented himself and to that end, certain documents were produced. The certificates produced by the workman was not believed by the Enquiry Officer, which was found to be on cogent reasons. The allegation of misconduct was found to be proved and in such circumstance, the punishment imposed was also found to be correct.

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The misconduct of habitual absenteeism without leave was found to be not supported by sufficient evidence at the enquiry. Though allegations were made pointing out the absence in the year 2002 and 2003, there was no evidence to substantiate the same was the finding of the Labour Court on the basis of the evidence led at the enquiry. There was one other allegation that the workman did not report for duty from 26.07.2004; which was also not supported by any evidence. The habitual absenteeism and the non-reporting for duty were found to be not proved.

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Exhibit M2 was the enquiry report with respect to the second enquiry conducted, also of unauthorised absence for the period between 03.05.2005 to 19.05.2005. The allegations again were of violation of Standing Orders as in the previous time. The

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OP(LC) No.209 of 2010

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workman remained ex parte at the enquiry. According to the workman, he apprehended that the very same Enquiry Officer who conducted the earlier enquiry would be prejudiced against him and, hence, he remained away from the enquiry. A request for changing the Enquiry Officer was also submitted before the management and a prayer for adjournment was made before the Enquiry Officer on that ground. The said request for adjournment was received after the enquiry was proceeded with, and concluded ex parte on the same day, at 5.45 p.m. The conclusion of the enquiry and the filing of the report, despite having received a request for adjournment, was found to be in gross violation of the principles of natural justice and the enquiry was held to be vitiated. The management, hence, was permitted to adduce fresh evidence on the misconduct alleged of habitual absenteeism and the non-reporting for duty alleged at the first instance as also the unauthorised absence between 03.05.2005 to 19.05.2005 and the violation of Standing Orders, alleged in the second instance.

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The learned Counsel appearing for the workman submits that there was no warrant for considering the earlier absence, which even according to the management was condoned.

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However, this Court is not convinced that such a contention can be taken especially when the condonation was on the assurance given by the workman that there would be no repetition of such unauthorised absence. Despite the assurance; when the workman committed the very same misconduct and absented without authorisation, the management was justified in taking into account the earlier absence also; on which the allegation of habitual absenteeism was charged. There was a specific charge levelled against the workman about the habitual absenteeism and the management had, in the charge-sheet itself, stated that the further proceedings in the earlier instances were dropped for reason of the assurance given by the workman. The Tribunal's finding that there is no justification in the ground raised against the charge, is found to be correct.

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Before the Tribunal, the management produced Exhibit M3, attendance register for the period from March, 2002 to July, 2005; which proved the misconduct having been committed in the years 2002 and 2003, respectively for 45 days and 59 days. The show cause notice issued and the reply given admitting the charge and undertaking not to repeat the same by the workman

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OP(LC) No.209 of 2010

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was also produced. The management was, hence, found to have proved the case of habitual absence; for which also the punishment was only the barring of three increments, which, coupled with the specific proved allegation of unauthorised absence in the year 2004, was found to be justified. In any event, having found the misconduct to be proved, the Tribunal could not have interfered under Section 11A of the Industrial Disputes Act, 1947, as has been correctly found by the Tribunal in Exhibit P5 award.

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Further reference was on the punishment of

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dismissal. The enquiry which was held with respect to that having been found to be vitiated, the management was permitted to lead fresh evidence. In that show cause notice also the allegation of habitual absenteeism was alleged along with a specific instance of absence between 03.05.2005 to 19.05.2005. The misconducts were based on violation of Clauses 20.23, 20.40, 20.42 and 20.45 of the Standing Orders. The workman was alleged to have not reported for duty on 27.04.2005. A notice was issued, dated 28.04.2005, advising him to report for duty latest by 02.05.2005. The workman is said to have reported for duty on 02.05.2005 and then absented from duty from 03.05.2005 till the issuance of the

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show cause notice dated 19.05.2005. The workman, despite asking for time to submit explanation, did not submit any.

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As stated earlier, the workman remained ex parte at the enquiry. Even before the Tribunal, the workman admitted the receipt of notice dated 19.05.2005 and the further notice dated 18.06.2005, but did not offer any explanation in the claim statement or the proof affidavit filed before the Tribunal. The case set up by the workman was that the management denied him employment from 28.04.2005 and permitted him to report for duty only on 02.05.2005 and that in such circumstance since the workman had reported for duty on the day specified, there was condonation of the unauthorised absence. When the second notice was issued, the proceedings against the workman for the misconduct alleged earlier was pending. Though the workman had contended that the workman had reported for duty on 28.03.2005 and the management had refused to allow him to join duty, the endorsement made in Exhibit M4 dated 26.03.2005 would indicate to the contrary. There was nothing to prove that he had been present for work on 28.03.2005. Even in the proof affidavit of the workman it was only submitted that he had reported for duty on

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02.05.2005 as directed by the management. The further submission was that due to ill health, he could not continue work and had undergone treatment from 03.05.2005. There was certain medical certificates produced, which itself revealed certain discrepancies, of the workman having been certified fit for duty by one doctor and the workman having approached another doctor on the very same day. The certificates were found to be not acceptable evidence in explanation of a satisfactory ground for the absence of the workman. The workman also had not endeavored to examine the persons who issued the medical certificates. Exhibit M8 letter dated 30.08.2005 was specifically referred by the Tribunal to find that the workman had admitted of his absence.

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On the totality of the circumstances, the misconducts alleged of habitual absenteeism and the violation of the various clauses of the Standing Orders were found to have been proved against the workman. The Tribunal upheld the dismissal of the workman; which this Court does not find any reason to interfere with. The Tribunal also found no valid grounds to interfere with the punishment imposed under Section 11A of the ID Act, which is also perfectly in tune with the spirit and tenor of the

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above provision. The unauthorised absence was repeated continuously and in such circumstance the allegation of habitual absenteeism could be raised at every instance when it is repeated. The earlier charge levelled and punishment imposed; would not efface the earlier misconducts being taken into account for leveling the charge of habitual absenteeism at every instance when it is repeated. The habitual absenteeism earlier found and punished was repeated and hence there is sufficient justification for dismissal.

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The writ petition would stand dismissed. No costs.

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Sd/- K.Vinod Chandran Judge.

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Vku/-

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[ true copy ]

P.Gopalakrishnan v. Kerala Distelleries, Rep. by G.M. and

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P.Gopalakrishnan v. Kerala Distelleries, Rep. by G.M. and

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