IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 OP.No. 10678 of 1996(U) ---------------------------------- PETITIONER: ------------------- THE PRESIDENT, KULAPPADA KSHEEROLPADAKA SAHAKARAN SANGHAM LTD., NO.T.130(D), APCOS, KULAPPADA P.O., NEDUMANGAD. BY ADV. SRI.M.BALAGOVINDAN SRI.D.KISHORE RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, TRIVANDRUM. 2. A.RADHAMMA, RADHA NILAYAM, THERUVU, KULAPPADA. 3. THE LABOUR COURT, KOLLAM. BY GOVERNMENT PLEADER SRI.P.A.SALIM SRI.S.GOPAKUMARAN NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON 26/02/2008 DELIVERED THE FOLLOWING: OP. NO.10678/1996 ORDER ON CMP. NOS.18378/1996, 8341/1998 IN OP. NO.10678/1996 DISMISSED 26.02.2008 SD/-P.N.RAVINDRAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE CHARGE SHEET DT. 20.4.88. EXT.P2:- COPY OF THE COMMUNICATION DT. 20.4.88 BY THE PETITIONER. EXT.P3:- COPY OF THE COMMUNICATION DT. 21.4.1988. EXT.P4:- COPY OF THE NOTICE DT. 2.5.1988 ISSUED BY THE CHAIRMAN. EXT.P5:- COPY OF THE NOTIFICATION G.O.(RT) NO.1251/96/LBR DT. 7.5.96. EXT.P6:- COPY OF THE RELEVANT PORTION OF BYE LAW OF THE SOCIETY. EXT.P7:- COPY OF THE REQUEST MADE BY THE 2ND RESPONDENT BEFORE THE DISTRICT LABOUR OFFICER. /TRUE COPY/ P.S. TO JUDGE tss P.N.Ravindran, J. ============== O.P.No.10678 of 1996 ================== Dated this the day of February, 2008. JUDGMENT The petitioner, the President of a Co-operative Society has in this original petition challenged Ext.P5 award passed by the Labour Court, Kollam in Industrial Dispute No.7 of 1989 and sought a declaration that the dismissal of the second respondent from the post of Secretary of the Kulappada Ksheerolpadaka Sahakarana Sangham Ltd. No.T.130 is valid. 2. The second respondent was appointed as the Secretary of the aforesaid Society in the year 1983. Disciplinary action was initiated against her and she was placed under suspension with effect from 16.4.1988. According to the petitioner, on 20.4.1998, Ext.P1 memo of charges was issued and served on the second respondent along with Ext.P2 letter dated 20.4.1988 calling upon her to submit her reply, if any, before 5 p.m. on 28.4.1988 to the President of the Society. Ext.P2 states that the OP 10678/96 -: 2 :- memo of charges as approved by the Managing Committee of the Society at its meeting held on 16.4.1988 is being sent that day (20.4.1988) by registered post. According to the petitioner, the second respondent submitted her explanation to Ext.P1 charge sheet on 27.4.1988 and on receipt of the explanation, she was asked to appear in person before a Sub Committee constituted to enquire into the charges levelled against her. The petitioner states that after enquiry, the Sub Committee submitted Ext.P4 report dated 2.5.1988. Thereafter, the Sub Committee decided to terminate the services of the second respondent and accordingly, she was dismissed from service. The validity of the order dismissing the second respondent from service was the subject matter of I.D.No.7 of 1989 on the file of the Labour Court, Kollam. By Ext.P5 award passed on 4.11.1995 and published in the Kerala Gazette No.20 dated 14.5.1996, the Labour Court held that the termination of the service of the second respondent is invalid. The management was accordingly directed to reinstate the second respondent in service with back wages and other attendant benefits. The award passed by the Labour Court is under challenge in this original petition. OP 10678/96 -: 3 :- 3. Sri.D.Kishore, the learned counsel appearing for the petitioner contended that Ext.P5 award is liable to be set aside for the reason that the second respondent is not a workman falling within the definition of the term "workman" occurring in Section 2(s) of the Industrial Disputes Act, 1947, hereinafter referred to as the "I.D. Act" for short, and hence, the Labour Court had no jurisdiction to entertain the dispute regarding the validity of the order dismissing her from service and that in any case, the Labour Court ought to have accorded an opportunity to the management to adduce evidence to prove the charges levelled against her. The learned counsel for the petitioner relying on the decision of a Division Bench of this Court in K.M.Ulahannan v. Labour Court & another - 1996(1) K.L.J. 825 contended that Secretary of a Co-operative Society is not a workman as defined in the I.D. Act and therefore, the Labour Court had no jurisdiction to entertain the dispute. The learned counsel for the petitioner also placed reliance on the decision of a learned Single Judge of this Court in Pokken v. Sri.Bhagavati Tea Estates Ltd. - 2001(2) K.L.J.61 to contend that the Labour Court ought to have afforded an opportunity to the management OP 10678/96 -: 4 :- to adduce evidence to prove the charges levelled against the second respondent. The learned counsel appearing for the second respondent on the other hand contended relying on the decision of the Apex Court in Mukesh K. Tripathi v. Senior Division Manager, LIC and others - 2004(8) S.C.C. 387 that applying the tests laid down thereon, the second respondent is a workman and hence, the Labour Court rightly entertained the dispute arising out of the dismissal of the second respondent from service. 4. I have considered the rival contentions. The Labour Court has in Ext.P5 award held that the enquiry conducted by the Sub Committee of the Society was a farce for the reason that copies of the documents relied on were not furnished to the second respondent, that no witnesses were examined on the side of the management, that the enquiry was not in conformity with the principles of natural justice and that the findings in Ext.P4 enquiry report are not based on records or any evidence or any cogent material and that no reasons have been set out therein to justify the findings. The Labour Court also noticed that even before the memo of charges was issued on 20.4.1986, the OP 10678/96 -: 5 :- Managing Committee of the Society that met on 16.4.1998 had constituted a Sub Committee headed by the President of the Society to enquire into the charges against the second respondent and that even before the receipt of the reply from the second respondent on 27.4.1988, the President of the Society had issued Ext.P3 letter dated 21.4.1988 calling upon her to appear before the Sub Committee at 10 a.m. on 29.4.1988 to answer the 8 items of charges set out therein. The Labour Court, on a consideration of the evidence, oral and documentary available in the case, held that the findings in the enquiry are not supported by any evidence and that the enqury itself was not in conformity with the principles of natural justice. The Labour Court also noticed that the validity of the enquiry was considered as a preliminary issue and that an order had been passed on 3.11.1994 recording the concession made by the counsel for the management that the enquiry was invalid and the prayer made by him for an opportunity to adduce evidence to prove the misconduct alleged against the second respondent. In the order passed on 3.11.1994, the Labour Court had also noticed that the counsel for the workman had no objection to an opportunity OP 10678/96 -: 6 :- being afforded to the management to prove the charges levelled against the second respondent. Though pursuant to the order passed on 3.11.1994 the case was posted to 15.12.1994, the management did not adduce any evidence to prove the charges. In view of the submission made on behalf of the management that they have no evidence to adduce, the Labour Court posted the case for hearing. The Labour Court has in the award held that the management did not, in spite of the order passed on 3.11.1994, adduce any evidence to prove the charges levelled against the second respondent. The learned counsel appearing for the petitioner, relying on the decision in Pokken v. Sri.Bhagavati Tea Estates Ltd. (supra) contended that the Labour Court ought to have afforded the management an opportunity to adduce evidence to prove the charges levelled against the second respondent and that in any case, as the second respondent is not a workman, the Labour Court had no jurisdiction to entertain the dispute or adjudicate upon the validity of the order dismissing the second respondent from service. 5. I am afraid, there is no merit in either of the said two OP 10678/96 -: 7 :- contentions. As noticed in Ext.P5 award itself, though the Labour Court had extended an opportunity to the management to adduce evidence in support of the charges, the management did not avail of the said opportunity and had in fact submitted before the Labour Court that it has no evidence to adduce in support of the charges levelled against the second respondent. The Labour Court had granted the management six weeks time to adduce evidence in support of the charges and that cannot be said to be too short period. The award discloses that no document had been produced before the Labour Court or before the Sub Committee to prove the allegations enumerated in Ext.P1 memo of charges or in Ext.P3 letter. One of the charges levelled against the second respondent was misappropriation and misutilisation of the funds, another charge was unauthorised absence and yet another charge was irregularity in the sale of cattle feed. These are charges which can be proved only by documentary evidence and a finding of guilt in respect of the said charges cannot be made on the ipse dixit of the members of the Sub Committee. The petitioner has no case that no opportunity was given to the management to produce the relevant documents before the OP 10678/96 -: 8 :- Labour Court or to adduce evidence in support of the charges levelled against the second respondent. I therefore reject the contention of the learned counsel for the petitioner that the Labour Court ought to have afforded an opportunity to the petitioner to prove the charges levelled against the second respondent. 6. As regards the contention that the second respondent is not a workman as she was the Secretary of the society, I find that there is no merit in the said contention as well. The petitioner had not in the written statement filed before the Labour Court taken up such contention. It was only during the course of the arguments before the Labour Court that a contention was raised that the second respondent is employed in a supervisory capacity and is therefore not a workman as defined in the I.D. Act. There was no pleading before the Labour Court to the effect that the second respondent was employed in a supervisory or managerial capacity or that her functions were mainly managerial in nature. Even in this original petition, apart from merely alleging that the second respondent being the Secretary of the Society cannot claim the benefit of the I.D. Act, OP 10678/96 -: 9 :- no material has been furnished to substantiate the contention that the second respondent was employed mainly in a managerial capacity or was employed in a supervisory capacity and was exercising functions mainly of a managerial nature. The petitioner has produced a copy of the relevant portions of the Bye-laws of the society (Ext.P6) along with the reply affidavit filed by him to contend that the Bye-laws would establish that the second respondent functions were in a managerial capacity. The learned counsel appearing for the petitioner relied on paragraph 6.2 (vii) of Ext.P6 Bye-laws in support of the said contention. The learned counsel appearing for the second respondent brought to my notice that the second respondent's date of birth is 3.6.1947, that she attained the age of superannuation (58 years) on 2.6.2005 and that if at this point of time, the petitioner's contention that the second respondent is not a workman as defined in the I.D. Act is accepted, the second respondent will be left without any remedy and that having regard to the findings on the merits of the case, this Court may decline to exercise the discretionary jurisdiction under Article 226 of the Constitution of India. OP 10678/96 -: 10 :- 7. As rightly noticed by the Labour Court, no material had been produced before the Labour Court in support of the petitioner's contention that the second respondent was functioning in managerial or administrative capacity or that the second respondent was employed in a supervisory capacity and was exercising functions mainly of a managerial nature. In this original petition also, apart from producing the Bye-laws along with the reply affidavit filed on 3.7.2000, more than 4 years after the award was published in the Official Gazette, there is no pleading as regards the exact nature of the duties and functions carried out by the second respondent in her capacity as the Secretary of the Society. Nor is any material produced to establish that the second respondent was in fact carrying out all the functions of the Secretary as set out in Ext.P6 Bye-laws. 8. Section 2(s) of the I.D. Act defines a "workman" as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under the Act in relation to an industrial dispute, OP 10678/96 -: 11 :- includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, or discharge or retrenchment has led to that dispute. Four categories of persons are excluded from the definition of the term "workman" and two of the categories with which we are concerned are dealt with in sub clauses (iii) and (iv) of Section 2(s) of the I.D. Act. They are: "(iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." It is only if the second respondent falls in either of the above two categories that it can be said she is not a workman as defined in the I.D. Act and to hold that the Labour Court had no jurisdiction to entertain the dispute regarding the validity of the order dismissing the second respondent from service. The petitioner has not specifically pleaded or proved that the second respondent OP 10678/96 -: 12 :- was employed mainly in a managerial or administrative capacity in the Society or that being employed in a supervisory capacity, she was drawing wages exceeding Rs.1,600/- per mensem or exercising, either by the nature of the duties attached to her office or by reason of the powers vested in her, functions mainly of a managerial nature. Having regard to the fact that the second respondent had attained the age of superannuation (58 years) on 2.6.2005, the failure of the petitioner to adduce evidence in support of the charges levelled against the second respondent before the Labour Court and the failure of the petitioner to allege and prove that she is not a workman before the Labour Court at the proper stage and the lack of materials to enable this court to adjudicate upon the nature of duties and responsibilities of the second respondent, I hold that the petitioner is not entitled to have the said issue resolved under Article 226 of the Constitution of India. If at this point of time, nearly two decades after the second respondent wad dismissed from service and that too in gross violation of the principles of natural justice, this Court were to uphold the plea of the petitioner that the second respondent is not a workman, she OP 10678/96 -: 13 :- would be rendered remedy less, resulting in gross injustice to her. I therefore decline jurisdiction and dismiss the original petition. However, in the circumstances of the case, I make no order as to costs. P.N.Ravindran, Judge. ess 2/1