I.N.T.U.C., AMARAMBALAM MANDALAM COMMITTEE v. THE LABOUR COURT, KOZHIKODE

Sri.Subramanian A.K, Rubber Tapper by the management Brindavan Estate, Mampatta is justifiable? If not, what relief he is entitled to?’

2. The Labour Court on consideration of matter passed a preliminary order holding that a proper enquiry had been conducted by the management. It was held as follows :- “21. In the result, I find that the Enquiry Officer had conducted enquiry complying with the principles of natural justice and that he had correctly appreciated and analysed the evidence and there is no perversity in his findings and that WP(C) NO. 23673 OF 2014 3 the enquiry report submitted by the Enquiry Officer in such circumstances is valid.” Thereafter, the Labour Court proceeded to consider the question as to whether the punishment of termination from service imposed by the management had to be interfered with in exercise of the jurisdiction vested in the Labour Court under Section 11(A) of the Industrial Disputes Act. The Labour Court proceeded to hold that the procedure contemplated by the law after conduct of the enquiry was followed by the management. The Labour Court also considered the question as to whether there was any violation of the requirements under Section 33(2) (b) or 33(3) of the Industrial Disputes Act and proceeded to hold that even if there is a violation to comply with any of the requirements under the aforesaid provisions of law, the punishment imposed will not be void or inoperative. It was held that since the management had clearly proved unauthorized absence from 02.05.2010 to 13.09.2011 resulting in substantial loss to the management, there was no reason for the court to interfere with the punishment. It therefore held that since the enquiry had been validly conducted and since the punishment had been imposed after complying with all the requirements of WP(C) NO. 23673 OF 2014 4 the law, there was no ground for the Court to interfere with the punishment in exercise of jurisdiction vested in the Court under Section 11(A) of the Industrial Disputes Act.

3. A perusal of the grounds taken in the writ petition in support of the reliefs sought for in the writ petition will indicate that one of the grounds taken is that the workman concerned was not on unauthorized absence and was in fact on leave on account of a medical condition. The contention taken is that after being diagnosed with a medical condition, the management had initially supported by granting some benefits during the period of leave and thereafter, had cooked up a false story of unauthorized absence to remove the workman from service. It is also contended that there is no legal evidence in the domestic enquriy and the findings rendered by the Enquiry Officer are perverse. It is further contended that the Enquiry Officer did not give proper opportunity to the workman to substantiate his case. Reliance is placed in this regard on Ext.P5 letter allegedly sent by the petitioner to the Enquiry Officer. The only other contention taken is that the Labour Court had upheld the proceedings and had declined to interfere with the punishment imposed on the workman without due application of mind and without regard to WP(C) NO. 23673 OF 2014 5 the provisions of the Industrial Disputes Act.

4. The learned counsel appearing for the 2nd respondent / management would contend that there is absolutely no illegality in Ext.P7 award warranting the interference at the hands of this Court under Article 226 of the Constitution of India. It is submitted that the contention of the workman that he had not been on unauthorized absence and he had been absent only on account of his medical condition is absolutely false. It is submitted that the the workman had produced no material before the Enquiry Officer or before the Labour Court to establish that he had been suffering from a medical condition and was unable to attend work only on account of the same. It is submitted that the estate had suffered substantial losses on account of the unauthorized absence of the workman. It is submitted that the absence of the workman for a period of nearly 1 ½ years without any proper leave application and without any supporting medical records can only be treated as a case of unauthorized absence for which a domestic enquiry was conducted and a finding was reached regarding the guilt of the workman. It is submitted that the contention now raised on behalf of the workman that the enquiry was conducted without issuing proper notices and WP(C) NO. 23673 OF 2014 6 without affording proper opportunity to the workman is absolutely untenable. It is submitted that a reading of the preliminary award of the Labour Court will show that the enquiry was conducted in accordance with the law and following all principles of natural justice. It is submitted that the Labour Court had correctly refused to interfere with the punishment imposed by the management in exercise of the jurisdiction vested in the Court under Section 11(A) of the Industrial Disputes Act. It is submitted that there was no legal ground for interference with the punishment imposed on the workman.

6. I have considered the contentions raised. A perusal of Ext.P7 award, which also refers to the preliminary order made by the Labour Court regarding the validity of the enquiry held against the workman concerned will indicate that the enquiry was conducted in compliance with all principles of natural justice. The Labour Court found that the Enquiry Officer had even permitted the workman as well as the management to engage lawyers to prosecute their case. The Labour Court also found, after examining the Enquiry Officer as MW1 and after perusing the enquiry files that on 01.12.2011 there was a quarrel between the advocates appearing for the parties WP(C) NO. 23673 OF 2014 7 and the counsel appearing for the workman had refused to participate in the proceedings despite request by the Enquiry Officer. The matter was thereafter adjourned to 06.12.2011, on which date, the workman and his advocate were not present. Thereafter, one more management witness was examined and the proceedings were adjourned to 14.12.2011. On that day also the workman and his counsel remained absent and therefore the enquiry was closed for recording findings. The Labour Court found that after 01.12.2011, the delinquent employee and his counsel refused to participate in the proceedings before the Enquiry Officer and no evidence was tendered on the side of the workman. After analyzing the evidence tendered by the Enquiry Officer before the Labour Court and after perusing the files, the Labour Court came to the conclusion that there is no material indicating that the enquiry was conducted in violation of the principles of natural justice. The contention taken on behalf of the delinquent employee that none of the documents produced by the delinquent employee were considered by the Enquiry Officer was also rejected by holding that since the delinquent employee and his counsel had boycotted the proceedings before the Enquiry Officer after 01.12.2011, there was no merit in the WP(C) NO. 23673 OF 2014 8 contention taken on behalf of the delinquent workman that the enquiry was conducted in violation of the principles of natural justice. Thereafter, the Labour Court proceeded to consider the question as to whether the charge of unauthorized absence had been proved against the delinquent employee. After considering the enquiry report and the enquiry files, the Labour Court came to the conclusion that the finding of guilt against the delinquent employee was supported by sufficient evidence and there was no material to suggest that the findings recorded by the Enquiry Officer regarding the guilt of the delinquent employee was perverse. As a result of the findings regarding the procedure adopted by the Enquiry Officer and the findings regarding the materials which were analyzed by the Enquiry Officer for reaching a filing of guilt against the delinquent employee, the Labour Court proceeded to hold that the report of the Enquiry Officer is legal and valid. As already noticed above, the Labour Court thereafter proceeded to consider whether there was any ground to interfere with the punishment imposed in exercise of the jurisdiction vested in the Labour Court under Section 11(A) of the Industrial Disputes Act. It is clear from a reading of Section 11(A) of the Industrial Disputes Act that it is only when the WP(C) NO. 23673 OF 2014 9 Labour Court comes to the conclusion that the order of discharge or dismissal is not justified in the facts of the case that the Labour Court can set aside the order of discharge or dismissal and direct reinstatement or award any lesser punishment in lieu of the punishment of discharge or dismissal imposed by the management. The Labour Court has correctly analyzed the circumstances of the case and has come to the conclusion that there was no ground to grant relief under Section 11(A) of the Industrial Disputes Act. When the punishment imposed on the employee following disciplinary proceedings or domestic enquiry is challenged on the ground that it is disproportionate to the charges levelled against the employee, the punishment must be of such a nature that it shocks the conscience of the court. Here the charges against the employee are that he was on unauthorized absence for a period of nearly 1 ½ years. It was the specific case of the management that on account of the unauthorized absence of the employee concerned, the management has also suffered a loss. In such circumstances, it cannot be held that the punishment imposed on the employee in question was unjustified or that it was disproportionate to the charges levelled against the employee concerned. In that view of the matter, I find no reason WP(C) NO. 23673 OF 2014 10 to interfere with Ext.P7 award. The writ petition fails and it is accordingly dismissed. DK Sd/- GOPINATH P. JUDGE WP(C) NO. 23673 OF 2014 11 APPENDIX OF WP(C) 23673/2014 PETITIONER EXHIBITS EXHIBIT P1: EXHIBIT P2: EXHIBIT P3: EXHIBIT P4: EXHIBIT P5: EXHIBIT P6: EXHIBIT P7: THE TRUE COPY OF THE CHARGE MEMO DATED 13/9/2011 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE REPLY BY THE WORKMAN DATED 16/9/2011. THE TRUE COPY OF THE NOTICE ISSUED BY THE ENQUIRY OFFICER DATED 29/9/2011. THE TRUE COPY OF THE ENQUIRY REPORT DATED 17/12/2011. TRUE COPY OF THE REPLY BY THE WORKMAN DATED 26/12/2011. THE TRUE COPY OF THE TERMINATION NOTICE ISSUED BY THE 2ND RESPONDENT DATED 6/1/2012. THE TRUE COPY OF THE AWARD DATED 30/01/2014 IN I.D NO.34/2012. RESPONDENTS EXHIBITS EXHIBIT R2(A) JUDGMENT IN W.P.(C)NO.22162 OF 2012 (U)