IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 10229 of 2004(P) -------------------------- ID.56/1999 of LABOUR COURT, ERNAKULAM ....................------ PETITIONER: --------------- P.K.JOSEPH, POOVATHJINGAL VEEDU, PADINJATHINKARA P.O., KADAPLAMATTOM, KOTTAYAM. BY ADV. SRI.A.JAYASANKAR SRI.C.ANIL KUMAR SMT.A.K.PREETHA RESPONDENTS: ------------------ 1. THE LABOUR COURT, ERNAKULAM, KOCHI-14 2. THE FACTORY MANAGER, INDIAR CRUMB RUBBER FACTORY, PULLIYANNOOR, PALA. 3. THE SECRETARY, PALA MARKETING CO-OPERATIVE SOCIETY LTD.NO.4214, PALA. BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL FOR R2 SRI.K.B.GANGESH FOR R2 SRI.JOE JOSEPH KOCHIKUNNEL FOR R3 SRI.K.B.GANGESH FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.10229 OF 2004 ---------------------------------------- Dated this the 30th day of May, 2008 JUDGMENT The petitioner is the workman involved in I.D.No.56/99 before the Labour Court, Ernakulam, who challenges Ext.P1 award passed by the Labour Court in that industrial dispute. The issue referred for adjudication was, “Whether the action of the management in having dismissing Sri. P.K. Joseph, workman from the Indiar Crumb Rubber Factory, Pulliannur, Pala is justifiable or not? If not, what relief the workman is entitled to?” Since dismissal of the workman was after conducting an enquiry, the Labour Court considered the validity of the enquiry as a preliminary point. After examining the enquiry proceedings, and the evidence of the enquiry officer, the Labour Court came to the conclusion that the enquiry was conducted in compliance with the principles of natural justice and that the findings were also supported by evidence on record. Therefore, the Labour Court W.P.(c)No.10229/04 2 upheld the validity of the enquiry. Thereafter on the question of punishment, taking a lenient view, the Labour Court converted the punishment of dismissal into one of discharge. That award is under challenge in this writ petition. 2. The workman raises mainly three contentions. First is that the finding of guilt is not supported by evidence on record and therefore the findings are perverse. The second is that the petitioner was imposed with punishment in the year 1997 for unauthorised absence from work in 1994. The third is that the Labour Court went wrong in not properly exercising its jurisdiction under Section 11A to reduce the punishment, since even the punishment of discharge is not proportionate to the guilt found against the petitioner. 3. I have considered the arguments in detail. As far as the first contention is concerned, the workman himself adduced evidence before the Labour Court in his attempt to prove that he had sufficient reason to abstain from work, which would go to show that he was absent from work. He did not adduce any evidence to prove that the had obtained leave of absence. He produced a medical certificate to prove that he could not attend the work because of medical reasons. W.P.(c)No.10229/04 3 But after considering the evidence of the workman, the Labour Court disbelieved his evidence in the following words. “While considering the above aspect it is noteworthy that it was proved in the enquiry that the workman involved in the present case was a regular absentee since 1994 and his attendance during 1995 and 1996 was nil. It is also proved that the absence of the workman was without availing leave and prior sanction and tehre was no evidence from the workman's side to controvert the allegations raised against him in the charge. The workman adduced evidence before this court which consists of his oral evidence as ww1 and one document Ext.W1. The claim of the workman adduced evidence before this court which consists of his oral evidence as ww1 and one document Ext.W1. The claim of the workman is that he could not attend his duties in the factory pursuant to the problems in his knee due to a severe injury sustained in the knee. He further claims that at present he has no pain or swelling in the knee. Ext.W1 is a medical certificate claimed to be issued by an Ayurvedic Doctor on 1.2.2001 wherein he stated that the workman was in his continuous treatment from July 1994 to January 1997 in connection with swelling and pain to right knee due to arthritis and during the treatment he was advised complete rest. The certificate is seen obtained long after the alleged treatment and the workman has no case that he had obtained and produced medical certificate from the doctor before the management or before the enquiry officer. So also the medical certificate does not support the claim of the workman that he was suffering from swelling and pain to his knee due to W.P.(c)No.10229/04 4 server wound sustained by him. Thus the evidence of the workman as ww1 and Ext.W1 have no bearing to the charges levelled and proved against the workman and the propriety of the punishment imposed on him. Even then considering the age of the workman and the circumstances narrated by him I think it just and proper to covert the punishment of dismissal into one of discharge.” In view of the same, I cannot now hold that the findings of the Labour Court upholding the findings of the enquiry officer is in any way perverse. Therefore, I do not find any merit in the 1st contention. 4. The second contention is that the petitioner has been punished in 1997 for the misconducts in the year 1994. This does not appear to be true because in the written statement, the gist of which was narrated in the award itself, it is specifically stated thus: “Though the management is entitled to take disciplinary action for continuous absence for 10 or more days, the committee decided to be liberal and suggested disciplinary action only in cases where yearly attendance is less than 50 days in the calender year 1996. The workman involved in the present case was found to have nil attendance in 1996.” (underlining supplied) Therefore, it is clear that, for the unauthorised absence in the year 1996, disciplinary proceedings were initiated by letter W.P.(c)No.10229/04 5 dated 19.2.1997. Therefore, I do not find any merit in the contention that because of the delay in initiating disciplinary proceedings, it should be deemed that the management had condoned the absence of the workman for medical reasons. 5. I shall now deal with the question of proportionality of punishment. The records show that the petitioner has been habitually absent from work. He was absent from work on 14.9.2004 for more than ten days. He was found to have been regularly absenting from duty without any intimation or leave. He was totally absent through out the year 1996. In such circumstances I cannot hold that the punishment now imposed is shockingly disproportionate to the gravity of the misconducts committed by the petitioner which finding alone would given me jurisdiction to interfere with the punishment. In the above circumstance, I do not find any merit in the challenge against Ext.P1 award and accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.10229/04 6