IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 33336 of 2005(R) -------------------------- PETITIONER(S): --------------- V.P. ARUNKUMAR, `SHANTHI', KODIYERI, P.O. PAROL, TELLICHERRY, KANNUR DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- 1. THE SENIOR MANAGER, PERSONNEL & IR, BATA INDIA LIMITED, 6A, S.N. BANERJEE ROAD, POST BOX NO.8913, CALCUTTA-700 013. 2. LABOUR COURT, KOZHIKODE. R2 BY GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33336 of 2005(R) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CLAIM STATEMENT FILED BY THE PETITIONER BEFORE THE LOWER COURT DT. 3.1.2002. P2. COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT DT.30.5.2002. P3. COPY OF THE REJOINDER FILED BY THE PETITIONER DT.28.10.02. P4. COPY OF THE PRELIMINARY ORDER DT.30.4.2005. P5. COPY OF THE AWARD PASSED BY THE LOWER COURT, KOZHIKODE DT.30.6.05. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE shg/ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.33336 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of August, 2011 J U D G M E N T The petitioner is a workman involved in I.D. No.21/2001 before the Labour Court, Kozhikode. He is challenging Ext.P4 Preliminary Order and Ext.P5 Award passed by the Labour Court in that Industrial Dispute. The issue referred for adjudication was justifiability of the action of the management in dismissing the workman from service and the reliefs to be granted if any to the workman. The workman was dismissed from service after conducting a domestic enquiry, in which, the petitioner was found guilty of the misconduct of misappropriation of money belonging to the management. Therefore the Labour Court considered validity of the enquiry as a preliminary issue and found that the enquiry was conducted validly and properly and the evidence on record justified the finding of guilt. On the basis of the said findings, the Labour Court in W.P.(C)No.33336 of 2005 -2- Ext.P5 award held that the misconduct committed by the petitioner/workman warranted the punishment of dismissal from service. Accordingly, Ext.P5 award was passed upholding the action of the management in dismissing the worker from service and denying any relief to the workman. That is under challenge in this writ petition. 2. The petitioner raises two contentions. First is that, since the enquiry was conducted in English and the petitioner is not conversant with the language of English, the enquiry is vitiated. The 2nd contention is that, documents relied upon for finding the petitioner guilty are concocted documents prepared on signed blank papers of the petitioner. Therefore, the conclusion that the petitioner is guilty is perverse, is the contention. 3. I have considered the rival contentions in detail. 4. In the preliminary order - Ext.P4, the enquiry officer found as follows: 6. Points:- The domestics enquiry was conducted by a Senior Manager of the management company. The Enquiry Officer when examined as PW1 has given evidence about the procedure followed in the enquiry. The worker was represented W.P.(C)No.33336 of 2005 -3- by a representative of his choice and it is seen that the worker fully participated in the enquiry without any demur. Initially the enquiry was proposed to be held at Bangalore. Thereafter on the request of the worker the venue was shifted to Calcutta. The worker made an attempt to establish that the entire enquiry is vitiated as was conducted in English language into which he is not conversant. 7. The enquiry is seen conducted in English. It was brought out that the Enquiry Officer is not conversant with Malayalam language whereas the worker when examined as WW1 admitted that he has passed S.S.L.C. No complaints are seen made to the Enquiry Officer at any stage regarding the conduct of the enquiry in English. The proceedings of the enquiry would further show that the Enquiry Officer explained the procedure to be followed in the enquiry in advance and the worker had also expressed satisfaction over the proceedings of enquiry and conceded its correctness. He had also not raised any murmer regarding denial of opportunity. After participating in the enquiry in full demur there is no charm in the arguments now urged. 8. The finding of guilt was entered by the Enquiry Officer mainly relying on Exts.A1 to A 29, the oral evidence of witnesses and the evidence of delinquent employee. According to the management the worker manipulated an amount of Rs.1,00,369.65/- by making fake cash memos and selling goods without cash memos during the period from 24.12.1998 to 27.4.1999 while in charge of sales. This shortage according to the management was detected while taking inventory in between 28.4.1999 and 3.5.1999 in the presence of the worker. Exts.A16, A17 and A18 are the three written statements submitted by the worker admitting his responsibility for the shortage and regarding for such bad events. He had also undertaken to pay the entire amount so mis-appropriated within one week from 6.5.1999 and requested the management to refrain from taking further action. On receipt of the charge memo, the worker again sought for further 7 day's time for payment of the amount. The worker through made an attempt to evade Exts.A16 to A19 stating that they were manipulated misusing his signed plain papers taken by the management representatives at the time of taking stock as an evidence of witnessing the stock taking, the worker himself is seen to have admitted that they were written in his own hand. There is also no evidence to show that these letters were obtained by the management under threat, coercion or any compelling circumstances. In the light of A16 to A18, I am sure, the worker W.P.(C)No.33336 of 2005 -4- cannot escape his liability. 9. In addition the management has also produced Ext.A14 and A15 photostat copies of stock and cash accounting statements of the relevant periods Ext.A20 daily cash and sale report. 172 void cash memos which were marked as Ext.A28 series and Ext.A29 cash memo dated 28.4.1999 to substantiate the charge of manipulation and mis-appropriation. The learned counsel for the worker vehemently contended that without the production of the stock book and daily cash book of the relevant period, it may not be proper to rely on the stock statement copies to impute guilt on the worker. 10. In view of the categoric admission of misappropriation by the worker, the non-production of the stock books may not be any consequence. So from the evidence, I find that the management has succeeded in establishing that the worker involved in the dispute is responsible for the shortage of Rs.1 lakh which is an act of mis-conduct under clause 22 (1) of the standing orders and Rules for shop employees. 11. in the result, preliminary order is passed finding that the domestic enquiry was properly and validly held in accordance with law and the charge of misconduct stands proved by legal and factual evidence.” As rightly pointed out by the Labour Court, at no point of time, the petitioner complained about the enquiry having been conducted in English. After having participated in the enquiry fully without any demand the petitioner cannot now turn around and contend that the enquiry is vitiated for having been conducted in English. As far as the justifiability of the finding in the enquiry is concerned, the Labour Court has given elaborate reasons as to why the W.P.(C)No.33336 of 2005 -5- conclusions are valid and proper. The finding is based on a statements given by the petitioner himself, in which, he admitted guilt and took time to pay the amount misappropriated. Of course, before the Labour Court and this Court the petitioner tried to make out that those documents were concocted. In fact, the petitioner does not dispute the signature in those statements. He only disputes the contents. He could not validly explain the circumstances under which the management could obtain blank signed papers from him that too in stamped papers. It is also found in Ext.P4 that, the worker himself is seen to have written the statements in his own hand. The petitioner has not been able to satisfy this Court that, that finding is in any way incorrect. As such, there is nothing on record to hold that the finding of the Labour Court is in any way perverse, which is necessary to interfere with the findings in a domestic enquiry and that of a Labour Court in an industrial dispute. As such, I have absolutely no hesitation to hold that the contentions of the petitioner that the W.P.(C)No.33336 of 2005 -6- enquiry was vitiated for violation of the principles of natural justice and the findings are perverse are unsustainable. The charge being one of misappropriation of more than a lakh of rupees of the management, the punishment of dismissal cannot be stated to be shockingly disproportionate to the gravity of the misconduct, without which I cannot also interfere with the punishment also. Therefore, there is no merit in the writ petition and accordingly the same is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/