IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 RP.No. 322 of 2010(N) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.6221/2004 Dated 12/10/2009 .................... REVIEW PETITIONER(S): PETITIONER -------------------------------- 1. S.BHUVANENDRAN NAIR, NETRATHARA HOUSE, KALLIYOOR.P.O., THIRUVANANTHAPURAM. 2. B.SUNDERESAN, VALIYAPUNNACKAL HOUSE, KARAMANA.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.T.RAMPRASAD UNNI SRI.A.ANIRUDHAN NAIR SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. THE LABOUR COURT, ERNAKULAM, KOCHI-4. 2. THIRUVITHAMKOOR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANDANKODE, THIRUVANANTHAPURAM. ADV. SRI.NAGARAJ NARAYANAN FOR R1 GOVERNMENT PLEADER SRI LAKSHMI NARAYAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24/05/2010 ALONG WITH R.P NO.396/2010. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.R.RAMACHANDRA MENON, JJ ----------------------------------------------------------- R.P No.322/2010 IN W.P.(c) No.6221/2004 AND R.P.No.396/2010 IN W.P.(c) No.36111/2003 ------------------------------- Dated this the 24th day of May 2010 ORDER Ramachandra Menon,J These review petitions have been filed by the workmen who were ordered to be reinstated as Mahouts with 50% bacwages as per the common award passed in the concerned cases (IDs) by the Labour Court, Ernakulam, after rejecting the order of dismissal passed by the Management based on the enquiry. 2. Two Writ Petitions were filed before this Court, the first one (WP(c) 36111/2003) by the Management Travancore Dewaswom Board, seeking to set aside the impugned award passed by the Labour Court and to sustain the dismissal ordered by the Management. The other Writ Petition (WP(c) 6221/2004) was filed by the workmen, challenging the award to the extent 50% backwages were denied to them. After considering the entire materials on record, this Court passed the impugned judgment, whereby it was held that there was a clear finding rendered by the Labour Court in the Common Award, that the workmen had beaten the elephant (Para 2), though there was no evidence to show that they had beaten the elephant 'with iron weapons' with intend to 'cause the death' of the elephant. The question regarding the adequacy of evidence in so R.P No.322/2010 IN W.P.(c) No.6221/2004 AND R.P.No.396/2010 IN W.P.(c) No.36111/2003 2 far as disciplinary proceeding is concerned was also considered by this Court, with reference to the decisions rendered by the Apex Court in “State of Haryana and another vs. Rattan Singh” (1982(1) LLJ 46), “S.N.Nagarajalu etc. and others vs. Railway Board and others”(1982(2) LLJ 54), whereby it was held that there was no allegy even to 'hear-say evidence' and as such, the evidence on record was very much enough to sustain the finding on guilt. However, taking a very lenient view, this Court interfered with the punishment of dismissal ordered by the Management, modifying the same as 'removal from the service' granting a total sum of Rs.2,00,000/- to each of the workmen/ delinquent employees, taking note of the extent of service rendered by them under the Devaswom Board. The workmen have now come forward with the prayer for review, contending that the evidence could not have been re-appreciated by this Court. 3. The fact remains that the validity of the domestic enquiry conducted by the Management was considered by the Labour Court as a preliminary issue and it was held as valid and proper. Then the only question to be considered was regarding proportionality of the punishment ordered by the Management, R.P No.322/2010 IN W.P.(c) No.6221/2004 AND R.P.No.396/2010 IN W.P.(c) No.36111/2003 3 considering the gravity of the proven misconduct, which was within the realm of power conferred under Section 11A of the Industrial Disputes Act. It was in the course of exercising such power, that the Labour Court arrived at an inference that the finding on guilt made by the Enquiry Officer and accepted by the Management was not based on the evidence, finally leading to ' absolving the workmen'. The point considered by this Court was whether the course pursued by the Labour Court was correct and within the four walls of the law. It was in the course of such exercise, that this Court referred to the evidence stated as discussed by the Labour Court. 4. The actual position is very much discernible from the observations made by this Court in paragraph Nos.7 and 8 of the judgment, placing more reliance on the 'finding arrived at' by the Labour Court in paragraph No.11 of the Common Award, whereby the Labour Court held, based on the very same evidence on record, that the present workmen had also beaten the elephant, thought it was stated that there was no evidence, that they had tortured the elephant 'with iron weapon with intention to cause death'. Whether the workmen had beaten the elephant with R.P No.322/2010 IN W.P.(c) No.6221/2004 AND R.P.No.396/2010 IN W.P.(c) No.36111/2003 4 'wooden stick' or 'iron rod' was not the issue, nor was it a matter whether they had any motive 'to cause death' of the elephant. The basic issue was whether there was any evidence as to the beating of the elephant by the workmen. This in turn stands answered by the Labour Court, arriving at a finding in paragraph No.11 that the present workmen had also beaten the elephant. The involvement of the workmen has been discussed in detail in the Award passed by the Labour Court and also in the judgment passed/rendered by this Court . The above workmen who were employed as the 'first mahout' and 'second mahout' of Kodungoor Devaswom and Chirakkadavu Devaswom respectively, had absolutely no business, need, necessity or occasion to have come near the deceased elephant by name Viswanathan in the premises of Thirunakkara Mahadeva Temple and to have beaten the elephant along with other mahouts (who have also been dismissed from service), ultimately leading to the death of the elephant. It was accordingly, that a clear finding was rendered by this Court, that invocation of power by the Labour Court under Section 11A of the Industrial Disputes Act, so as to have absolved the petitioners/workmen from the proven R.P No.322/2010 IN W.P.(c) No.6221/2004 AND R.P.No.396/2010 IN W.P.(c) No.36111/2003 5 charges, was not correct or sustainable. 5. In the above circumstances, this Court finds that there is absolutely no error apparent on the face of the records, so as to invoke the power of Review. The law is now well settled in view of the decisions rendered by the Apex Court on many an occasion including the one in Meera Bhanja's case (AIR (1995) SC 455), whereby it has been categorically held that the power of review cannot be taken as a substitute for an appeal. We find no reason to call for any interference. The Review Petition is devoid of any merit or bonafides and the same is dismissed accordingly. Sd/- C.N.RAMACHANDRAN NAIR (JUDGE) Sd/- P.R.RAMACHANDRAMENON (JUDGE) vdv //TRUE COPY// P.A TO JUDGE