IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 6091 of 2009(F) ------------------------- ID.71/1996 of LABOUR COURT, ERNAKULAM .................... PETITIONER(S): --------------- T.J. JOSE, PROPRIETOR, MINI MOVIE HOUSE, PATTIKKAD P.O., THRISSUR DIST. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): --------------- 1. V.V. SIVADASAN, VARAGIL VEEDU, MYLATTUPARA P.O., PEECHI, THRISSUR DISTRICT. 2. THE LABOUR COURT, ERNAKLAM DISTRICT. ADV. SRI.P.RAMAKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.6091 of 2009 ================== Dated this the 24th day of September, 2009 J U D G M E N T The petitioner is the management in I.D.No.71/96 before the Labour Court, Ernakulam. The petitioner is challenging Ext.P1 award passed by the Labour Court in that I.D. 2. The issue referred for adjudication was: “Whether dismissal of Sri.V.V.Sivadasan, Operator from service with effect from 23.3.1994 (sic) justifiable? If not, the relief which he is entitled to?” 3. The dismissal of the workman was after conducting an enquiry. Therefore, the Labour Court first considered the question of validity of the enquiry. On a consideration of the evidence, the Labour Court found that the first notice of posting of the enquiry to a specific date was served on the workman on 11.3.1994 and that the workman had on 11.3.1994 itself submitted an application to the enquiry officer requesting him to postpone the enquiry to some other date. A copy of that letter and postal receipt for acknowledgment of the same, were also produced by the workman, which proved that the enquiry officer had received the letter sent by the workman. However, the enquiry officer did not choose to adjourn the enquiry as requested for by the workman and conducted the enquiry ex parte, ultimately, finding the workman guilty of the alleged misconduct. The above circumstances w.p.c.6091/09 2 were found to be violation of principles of natural justice and, therefore, the Labour Court set aside the enquiry as invalid. Thereafter, the Labour Court posted the case for several postings for fresh evidence of the management. Despite grant of several adjournments in the matter, the management did not choose to adduce any evidence. On 10.10.2006 the counsel for the management sought transfer of the case to the Labour Court, Thrissur Camp, which was allowed and the matter was taken up at the Thrissur Camp sitting. When the matter was taken up in the Thrissur Camp sitting, the management and their counsel were not ready to adduce evidence and sought for further time. So the case was re-transferred to the headquarters at Ernakulam. On 18.12.2006 two witnesses summoned at the instance of the management were present. But none appeared for the management on that date. Subsequently, the management filed MP No.3/2007 for again transferring the case to Thrissur Camp sitting, which was opposed by the counsel for the workman. The Labour Court found that the attempt of the management was to protract the matter further and M.P.No.3/2007 was dismissed. Finally the case was posted for fresh evidence of the management with a direction to the management to bring all their witnesses. On 5.2.2007 there was no representation for the management. No witnesses were also present. Therefore, the Labour Court heard the counsel for the w.p.c.6091/09 3 workman and passed the award after finding that the dismissal of the workman is not justifiable. But instead of ordering reinstatement with or without backwages, the Labour Court chose to direct payment of compensation amounting to Rs.1 lakh. It was further directed that the amount has to be paid within one month from the date of the award with a condition that if the management fails to pay the said amount, the workman is free to realise the said amount together with interest thereon at the rate of 10 per cent per annum from the date of effect of the award till realisation. That award is under challenge before me. 4. Primarily the petitioner's objection against Ext.P1 award is regarding the computation of the compensation amount. According to the petitioner, fixation of Rs.1 lakh as compensation was without following any principles applicable for such fixation. Therefore, according to the petitioner, the award has to be set aside on that ground. 5. The counsel for the workman would submit that the workman was aged 43 years at the time of dismissal and he had not less than 15 years of service left. His monthly salary was Rs.730/- per month. On a calculation based on the above parameters, Rs.1 lakh would not, by any stretch of imagination, be unreasonable, is the contention raised by the counsel for the workman. 6. I have considered the rival contentions in detail. w.p.c.6091/09 4 7. Since the award would speak for itself, I deem it appropriate to extract the relevant portion of the award, which reads thus: “6. Points Nos. 1 & 2: It is the case of the workman that notice regarding the conduct of the enquiry was not served on him before the enquiry. Ext.W9 in the enquiry file is the copy of the notice send (sic) by the enquiry officer. Ext.W1 is the original notice produced by the workman. Ext.W1 was sent on 5.3.1994 by registered post and the notice was served on 11.3.94. WW1 has deposed that on 11.2.1994 itself he has sent letter to the enquiry officer to postpone the enquiry to some other day. Ext.W3 is the copy of the letter dated 11.3.1994 and W3(a) is the postal receipt and Ext.W2 is the postal acknowledge (sic) which shows that the enquiry officer had received the letter sent by the workman. On receiving letter of the workman, the enquiry officer ought to have given chance to participate in the enquiry. But the enquiry officer did not care to give opportunity to the workman to contest in the enquiry. The enquiry conducted in this case is an exparte enquiry. So the enquiry is vitiated as the principles if (sic) natural justice are violated by the enquiry officer. Therefore, I find that the enquiry is not proper and valid. The finding of the enquiry officer is also not hold good. Therefore, the enquiry report is set aside. 7. Point Nos. 3 & 4:- The preliminary order setting aside the enquiry report was passed on 3.5.2006 and posted for fresh evidence on the management to 6.6.2006. On 5.6.06, the counsel for the management applied for time for fresh evidence. Several adjournments were given to the management to adduce fresh evidence. On some posting dates, there was no representation on the side of the management. Thereafter on 19.9.06 this court recorded that the management has not adduced any evidence and posted the case for hearing to 25.9.06. On 25.9.06, the management filed M.P.69/06 which was allowed and evidence reopened and posted for evidence of the management. Thereafter, the counsel for the management sought several adjournments. On 10.10.06 the management's counsel prayed to transfer the case to Thrissur camp sitting which was also allowed and posted to the Thrissur Camp Sitting for the management a evidence finally (sic). The management and his counsel were not ready to adduce fresh evidence and dragged the matter. So the case retransferred and posted at the headquarters at Ernakulam. When the two witnesses summoned at the instance of the management were present on 18.12.06, there was no representation of the side of the management. Thereafter, the management filed M.P.3/2007 to transfer the case to Thrissur camp sitting which was strongly opposed by the other side. The transfer application filed again to transfer the case to Thrissur camp sitting of the court is only to drag the matter further, so M.P. 3/2007 was dismissed. Finally the case was posted for fresh evidence of the management with a w.p.c.6091/09 5 direction to the management to bring all the witnesses. On 5.2.2007, there was no representation for the management and the management was also absent. No witnesses were also present. Thereafter, I heard the counsel for the workman. As the enquiry report is set aside, it is the duty of the management to adduce fresh evidence to prove the charges levelled against the workman. But the management has not adduced any fresh evidence even though several adjournments were given to the management. As there is no evidence to prove the alleged charges levelled against the dismissal of the workman Sri.V.V.Sivadasan from the service of the management is not unjustifiable and is liable to be set aside. 8. In the peculiar circumstances of the case, I am of the view that instead of reinstatement the workman is to be paid a compensation of Rs.1,00,000/- by the management. It is also made clear that the workman is not entitled to get any other benefits other than the compensation of Rs.1,00,000/- In the result, an award is passed holding that the order of dismissal of the workman Sri.V.V.Sivadasan from the service of the management is not justifiable and instead of reinstatement, the management is directed to pay Rs.1,00,000/- (Rupees One lakh only) to the workman as compensation. The workman is not entitled to get any other relief other than the compensation of Rs.1,00,000/-. The management is directed to pay an amount of Rs.1,00,000/- to the workman within one month from the date of the award. If the management fails to pay the above said amount, the workman is allowed to realise the above said amount together with interest there on at 10% per annum from the date of effect of the award till realisation. Award passed accordingly. The award will take effect after one month from the date of pronouncement in the open court. 8. At every sage, the management had done what they ought not to have done. On the face of the enquiry itself, the enquiry officer without considering the application for adjournment submitted by the workman, straightaway proceeded with the enquiry ex parte and submitted enquiry report. It does not require a detailed discussion of the issue involved to decide that such an enquiry would be totally in violation of the principles of natural justice. The conduct of the management subsequent to the setting aside of the enquiry also w.p.c.6091/09 6 speaks volumes for the attitude of the management in the matter. Obviously they were trying to protract the matter by all means and only when the Labour Court could not countenance the attitude any further, the Labour Court was constrained to hear the workman and decide the issue. I do not think that anybody can take exception to the course taken by the Labour Court in the matter. Although the Labour Court has not elaborately discussed the mode of computation of the amount payable, considering the fact that the workman was aged 43 years and he had more than 15 years of service left, I do not think that fixation of the amount of Rs.1,00,000/- as compensation for a workman who was drawing a monthly salary of Rs.730/- would be unreasonable. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner-management. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge