Allowed

The Manager v. General Secretary

Kerala HC8 Dec 2022WP(C)/2429/2015

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award that reinstated a workman with continuity of service for habitual absence without leave. The High Court held that the defaulting workman was guilty of grave misconduct and the dismissal was justifiable, setting aside the award and allowing the writ petition.

What did the court decide?

Award of the Labour Court under issues 3 and 4 set aside; dismissal of workman held just and equitable; Writ Petition allowed.

The Manager Vs General Secretary — Labour and Industrial Disputes | Kerala HC (2022)

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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 AMIT RAWAL

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THURSDAY, THE 8^TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944

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WP(C) NO. 2429 OF 2015

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PETITIONER:

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THE MANAGER CHUNDAVURRAI ESTATE, OWNED BY KDHP COMPANY PRIVATE LIMITED, MUNNAR-685 612, REPRESENTED BY ITS MANAGER(IR) MR.PRINCE THOMAS GEORGE.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS

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RESPONDENTS:

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1 GENERAL SECRETARY DEVIKULAM ESTATE WORKERS UNION (AFFILIATED TO AITUC), MUNNAR.P.O., IDUKKI DISTRICT-685 612. 2 INDUSTRIAL TRIBUNAL IDUKKI-685 531. SRI.JUSTIN JACOB, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.2429/2015

JUDGMENT

Award of the Labour Court dated 31.05.2014 in respect of the finding of issue Nos.3 and 4 in I.D.No.118 of 2010 is under challenge on behalf of the management.

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Succinctly the facts in brief was that one Anthoniamma bearing PF No.10451 was employed as a workman in Chunduvarai Estate, Munnar, of the petitioner. She was allegedly absent for 131 days starting from April 2008 – September 2008. On account of her absence, as per the provisions of clause (e) of standing order No.22 a charge sheet was served. The aforementioned charge sheet was not duly replied, despite having service resulted into appointment of the enquiry officer. Before the enquiry officer, the workman did not appear on a number of dates and on one occasion, requested for adjournment which was granted, but thereafter did not participate. The enquiry officer noticed the compliance of principles of natural justice, but on issue nos.3 and 4, observed that the order of dismissal from service could not have been imposed upon the workman for the absence of 131 days and ordered for reinstatement without full back wages.

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Mr.Jaymohan, learned counsel appearing on behalf of the

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WP(C) No.2429/2015

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petitioner management submitted that findings under issue Nos.3

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and 4 of the Labour Court per se is illegal and arbitrary. If a workman who remained absent without any cause and even not participated in the enquiry proceedings, the coercive measure would be only dismissal as no other punishment would have been imposed in view of the non availability of the employee. Even after the award, communication was sent to the workman for rejoining, but the same was not responded.

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I have heard the counsel for the parties and appraised the paper book.

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This Court admitted the Writ Petition on 23.01.2015. As per the office note, service has been effected on contesting respondent, but there is no appearance. Since Writ Petition is pending since 22.01.2015 and I proceed to decide the same on merit.

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It is a matter of record that Anthoniamma was employed

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as a worker in Chunduvarai Estate, Munnar and remained absent on the following dates.

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“April 2008	: 8 days
May 2008	: 22 days
June 2008	: 24 days
July 2008	: 26 days
August 2008	: 26 days
September 2008	: 25 days”

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WP(C) No.2429/2015

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Order No.22 of clause (e) of the standing order of the establishment envisaged the provision of absence for more than ten days to be habitual absence. Accordingly, charge sheet was served which was not replied and as noticed above, in the enquiry proceedings conducted by the enquiry officer appointed by this establishment, only on one occasion a registered letter was sent by the workman, for adjournment which was granted. All these factors have been noticed by the Labour Court while rendering finding on issue Nos.1 and 2, therefore, I need not reiterate the same and instead, extract the same.

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“Issue Nos.1 and 2:

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Issue number one and two are answered together for convenience. The management produced enquiry file consisting of copies of show cause notice, charge sheet served to the workman, deposition of witnesses, enquiry proceedings, documents relied on by the enquiry officer and the enquiry report which is marked as Ext.M1. Ext.M1 enquiry file would show that the disciplinary proceedings against the workman started with the issuance of a show cause notice dated 13.10.2008 by the management to the workman. Thereafter, the management issued a charge sheet dated 22.10.2008 to the workman by registered post with acknowledgment due and the workman is seen to have received the charge sheet. In the charge sheet, the details of charge are specifically and clearly stated. The details of enquiry i.e., date, time and place are also mentioned clearly. The enquiry is seen to have postponed to 12^th November, 2008 and thereafter to 3^rd December , 2008. The communication regarding the enquiry was seen to have served on the workman by the management vide registered post. In view of the letter dated 02.12.2008 given by her, the enquiry was again postponed to 17^th December, 2008. The communication regarding the enquiry was sent by the enquiry officer to the workman by registered post and the postal envelope containing the notice issued by the enquiry officer to the workman was returned by the postal authorities with an endorsement

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WP(C) No.2429/2015

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“Addressee not arrived from 10.12.2008 till 16.12.2008 returned to the sender”. The management is seen to have made a publication in a Tamil Daily regarding the details of enquiry and it was produced in the enquiry by the management and marked as Ext.13. But even after publication of the notice in the newspaper, the workman failed to attend the enquiry. Accordingly, the enquiry officer declared the workman ex-parte and proceeded with the enquiry. The Field officer of the management estate was examined as a witness and documents 1 to 15 were marked on the side of the management in the enquiry. Document No.11 in the enquiry would show that the workman was absent from duty on the days mentioned in the charge sheet. Document No.12 in the enquiry would show that the workman had not reported in the estate hospital during the days mentioned in the charge sheet. Based on the evidence adduced in the enquiry, the enquiry officer found the workman guilty and he handed over the report to the management. Accordingly, the management issued a second show cause notice to the workman seeking her explanation regarding the findings of the enquiry officer and the punishment proposed. The above notice was seen to have sent to the workman by the management vide registered post. The postal envelope containing the memo was returned by the postal authorities with an endorsement “Addressee left, returned to the sender”. Ext.M1 enquiry file would show that the enquiry officer had made every attempt to serve the enquiry notice to the workman and the management had published the notice in the Tamil daily much before the date of enquiry. The enquiry officer without any option left, declared the workman exparte and proceeded with the enquiry. From the materials on record, I do not see any violation of the principles of natural justice in the enquiry proceedings. The findings of the enquiry officer are perverse. In the circumstance, I hold that he enquiry was held in compliance with the principles of natural justice and there is no perversity in the findings of the enquiry officer.”

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Now the question which arises for consideration before

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this Court is whether the award of the Labour Court in setting aside the order of dismissal of the workman is sustainable in the eyes of law. The Labour Court opined that on account of the absence as noticed above, the management ought not to not have dismissed the workman from service, but the punishment should have been

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WP(C) No.2429/2015

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lesser. I am afraid the aforementioned findings cannot be permitted to sustain. It would be expedient to extract clause 22 (e) of the standing orders. The same reads as under :

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“22(e) : Habitual absence without leave or absence without leave for more than ten consecutive days.”

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The aforementioned clause has not been noticed by the Labour Court, had the same been noticed probably the finding on issue Nos.3 and 4 would have been also rendered against the workman. There is categoric pleading in paragraph 9 of the Writ Petition of sending the intimation to the workman to join the duty, but the workman did not report for work. Paragraph 9 of the writ

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petition reads as under:

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“The award passed by the second respondent to teh extent that the punishment was excessive and consequent direction to reinstate the workman with continuity of service is illegal, arbitrary and not sustained under law. The misconduct committed by the workman was grave enough and also considering his past record, the punishment of dismissal was justifiable and Ext.P3 award is totally against the settled legal principles. However, the management to avoid payment of wages under Section 17B offered reinstatement to the workman a copy of the letter dated 11.11.2014 is produced herewith and may be marked as Ext.P4 for identification. However, the workman did not report for work. IT is submitted that the workman had been punished earlier for the misconduct of unauthorised absence and the second respondent did not consider the past record while passing Ext.P3 award. Further reinstatement with continuity of service cause indiscipline on the estate and also cause monetary loss to the management by way of gratuity for a period of more than 5 years, to which she is not entitled as she was out of employment due to the dismissal for a proved misconduct

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WP(C) No.2429/2015

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and also considering the blemished past record. However, the petitioner, to avoid payment of wages under Section 17B offered work to the workmen concerned but she did not report for work and is also not available on the estate.”

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Absence of the workman is also testimony that the workman was not interested in continuing with the work with the petitioner.

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For the reasons aforementioned, the award of the Labour Court under issue Nos.3 and 4 is set aside by holding the dismissal

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of the workman to be just and equitable. Writ Petition stands allowed.

Sd/-

AMIT RAWAL JUDGE

csl

WP(C) No.2429/2015

APPENDIX OF WP(C) 2429/2015

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE 03.09.2010 FILED BEFORE THE 2ND RE 2010.	CLAIM STATEMENT DATED BY THE 1ST RESPONDENT SPONDENT IN I.D.NO.118 OF
EXHIBIT P2	TRUE COPY OF THE 14.03.2013 FILED THE 2ND RESPONDEN	COUNTER STATEMENT DATED BY THE PETITIONER BEFORE T IN I.D.NO.118 OF 2010.
EXHIBIT P3	TRUE COPY OF THE PASSED BY THE 2ND OF 2010.	AWARD DATED 31.05.2014 RESPONDENT IN I.D.NO.118
EXHIBIT P4	TRUE COPY OF THE ISSUED BY THE PET	LETTER DATED 11.11.2014 ITIONER TO THE WORKMAN.

The Manager v. General Secretary

Case brief

What is this about?

What did the court decide?

The Manager v. General Secretary

Case brief

What is this about?

What did the court decide?

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