IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 13945 of 2004(I) -------------------------- PETITIONER: --------------- C.K.KURIAN, C.M.S. TRAVELS, KATTAPPANA, IDUKKI. BY ADV. SRI.P.RAMAKRISHNAN SRI. K.V. GOPINATHAN NAIR. RESPONDENTS: ------------------ 1. CHACKO JOSEPH, PUTTUMANNIL, KATTAPPANA P.O., KATTAPPANA. 2. THE SECRETARY, IDUKKI DISTRICT MOTOR AND MECHANICAL WORKERS UNION CITU,KATTAPPANA UNIT, KATTAPPANA. 3. INDUSTRIAL TRIBUNAL, IDUKKI. BY ADV. SRI.K.BALACHANDRAN (MANGALATH) FOR R1,2 SRI.RAJESH NAIR FOR R1,2 SRI.BIJOY CHANDRAN FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13945 of 2004 EXT.P1: COPY OF THE DOMESTIC ENQUIRY REPORT DATED 6.2.1998. EXT.P2: COPY OF THE ORDER DATED 26.2.1998 ISSUED BY THE PETITIONER DISMISSING THE FIRST RESPONDENT FROM SERVICE. EXT.P3: COPY OF THE AWARD OF THE INDUSTRIAL TRIBUNAL DATED 24.7.2003. EXT.P4: COPY OF CERTIFICATE ISSUED BY NARENDRANATHAN TO THE PETITIONER. EXT.P5: COPY OF CERTIFICATE ISSUED BY M/S.COCHIN TOUR & TRAVELS, TRIPUNITHURA TO THE PETITIONER. EXT.P6: COPY OF CERTIFICATE ISSUED BY M/S. COCOHIN TOUR& TRAVELS, PIRAVOM TO THE PETITIOENR. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.13945 OF 2004 ---------------------------------------- Dated this the 16th day of July, 2008 JUDGMENT The management in I.D.No.44/99 before the Industrial Tribunal, Idukki is the petitioner herein. He is challenging Ext.P3 award passed by the Tribunal in that I.D. The issue referred for adjudication was: “Whether the dismissal of Shri. Chacko Joseph, driver by the employer of CMS travels, Kattappana is justifiable? 2. If not, the benefits to which he is entitled to?” By a preliminary order, the Tribunal found that the enquiry conducted against the workman, which led to his dismissal, is vitiated for violation of principles of natural justice. Thereafter, the management was given opportunity to adduce evidence. Ultimately, the Tribunal entered the following finding: “The misconduct proved against the workman is that he had threatened the employer saying that he would kill the employer and his family using dinamits and he had told another employee that he would kill the employer in the same manner mentioned above. The management has not raised any allegation that the W.P.(c)No.13945/04 2 previous conduct of the workman was not good. In the circumstance, I am of opinion that the extreme punishment of dismissal from service is too harsh and disproportionate to the gravity of the misconduct proved against the workman. I am of opinion that the loss of the entire back wages is an adequate punishment for the misconduct proved against the workman. Therefore, the management is directed to reinstate the workman in service without any backwages or any other benefits.” That part of the award directing reinstatement of the workman is under challenge before me. 2. According to the management, the misconduct proved against the workman is serious enough to warrant the punishment of dismissal and the Labour Court exceeded its jurisdiction in exercising powers under Section 11A to set aside the dismissal and direct reinstatement without backwages. 3. On the other hand, the learned counsel for the workman would submit that the particular misconduct was only a sequel to the other misconducts, which were found to be not proved and it cannot be considered to be that serious to warrant the extreme punishment of dismissal. W.P.(c)No.13945/04 3 4. I have considered the rival contentions in detail. The Supreme Court has in very many cases held that even use of abusive language against a superior officer is sufficient to warrant the punishment of dismissal. In this case, the workman was found guilty of threatening to kill his employer and his family using dynamite. He also told another employee that he would kill the employer in the same manner. When use of abusive language against a superior officer is sufficient to warrant the punishment of dismissal, certainly, threatening to kill the employer is a much more serious misconduct for which dismissal cannot be said to be excessive at all. The law is that the Tribunal can exercise such powers only if the punishment imposed by the management is shockingly disproportionate to the gravity of misconduct, which situation is absent here. That being so, I am satisfied that the Tribunal exceeded its jurisdiction in interfering with the punishment imposed by the management. Therefore, I am satisfied that the direction of the Tribunal to reinstate the workman without backwages is clearly unsustainable and liable to be set aside. I do so. W.P.(c)No.13945/04 4 5. However, I find that in this case, the workman has filed an application under Section 17B of the Industrial Disputes Act on 27.10.2004. A counter affidavit has also been filed. After filing of the counter affidavit, the same was not posted for hearing. Although the counsel for the management would contend that the fact that he has not moved the application for all these years would show that he was not eligible for wages under Section 17B, I am of opinion that the interest of justice would demand that part of the 17B wages be paid to the workman. Accordingly, I direct the petitioner to pay 50% of the wages under Section 17B to the workman within a period of one month from today. The workman would not be entitled to any other service benefits. With the above direction, this writ petition is disposed of . S. SIRI JAGAN, JUDGE Acd W.P.(c)No.13945/04 5