Dismissed

The Superintendent Vengathanam Estate v. the General Secretary

Kerala HC15 Mar 2016WP(C)/26837/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition assaulting an award reinstating workmen dismissed for alleged aggression against the Superintendent. Finding no illegality, the Court held the Labour Court's decision rejecting the charges was well-reasoned and unassailable. The appeal was dismissed without prejudice to any other challenge regarding the initial flawed enquiry.

What did the court decide?

The writ petition was dismissed; the Labour Court award directing reinstatement was upheld. Pending wages during the pending appeal were to be adjusted against award dues.

The Superintendent Vengathanam Estate Vs the… — Labour and Industrial Disputes | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937

¶5

WP(C).No. 26837 of 2008 (T)

¶6

AGAINST THE JUDGMENT IN ID 69/1999 of LABOUR COURT, ERNAKULAM

¶7

PETITIONER:

¶8

THE SUPERINTENDENT VENGATHANAM ESTATE OORAKKANADU P.O., PARATHODE, KANJIRAPPALLY KOTTAYAM DISTRICT.

¶9

BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR

¶10

RESPONDENTS:

¶11

THE GENERAL SECRETARY MADHYAMEKHALA THOTTAM THOZHILALI UNION (HMS) CHITTADI P.O., PARATHODE, KOTTAYAM - 686 512.

¶12

THE LABOUR COURT, ERNAKULAM.

¶13

R1 BY ADV. SRI.THAMPAN THOMAS R2 BY GOVERNMENT PLEADER SRI.C.JAYAKUMAR

¶14

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

WP(C).No. 26837 of 2008 (T)

¶16

APPENDIX

¶17

P1: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.10.1994 ISSUED TO SRI.K.O.MATHEW.

¶18

P2: TRUE COPY OF THE REPLY DATED 17.10.1994 SUBMITTED BY SRI.K.O.MATHEW

¶19

P3: TRUE COPY OF THE CHARGE SHEET DATED 19.10.1994 ISSUED TO SRI.K.O.MATHEW

¶20

P4: TRUE COPY OF THE REPORT OF THE ENQUIRY OFFICER DATED 17.08.1995

¶21

P5: TRUE COPY O THE DISMISSAL ORDER DATED 9.9.1995 ISSUED TO SRI.K.O.MATHEW.

¶22

P6: TRUE COPY OF THE CLAIM STATEMENT FILED BY THE FIRST RESPONDENT DATED 1.1.2000 IN ID 69/99

¶23

P7: TRUE COPY OF THE WRITTEN STATEMENT DATED 16.09.2000 FILED BY THE PETITIONER IN ID 69/99

¶24

P8: TRUE COPY OF THE PRELIMINARY ORDER DATED 30.09.2004 ISSUED BY THE 2ND RESPONDENT IN ID 69/99

¶25

P9: TRUE COPY OF THE LETTER DATED 14.8.1995 ISSUED BY THE REPRESENTATIVE OF THE WORKMEN.

¶26

P10: TRUE COPY OF THE JUDGMENT IN WPC NO.34352/2004 DATED 8.3.2006

¶27

P11: TRUE COPIES OF THE DEPOSITION OF MW2 TO MW7 DATED 5.7.2007, 12.7.2007 AND 20.9.2007 AND 20.9.2007 RESPECTIVELY.

¶28

P12: TRUE COPY OF THE AWARD IN ID 69/1999 DATED 15.5.2008 PASSED BY THE 2ND RESPONDENT.

¶29

RESPONDENTS' EXHIBITS

NIL

/True Copy/

P.A. to Judge

ANU SIVARAMAN, J.

¶34

= = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.26837 of 2008

¶35

= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 15^th day of March, 2016

¶36

JUDGMENT

¶37

1.This writ petition is filed by the Superindendant, Venkathanam estate challenging Exhibit P8 preliminary order and Exhibit P12 award issued by the Labour Court, Ernakulam under the Industrial Disputes Act. The dispute was with regard to the dismissal of four employees employed as tappers and general worker/spare tapper in the estate. The allegation was that on 08.10.1994 at about 10 am, five workmen waylaid the petitioner uttering obscene words and rushed towards him with an intent to cause harm. The petitioner had to rush to the estate jeep and retreat to the factory. They later gheraoed the petitioner in front of his office and the police had to be summoned to remove the workmen from the premises.

¶38

2.Show cause notices were issued to the workmen on these allegations. Replies were submitted by the workers, but Exhibit P3 charge sheet was issued on 19.10.1994 against

¶39

W.P.(C).No.26837/14

¶40

¶41

them. The charge was that the five workmen had shouted, abused the Superintendent and rushed at him putting him in fear of bodily injury and he had boarded the jeep and gone to the office. The workers had followed him to the estate office and had created an unruly scene and gheraoed the Superintendent without permitting him to go out and had thus violated Clause 22(h) of the standing orders applicable to plantation workers. An Advocate of the Kottayam Bar was appointed as Enquiry Officer. The first sitting of the enquiry was held on 12.11.1994. The workman had submitted applications before the Enquiry Officer stating that no subsistence allowance was disbursed to them and they would not be able to attend the enquiry for lack of means. When the enquiry was posted on 30.12.1994, the workmen had appeared and requested that their application for orders to release the subsistence allowance should be taken at the earliest. It is recorded by the Enquiry Officer as follows:-

¶42

“I informed them that the enquiry was not the for discussing their subsistence allowance and they were advised to resort to their own means. Again the delinquents insisted that they will not sign the proceedings unless decision was taken regarding the subsistence

¶43

W.P.(C).No.26837/14

¶44

¶45

allowance. I again informed them that decision regarding the subsistence allowance will be intimated to them by registered post. They were also told that the request for allowing the union president at the enquiry was also allowed. The enquiry was adjourned to 13-1-95.”

¶46

3.On 13.01.1995, the charges were read over and the statement of the delinquents were recorded. The enquiry was posted to several days thereafter and the delinquent workmen continued to attend most of the sittings. However, no orders were issued with regard to the subsistence allowance and the workers contend that no subsistence allowance was actually paid to them. Thereafter, the workers did not attend the enquiry and on 21.06.1995 they were set ex parte. Thereafter, statements of the management witnesses were taken and the Enquiry Officer proceeded to find that the charges levelled against the workers stood proved. Based on the Report of Enquiry, a notice of dismissal dated 09.09.1995 was served on the workers. The workers filed claim statement before the labour court which was referred for adjudication. By Exhibit P8 preliminary order, the labour court held that the enquiry

¶47

W.P.(C).No.26837/14

¶48

¶49

conducted by the employer was vitiated, since no subsistence allowance was disbursed to them and they were set ex parte. It was found that this action of the Enquiry Officer was violative of the principles of natural justice. The enquiry was thus found to be vitiated. When Exhibit P8 order was challenged before this Court, the writ petition was dismissed without prejudice to the right of the petitioner to challenge the preliminary order also while challenging the award to be passed in the industrial dispute.

¶50

4.Thereafter, the labour court proceeded to take evidence on the

¶51

charges. Oral and documentary evidence was adduced by the management. Though the workmen examined a witness, they did not produce any documentary evidence. However, appreciating the entire materials produced before it, the labour court came to the conclusion that the charges to the effect that the workmen had threatened, abused or physically prevented the petitioner from leaving his office room could not be proved. The labour court relied on the evidence adduced by the management itself to come to the conclusion that it was

¶52

W.P.(C).No.26837/14

¶53

¶54

found that there was no gherao as alleged by the management and that the charges levelled against the workmen could not be proved. In the above circumstances, the labour court passed Exhibit P12 award directing reinstatement of workmen with 50% backwages. This award is challenged before this Court under Articles 226 and 227 of the Constitution of India.

¶55

5.Heard Sri.Benny P.Thomas, learned counsel for the petitioner and Sri Thampan Thomas, learned counsel for the respondent.

¶56

6.Learned counsel for the petitioner would contend that workers had been given all possible opportunities to submit their case. However, after the initial postings of the enquiry they had refused to turn up and the action of the Enquiry Officer in setting with them ex parte could not be faulted. It was further submitted that in the enquiry conducted by the labour court as well, the workmen had only examined one witness and no documentary evidence was forthcoming on their side. In that view of the matter, it is submitted that the substantial body of evidence by the management ought to have been accepted by

¶57

W.P.(C).No.26837/14

¶58

¶59

the labour court and the labour court ought to have seen that the charges stood proved by the evidence adduced. The learned counsel for the workmen would, on the other hand, submit that the allegations raised against the workmen were obviously fallacious that the entire body of evidence adduced by the management was insufficient to establish their guilt. It is also contended that the allegations, even if accepted in toto, would not constitute a misconduct warranting removal from service and therefore the award of the labour court was completely in order.

¶60

7.Having considered the arguments advanced on either side as well as the pleadings and the recitals in the award of the 2^nd respondent, I am of the view that the 2^nd respondent has given anxious consideration to the issue on hand. The fact of non payment of subsistence allowance to the workmen and their consequent inability to meaningfully take part in the enquiry was brought to the notice of the Enquiry officer. In spite of repeated intimations in this regard, no steps were taken to disburse the allowance. Thereafter, on an overall evaluation

¶61

W.P.(C).No.26837/14

¶62

¶63

of the facts and circumstances of the case, the 2^nd respondent came to a conclusion that the enquiry conducted in the case is vitiated and the findings of the Enquiry Officer are not proper and valid and therefore the Enquiry Report is set aside. Thereafter, the Labour Court proceeded to record evidence. All the documentary and oral evidence adduced by the Management as well as the testimony of the workmen's witness was taken into account by the Labour Court. The Labour Court thereafter entered a well reasoned finding of fact that the management had not succeeded in proving the charges.

¶64

It is trite law that the power of this Court to interfere with the finding of fact made by the Labour Court or Industrial Tribunal as well as in matters of award of punishment is extremely limited. From a consideration of the pleadings and materials on record in this case and the contention of the parties, I find no illegality or arbitrariness in Ext.P8 preliminary award or Ext.P12 award. The writ petition therefore fails and is accordingly dismissed. The 17B wages paid to the workmen

¶65

W.P.(C).No.26837/14

¶66

¶67

during the pendency of this appeal shall be adjusted against the amounts payable to them in terms of the award.

¶68

sd/-

¶69

Anu Sivaraman, Judge

¶70

The Superintendent Vengathanam Estate v. the General Secretary

Case brief

What is this about?

What did the court decide?

The Superintendent Vengathanam Estate v. the General Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mammen Varghese Vs Cochin Corporation Rep.by Its Secretary

City Centre Vs Managing Partner,City Centre

Rajasekhara Kurup Vs State of Kerala

The Assistant Provident Fund Commnr. Vs Iyer & Mahesh

A.K.Sreekumar Vs the Labour Court

Pilakool Rahim Vs State of Kerala