IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 WP(C).No. 25915 of 2003(I) -------------------------- PETITIONER: ------------ M/S. OIL PALM INDIA LTD., XIII, 54, OLD STAR THEATRE ROAD, P.B.NO.1715, KOTTAYAM 686 039, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.ANTONY DOMINIC SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------- 1. THE GENERAL SECRETARY, OIL PALM EMPLOYEES ASSOCIATION, C.I.T.U., BHARATHIPURAM P.O. 2. LABOUR COURT, KOLLAM. BY ADV. SRI.THOMAS ABRAHAM SRI.K.B.ARUNKUMAR SMT.MERCIAMMA MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4.1.2008 THE COURT ON 04/01/2008 DELIVERED THE FOLLOWING: W.P(C).No. 25915/03. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD IN I.D.NO.93/95. P2. COPY OF THE CLAIM STATEMENT OF R1. P3. COPY OF THE WRITTEN STTAEMENT OF THE PETITIONER. P4. COPY OF THE ENQUIRY REPORT DTD.6.8.94. P5. COPY OF THE ARGUMENT NOTE DTD.29.8.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ====================== W.P.(C).No.25915 of 2003 ====================== Dated this the 4th day of January, 2008 J U D G M E N T The management in I.D.No.93/1993 before the Labour court, Kollam, is the petitioner herein. The petitioner is challenging Ext.P1 award of the Labour Court in that I.D., whereby the workman involved, who was dismissed by the management on allegations of misconduct, was directed to be reinstated in service with 70 per cent back wages after finding him not guilty of the charges levelled against him. The issue referred for adjudication was: “Dismissal of Sri.G.Vanarajan, Vehicle Helper, Yeroor Estate” Since the dismissal of the workman was after conducting a domestic enquiry, the Labour Court had decided the question of validity of that enquiry as preliminary point. However, apparently, based on the request of both sides, the Labour Court considered the dispute as a whole, dispensing with a separate finding regarding the validity of the enquiry. The Labour Court first found that the enquiry was conducted validly and 2 properly. Thereafter, the Labour Court considered the validity of the findings on the basis of the evidence adduced. After elaborately considering the evidence adduced in the enquiry, the Labour Court found that there was no sufficient evidence to hold the workman guilty of the misconducts alleged against him. Accordingly, the Labour Court set aside the order of dismissal and directed the management to reinstate the workman with 70 per cent back wages and attendant benefits with continuity of service. This award is under challenge before me. 2. Two contentions are raised before me by the petitioner against Ext.P1 award. First is that the findings of the Labour Court on evidence are perverse and the second is that the petitioner has not been given an opportunity to adduce fresh evidence in spite of the specific request on that behalf in the written statement filed by the management before the Labour Court. 3. I have considered the contentions of the petitioner in detail. 4. The charge levelled against the workman was that on 16.8.1993, the driver of the vehicle, used by the school of the 3 management for the purpose of transporting its students, along with the workman involved went to the nearby workshop to change the tube of the tyre of the bus which was damaged. At the workshop the driver left the bus and went to his house. After the tube was changed and the tyre was replaced an employee of the workshop started the bus and drove it off, which hit against a shop causing death of three persons and injuring several others. The allegation against the workman was that this occurred only because of the negligence on his part in taking care of the bus, which was his duty in the absence of the driver, and therefore, he was guilty of very serious misconduct. The enquiry officer found the workman guilty of the said misconduct. The Labour Court did not find the evidence before it sufficient for finding the workman guilty. In such circumstances, what I have to consider is as to whether the view taken by the Labour Court on the evidence before it was perverse or not. Even if I find that another view is also possible, that would not justify interference if the view taken by the Labour Court is a plausible one. 5. The management examined two witnesses. The relevant portion of evidence has been extracted in the award 4 itself. From the same I find that both witnesses did not directly accuse the workman of any negligence. On the other hand, one possible view is that without the knowledge of the workman, the employee of the workshop, finding that the key of the bus was in the dash board, started the bus and drove off. It does not appear from the evidence that anybody actually stated that the employee of the workshop started and drove off the vehicle with the knowledge and consent of the workman in question. Therefore, I am unable to come to the conclusion that the finding arrived at by the Labour Court on the evidence is in any way perverse. That being so, I do not think that I can interfere with the findings on facts entered by the Labour Court. 6. The second question is as to whether after finging that the findings in the enquiry are bad, the Labour Court ought to have granted the petitioner an opportunity to adduce fresh evidence. It is clear from Ext.P3 written statement filed by the management before the Labour Court that they had in fact prayed for such an opportunity, if the domestic enquiry is found to be unsustainable. But I find that in paragraph 9 of the award of the Labour Court, it is specifically stated as follows: 5 “ Both sides have requested to consider the whole dispute as a whole dispensing with a separate finding regarding the validity of the enquiry.” In paragraph 6 also it has been stated thus: “6. Both sides suggested that the validity of the enquiry need not be considered as a preliminary point and the dispute can be heard.” Of course, the counsel for the petitioner would argue that that does not mean that the management did not want opportunity to adduce fresh evidence. However, from a reading of that sentence it appears to me that what the management wanted is for the Labour Court to decide the matter without any fresh opportunity to adduce evidence. Otherwise such a procedure would be totally meaningless. The question of giving fresh opportunity to adduce evidence arises only after the preliminary order is passed finding that the enquiry is bad. When the management agrees that the whole dispute be considered dispensing with a separate finding regarding the validity of the enquiry, it essentially means that they do not actually want to adduce any fresh evidence. Probably they agreed for that course of action, because there was no scope for bringing in any fresh evidence in support of their case since the available evidence had already come on record in the 6 enquiry. Therefore, I do not find any merit in the contention on this point also. 7. In any event, I find that the Labour Court had in fact denied 30 per cent back wages to the workman. Assuming that the workman was actually found guilty, even then, certainly the charge raised against him, in the facts and circumstances of the case, cannot be considered to be serious enough to warrant a punishment of dismissal and the relief granted would have been proportionate. Therefore, in any case, I do not think that any useful purpose would be served by remanding the matter for opportunity to the petitioner to adduce evidence. In the circumstances, this writ petition fails and is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 7 “9. Points 2 to 4: Since common questions of law and facts arise in all these points, they care being discussed jointly for convenience. Both sides have requested to consdier the whole dispute as a whole dispensing with a separate finding regarding the validity of the enquiry. Therefore, the whole dispuste hasben heard. I have already found that the enquiry was conducted properly. Now the question to be considered is whether the findings arrived at by the enquiry officer are perverse or not and whether the punishment imposed on the workman is justifiable. The workman joined in the service of the management in 1972 and he was promoted as Vehicle helper on 1.4.1991 and specially deputed to the school bus to take school children of the employee of the company to the various schools and bring them back to their respective houses. While he was working as a vehicle helper in school bus KL-5/5290, Sri.Rajendraprasad was its driver. From the evidence and materials on records, it is seen that on 16.8.1993 after taking the students to the schools the bus was taken to a workshop for changing the tyre and the bus was entrusted to the workshop assistant Hakkim by the driver for changing the tyre. Thereafter the driver left that place. 8