IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 28463 of 2006(L) -------------------------------------- PETITIONER(S): ----------------------- 1. M/S.SAMUHYA SEVASANGHAM, REPRESENTED BY ITS SECRETARY, CHERAI, ERNAKULAM DISTRICT. 2. THE PRESIDENT, M/S.SAMUHYA SEVASANGHAM, CHERAI. BY ADV. SRI.ASOK M.CHERIAN RESPONDENT(S): ------------------------- 1. N.K. SUNIL, S/O.KANNAN, NIKARTHIL HOUSE, CHERAI. 2. INDUSTRIAL TRIBUNAL, ALAPUZHA. R2 BY GOVT. PLEADER MR.ANTONY MUKKATH. R1 BY ADV. SRI.A.JAYASANKAR, SRI.MANU GOVIND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, ALONG WITH WPC NO.3508 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 28463 of 2006(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CLAIM STATEMENT DATED 02/08/2004 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 17/02/2005 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXT.P3: COPY OF THE AWARD DATED 26/07/2006 IN I.D. NO.57/04 OF THE HONOURABLE INDUSTRIAL TRIBUNAL, ALAPPUZHA. EXT.P4: COPY OF THE ACQUITTANCE REGISTER FOR THE MONTH OF NOVEMBER 2002. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 28463/2006 & 3508/2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th day of September, 2011. J U D G M E N T These two writ petitions are filed by the workman and the management in I.D.No. 57/04 before the Industrial Tribunal, Alappuzha. Both of them challenge the award in that I.D, which is produced as Ext.P1 in W.P(C) No. 3508/2007 and Ext.P3 in the other writ petition filed by the management. The issue referred for adjudication was as follows: “Whether the dismissal of Shri. N.K. Sunial, Junior Assistant of Samoohya Seva Sanghom, Cherai is justifiable? If not what relief he is entitled to?” Since the dismissal of the workman was after a domestic enquiry, the Tribunal considered the question of validity of the enquiry as a preliminary point and found that the enquiry was conducted in full compliance with the principles of natural justice and that in respect of one charge, the misconduct was partly proved and in respect of the other charge, the misconduct was fully proved. On that basis, the Tribunal upheld the enquiry but interfered with the punishment of dismissal and directed reinstatement without back wages. The workman is challenging the award as a whole and the management is challenging the interference with the punishment imposed by the management. 2. I have considered the rival contentions in detail. 3. The workman challenges the enquiry on four grounds. One is that at the time of enquiry, the workman was not paid subsistence allowance, which would vitiate the enquiry. W.P(C) Nos. 28463/2006 & 3508/2007 -: 2 :- Secondly, he would contend that he was not given the assistance of a lawyer. Thirdly, he would contend that the explanation to the charge was sought by the enquiry officer himself which that would amount to bias on the part of the enquiry officer. Lastly, he would submit that he was not given an effective opportunity to cross examine the witnesses of the management. He would also contend that the second misconduct found to have been proved has no nexus with his employment and therefore no punishment could have been imposed on him on the basis of that misconduct. He relies on the decision of this Court in Rajagopal B. v. Jomy Xavier and another, 2010 (2) KHC 196 in support of his contention that such a misconduct not being one enumerated in any conduct rules applicable, the petitioner could not have been imposed with any punishment in respect of the same. 4. At the outset, I note that the workman readily agreed to have the enquiry file marked by mutual consent without having to examine the enquiry officer. Without cross examining the enquiry officer, the workman cannot prove violation of principles of natural justice except on the basis of what is in the enquiry file. The workman has no case that any of his contentions against the validity of the enquiry is discernible from the enquiry file. As such, after having accepted the enquiry file as evidence in the I.D., the workman cannot now contend that the enquiry is vitiated for violation of principles of natural justice in the absence of W.P(C) Nos. 28463/2006 & 3508/2007 -: 3 :- any evidence in support of those contentions. There is also nothing on record to show that the workman had raised these contentions first before the enquiry officer or even before the Industrial Tribunal at the time of arguments. That itself would go to the root of the matter. Apart from that, the non-payment of subsistence allowance by itself will not render the enquiry invalid unless the workman proves that on account of non-payment of subsistence allowance, the workman was prejudiced in the matter of conducting his defence in the enquiry. That has to be proved by adducing evidence. The workman has not chosen to adduce any evidence in that direction. For attacking the enquiry on the ground of not permitting the workman to engage a lawyer as his defence assistant, the workman has to first prove that as of right, he is entitled to engaging a lawyer. Secondly, he has to prove that he has applied for assistance of a lawyer and which was rejected by the enquiry officer. The workman has not done anything to prove the same. In fact, a reading of the award would show that none of these contentions were raised before the Tribunal at the time of arguments. The fact that the enquiry officer sought an explanation will not ipso facto spell out bias on the part of the enquiry officer. The question as to whether effective opportunity was not given to the workman for cross examining the witnesses of the management is also a question of fact, which has to be proved by evidence, either by cross examining the enquiry officer or by adducing W.P(C) Nos. 28463/2006 & 3508/2007 -: 4 :- evidence by the workman himself, both of which the workman has not chosen to do. As I have already said, a reading of the award would show that none of these contentions were raised at the time of arguments before the Tribunal. As such, I do not find any merit in the contention of the workman that the enquiry was vitiated for violation of principles of natural justice. 5. There were two charges levelled against the workman. The first is that he had absented from duty without leave for the period from 25.11.2002 to 4.12.2002. But the Tribunal found that even according to the management, the workman was suspended from service on 27.11.2002 and therefore the workman can be said to be unauthorizedly absent only on 25th and 26th November, 2002. The second charge was that the workman was found in the premises of one Sri. Vidyadharan, a member of the management-Sanghom during night frightening the wife of the said member. In respect of the same, the finding of the Industrial Tribunal is as follows: “9. With regard to the second charge regarding his presence at the premises of one Vidyadharan and frightening his wife, the management has examined S/Sri. Vidhyadharan, Smt. Ajitha his wife and Sri. K.K. Shaji. Smt. Ajitha has clearly deposed before the enquiry officer regarding the presence of Sri. Sunil during mid night on 25.11.2002 and 26.11.2002 and frightening her. Above aspects of the evidence of witnesses examined on the management side are not controverted in any manner. The enquiry officer has considered the entire evidence on record and arrived at his conclusions. The presence of W.P(C) Nos. 28463/2006 & 3508/2007 -: 5 :- Sri. Sunil at the premises of the residence of Vidyadharan and Ajitha during mid night between 25.11.2002 and 26.11.2002 is not explained by the workman. Invariably, it has affected the reputation of the Sangham also. Therefore the enquiry officer has rightly found that he has indulged in gross misconduct in the matter. 10. It has been argued by the counsel for the workman that the acts alleged is done outside the premises of employer Sangham and it has happened not during the course of his employment and therefore, it does not constitute any misconduct. This point was raised before the enquiry officer also. He has dealt with the matter in page 11 and 12 of his report. The Sangham, who is the employer in this case has been established for the purpose of uplifting the members of the Sangham in their social, economical and moral fields of life. To achieve this goal, the Sangham is doing the business of lending money to members. The employees and the members of the society have to interact with the Sangham in connection with various activities of the Sangham. If an employee indulges in the conduct involved in this case, it will be harmful to the interest and prestige of the Sangham. The Sangham is his pay master. Thus there is clear nexus between the conduct of the workman and his employment. The argument to the contrary raised by the counsel for the workman cannot be accepted. 11. In the result, preliminary order is passed holding that the domestic enquiry was conducted in full compliance of the principles of natural justice and the charges of unauthorised absence of the workman from the afternoon of 25.11.2002 and 26.11.2002 and indulging in the misconduct during the night between 25.11.2002 and 26.11.2002 are supported by legal evidence and hence the domestic enquiry is legal and proper.” The presence of the workman in the premises of Sri. Vidyadharan is not disputed. The contention of the workman is that that cannot be said to be a misconduct in connection with the employment of the Sanghom. I am of opinion that the decision relied on by the workman cannot W.P(C) Nos. 28463/2006 & 3508/2007 -: 6 :- be pressed into service in support of his contentions insofar as there is no written down conduct rules applicable to the employees of the Sanghom. That being so, any action of an employee, which, in ordinary parlance, would be termed as a misconduct, can be considered as a misconduct and proceeded with. Certainly, the particular action of the workman was unbecoming of an employee of the Sanghom. Certainly it would affect the reputation of the Sanghom. As such, I am not inclined to interfere with the findings of the Tribunal in that regard also. 6. The workman would further contend that the punishment is shockingly disproportionate to the gravity of the misconduct insofar as all what has been proved against him is his presence at night in the premises of a member of the Sanghom. But, as rightly pointed out, the workman has not been able to explain his presence in the premises at the ungodly hour. The management would contend that the Tribunal ought not to have interfered with the punishment of dismissal imposed by the management for the gross misconduct committed by the workman. In the facts and circumstances of the case, I do not think that the Tribunal was wrong in interfering with the punishment. I am also of opinion that the denial of back wages would be adequate punishment for the misconduct proved against the workman. 7. In view of the above findings, I do not find any merit in both the writ petitions. Accordingly, both writ W.P(C) Nos. 28463/2006 & 3508/2007 -: 7 :- petitions are dismissed. I note that subsequent to the filing of the writ petitions and orders directing payment of wages under Section 17B of the Industrial Disputes Act, the workman has been reinstated in service. Sd/- S. Siri Jagan, Judge. Tds/