IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 WP(C).No. 4954 of 2004(M) ------------------------- ID.18/2001 of INDU.TRIBUNAL,KOZHIKODE .................... PETITIONER: ------------ I.P.MUHAMMED, C/O.C.K.SUBAIDA, CHERIAKOTTARATHIL HOUSE, CHALAD, KANNUR - 670 014. BY ADV. SRI.ALEX VARGHESE RESPONDENTS: ------------- 1. THE MANAGING PARTNER, SEEYAN PLYWOODS, MILL ROAD, VALAPATTANAM, KANNUR - 670 010. 2. THE SECRETARY, CANNANORE DISTRICT TIMBER MATCHES AND PLYWOOD WORKERS UNION, AITUC, BALIAPATTAM, KANNUR. 3. THE INDUSTRIAL TRIBUNAL, KOZHIKODE. BY ADV. SRI.P.R.RAMACHANDRA MENON FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 4954/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD IN I.D.NO.18/2001 OF R3. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.4954 of 2004 ================== Dated this the 24th day of June, 2008 J U D G M E N T The petitioner is the workman involved in I.D.No.18/2001 before the Industrial Tribunal, Kozhikkode. He is challenging that part of Ext.P1 award passed by the Tribunal in that I.D. whereby while ordering reinstatement, he was denied backwages. 2. The issue referred for adjudication was: “Whether the dismissal of Sri.I.P.Muhammed, Workman of Seeyan Plywoods, Mill Road, Valapattanam, Kannur by the management is justifiable. If not, what is the relief entitled to him?” 3. Since the workman was dismissed from service after conducting a domestic enquiry, the Tribunal first considered the validity of the enquiry as a preliminary issue. The Tribunal came to the conclusion that the enquiry was conducted validly and properly and that the workman was guilty of the misconducts charged against him on the basis of the evidence in the enquiry. Thereafter, exercising powers under Section 11A of the Industrial Disputes Act, the Tribunal interfered with the punishment of dismissal and directed reinstatement without backwages and continuity of service. The workman is challenging that part of the w.p.c.4954/04 2 award whereby the petitioner was denied backwages. 4. The petitioner challenges the very finding in the preliminary order itself to the effect that the enquiry was conducted validly and properly. The petitioner's contention is that all throughout the petitioner had taken a specific contention that the enquiry was vitiated because of the presence of the managing partner who was neither a witness nor a presenting officer, while witnesses were examined in the enquiry. While sitting there he threatened the witnesses, is the allegation. The counsel would submit that the Tribunal had not properly considered this contention. He would read from the claim statement as also from the writ petition wherein he has specifically raised this contention. But I do not find any mention of such a contention in the preliminary order, which is extracted in Ext.P1 award. Therefore, prima facie, the conclusion should be that although the petitioner had raised such contention in the claim statement, the same was not pressed before the Tribunal. Further the allegation raised is one which could have been proved by the petitioner by examining himself as a witness before the Tribunal. Admittedly, the petitioner has not chosen to take that course of action. In fact the counsel for the petitioner could not even point w.p.c.4954/04 3 out any material whatsoever, which would go to prove that contention. In the absence of any material on record I am not satisfied that the said contention has been properly proved by the petitioner. Although the petitioner would contend that the findings in the enquiry report itself are not supported by evidence on record, he has not been able to convince me about that contention also by producing appropriate documents in that regard. In the above circumstances, I am not inclined to accept that contention also. 5. Lastly, the counsel for the petitioner would submit that the charges proved against the workmen were not serious enough to warrant denial of full backwages. He would submit that the petitioner should have been paid at least part of the backwages. This is stoutly opposed by the counsel for the 1st respondent management. She would submit that the charges proved against the workman are very grave and in fact they were serious enough to uphold the dismissal itself. She would also point out that the Tribunal himself had held that the continued employment of such workman is against the interest of the management. 6. I have considered the rival contentions on this point. w.p.c.4954/04 4 7. As the issue revolves round the misconducts themselves, I shall first see what are the proved misconducts. As is evident from the award itself, the charges proved against the workman are disobedience to remove veneers from the drier on 14.9.1999, sitting idle at the work spot on 14.9.1999 and unauthorised absence in short spells during 1999. In appreciating the arguments of the counsel for the petitioner, it is relevant to note one particular contention raised by him which is to the effect that his wife was mentally ill during 1999 and, that was the reason for his occasional absence. But he would assert that that absence itself was after filing applications for leave. He also would contend that he was not actually absent, but at the gate he was prevented by the security guards from entering the premises. Perhaps I may not be justified in deciding the correctness of those contentions at this point of time in so far as two authorities have already held against the petitioner regarding the guilt of the petitioner. But the counsel for the 1st respondent management could not effectively dispute the specific averment of the petitioner that his wife was mentally ill and she was undergoing treatment at the relevant time. The counsel for the petitioner would assert that this fact was also proved in the w.p.c.4954/04 5 enquiry by giving evidence on the side of the defence also. Further the Tribunal had accepted the averment of the workman that he had got an unblemished service of more than 19 years which was not disputed by the management. Considering all the above circumstances, I am not satisfied that the charges are grave enough to warrant denial of the entire backwages to the petitioner. Therefore, I feel that he should be paid part of the backwages, since the charges are not serious enough to warrant the punishment of dismissal and in spite of the same, the management had in fact imposed on him the punishment of dismissal. In the above circumstances, I am of opinion that interest of justice would be met if the petitioner is directed to be paid 25% of the backwages from 15.9.1999 to 3.2.2003 by the management. The same shall be paid by the 1st respondent within two months from today. Ext.P1 award would stand modified to that extent. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.4954/04 6