IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 WP(C).No. 28403 of 2009(U) -------------------------- AGAINST THE ORDER IN MP 33 /2009 IN ID.45/2006 of INDUSTRIAL TRIBUNAL, IDUKKI .................... PETITIONER(S): --------------- KANAN DEVAN HILLS PLANTATIONS COMPANY (P) LTD., KDHP HOUSE, MUNNAR-683 612, REPRESENTED BY ITS SENIOR MANAGER (IR), MR.G.SOMANADHAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.GOPINATH MENON RESPONDENT(S): --------------- 1. THE CHAIRMAN, NATIONAL UNION OF PLANTATION STAFF, MUNNAR-685 612, IDUKKI DISTRICT. 2. INDUSTRIAL TRIBUNAL, IDUKKI. GOVT. PLEADER SRI. K.S. MUHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 28403/2009. ------------------------------------------------------------------- EXT.P1 STRUE COPY OF FINDINGS OF ENQUIRY OFFICER DT. 10-1-2005. EXT.P2 CLAIM STATEMENT DT. 23-2-2007. EXT.P3 COUNTER STATEMENT DST. 9-7-2007 EXT.P4 REJOINDER DT. 21-12-2007. EXT.P5 PETITION DT. 19-6-2009. EXT.P6 COUNTER STATEMENT DST. 22-7-2009. EXT.P7 ORDER DT. 24-7-2009. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 28403 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 19th October, 2009. J U D G M E N T The petitioner is the management in I.D. No. 45 of 2006 before the Industrial Tribunal, Idukki. The issue referred for adjudication was as follows: “Whether the dismissal of Sri. K. B. Rajeev, Godown in charge, Madupatty Packeting Godown is justified or not? If not, what relief he is entitled to.” The contention of the management was that the workman was dismissed after finding him guilty in an enquiry conducted for that purpose. They had also produced the enquiry file before the Tribunal. But, before they could examine the enquiry officer, he died. According to the petitioner, they sought to prove the enquiry file through the presenting officer. But, by Ext. P7 order, the Tribunal took the stand that since the workman has raised a contention of bias on the part of the enquiry officer and the enquiry officer has expired, the enquiry is set aside since the enquiry file cannot be marked through the enquiry officer by examining the presenting officer. The petitioner is challenging Ext. P7 order. 2. According to the petitioner, it is not compulsory that the enquiry officer should be examined for the purpose of proving the enquiry file. The file can be proved through any method acceptable under law. If the presenting officer, who was present all throughout the enquiry is examined to prove the enquiry file, that would be sufficient proof of the enquiry proceedings, is the contention raised by the management. The petitioner, therefore, seeks the following reliefs: “i) to issue a writ of certiorari or other appropriate writ, order W.P.C. No. 28403/2009 -: 2 :- or direction calling for the records leading to Ext. P7 order of the 2nd respondent-Industrial Tribunal, Idukki and quash the same; ii) to remand the matter with a direction to the 2nd respondent to hear the question on the validity of the enquiry afresh taking into account of the facts that the delinquent workman participated in the enquiry throughout and never raised any objection and has signed on every page of the proceedings as a token of his acceptance of the propriety of the enquiry and to pass a preliminary order in accordance with law; iii) to pass an ad interim order staying the implementation of the Ext. P7 order and all further proceedings before the 2nd respondent-Industrial Tribunal, Idukki in I.D.No. 45 of 2006 till final disposal of the writ petition.” 3. Notice was taken out by special messenger on 8-10-2009. It was served on the respondents. The matter came up on 14-10-2009. None appeared for the 1st respondent-Union. For giving them another chance, I posted the case to today. Today also, none appeared for the 1st respondent. 4. I have considered the contentions of the petitioner. 5. I am of opinion that it is for the management to try to prove the enquiry file the way they choose. Simply because the enquiry officer is no more, on that ground alone, the enquiry cannot be set aside. If the petitioner-management produces adequate evidence to prove the enquiry file, it is for the Tribunal to consider that evidence and decide the question of validity of enquiry. The principles regarding proof of such documents as in normal proceedings in courts of law would be applicable to industrial disputes also. If the workman alleges bias, it is for him to prove it by adducing evidence. Simply because the enquiry officer is no more, the enquiry cannot be set aside on the ground of bias. The Tribunal cannot foreclose the evidence of the management in that regard. Therefore, Ext. P7 is W.P.C. No. 28403/2009 -: 3 :- clearly unsustainable. Accordingly, Ext. P7 is quashed. The Tribunal is directed to give the petitioner-management an opportunity to adduce evidence to prove the enquiry file, by any manner acceptable under law. The workman also would certainly be entitled to lead evidence to prove his case of bias of the enquiry officer. The Tribunal shall consider such evidence and decide the question of validity of the enquiry on the basis of that evidence. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/