IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 9024 of 2009(W) ------------------------- ID.84/2003 of INDUSTRIAL TRIBUNAL, IDUKKI .................... PETITIONER(S): ------------------ 1. PRASAD,NO.1651, TAPPER,NO.2 DIVISION, MUNDAKAYAM. 2. THE GENERAL SECRETARY, AKHILA KERALA PLANTATION LABOUR UNION (UTUC), MUNDAKKAYAM P.O.,KOTTAYAM DISTRICT. 3. THE GENERAL SECRETARY, HIGH RANGE ESTATE EMPLOYEES ASSOCIATION (CITU), MUNDAKKAYAM P.O.,KOTTAYAM DISTRICT. BY ADV. MR.BIJU .C. ABRAHAM RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGER, MUNDAKKAYAM ESTATE (HARRISON MALAYALAM LTD.), MUNDAKKAYAM,KOTTAYAM DISTRICT. 3. THE INDUSTRIAL TRIBUNAL,IDUKKI. GOVERNMENT PLEADER MS. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.9024 OF 2009 ---------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT The petitioners challenge Ext.P2 common award passed by the Industrial Tribunal, Idukki in I.D.Nos.84/03, 85/03 and 3/04. The issues referred for adjudication respectively in the three Industrial Disputes were: “Whether the dismissal of Shri.K.M. Johny, Shri.K.P. Joseph and Shri.M. Sasi, workmen by the management of Mundakkayam Estate, Mundakkayam is justifiable? If not, what relief the workmen are entitled to? Whether the dismissal of Shri.Prasad(1275) and Shri.Prakash(1651), workmen by the management of Mundakkayam Estate, Mundakkayam is justifiable? If not, what relief the workmen are entitled to? Whether the dismissal of Shri. Devadas (1634), workman by the management of Mundakkayam estate, Mundakkayam is justifiable? If not, what relief the workman is entitled to?” Since the dismissal of the workmen were after conducting a common domestic enquiry, the validity of the enquiry was considered by the Tribunal as a preliminary point. The Tribunal W.P.(c)No.9024/09 2 after considering the evidence and arguments of both sides, passed a preliminary order upholding the enquiry and also upholding the findings of the enquiry officer as supported by valid evidence on record. The petitioners challenged that preliminary order in W.P.(C)No.38083/2007. By Ext.P1 judgment, I dismissed the writ petition and upheld the preliminary order. Thereafter, Ext.P2 final award was passed denying any benefit to the workers involved on the ground that the misconducts alleged against them are serious enough to warrant the punishment of dismissal. That award is under challenge before me in this writ petition. 2. The grounds urged in the writ petition are primarily against the findings in the enquiry. I am of opinion that those contentions are no longer available to the petitioners in so far as the challenge against the preliminary order in which the validity of the enquiry and the findings have been upheld has been repelled by me in Ext.P1 judgment, which has become final. Of course, the petitioners would contend that dismissal was invalid for want of compliance with the procedure prescribed under Section 33(2)(b) of the industrial Disputes W.P.(c)No.9024/09 3 Act, since some other disputes were pending before the Regional Joint Labour Commissioner and the District Labour Officer and for that reason the dismissal ought to have been set aside by the Tribunal. From Ext.P2 award I find that the Union had not adduced any satisfactory evidence before the Tribunal to come to the conclusion that such industrial disputes were pending before the Regional Joint Labour Commissioner and District Labour Officer at the time of dismissal of those workmen. Further if the petitioners had such a case, they should have raised an industrial dispute under Section 33A of the Industrial Disputes Act which they have not chosen to do. 3. Of course, the learned counsel for the petitioners relying on Exts.P3 and P3(a) depositions of witnesses would try to urge that appropriate evidence have been placed on record to show that those disputes were pending. But from the same I find that the CW1 District Labour Officer had categorically deposed before the Tribunal that the files relating to the alleged disputes were already destroyed and in cross examination, the CW1 had specifically stated that the files relating to the disputes in respect of which both sides do not W.P.(c)No.9024/09 4 take any interest, would be destroyed after one year. Further those disputes were of the year 1994 and the workmen were dismissed in 2000. The petitioners no case that there were any live proceedings in the said disputes at the time of dismissal. As such simply because six years ago same disputes were raised, which had not been pursued by the unions, the same cannot attract the provisions of Section 332 (b). That being so, I do not think that there is anything wrong with the Tribunal entering a finding that the Union has not adduced any satisfactory evidence to come to the conclusion that such industrial disputes were pending before the Regional Joint Labour Commissioner and the District Labour Officer at the time of dismissal of these workmen. The petitioners would thereafter take a contention that the punishment imposed on the workmen is disproportionate to the gravity of the misconduct. I am unable to countenance that contention also. The misconducts alleged against the workmen were that they along with group of other workers abused, threatened and manhandled the Manager of the estate, demanding withdrawal of dismissal of another workman which certainly qualifies for a W.P.(c)No.9024/09 5 punishment of dismissal from service. Therefore, I do not find any merit in the challenge against the impugned award. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.9024/09 6