IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 WP(C).No. 931 of 2010(N) ------------------------------- PETITIONER(S): ------------------- 1. KERALA STATE COIRFED EMPLOYEES CONGRESS (INTUC), COIRFED, ALAPPUZHA-12,REPRESENTED BY ITS PRESIDENT A.A.SHUKKUR(KURUMPELI HOUSE, SEA VIEW WARD, ALAPPUZHA). 2. A.YACOB, MACHINE ASSISTANT, R.C.P.UNIT, COIRFED, ALAPPUZHA-12 (NAVAVOGI PURAYIDAM, LEGANETH WARD, ALAPPUZHA) BY ADVS. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENT(S): --------------------- 1. THE DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICER'S OFFICE, ALAPPUZHA. 2. THE MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. (COIRFED), ALAPPUZHA-12. 3. V.SREEKUMARAN NAIR, PERSONNEL MANAGER, COIRFED ALAPPUZHA-12. R2 BY ADV. SRI.K.S.HARIHARAPUTHRAN, SC, COIRFED R3 BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV.SRI.S.SUJIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON 15/03/2011 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 931/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE MEMO OF CHARGE DATED 02/09/2008 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE ORDER DATED 05/01/2009 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE JUDGMENT DATED 10/06/2009 IN WA. NO.741/2009 ISSUED BY THIS HONOURABLE COURT. P4: COPY OF THE LETTER DATED 28/07/2009 ISSUED BY 1ST RESPONDENT. P5: COPY OF THE ORDER DATED 24/06/2004. P6: COPY OF THE REPORT DATED NIL. P7: COPY OF THE SHOW CAUSE NOTICE DATED 28/12/2009 ISSUED BY THE 2ND RESPONDENT. P8: COPYOF THE REPRESENTED DATED 01/01/2010 BEFORE THE 2ND RESPONDENT. P9: COPY OF THE ORDER NO.JS/4886/175 DATED 21/01/2010 ISSUED BY 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R2(a):COPY OF CIRCULAR DATED 03/08/1998. R2(b):COPY OF LETTER DATED 08/01/2010. R2(b):COPY OF THE LETTER DATED 11/07/2010 R3(a):COPY OF THE ORDER DATED 22/07/2008 IN WPC. NO.22056/2008 OF THIS HON'BLE COURT. /TRUE COPY/ P.A. TO JUDGE. svs C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.931 of 2010 ---------------------------------------- Dated 15th March, 2011 JUDGMENT The first petitioner is a registered trade union of the employees working under the Kerala State Co-operative Coir Marketing Federation Ltd., Alappuzha (for short `the Coirfed'). The second petitioner is a Machine Assistant in the RCP unit of Coirfed. This writ petition has been filed mainly with the prayer to call for the records leading to Ext.P2 to the extent it appoints the third respondent as Enquiry Officer and to quash Ext.P7. The petitioners have also prayed for a direction to respondents 1 and 2 to keep in abeyance disciplinary proceedings based on Ext.P7 till a new officer is appointed as the Enquiry Officer. The further prayer is for issuance of a writ in the nature of mandamus commanding the respondents to remove the third respondent from the duties of Enquiry Officer and to entrust the same to another officer and also to declare, in the facts and circumstances, that the third respondent is not having the honesty, integrity and morale to be an Enquiry Officer to process the enquiry proceedings against the Machine Assistants. 2. This writ petition is sought to be instituted in a representative capacity by the first petitioner on behalf of 16 Machine WP(C).No.931/2010 2 Assistants employed under the Coirfed against whom disciplinary proceedings have been initiated. In fact, the second petitioner is one among the delinquent employees. A short narration of facts is required for the disposal of the case. The second petitioner and 15 other Machine Assistants under the Coirfed working in its Latex Compounding Section were shifted from there. Alleging violation of the existing agreement entered into between the management and the employees and marking their protest in the said action they refused to work after reporting to duty. Even going by the petitioners' contention Clause 12 of the Standing Orders provides to deem a workman to be absent from the place of work despite his presence in work place if he refuses to carry out his normal work either in pursuance of a stay-in-strike, go-slow, work to rule or any other case. Such instances alleged to have occurred on 4.8.2008 and 5.8.2008 and accordingly, after serving notice to them salary deductions were effected from such abstainers. Later, they were served with Ext.P1 memo of charges. Finding their explanations unsatisfactory it was decided to conduct enquiry against them and as per Ext.P2 dated 5.1.2009 the 3rd respondent was appointed as the Enquiry Officer. Thereupon, the petitioners filed W.P.(C)No.2449 of 2009 challenging the same. The learned Single Judge declined to interfere with the impugned WP(C).No.931/2010 3 proceedings on the ground that the remedy of the petitioners lies under section 69 of the Kerala Co-operative Societies Act (for short `the Act'). Aggrieved by the judgment in W.P.(C)No.2449 of 2009 an appeal was preferred as W.A.No.741 of 2009. The said writ appeal was dismissed as per Ext.P3 judgment as hereunder:- “The writ appeal is accordingly dismissed, but without prejudice to the contentions of the appellants and their right to move other forums for appropriate reliefs. It is clarified that the order of the learned Single Judge will not stand in the way of the appellants pursuing their remedies under the provisions of the Industrial Disputes Act.” In this context, it is to be noted that while declining jurisdiction to interfere with the impugned proceedings the learned Single Judge also held that the remedies of the petitioners lie before other forums including the one provided under section 69 of the Act. It was taking note of the same that while dismissing the writ appeal it was clarified that the said judgment would not stand in the way of the appellants/petitioners in pursuing their remedies under the provisions of the Industrial Disputes Act. A perusal of Ext.P3 would also reveal that the Division Bench did not interfere with the findings of the learned Single Judge that the petitioners could resort to the remedy under section 69 of the Act, as well. In other words, Ext.P3 judgment only expanded the scope of remedies for the WP(C).No.931/2010 4 petitioners to redress their grievances. The above discussions would suggest that the present attempt of the petitioners is to assail the entire action again in this writ petition in spite of Ext.P3 judgment. I may now, examine the said aspect. 3. As noticed earlier, this is the second round of litigation for the petitioners. True that, after Ext.P3 judgment the petitioners have challenged Ext.P2 before the District Labour Officer, Alappuzha. In the earlier round of litigation that culminated in Ext.P3 judgment the petitioners had produced Exts.P1 and P2 herein respectively as Exts.P7 and P9 and virtually challenged the same. A scanning of the facts would reveal that, in troth, there is no real change in circumstances since Ext.P3. As per Ext.P4, the first petitioner was informed that, in case, after completion of domestic enquiry any penalty is imposed on the delinquent Machine Assistants appropriate proceedings would be taken if complaint is moved through the union. Evidently, no relief is sought against the said action in this writ petition. Mainly, the grievances are directed against the appointment of the 3rd respondent as the Enquiry Officer to conduct enquiry on his appointment as the Enquiry Officer and continuance of the disciplinary proceedings based on Ext.P7 by the 3rd respondent. As a matter of fact, Ext.P2 herein which was produced in W.P.(C)No.2449 of WP(C).No.931/2010 5 2009 was not interfered with this Court. The contention of the petitioners is that in the light of Exts.P5 and P6 the very appointment of the 3rd respondent as the Enquiry Officer is liable to be interfered with. According to the petitioners, in view of Exts.P5 and P8 the 3rd respondent should not have been retained as Personnel Manager and he should be replaced by another officer to act as the Enquiry Officer. Ext.P5 is the true copy of an order passed by the Director of Coir Development disposing of a representation filed by the petitioners regarding his appointment. Ext.P6 is a report by the Finance Inspection Wing recommending action against the 3rd respondent. In fact, against Ext.P5 the 3rd respondent has approached this Court by filing W.P.(C)No.22056 of 2008 and obtained Ext.R3(a) interim order whereby it was ordered to maintain status quo. Admittedly, by virtue of Ext.R3(a) the 3rd respondent is still continuing as Personnel Manager of Coirfed. The said writ petition is still pending. Therefore, I am leaving this issue without making any further discussion. That apart, in ground `D' of this writ petition it is stated that the 2nd respondent had already accepted the inquiry report prepared by the 3rd respondent and issued Ext.P7 show cause notice calling upon the concerned Machine Assistants to show cause why the penalty of withholding of next two increments with cumulative WP(C).No.931/2010 6 effect should not be imposed on them and why 4.8.2008 and 5.8.2008 should not be considered as leave without salary. On receipt of Ext.P7 the concerned Machine Assistants including the petitioners submitted Ext.P8 representation. Thus, it is obvious that the 3rd respondent had virtually concluded the domestic enquiry and submitted a report. It is based on the same that they were called upon to explain why the proposal in Ext.P7 should not be confirmed. Essentially, the contention of the petitioners is that the penalties as proposed shall not be imposed on the 2nd petitioner and the other 15 Machine Assistants as they were not furnished with the copy of the enquiry report. True that, the petitioners have also sought for changing their Enquiry Officer in this writ petition. In view of ground `D' I am of the considered view that any grievance with respect to the illegalities, procedural or otherwise, have to be raised, at the first instance, in the explanation to Ext.P7 and then before the competent authority. It is also true that the failure to furnish the copy of the enquiry report submitted by the 3rd respondent would disable the 2nd petitioner and the other Machine Assistants, from making a proper reply. Subsequently, Ext.P9 was issued. As per Ext.P9, the penalty of withholding of two increments with cumulative effect against each of the delinquent Machine Assistants were imposed. Further, it was ordered to WP(C).No.931/2010 7 treat 4.8.2008 and 8.8.2008, the days on which the 2nd petitioner and other delinquent Machine Assistants refused to work after reporting for duty, as leave without wages. The petitioners have subsequently, filed I.A.No.1800 of 2010 challenging Ext.P9 as well. It is sought to be challenged mainly on three grounds viz., violation of the prescribed procedures, the right to appeal was taken as the management had approved the enquiry report and that the action in imposing the proposed punishment as per Ext.P9 amounts to double jeopardy. The question is whether those questions need be considered at this stage by this Court in view of Ext.P3 judgment. A scanning of the factual matrix would reveal that, in troth, there is no real change in circumstances since Ext.P3 to compel this Court to make a deviation from Ext.P3. I have no hesitation to hold, in terms of Ext.P3 and on account of the failure on the part of the petitioners to exhaust the alternative remedies available, that this writ petition cannot be maintained at all, at this stage. Once this Court declines jurisdiction on the ground of existence of alternative, efficacious remedy, this Court will not be justified in considering the contentions of the petitioners on the questions involved in this case, on merits. Any finding or observation on those matters would hamper the prospects of either the petitioners or that of the respondents in appropriate WP(C).No.931/2010 8 proceedings. Therefore, in the light of Ext.P3 judgment, without making any observation as to the merits of the rival contentions this writ petition is dismissed without prejudice to the right of the petitioners to resort to the remedies available under law, in terms of Ext.P3 judgment. Sd/- C.T.RAVIKUMAR Judge TKS