IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 36111 of 2003(M) -------------------------- PETITIONER(S): --------------- TRAVANCORE DEVASWOM BOARD, REP. BY THE SECRETARY, THIRUVANANTHAPURAM. BY ADV. SRI.M.K.CHANDRAMOHAN DAS, SC, TDB SRI.P.VIJAYARAGHAVAN, SC, TDB SRI.NAGARAJ NARAYANAN, SC, TDB RESPONDENT(S): --------------- 1. THE LABOUR COURT, ERNAKULAM. 2. BHUVANENDRAN NAIR, NETOORATHARA VEEDU, KATHIYOOR,THIRUVANANTHAPURAM. 3. B.SUNDERASHAN, VALIYAPUNNAKAL HOUSE, KARAMANA P.O., KALADY, THIRUVANANTHAPURAM. ADV. SRI.P.RAMAKRISHNAN FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009, ALONG WITH WPC NO. 6221 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36111/2003 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE COMMISSION AWARD DATED 24.02.2003 EXHIBIT P2 : TRUE COPY OF THE NEWS REPORT DTAD. 10.07.1990 EXHIBIT P2(A) : TRUE COPY OF THE NEWS REPORT DTD. 10.07.2003 /TRUE COPY/ P.A. TO JUDGE P.R.RAMAN & P.R. RAMACHANDRA MENON, JJ. -------------------------------------------------- WP(C) NO. 36111 OF 2003 & 6221 OF 2004 ------------------------------------------------------------ Dated this the 12th day of October, 2009 J U D G M E N T P.R.RAMACHANDRA MENON, J The challenge in both these Writ Petitions is against Ext.P1 Award passed by the Labour Court, Ernakulam whereby the petitioners in WP(C) 6221/2004 have been ordered to be reinstated in service, however denying 50% back wages. WP(C) 36111/2003 has been preferred by the Travancore Devaswom Board (Management) seeking to sustain the dismissal of the delinquent employees imposed by the Management, while the other Writ Petition has been preferred by the delinquent employees seeking to interfere with the denial of the 50% back wages. 2. The first petitioner in WP(C) 6221/2004 was employed as the ‘First Mahout’ in the Kodungoor Devaswom; while the second petitioner was working as the ‘Second Mahout’ in Chirakadavu Devaswom. Both the above persons were served with a charge sheet dated 29.11.1990 alleging various misconducts, mainly that they along with some others had jointly tortured the elephant by name Viswanathan with stick, arrow, iron rod etc. during the nights of 04.07.1990 to 09.07.1990 in the compound of the WPC NO.36111/2003 & 6221/2004 2 Tirunakkara Mahadeva Temple, finally leading to the death of the elephant occurred on 09.07.1990; thereby causing heavy loss to the Management Devaswom and tarnished the image of the Devaswom Board in the general public. Since the delinquent employees denied charges levelled against them, a domestic enquiry was conducted. On conclusion of the enquiry, the Enquiry Officer found that the charge No. 1 levelled against the delinquent employees stood proved; whereas the other charges, as to consumption of intoxicating drinks within the Devaswom compound and on such other heads were held as not proved. On the basis of the proven misconduct, considering the gravity of the same, the Management Devaswom dismissed both the above employees from the service; which led to separate industrial disputes referred and numbered as ID Nos. 8/97 and 11/97 before the Labour Court, Ernakulam. 3. On entering appearance, both the sides submitted their pleadings. The Enquiry Officer was examined as MW1 and the Enquiry File was marked as M1 on the side of the Management; while nobody was examined and no document was produced from the side of the workmen. The Labour Court considered the validity of the domestic enquiry as a preliminary issue and after going through the enquiry report and the proceedings, it was held that the Enquiry Officer had conducted the domestic enquiry adhering to the principles of natural justice and that the WPC NO.36111/2003 & 6221/2004 3 same was valid and proper. 4. After upholding the validity of the enquiry as above, the Labour Court, proceeded to analyse the question whether, the finding of the Enquiry Officer was based on the evidence adduced in the enquiry. It was observed by the Labour Court that, the materials in record did not show that the workmen had tortured the elephant with 'iron weapons', with intention to cause death of the elephant and hence that it could not be found that the workmen had any such common intention. It was accordingly held that the Management had failed to prove the first charge; simultaneously observing that the Management had not sought for any opportunity to substantiate their case before the Labour Court by raising necessary pleadings in the written statement. Accordingly, the Labour Court held that there was no scope for adducing any fresh evidence and since the dismissal of the workmen was held as unsustainable; they were ordered to be reinstated, however denying 50% of the back wages; sustainability of which, to the extent the parties have lost, is under challenge in the above Writ Petitions. 5. Learned Counsel for the petitioner Devaswom in WP(C) 36111/2003 referred to the sequence of events and asserted that the presence of the workmen with sticks and such other weapons near the elephant in the nights between 04.07.1990 and 07.07.1990, has been WPC NO.36111/2003 & 6221/2004 4 brought in evidence by some of the witnesses examined in the enquiry. Their ‘presence’ near the elephant is in fact conceded from the part of the workmen themselves. It is also pointed out that undue reliance is placed on the ‘motive’ of the delinquent employees, which is stated irrelevant in disciplinary proceedings, simultaneously adding that the evidence on record very much substantiates the charge; particularly when ‘preponderance of probability’ is enough to prove the charges in a domestic enquiry. Learned counsel for the workmen, who are petitioners in WP(C) 6221/2004, submits that the finding and reasoning given by the Labour Court, absolving the workmen from the charge and setting aside the punishment of dismissal is very much correct and proper; however pointing out that there is no justification for having denied 50% of the back wages while ordering reinstatement. 6. Considering the rival contentions as to the sustainability of the finding rendered, we perused the records including the deposition of witnesses. It is very much seen from the evidence tendered by the witnesses, particularly PW10 and 13 that the said witnesses had seen the delinquent workmen near the elephant between 04.07.1990 and 07.07.1990, armed with stick and such other means. In response to the moulded question put forth to them (as desired to be), as to torturing of the WPC NO.36111/2003 & 6221/2004 5 elephant, it has been answered by the said witnesses confining it just as ‘answer to the question’. But it remains a fact that the delinquent persons were never employed as mahouts of the elephant Viswanathan and they had absolutely no need, necessity or occasion to have come anywhere near the said elephant (as they were admittedly mahouts of some other elephants). The version of the delinquent employees that they were standing near the elephant to watch the ‘domestication methods’ being pursued by the concerned mahouts of the elephant Viswanathan does not inspire any confidence at all; as the delinquent employees were not part of the general public who reached the spot just because of enthusiasm to see the training techniques, but were working as full fledged mahouts of other elephants in Kodungoor Devaswom and Chirakkadavu Devaswom respectively. 7. It is very much in evidence that the elephant by name Viswanthan was being tortured by several persons during the period from 04.07.1990 to 07.07.1990 and finally, the elephant succumbed to the injuries on 09.07.1990 as revealed from the report on post-mortem, showing the cause of death as the result of torture. The reasoning given by the Labour Court in paragraph 11 of the Award for interfering with the finding and punishment is that the concerned witnesses (PW10 and 13) WPC NO.36111/2003 & 6221/2004 6 have not spoken as to the ‘specified dates’ on which the concerned workmen had beaten the elephant; that such and such mahouts had inflicted such and such injuries with such and such weapons and further that the evidence on record did not show that the delinquent employees had tortured the elephant “with iron weapons , with intention to cause the death of the elephant ” and hence that the charge was not proved. 8. Going by the evidence on record and the degree of proof required, it is seen that the Labour Court has proceeded on the wrong path, in so far as the evidence was being counted, instead of weighing the same as a whole. Undue reliance has been placed by the Labour Court as to the alleged ‘motive’ of the workmen whose presence near the elephant with sticks and arms stands very much vindicated. Further, based on the evidence, the Labour Court had arrived at a finding in the very same paragraph (para 11) that the present workmen had also beaten the elephant, though it is stated that there was no evidence that they had tortured the elephant “with iron weapons with intention to cause death” of the elephant. It is well settled that, unlike in a criminal case, preponderance of probability is enough to prove the charge in a domestic enquiry and there is no allergy even to ‘hear-say’ evidence as made clear by the Apex Court in the decisions rendered in State of Haryana and WPC NO.36111/2003 & 6221/2004 7 another Vs. Rattan Singh [1982 (1) LLJ 46], S.N. Nagarajalu etc... and others Vs. Railway Board and others [1982 (2) LLJ 54]. Going by the materials on record, the relevant provisions of law and the binding judicial precedents, it cannot but be said that the Labour Court has gone wrong while interfering with the finding in respect of charge No. 1. 9. With regard to the punishment of dismissal imposed by the Management and the scope of denial of 50% back wages, it can no more be a matter of dispute that granting of back wages or a portion of the same even in cases of reinstatement is ‘not automatic’ and it depends upon various facts and circumstances including absence of any other employment or income, the burden to prove which, is very much upon the workers themselves as made clear by the Apex Court on many an occasion. It is also brought to the notice of this Court that the other mahouts who had tortured the elephant leading to its death occurred on 09.07.1990 had also been dismissed from the service of the Devaswom, based on the very same domestic enquiry and that the same has become final. Considering the facts and figures, the heinous act pursued by all concerned, resulting in the death of the elephant, can’t but be deprecated. At the same time, taking note of the fact that the extent of involvement of the petitioners in WP(C) 6221/2004 in beating/torturing the elephant is not clearly discernible, we find that some allowance can be given to them. WPC NO.36111/2003 & 6221/2004 8 10. In the above circumstances, while sustaining the finding on the ‘first charge’ as arrived at by the Enquiry Officer and the Management, we hold that the punishment of ‘dismissal’ be modified as ‘removal from the service’, granting a total sum of Rs.2,00,000/- each towards the service benefits payable under various heads. Taking note of the fact that the delinquent employees were paid their last drawn wages in respect of the period from November 2003 to 20.01.2006, pursuant to the interim orders dated 20.01.2006 in I.A. 18824/2005 and I.A. 18825/2005 in WP(C) 36111/2003, we direct the Management Devaswom (petitioner in WP(C) 36111/2003 and the second respondent in WP(C) 6221/2004) to pay the balance amount to top up the figure to Rs.2,00,000/- each to both the petitioners in WP(C) 6221/2004. The balance amount shall be paid to the workers as above, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment; failing which it will carry interest at the rate of 7% per annum. Both the Writ Petitions are disposed of accordingly. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE dnc