A Single Bench judgment dismissed this writ petition filed by workmen challenging their dismissal. The Division Bench upheld the Labour Court's preliminary and final awards dismissing the case, rejecting claims of disproportionate punishment and lack of proved loss.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 15TH DAY OF JULY 2022 / 24TH ASHADHA, 1944
WP(C) NO. 1945 OF 2022
PETITIONERS:
1 REMANI AMMAKOYIKKAL THEKKATHIL, ADHINADU NORTH P.O,
K S PURAM, KARUNAGAPALLY.
2 GEETHA G, MANETHU PADEETTATHIL, ADHINADU SOUTH, KATTIL KADAV P.O. KARUNAGAPALLY.3 GEETHA R, KARALIL VADAKKATHIL, ADHINADU NORTH P.O. K.S PURAM, KARUNAGAPALLY.BY ADVS.
V.PREMCHAND
SURYA MOHAN P.
RESPONDENTS:
1 THE PROPRIETORWESTERN INDIA CASHEW COMPANY PVT LTD,
CORPORATE OFFICE P.B. NO 75, BEACH ROAD, KOCHI-691 001.
2 THE MANAGER, WESTERN INDIA CASHEW COMPANY PVT LTD, PUTHENTHERUVU FACTORY, K S PURAM P.O., KARUNAGAPALLY – 691 001THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.07.2022, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING:
WP(C) NO. 1945 OF 2022
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JUDGMENT
This is the second round of litigation arising out of a dispute pertaining to the employment of the petitioners in grading and packing section of the respondent - management.
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public holiday owing to the Bakried the factory was closed and on the next day the workers when reached the factory were denied the employment, whereas, the management contended that the workers boycotted the work on 27.10.2012 as they were denied work on 26.10.2012. They illegally assembled outside the factory on 27.10.2012, disobeyed the orders of the supervisors and the manager and when the willing workers came out of the factory for tea, they were abused and manhandled by the delinquent workers. The other workers were prevented from re-entering the factory resulted into disruption of work and loss.
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document remained unproved. The Labour Court vide preliminary award dated 30.01.2018 set aside the enquiry proceedings which was assailed by the management in W.P.(C).No.12490/2018. Learned Single Bench of this Court vide judgment dated 05.05.2020 on consideration of the matter set aside the preliminary award and directed the Labour Court to reconsider the issue on the basis of the available evidence and pass fresh orders in accordance with law, after hearing both sides.
workmen in support of the grounds taken in the writ petition raised
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the following submissions:
i. The finding of the Labour Court that it had no wide and unlimited powers under Section 11A of the Industrial Dispute Act, 1947 is absolutely erroneous and against the law. It is settled law that the Labour Court can always examine the matter particularly when there is an order of remand. In other words, Labour Court has a wide power to go into the illegality or irregularity in the enquiry with interdiction in the proviso that court cannot rely upon material which do not form part and parcel of the record.
ii. The question of misconduct was not properly proved either in the enquiry report or by the Labour Court. The powers under Section 11A of the Act has not been exercised by the Labour Court.
iii. Labour Court thoroughly failed to appreciate the contention of the petitioners as the punishment of dismissal was wholly disproportionate to the allegation as petitioners had unblemished service and had no
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antecedents of any misconduct. In support of the contention relied upon the judgment of the Division Bench of this Court in Kochi Port Trust and Another v. R.Krishna Moorthy [2017 (3) KHC 446] where in similar circumstances a maximum punishment was imposed but the Single Bench found that once the person who was assaulted was not produced, extreme punishment could not have been accorded.
iv. Ext.M3 has not been proved, the genesis of the award of the Labour Court in upholding the enquiry as well as the punishment had been on Ext.M3 certificate dated 08.11.2012 prepared by Sri.Sanoosh Chandran, Quality Assurance Officer, but the author of the aforementioned test report has not been examined. In other words, the veracity of the document has not been proved in accordance with law and therefore, it cannot be looked into for arriving at the finding of the loss.
management had been served but there was no appearance and
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posted the matter for 20.06.2022. Arguments have been heard.
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approach does not appear to be proper. Furthermore, the question as to whether huge loss was sustained by the Management consequent to the acts of the workmen was only an incidental issue and for the mere fact that the person who prepared Exhibit P3 was not examined was no reason to unsettle the entire enquiry. The finding on the preliminary issue that the enquiry is vitiated for violation of the principles of natural justice cannot therefore be sustained. I am of the view that the order is liable to be interfered with for the above reasons.”
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were in the forefront of the boycott called by the union. But the testimony of having not hurled abuses or threats have not been disbelieved stated through MW1, MW5 and MW6. Delinquent employees appeared as WW2, WW3, WW4 but failed to establish their innocence and rather WW2 and WW3 deposed that delinquent employees are close friends. In the absence of any evidence to the contrary, the Labour Court in the preliminary award rightly upheld the enquiry and in the final award found the punishment of dismissal to be proportionate with charges as it was a case of serious misconduct. The retention of the employees may result into re-occurrence of incidents and uncongenial atmosphere which may ultimately cause loss to the management. But from the evidence brought on record particularly M3 in the preliminary award of the Labour Court while upholding the enquiry and punishment loss to the management had not been the ground for rejecting the reference. This is precisely what has been noticed by the Single Bench while setting aside the earlier preliminary award.
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account of the fact that Ext.M3 in the absence of the examination of the author of the test report could not have been looked into. For the sake of repetition, neither in the preliminary award or in the final award Labour Court formed the opinion that there was loss to the management. Therefore, the ratio would not be applicable in the present case.
I do not find any justification warranting interference under Article 226 of the Constitution of India to defer with the findings of the Labour Court rendered in the preliminary award and in the final award Exts.P4 and P5 dated 8.09.2021 and 27.10.2021. This writ petition sans merit and accordingly dismissed.
Sd/-
AMIT RAWAL
JUDGE
nak
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APPENDIX OF WP(C) 1945/2022
PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE ENQUIRY REPORT DATED
15.2.2013 SUBMITTED BY THE ENQUIRY
OFFICER
Exhibit P2TRUE COPY OF THE JUDGMENT DATED 5.5.2020
WPC NO 12490/2018 OF THIS HON'BLE COURT
Exhibit P3TRUE COPY OF THE JUDGMENT DATED 5.5.2021
IN WA NO 857/2020 OF THIS HON'BLE COURT
Exhibit P4TRUE COPY OF THE ORDER DATED 8.9.2021 BY
THE LABOUR COURT, KOLLAM IN IA 143/2021
Exhibit P5TRUE COPY OF THE AWARD DATED 27.10.2021
BY THE LABOUR COURT, KOLLAM IN IA 23/2014
3 issues framed by the court
Whether the High Court could interfere under Article 226 of the Constitution of India with the findings of the Labour Court in the preceding awards.
Whether the Labour Court's preliminary and final awards upholding the dismissal were sustainable in law despite the exclusion of the test report author.
Whether the measures taken by the management were justified given the misconduct and alleged losses.
Colour shows how this judgement treated each authority
Kochi Port Trust and Another v. R.Krishna MoorthyReferred¶40
Kochi Port Trust and Another v. R.Krishna Moorthy [2017 (3) KHC 446]
REMANI AMMA
GEETHA G
GEETHA R
THE PROPRIETOR, WESTERN INDIA CASHEW COMPANY PVT LTD
THE MANAGER, WESTERN INDIA CASHEW COMPANY PVT LTD
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court