IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 OP.No. 25959 of 2001(M) ----------------------- PETITIONER(S): --------------- THE GENERAL SECRETARY, PATHANAMTHITTA JILLA THOTTAM THOZHILALI UNION (H.M.S.), RANNI - PERUNAD PATHANAMTHITTA DISTRICT BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.V.D.SUDHEER RESPONDENT(S): --------------- 1. THE LABOUR COURT, KOLLAM 2. THE MANAGER, KONNI ESTATE, KONNI.P.O., PATHANAMTHITTA DISTRICT. GOVERNMENT PLEADER FOR R2 SRI.E.K.NANDAKUMAR FOR R2 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 SMT.PRIYA MAHESH FOR R2 SMT.PRIYA MANJOORAN FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma OP.No. 25959 of 2001(M) APPENDIX Petitioners Exhibits: Ext.P1: True copy of the Claim Statement filed by the Petitioner before the 1st defendent in I.D.No.128/93 dt.29.12.1994 Ext.P2: True copy of the Written Statement Dt.Nil April, 1995 filed by the 2nd respondent before the 1st respondent in I.D.No.128/93 Ext.P3: True copy of the Rejoinder Dt.24.6.1995 filed by the petitioner before the 1st respondent in I.D.No.128/93 Ext.P4: True copy of the Award Dated 15.5.2000 passed by the 1st respondent in I.D.No. 128/93 /True copy/ P.A. To Judge S. SIRI JAGAN, J --------------------- O.P.25959/2001 ---------------------- Dated this the 11th day of January, 2010 J U D G M E N T The union in I.D.No.128/93 before the Labour Court Kollam has filed this original petition challenging Ext. P4 award passed by Labour Court in that I.D. The issue referred for adjudication was: “Dismissal of Sri. Sudarsanan, Tapper, Konni Estate and the benefits entitled to him”. Since the dismissal of the workman was after having been found guilty in an enquiry conducted for the purpose, the Labour Court considered the question as to whether the enquiry was conducted properly and as to whether findings of the enquiry offcer are supported by evidence adduced in the enquiry. Both were found in favour of the management and on the question of proportionality of punishment, the Labour court found that the misconduct proved justified the dismissal awarded. The said award is under challenge before me. The petitioner challenges the award on two grounds. First is that the enquiry is violative of the principles of natural justice. Second is that the punishment of 2 dismissal is disproportionate to the gravity of misconduct found have been committed by the workman. Three contentions were raised before the Labour Court regarding violation of principles of natural justice in the enquiry. First was that the enquiry officer being the Assistant Manager of the Management, the enquiry is not proper. The second was that enquiry officer turned down the request of the workmen for assistance by trade union leader in the enquiry. The third is that the workmen was not furnished with a copy of the enquiry report before imposing the punishment. 2. Regarding the first objection against the enquiry, the Labour Court found that the conduct of the enquiry by an officer of the management does not vitiate the enquiry. I do not find anything wrong with that finding because that is the settled law. Moreover, it is found in Ext.P4 that before commencement of the enquiry, the enquiry officer specifically asked the workman whether he has any objection in his conducting the enquiry and the workman submitted that he has no objection. 3. Regarding the second contention, the Labour court found that the workman never requested for any assistance in the 3 enquiry either by a trade union leader or anybody else. The enquiry officer who was examined before the Labour Court deposed that he was even prepared to allow the workman to be represented by an advocate, had he sought permission for that. From the proceedings it was seen that the workman himself cross examined the witnesses of the management and filed a statement in support of his case. I am of the opinion that without seeking assistance before the enquiry officer, if the workman chooses to participate in the enquiry with out any assistance, the enquiry cannot said to be vitiated. Only if the workman seeks assistance and the same is rejected, the workman can later complain that the enquiry is in violation of principles of natural justice. 4. As far as the complaint regarding non furnishing of the enqury report s concerned, that issue is squarely covered by the decisions of the Supreme Court in Union of India Vs. Mohammed Ramzankhan (1991) 1 SCC 588, Managing Director, Elelctronic Corporation of India Vs. B. Karunakar (1992) 1 SSC 709 and Managing Director ECIL Vs. B Ramkumar (1993) 4 SSC 727. Supreme Court has held that 4 decision requiring furnishing of the copy of the report to the delinquent in the private sector should be prospective from the second ECIL case which was rendered on October 1, 1993. This case being one of the punishment imposed in April 1993, that decision is not applicable to the present case. Further, the Supreme court has in the decision of S.K. Singh Vs. Central Bank of India 1997 I LLJ 537 held that it should further be shown by the workman that prejudice was caused to him on account of non supply of the enquiry report. In this case the Labour Court has specifically found that non supply of copy of the enquiry report did not cause any prejudice to the workman. In view of the above, I do not find any merit in the contention of the petitioner that the enquiry was vitiated by violation of the principles of natural justice. 5. The labour court has considered the evidence adduced in the enquiry and found that there was sufficient evidence adduced in the enquiry to hold the workman guilty of the misconducts alleged against him. I do not find any perversity in the said finding in so far as I am satisfied that the evidence discussed by the Labour Court in the impugned order is sufficient to hold the 5 workman guilty. That being so, I am unable to countenance that the findings in the enquiry are vitiated. 6. Regarding the proportionality of punishment imposed on the workman, it is settled law that imposition of punishment on a delinquent workman is a managerial function and unless the punishment imposed is shockingly disproportionate to the gravity of the misconduct alleged against the workmen the Labour Court and this court cannot interfere with the punishment imposed by the management. Here, the misconduct proved against the workman was that on 13.1.1993 in the estate of the management where the supervisor was getting work done with employees, the workman along with another workman disrupted the work in a riotous and disorderly manner using abusive language and tried to assault the supervisor and the workmen, as a result of which the supervisor and workers could not continue the work and had to return. Further in the written statement filed by the management before the Labour Court, it s specifically mentioned that the workmen was imposed with punishment ten times earlier for similar misconducts, which is not denied by the workman. As such I am unable to find that the 6 punishment imposed on the workman is shockingly disproportionate. In the above circumstances, I do not find any merit in the writ petition. Accordingly the same is dismissed. S. SIRI JAGAN, JUDGE. sou.