IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 9493 of 2004(E) ----------------------------------- PETITIONER: ------------------- PALAI MARKETING CO-OPERATIVE SOCIETY EMPLOYEES UNION, INTUC REG.NO.236/76 PULIYANNUR, PALAI, REP.BY ITS SECRETARY. BY ADV. SRI.C.J.JOY SRI.V.J.JAMES RESPONDENTS: ---------------------- 1. PRESIDENT, PALAI MARKETING CO-OPERATIVE SOCIETY LTD., NO.4214 INDIAN CRUB FACTORY PULIYANNOOR P.O., PALAI - 686 573. 2. MANAGING DIRECTOR, PALAI MARKETING CO-OPERATIVE SOCIETY LTD. NO.4214 INDIAN CRUB FACTORY, PULIYANNOOR P.O., PALAI 686 573. 3. PRESIDING OFFICER, LABOUR COURT, ERNAKULAM. 4. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY SECRETARIAT, TRIVANDRUM. BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL FOR R1,R2 SRI.K.B.GANGESH FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9493 of 2004(E) -2- APPENDIX PETITIONER'S EXHIBITS EXT.P-1 : TRUE COPY OF THE AWARD DATED 20.03.2001 ISSUED BY THE LABOUR COURT, ERNAKULAM. EXT.P-2 : TRUE COPY OF THE CHARGE DATED 21.08.2001 FRAMED BY THE ENQUIRY OFFICER AGAINST MR.JOSE MATHEW. EXT.P-3 : TRUE COPY OF THE REPORT DATED 16.5.1992 SUBMITTED BY THE ENQUIRY OFFICER PURSUANT TO EXT.P2. EXT.P-4 : TRUE COPY OF THE ORDER DATED 24.10.1992 ISSUED BY PALAI MARKETING DISMISSING MR.JOSE MATHEW FROM HIS SERVICE. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P (C) .No.9493 of 2004 ================== Dated this the 23rd day of June, 2008. J U D G M E N T The petitioner herein is a union, representing a dismissed workman, the justifiability of whose dismissal was the issue referred for adjudication in I.D.No.66/1996 before the Labour Court, Ernakulam. The Labour Court by Ext.P1 award adjudicated the said issue and found that the dismissal was justified. However, taking a lenient view, the Labour Court converted the punishment of dismissal into one of discharge. Ext.P1 award is under challenge before me in this writ petition, at the instance of the union. The issue referred for adjudication was : “ Whether the action of the Management of Pala Marketing Co-operative Society in having dismissed Shri. Jose Mathew, Factory, Factory Worker from service is justifiable? If not, the relief entitled to the worker.” Since the dismissal was after taking a domestic enquiry, the Labour Court considered the validity of the enquiry as a W.P (C) .No.9493 of 2004 - 2 - preliminary point and found that the enquiry was conducted validly and properly. The Labour Court also found that the evidence adduced in the enquiry was sufficient to hold the workman guilty of the charges levelled against him. Thereafter the Labour Court considered the question of proportionality of punishment and exercising powers under Section 11A of the Industrial Disputes Act converted the punishment of dismissal into one of discharge. 2. The petitioner does not now dispute that the enquiry was conducted validly and properly. Arguments are advanced before me only on the question of sufficiency of evidence to prove the guilt of the workman. The Counsel for the union takes me through Ext.P3 report of the enquiry officer. Reading the report, the counsel for the petitioner would argue that the Enquiry Officer proceeded as if it was the onus of the dilinquent workman to prove that he had not committed the misconduct. He points out that very many material documents were not produced by the management W.P (C) .No.9493 of 2004 - 3 - and the workman was found fault with for not causing production of those documents. He further points out that the enquiry officer entered a finding that since the workman did not cause production of those documents, his guilt should be presumed. 3. I have considered the rival contentions of parties. 4. Isolatedly looking at those portions of the enquiry report highlighted by the Counsel for the workman perhaps he may be correct. But I am of opinion that the enquiry report and the evidence should be considered as a whole. Here is a case where the delinquent workman is charged with assaulting a superior Officer at night and threatening another superior on another day. The first superior officer gave evidence to the effect that the delinquent workman along with two other persons assaulted him at night and pursuant there to, he suffered injuries and was hospitalised. The fact that the superior Officer suffered injuries and was hospitalised was not disputed by the workman at all. In fact W.P (C) .No.9493 of 2004 - 4 - the delinquent workman led evidence to show that one of the witnesses examined on his side, visited the superior Officer at the hospital. That being so, the delinquent workman himself admits that the superior Officer had, in fact, been assaulted and hospitalised consequent to injuries sustained. That very same superior Officer gave evidence as a witness to the effect that the delinquent workman was the one who assaulted him. Although the Counsel for the workman would say that though there was friction between the superior Officer and the workman, he has no case of enmity of the superior Officer towards the delinquent workman. In the absence of any evidence to show that the superior Officer had any ill will towards the workman, there is no reason for the enquiry officer to disbelieve the evidence of the superior Officer. 5. The same applies to the other charge of threatening another superior Officer. In respect of that superior officer also who gave evidence to prove the charge there was not W.P (C) .No.9493 of 2004 - 5 - even a suggestion that the superior officer was giving false evidence on account of ill will towards the workman. I am of opinion that when superior Officers of the delinquent workman against whom no allegation of enmity towards the workman has been proved, gave evidence to the effect that workman had assaulted and threatened the superior Officers, there is no reason for the enquiry officer to disbelieve the evidence of the superior Officers especially when the workman did not find it necessary to examine himself as a witness to deny those allegations. From an over all reading of the enquiry report, which is produced as Ext.P3, although there are some discrepancies there, I have no reason to hold that the conclusions therein are perverse in any way. Perhaps another man looking at the same evidence may have come to a different conclusion. It is settled law that the fact that another person may look at the same evidence differently, is no ground to interfere with such findings in domestic enquiry proceedings. That being W.P (C) .No.9493 of 2004 - 6 - so, I do not find any merit in the contention of the petitioner that there was no sufficient evidence to find the workman guilty in the enquiry. 6. The learned Counsel for the union makes a fervent plea that a poor workman has been dismissed from service and therefore lenient attitude may be taken in the matter of punishment. It is settled law as held by the Supreme Court that even verbal abuse of a superior officer would amount to serious misconduct warranting punishment of dismissal. In this case, the workman is found guilty of assaulting the superior officer and threatening another superior officer. I am not satisfied that such workman can be treated leniently in the matter of punishment. In fact, I am even inclined to think that the leniency shown by the Labour Court to the workman is misplaced. The Labour Court has converted the dismissal into one of discharge. If at all, that is the only sympathy that the workman would deserve. W.P (C) .No.9493 of 2004 - 7 - In the above circumstances, I do not find any merit in the writ petition and accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE rhs