IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH JUNE 2004 / 27TH JYAISHTA 1926 WP(C).No. 32425 of 2004(I) ----------------------------------- PETITIONER: ------------------ 1. KERALA PRIVATE MOTOR & MECHANICAL WORKERS FEDERATION (INTUC) REP. BY ITS GENERAL SECRETARY, JETTY ROAD, KOLLAM. 2. S.ANIL KUMAR, PUTHEN VEEDU, ASRAMAM NORTH WARD, KOLLAM. BY ADV. SRI.H.B.SHENOY SRI.ASHOK B.SHENOY RESPONDENTS: ---------------------- 1. THE PRESIDING OFFICER, LABOUR COURT, KOLLAM. 2. QUILON AUTOMOBILES EMPLOYEES CO-OPERATIVE SOCIETY LTD.NO.797, KADAMPANADU P.O. 691 522, KOLLAM. BY ADV. SRI.JACOB SEBASTIAN - R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON 17/06/2004 DELIVERED THE FOLLOWING: WP(C).No. 32425 of 2004(I) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF SHOW CAUSE NOTICE DATED 07.03.1994 ISSUED BY 2ND RESPONDENT TO 2ND PETITIONER. EXT.P2:- TRUE COPY OF EXPLANATION DATED 09.03.1994 SUBMITTED BY 2ND PETITIONER TO 2ND RESPONDENT EXT.P3:- TRUE COPY OF CHARTER OF DEMANDS DATED 06.03.1995 SUBMITTED BY 1ST PETITIONER TO 2ND RESPONDENT EXT.P4:- TRUE COPY OF DISMISSAL ORDER DATED 16.01.1997 ISSUED BY 2ND RESPONDENT TO 2ND PETITIONER EXT.P5:- TRUE COPY OF COMPLAINT DATED 03.04.2000 IN I.D.NO.54/1996 FILED BY 2ND PETITIONER BEFORE 1ST RESPONDENT EXT.P6:- TRUE COPY OF OBJECTIONS DATED 15.05.2000 FILED BY 2ND RESPONDENT IN I.D.NO.54 OF 1996 EXT.P7:- TRUE COPY OF AWARD DATED 08.09.2004 PASSED BY 1ST RESPONDENT IN I.D.NO.54 OF 1996 -TRUE COPY- P.A. TO JUDGE pac S.SIRI JAGAN, J =================== W.P (C).No.32425 OF 2004 =================== Dated this the 17th day of June, 2008. J U D G M E N T The workman involved in ID No.54/1996 before the Labour Court, Kollam is the petitioner herein, who challenges Ext.P7 award passed by the Labour Court in that ID. The issue referred for adjudication in that ID was as follows: “Whether denial of employment to Sri.S. Anilkumar, conductor with effect from 4.2.1994 by the management of Quilon Automobile Employee Co-operative Society Ltd. No.!797, Kadampanadu is justifiable if not the relief entitled to the worker”. 2. The Labour Court found that the workman was actually dismissed from service after conducting an enquiry against which the workman did not raise any objection and therefore there is no denial of employment. Accordingly, the Labour Court held that the alleged denial of employment to the petitioner is not true, that he was dismissed from service as per a validly conducted enquiry W.P (C).No.32425 OF 2004 - 2 - and that he is not entitled to any relief against the management. This award is under challenge before me. 3. For appreciating the contention of the petitioner in the right perspective, it is necessary to refer to a few facts in detail. 4. The complaint which gave rise to the ID was that the petitioner was denied employment with effect from 4.2.1994. While negotiations between the union and the management on the question of denial of employment with effect from 4.2.1994 were pending, the management issued a show cause notice dated 7.3.1994, to which the petitioner filed an explanation dated 9.3.1994. Pursuant to the same, a domestic enquiry also ensued, in which the petitioner participated. While that proceedings were going on, the industrial dispute on the issue of denial of employment of the petitioner with effect from 4.2.1994 came to be referred for adjudication to the Labour Court, which dispute was adjudicated by the Labour Court as I.D.No.54/1996. While that ID was being adjudicated, the management dismissed W.P (C).No.32425 OF 2004 - 3 - the petitioner from service with effect from 16.1.1997. Against the same, the petitioner filed Ext. P5 complaint before the 1st respondent under section 33A of the Industrial Disputes Act, in which he challenged the validity of his dismissal without obtaining prior approval from the Labour Court as provided under Section 33(2)(b) of the Industrial Disputes Act. In that compliant, he challenged the validity of the enquiry as well. He contented that no charge sheet was issued to the petitioner by the management, that the charges were framed by the Enquiry Officer, that the Enquiry Officer did not comply with the principles of natural justice and that the petitioner was not given sufficient opportunity to adduce evidence. The petitioner would submit that the complaint under Section 33A was numbered as ID No.23/2000 and that the same is still pending adjudication before the Labour Court. It is while the matters were standing so that Ext.P7 award was passed holding that the enquiry is valid and proper in so far as the petitioner has not challenged the validity of the W.P (C).No.32425 OF 2004 - 4 - enquiry proceedings in his claim statement. 5. The counsel for the petitioner would argue that the Labour Court did not appreciate the facts of the case and the scope of proceedings under Section 33A in the right perspective. She would point out that the Labour Court failed to note that the validity of the enquiry and dismissal was elaborately challenged in the complaint under Section 33A and that the issue in this I.D. was different in so far as the dismissal of the petitioner was pending adjudication of the issue of denial of employment. Therefore, she would submit that the impugned award is totally unsustainable. 6. After understanding the facts as narrated above, I have no hesitation to hold that the procedure adopted by the Labour Court is totally against the provisions of the Industrial Disputes Act. Admittedly, the issue referred for adjudication was denial of employment with effect from 4.2.1994. It is subsequent to raising of that dispute that the disciplinary proceedings were initiated against the petitioner. The management had no case that subsequent W.P (C).No.32425 OF 2004 - 5 - to 4.2.1994, the petitioner was reinstated in service before initiating disciplinary proceedings. On the other hand, they had participated in the industrial dispute in which the issue involved was denial of employment with effect from 4.2.1994. It was while the adjudication of that dispute was going on the petitioner was dismissed from service. Therefore, at the time of dismissal of the petitioner on 16.1.1997 an industrial dispute relating to denial of employment to the petitioner was pending adjudication by the Labour Court itself. In those circumstances, certainly Section 33(2)(b) of the Industrial Dispute Act is squarely attracted. The management could not have dismissed the workman from service without filing an application for approval of the Labour Court, since an ID in which the denial of employment of the petitioner was an issue, was pending adjudication. The Labour Court rightly numbered the complaint under Section 33A as a separate industrial dispute and started proceedings in that ID as ID No.23/2000. In fact, the question of validity of the enquiry W.P (C).No.32425 OF 2004 - 6 - etc., and dismissal ought to have been considered in that ID only and not in ID No. 54/96, as done by the Labour Court. Therefore the procedure adopted by the Labour Court is clearly wrong. 7. On merits also, Ext.P7 award appears to be against the facts of the case. Ext.P5 is the complaint, under Section 33A, filed by the petitioner. In the same, in paragraphs 8 to 12, the petitioner has specifically contended as follows: 8) Regarding the domestic enquiry and subsequent dismissal the complainant submits as follows:- The enquiry was conducted even without giving proper 2nd specific charge sheet to the complainant. The show cause notice dated 7/3/1994 was issued by the opposite party to the complainant after the illegal denial of employment to the complainant with effect from 4/2/1991. The same was issued by the opposite party with a view to their avowed purpose to terminate the complainant from their service at any rate. 9) Though the Enquiry Officer was appointed on 15/3/1994, he purposely prolonged the enquiry proceedings for a period of two years from 5/5/1994 to 21/6/1996 with the connivance of the opposite party to harass and victimise the complainant. During the said period the opposite party deliberately denied employment to the complainant. 10) The charge sheet was issued by the opposite party to the complainant. The charge was framed by the Enquiry Officer after the enquiry proceedings commenced. Thus no opportunity W.P (C).No.32425 OF 2004 - 7 - was given to the complainant for explaining case properly. The allegations raised in the show cause notice dated 7/3/94 against me are vague and not specific and against the facts. 11) The Enquiry Officer conducted the enquiry without complying the principles of natural justice. He did not record the proceedings and evidences properly. He was not impartial. He was based against me. He has not given opportunity to me to adduce my evidences. The application filed by the complainant praying for allowing to adduce evidence of the complainant was not allowed by the enquiry officer. Therefore, the enquiry report and proceedings are against facts illegal, improper, and invalid and hence this Hon'ble Court may set aside the enquiry report. 12) In spite of the repeated written demand of the complainant the opposite party did not give the copy of enquiry report and proceedings to the complainant. Therefore the complainant could not explain the defects of the enquiry report and proceedings and the findings of the Enquiry Officer. This is a clear violation of Principles of Natural Justice. The extreme punishment dismissal of the complainant was not necessary and unwarranted on the allegations raised by the opposite party against the complainant. The action of the opposite party is dismissing the complainant is hard and hash and against the Principles of Natural Justice and it amounts to unfair labour practice and victimisation. Therefore I humbly pray that this Hon'ble Court may be pleased to set aside the dismissal order dated 16/1/1997.” 8. However, in the award, in paragraph 9, the Labour Court held thus: “The worker while raising the dispute through the W.P (C).No.32425 OF 2004 - 8 - union before the District Labour Officer alleged that it was a case of denial of employment for no reason and the existence of the disciplinary proceedings against the worker was not disclosed. A perusal of Ext.14 and the report of the enquiry officer shows that the worker was participating the enquiry through out he had cross examined all the witnesses examined as MW1 to MW5. As I have earlier stated no separate claim statement is filed before this court and the enquiry proceedings are not challenged by the worker in any manner. In the evidence also the worker is not canvassing anything against the disciplinary proceedings. As such there is no reason to discard the enquiry report and the allegation of the worker that it is a wrongful denial of employment by the management from 4.2.1994 onwards totally failed.” 9. The finding in Ext.P7 that the petitioner had not challenged the enquiry proceedings in any manner is clearly against the facts of the case in view of Ext.P5 complaint, which has been numbered as an ID and is being adjudicated. In fact the issue referred in I.D.54 of 1996 namely 'denial of employment of the petitioner' was not adjudicated at all and the Labour Court erroneously assumed that the two issues merged into one on account of the subsequent disciplinary proceedings. The Labour Court lost right of the fact that the contention of the petitioner is that he was denied employment from 4.2.1994 and that the management had not case that the disciplinary proceedings W.P (C).No.32425 OF 2004 - 9 - was after reinstating him. The Labour Court ought to have examined whether the subsequent disciplinary proceedings themselves was not one initiated for overcoming the illegality of denying employment to the workman. In any event it is beyond comprehension as to how the Labour Court could have accepted the dismissal during the pendency of the dispute on denial of employment as a defence for justifying the denial of employment. It is pertinent to note that the Labour Court does not refer to any contention of the management regarding the status of the workman from 4.2.1994 to 16.1.1997, whether he was about from work or was suspended pending enquiry without a finding on which the issue of denial of employment could not have been validly disposed of. 10. Further, in paragraph 8 of Ext.P7 award, the Labour Court holds that the secretary of the society during 1994 was examined as MW2, who deposed that the worker was dismissed from service for misconduct after due enquiry. I am at a loss to understand how a secretary of W.P (C).No.32425 OF 2004 - 10 - 1994 could vouch for the dismissal of an employee on 16/1/1997. That would further show that the Labour Court did not apply his mind properly to the facts of the case. For all the above reasons, clearly Ext.P7 award is clearly vitiated. Accordingly the same is quashed. The matter is remanded to the Labour Court for fresh adjudication in accordance with law along with ID No. 23 of 2000 as expeditiously as possible at any rate within four months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. S.SIRI JAGAN, JUDGE rhs