Allowed

The Manager, Pallivasal Estate v. General Secretary

Kerala HC17 Jul 2024WP(C)/37766/2015

Case brief

AI extract

What is this about?

Management challenged a Tribunal award that set aside dismissal of a workman absent for 102 days and directed reinstatement with continuity for retirement benefits only. Holding the penalty lay within the employer's discretion once charges were proved and enquiry valid, this Court allowed the petition and set aside the award.

What did the court decide?

Ext.P1 award of the Industrial Tribunal set aside; writ petition allowed, no order as to costs.

The Manager, Pallivasal Estate Vs General… — Labour and Industrial Disputes | Kerala HC (2024)

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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 EASWARAN S.

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WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946

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WP(C) NO. 37766 OF 2015

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AGAINST THE ORDER/JUDGMENT DATED IN ID NO.93 OF 2010 OF INDUSTRIAL
TRIBUNAL, IDUKKI

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PETITIONER:

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THE MANAGER, PALLIVASAL ESTATE
OWNED BY TATA GLOBAL BEVERAGES LIMITED,
MUNNAR - 685 612,
REPRESENTED BY ITS MANAGER (IR)
MR.PRINCE THOMAS GEORGE

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BY ADVS.
SRI.P.BENNY THOMAS
SRI.D.PREM KAMATH

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RESPONDENTS:

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1 GENERAL SECRETARY

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WORKERS CONGRESS, MUNNAR P.O.,
IDUKKI - 685 612.

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2 INDUSTRIAL TRIBUNAL IDUKKI -685 531.

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R1 BY ADVS.
SRI.R.SURAJ KUMAR
SMT.V.BEENA
SMT.V.DEEPA

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SRI.SUNIL J.CHAKKALACKAL
R2 BY ADV.RASHMI K.M., SR. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 37766 OF 2015

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JUDGMENT

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Dated this the 17^th day of July, 2024

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The present writ petition is filed by the petitioner challenging the award passed by the Industrial Tribunal, Idukki in ID No. 93/2010, by which the penalty imposed on the workman for dismissal from service was interfered with and the workman was directed to be reinstated with continuity of service.

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The workman in question joined the service of the management on 12.04.1985. Later from 18.12.1993 he was confirmed in the regular service by the management. Proceedings were initiated against the workman for unauthorized absence, and after enquiry, order of penalty was imposed and the workman was dismissed from service. A dispute was raised in terms of the provision contained under the Industrial Disputes Act by the Union espousing the cause of the workman against the order of dismissal. On failure of the conciliation, the matter was referred before

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WP(C) NO. 37766 OF 2015

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the Industrial Tribunal. The question raised before the Industrial Tribunal was whether the dismissal of the workman from the service was justified or not. The Industrial Tribunal after finding that the charges against the workman stood proved and that the enquiry was conducted in consonance with the principles of natural justice. However, the Industrial Tribunal found that the imposition of this penalty of dismissal from service against the workman was shockingly disproportionate and therefore interfered with the punishment and converted the punishment reinstating him to continuity of service only for the purpose of calculation of his retirement/pensionary benefits. The said award is impugned in the present writ petition.

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I have heard Sri. Benny P Thomas, learned Senior Counsel appearing for the petitioner assisted by Sri.D. Prem Kamath and the Government Pleader appearing for the 2nd respondent.

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There is no appearance for and on behalf of the 2nd

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WP(C) NO. 37766 OF 2015

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respondent.

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The learned Senior counsel placed reliance on the judgment of the learned Single Bench of this Court in The Manager,Letchmi Estate Owned by KDHP Company Pvt. Ltd. Munnar v. General Secretary, Workers Congress, Munnar in WPC.No.37944 of 2015 decided on 03.07.2024. According to the learned senior counsel when the employee absents himself from the duty for a considerable long time, necessarily, the abandonment of the work is to be presumed.

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In the present case, according to the learned Senior Counsel, the unauthorized absence was 102 days. According to the learned Senior Counsel, once the enquiry was found to be in consonance with the principle of natural justice and charges stood proved against the workman, the Tribunal should not have interfered with the penalty imposed by the management especially when the imposition of penalty is within the realm of the employer. Therefore, according to

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WP(C) NO. 37766 OF 2015

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the learned Senior Counsel, the award passed by the Tribunal is liable to be interfered with.

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The question as to whether the unauthorized absence would warrant dismissal and whether such unauthorized absence could be construed as habitual absenteeism was considered by the Hon’ble Apex Court in Chennai Metropolitan Water Supply and Sewerage Board and Others v. T.T.Murali Babu (2014) 4 SCC 108. The Hon’ble Apex Court found that the case where the employee purposefully absent himself from the work, necessarily, the same would amount to misconduct and it could be construed that the employee has abandoned the job.

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The question as to whether in all cases of unauthorized absence, the Tribunal could exercise its power under Section 11(a) and interfere with the order of dismissal passed by the Management and direct the management to reinstate the workman in service cannot be put in a

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WP(C) NO. 37766 OF 2015

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straitjacket formula. It necessarily depends upon the facts and circumstances of each case.

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Applying these principles to the facts of the case, this Court is definitely in its view that, the Industrial Tribunal after finding that there is no procedural irregularity in the manner in which the enquiry was conducted and after the finding that the charges stood proved against the workman could not have interfered with the penalty imposed by the management.

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In the result, the petitioner is entitled to succeed. Hence, the Writ petition is allowed. Ext.P1 award of the Industrial Tribunal is set aside.

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The writ petition is ordered accordingly. No order as to costs.

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 Sd/-

EASWARAN S.

JUDGE

SPV

WP(C) NO. 37766 OF 2015

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APPENDIX OF WP(C) 37766/2015

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PETITIONER’S EXHIBITS

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EXHIBIT P1-TRUE COPY OF THE AWARD IN I.D 93/2010
DATED 06/10/2014 ISSUED BY THE 2ND
RESPONDENT TO THE PETITIONER.

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RESPONDENTS’ EXHIBITS:NIL

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//TRUE COPY//

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PA TO JUDGE

The Manager, Pallivasal Estate v. General Secretary

Case brief

What is this about?

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The Manager, Pallivasal Estate v. General Secretary

Case brief

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