IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 5522 of 2004(G) ------------------------- ID.42/2001 of INDUSTRIAL TRIBUNAL, IDUKKI .................... PETITIONER(S): --------------- JOMY XAVIER, MANAGING PARTNER, WALLKIAWARUM PLANTATIONS, KODIMATHA, KOTTAYAM. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENT(S): --------------------- 1. B.RAJAGOPAL, THOTTIYIL VEEDU, ARUMANPPR P.O., KOTTAYAM. 2. INDUSTRIAL TRIBUNAL, IDUKKI ADV. SRI.H.B.SHENOY FOR R1 SRI.B.ASHOK SHENOY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008 , ALONG WITH WPC NO. 21226 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5522 of 2004 EXT.P1: COPY OF THE AWARD RENDERED BY THE 2ND RESPONDENT DATED 31ST DECEMBER 2003 IN I.D. NO.42 OF 2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. -------------------------------------------- W.P.(C)Nos. 5522 & 21226 OF 2004 ----------------------------------------------- Dated this the 28th day of November, 2008 JUDGMENT W.P. (C) No. 5522/2004 is filed by the Management and W.P.(C) No. 21226/04 is filed by the workman, involved in I.D.No.42/2001 before the Industrial Tribunal, Idukki challenging those parts of award in that I.D. which is against them respectively. The issue referred for adjudication was: “Whether the dismissal of Shri. B. Rajagopal, Workman, by the Management of Walliawarum Plantations is justifiable? If not, what relief the workman is entitled to?” Since the dismissal of the workman was after a domestic enquiry, the validity of the enquiry was considered by the Tribunal as a preliminary point. In the preliminary order, the enquiry was found to be proper and valid. Thereafter, after considering the gravity of misconducts found proved against the workman, the Tribunal exercised powers under Section 11A of the Industrial Disputes Act, interfering with the punishment imposed by the management on the workman by directing the management to reinstate the W.P.(c)No.5522/04 & con.case 2 workman in service without any backwages or any other benefits, but with continuity of service. The management is challenging that part of the award, whereby the Tribunal interfered with the punishment imposed by them. The workman is challenging that part of the award, whereby the enquiry was found to be proper and valid and he has been denied backwages and other benefits. 2. The contention of the management is that the misconducts proved against the workman are serious enough to warrant the punishment of dismissal from service and therefore there was no justification in interfering with the punishment imposed on the workman by the management. On the other hand, the workman would contend that the enquiry itself was violative of principles of natural justice and there was no sufficient evidence adduced in the enquiry to find the workman guilty of misconducts alleged against him. 3. Since the workman is challenging validity of the enquiry itself, I shall consider his contentions first. As against the enquiry, the workman raises two contentions. First is that the request of the workman for assistance of a lawyer or his brother was rejected by the enquiry officer without W.P.(c)No.5522/04 & con.case 3 sufficient reasons. According to the workman, the workman was the only staff of the estate and apart from the partners of the estate there are nobody equal or above in status of the petitioner and all other employees of the establishment are workers working under the workman and therefore, the workman was unable to find any co-worker to assist in the enquiry. Therefore, the rejection of his request for assistance either by a lawyer or his brother is clearly violative of principles of natural justice. The second contention is that the establishment is located at Nelliyampathy whereas the enquiry was conducted at Kottayam, as a result of which the workman was not able to bring in his witnesses all the way from Nelliyampathy to Kottayam, which prejudiced his defence. He further points out that with regard to the second charge, the Industrial Tribunal did not re-appreciate the evidence as required under law and simply held the second charge to be proved without any discussion regarding the evidence on record. Therefore, according to the workman, the Tribunal had not applied his mind to the evidence on record to come to the conclusion that the charge was proved. With the help of the enquiry report, he points out that as against the evidence W.P.(c)No.5522/04 & con.case 4 of the management consisting of the testimony of the partner, who was stated to have been abused and threatened and two other independent witnesses, the workman also examined himself his brother and independent witnesses. The reason for rejection of all those evidence is unsustainable is the contention raised by the workman. 4. In answer to the above contentions, the learned counsel for the management would submit that there is no requirement of law that a lawyer or an outsider, even if it is the brother of the delinquent, to be permitted to assist the delinquent. He further points out that the enquiry officer permitted the workman to engage a union representative or a co-worker to help the workman in the enquiry and further allowed the brother of the workman to take down the enquiry proceedings, which would satisfy principles of natural justice. As regards the second contention against the enquiry, the learned counsel for the management would submit that the workman did not raise any objection before the enquiry officer against the conduct of the domestic enquiry at Kottayam and therefore the workman cannot be stated to be prejudiced by conduct of the enquiry at Kottayam. As regards the W.P.(c)No.5522/04 & con.case 5 contentions on evidence the learned counsel for the management would submit that it is after considering the evidence adduced in the enquiry that the Tribunal agreed with the findings of the enquiry officer and therefore, it was not necessary to enter into a separate discussion and findings on the evidence, in the award. He would also submit that in so far as the enquiry officer considered the evidence of both and chose to believe the evidence of the management, the same cannot be stated to be perverse by any stretch of imagination, without which finding neither the Industrial Tribunal nor this Court would be justified in interfering with the findings of fact regarding the guilt of the workman. 5. I have considered the rival contentions on this point. 6. Admittedly, there is no requirement of law to the effect that a delinquent in a domestic enquiry should be given the assistance of a lawyer or an outsider on request. Normally, a delinquent is to be given the assistance of a Union representative or of a co-worker, which had been extended to the workman in this case, which he did not avail of. Simply because there was no other employee in the management W.P.(c)No.5522/04 & con.case 6 establishment equal in rank or above the workman, other than the partners of the establishment, that does not mean that the workman cannot engage the assistance of one of the workers of the estate. In fact, the Tribunal disbelieved the allegations of the management that the majority of the workers of the estate were inimical towards the workman. When the workman himself contended for the proposition that the contention of the management that the majority of the workers of the estate are inimical towards the workman is false and the Tribunal upheld the contention of the workman, that means he could have engaged the assistance of any of the workman who was willing to help him. Instead he wanted the enquiry officer to permit him to be assisted by his brother. In fact the enquiry officer permitted the brother of the workman to be present along with him in the enquiry proceedings and permitted the brother of the workman to take down the enquiry proceedings. That would mean that the workman could have easily taken the advice of the brother for conducting the enquiry proceedings. As such, I am not inclined to accept the contention of the workman that rejection of the request of the workman to permit his brother to assist in W.P.(c)No.5522/04 & con.case 7 the enquiry has in any way prejudiced the workman. Regarding the second contention, the workman does not dispute the fact that he did not raise any objection before the enquiry officer regarding the venue of the enquiry. He participated in the enquiry at Kottayam without any objection whatsoever. Without having raised any objection regarding the venue of the enquiry, he cannot, after coming to the Industrial Tribunal, raise such a contention. Therefore, I am not inclined to accept the second contention also. The third contention is regarding sufficiency of evidence to find the workman guilty of the misconducts alleged against the workman. Admittedly the management had examined the partner who was the victim of the misconducts of the workman, as also two independent witnesses to prove the acts of the misconducts committed by the workman. It is true that the workman had also examined witnesses in defence. Going through the enquiry report, I find that the enquiry officer had considered the evidence of both sides in detail and ultimately decided to believe the evidence of the management. That cannot be stated to be perverse by any stretch of imagination. The Industrial Tribunal and this Court can interfere with the W.P.(c)No.5522/04 & con.case 8 enquiry report only if the conclusions reached by the enquiry officer are so perverse that no reasonable man would come to those conclusions on the basis of the evidence available in the enquiry. The situation herein is far from that. There was sufficient evidence adduced by the management in support of their case which the enquiry officer chose to believe. After considering the said evidence and the enquiry report, the Tribunal, although without discussing the same in detail, agreed with the findings of the enquiry officer which I cannot hold, is improper or unsustainable. As such, I do not find any merit in W.P.(C) No.21226/04 and accordingly the same is dismissed. 7. The next question is as to whether the Tribunal was right in interfering with the punishment imposed by the management, in exercise of the Tribunal's powers under Section 11A of the Industrial Disputes Act. This question has to essentially depend on the gravity of the misconducts proved to have been committed by the workman. Therefore, I shall first refer to the charges against the workman. The charges as such are not detailed in the award. The learned counsel for the workman made available to me a copy of the charge sheet W.P.(c)No.5522/04 & con.case 9 received by the workman. In the same, the charges found against the workman were the following: W.P.(c)No.5522/04 & con.case 10 W.P.(c)No.5522/04 & con.case 11 Although the Tribunal did not find the allegation that the majority of the workmen of the estate were inimical towards the workman, in respect of the first charge it was found that the workman had threatened the father of the partner once. The second charge was fully found to have been proved. Going by the above charges, it is clear that the workman has seriously threatened not only the partner but also his father with physical harm to the partner. He along with his brother had also behaved in riotous and disorderly manner by obstructing the partner while he was traveling in his car. The Supreme Court has of late stressed the importance of maintaining discipline in industrial establishments and has changed its earlier lenient view regarding punishments. The Supreme Court has held that even use of abusive language to managerial personnel is serious enough to warrant punishment of dismissal. Some of the decisions on the subject are U.P.STATE ROAD TRANSPORT CORPN.V. SUBHASH CHANDRA SHARMA AND OTHERS [(200) 3 Supreme Court Cases 324], Usha Breco Mazdoor Sangh V. Management of M/s. Usha Breco Ltd, & Anr. [2008 AIR SCW 6783], Mahindra and Mahindra Ltd V. N.B. Naravade [2005-I-LLJ 1129], HOMBE GOWDA EDUCATIONAL TRUST AND ANOTHER V. STATE OF W.P.(c)No.5522/04 & con.case 12 KARNATAKA AND OTHERS [(2006) 1 Supreme Court Cases 430], M.P.ELECTRICITY BOARD V. JAGDISH CHANDRA SHARMA [(2005) 3 Supreme Court Cases 401], MURIADIH COLLIERY OF BHARAT COKING COAL LTD.V. BIHAR COLLIERY KAMGAR UNION [(2005) 3 Supreme Court Cases 331] and TATA ENGINEERING AND LOCOMOTIVE CO.LTD V. N.K. SINGH [(2006) 12 Supreme Court Cases 554]. Considering the gravity of the misconducts found to have been committed by the workman in the light of the above decisions, I have no doubt in my mind that the proved misconducts were serious enough to warrant the punishment of dismissal from service. In any way, it is settled law that the imposition of punishment on a delinquent workman is a managerial function with which the Tribunal and this Court can interfere only if the punishment imposed by the management is shockingly disproportionate to the gravity of the misconducts. On consideration of the misconducts found to have been committed by the workman in this case, I am not satisfied that the punishment of dismissal is shockingly disproportionate to the gravity of the misconducts. Therefore, I am satisfied that the Tribunal was in error in invoking powers under Section 11A of the Industrial Disputes Act to interfere with the punishment imposed by the W.P.(c)No.5522/04 & con.case 13 management. Therefore, that part of Ext.P1 award, by which the Tribunal interfered with the punishment of dismissal imposed on the workman is hereby set aside. It is held that the workman is not entitled to any reliefs in the industrial dispute. W.P.(C)No.5522/2004 is allowed as above S. SIRI JAGAN, JUDGE Acd W.P.(c)No.5522/04 & con.case 14