IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 W.A.No.2070 of 2008 -------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).12072/2004, DATED 20/06/2008 .................... APPELLANT/ IST RESPONDENT:- ------------------------------------------------- K.O.SEBASTIAN, KARUTHUKULANGARA HOUSE, KAYATTAMPARAMBU, NOORANI, PALAKKAD. BY ADV. SRI.T.A.SHAJI RESPONDENTS/PETITIONER & 2ND RESPONDENT:- -------------------------------------------------------------------------- 1. M/S.MALABAR CEMENTS LTD, WALAYAR, PALAKKAD- 678624, REPRESENTED BY ITS MANAGING DIRECTOR. 2. LABOUR COURT, KOZHIKODE. R1 BY ADV. SRI.K.ANAND. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu,C.J. & A.K.Basheer, J. ------------------------------------------- W.A.No.2070 of 2008 -------------------------------------------- Dated, this the 5th November, 2008 JUDGMENT H.L.Dattu,C.J. This Writ Appeal is directed against the orders passed by the learned Single Judge in W.P.(C).No.12072 of 2004 dated 20th June, 2008. By the impugned order, the learned Single Judge has modified the award passed by the Labour Court in I.D.No.33 of 1996, dated 30th June, 2003. (2) The appellant herein was a workman in the 1st respondent establishment. While he was working in the said establishment, a charge memo came to be issued by the disciplinary authority of the respondent establishment. The charges were as under: “1. Wilful insubordination or disobedience of any lawful and reasonable orders of a superior. 2. Shouting at and abusing the superior inside the premises of the Mines. 3. Intimidating or threatening the superior on duty within the Mines premises. 4. Contravention of safety measures in running the equipment. 5, Wilfully attempting to endanger the life of the superior who was on duty in the Mines”. (3) Since the workman had denied the charges, the disciplinary authority had appointed an Enquiry Officer, to enquire into the WA.No.2070 of 2008 - 2 - allegations made in the charge memo. The Enquiry Officer has come to the conclusion, that, the disciplinary authority has failed to prove the 1st charge. In so far as charges 2 to 5 are concerned, the Enquiry Officer has come to the conclusion, that, the aforesaid charges are proved by the disciplinary authority by adducing cogent evidence. After accepting the report of the Enquiry Officer, the disciplinary authority has imposed a punishment of dismissal of the workman from service. (4) After failure of the conciliation proceedings, the State Government had referred the point of dispute to the Labour Court for its consideration and decision. The point of dispute is as under: “Whether the dismissal of Sri.K.O.Sebastian, Equipment Operator with effect from 12.6.1995 from the service of Malabar Cements, Walayar, Palakkad is justifiable? If not, the relief entitled to the worker”. (5) The Labour Court, in the award passed in I.D.No.33 of 1996 dated 30th June, 2003, accepts the report of the Enquiry Officer, but with some reservations. But, when it comes to the punishment imposed by the disciplinary authority, the Labour Court is of the opinion, that, the punishment so imposed is excessive for the charges alleged and proved. Therefore, modifies the orders passed by the disciplinary authority, by directing the disciplinary authority to reinstate the workman into service WA.No.2070 of 2008 - 3 - without back wages, but with continuity of service. (6) The Management, aggrieved by the said order passed by the Labour Court, had approached this Court in W.P.(C).No.12072 of 2004. As we have already noticed, the learned Single Judge has modified the orders passed by the Labour Court, by converting the order of dismissal into an order of discharge. (7) The workman, aggrieved by the orders so passed by the learned Single Judge, is before us in this appeal. (8) Sri.T.A.Shaji, learned counsel appearing for the appellant, would submit, that, the learned Single Judge, in exercise of his supervisory jurisdiction, ought not to have interfered with the modification of the punishment from the order of dismissal into reinstatement of the workman into service without back wages, but with continuity of service. The learned counsel would, further, submit, that, the punishment that was imposed by the disciplinary authority is excessive punishment for the charges alleged and proved. (9) In our opinion, none of the contentions canvassed by the learned counsel appearing for the appellant can be accepted by us. One of the charges alleged against the workman was, shouting and abusing the superiors inside the premises of the Mines. The said charge is proved against the workman by the management, by adducing cogent evidence. The WA.No.2070 of 2008 - 4 - Enquiry Officer, in his report filed before the disciplinary authority, has held, that, charges 2 to 5 in the charge memo are proved against the workman. The Labour Court accepts the report of the Enquiry Officer, but, as we have already stated, with certain reservations. But, when come to the imposition of the punishment is concerned, the Labour Court feels that the punishment so imposed is excessive. (10) In our view, in order to maintain the discipline in an establishment, a recalcitrant workman, who uses abusive language against his superiors, cannot be allowed to continue in service. Further, a workman who intimidates and threatens his superiors on duty within the Mines premises also is a serious offence and that offence is proved against the workman in the enquiry held. In spite of all these, the Labour Court comes to the conclusion, that, the punishment imposed by the disciplinary authority is excessive. This view of the Labour Court, in our opinion, is contrary to several decisions of the apex Court, which have been noticed by the learned Single Judge. (11) The learned counsel appearing for the appellant also brings to our notice the decision of the apex Court in the case of Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. [(1984) 3 SCC 5]. In the said decision, the apex Court has stated, that, in exercise of the powers under Section 11A of the Act even if misconduct is proved and if WA.No.2070 of 2008 - 5 - the Labour Court after setting aside the order of dismissal and directing the management to reinstate the workman into service with half back wages, it also amounts to punishment for the proved misconduct and, therefore, the High Court, in exercise of its supervisory jurisdiction under Article 227, ought not to have interfered with the award passed by the Labour Court. (12) In support of the orders passed by the learned Single Judge, Sri.K.Anand, learned counsel appearing for the 1st respondent-management, has invited our attention to the decisions of the apex Court in the case of Mahindra and Mahindra Ltd. v. N.B.Narawade [2005 (2) KLT 32 (SC)], Madhya Pradesh Electricity Board v. Jagdish Chandra Sharma [2005 (2) KLT 147 (SC)] and Life Insurance Corporation of India v. R.Dandapani [2006 (1) LLJ 329], and also to the decision of this Court in the case of South Indian Bank Ltd. v. Krishnakumar [2006 (1) KLT SN 17, Case No.27], where, the apex Court and this Court are of the opinion, that, abusing a superior officer by using filthy language is a serious offence and the only punishment under such circumstance is dismissal from service. In view of the later decisions of the apex Court, in our opinion, the decision on which reliance was placed by the learned counsel for the appellant cannot be accepted by us. (13) Keeping all these aspects of the matter in view, the learned Single Judge, in our view, has, rightly, interfered with the orders WA.No.2070 of 2008 - 6 - passed by the Labour Court. We do not find any error, whatsoever, in the orders passed by the learned Single Judge, which would call for our interference in appeal. Therefore, the Writ Appeal requires to be rejected and it is rejected. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/-