IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 OP.No. 29980 of 2001(R) -------------------------------- PETITIONER(S): -------------------- MOONGALAR ESTATE, VANDIPERIYAR P.O., REP.BY ITS MANAGER, MR.MOHAN JOHN. BY ADV. MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENT(S): ------------------------ 1. GENERAL SECRETARY, HIGH RANGE ESTATE LABOUR UNION, AITUC, PEERUMEDU. 2. INDUSTRIAL TRIBUNAL, IDUKKI , ELAPPARA. ADV. MR.P.RAMAKRISHNAN FOR R1 SMT.A.K.PREETHA FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.48780/2001 IN OP. NO.29980/2001 CLOSED 17/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CLAIM STATEMENT FILED BY THE IST RESPONDENT DT. 16.12.99 BEFORE THE 2ND RESPONDENT IN ID 42/99. P2:- COPY OF THE WRITTEDN STATEMENT FILED BY THE PETITIONER DT. 18.2.2000 BEFORE THE 2ND RESPONDENT IN ID 42/99. P3:- COPY OF THE ENQUIRY PROCEEDING CONTAINING FINDINGS OF THE ENQUIRY OFFICER WITH ISSUED TRANSLATION. P4:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 2.8.01. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 29980 of 2001 - R --------------------------------------------- Dated this the 17th day of June, 2009 J U D G M E N T The Management in I.D.No.42/99 pending before the Industrial Tribunal, Idukki is the petitioner in these proceedings in which Ext.P4 is challenged. 2. Ext.P4 is a preliminary order passed by the said Industrial Tribunal on the basis of the preliminary question raised by the management as discernible from paragraph 6 of Ext.P2 written statement filed by it. As per Ext.P4 order, the learned Tribunal found that the domestic enquiry was conducted in violation of principles of natural justice and accordingly, the domestic enquiry is set aside. But, in Ext.P4 order, the Tribunal has reserved the right of the management to adduce fresh evidence to prove the charge against the workman. Ext.P4 order is impugned on various grounds. Learned counsel for the petitioner submits that though show cause notice was given to the workman, there was no response and no explanation was given by the workman. It is also pointed out that on 19.1.1998, 2.2.1998, 7.2.1998, 5.3.1998, 21.3.1998, 15.4.1998 and 23.4.1998, the Domestic Enquiry Officer had given opportunity to the workman to participate in the enquiry proceedings and the workman OP NO.29980 of 2001 :-2-: without appearing and co-operating in the enquiry, sought adjournment on flimsy grounds. It is also the case of learned counsel for the petitioner that during the preliminary enquiry, the management has adduced evidence by examining the witnesses from their side and also produced Ext.M1, the documentary evidence pertaining to the enquiry proceedings including the enquiry report and the documents relied on by the management. But, according to the learned counsel, the tribunal, even in the absence of any evidence either oral or documentary from the part of the workman, regarding their contention with respect the denial of opportunity, came into a conclusion that there is violation of principles of natural justice, which is against the evidence and materials on record. Therefore, according to the learned counsel, in the absence of any evidence to substantiate the contention of the workman that no opportunity was given to the workman, the preliminary finding of the tribunal is liable to be set aide. In support of the above submission, learned counsel for the petitioner placed reliance upon the decision of the Apex Court in Bank of India v. Apurba Kumar Saha [1994-II LLN 56]. In the said decision, the Apex Court had observed that the employee, after avoiding filing of written explanation for charges of misconduct OP NO.29980 of 2001 :-3-: levelled against him and refusing to participate without any valid reason in disciplinary proceedings, cannot be permitted to complain later that he had been denied of a reasonable opportunity to defend himself. 3. On the other hand, learned counsel appearing for the first respondent/workman submits that the workman, against whom the proceedings were initiated, is illiterate and he cannot face the charge without proper and valid assistance from a man like a representative of the union or Advocate. Therefore, to make the opportunity meaningful and effective, the assistance of a representative of the union was necessary, especially in the light of the complicated facts and legal issues involved in the case. Learned counsel for the first respondent pointed out that on various occasions, the enquiry was adjourned not exclusively at the instance of the workman and there was also contribution from the part of the management for adjourning the hearing and to substantiate the above contention, he had invited my attention to the proceedings of the Domestic Enquiry Officer. It is also the case of counsel for the first respondent that the management can also adduce evidence to substantiate the charge as their right was reserved in the impugned order and therefore, there is no scope OP NO.29980 of 2001 :-4-: for interfering with Ext.P4 order at this stage. 4. I have carefully considered the contentions advanced by learned counsel for the petitioner as well as the first respondent. I have also perused Ext.P4 order. In Ext.P4, the tribunal has recited the proceedings of the Enquiry Officer. After appreciating the above procedure, the tribunal has found that the Enquiry Officer was not justified in rejecting the application for adjournment submitted by the workman on 23.4.1998, on the ground that his union representative's relative died and therefore, the representative was not in a position to participate in the domestic enquiry. In page 36 of Ext.P3, the said application of the workman has been exhibited. On a reading of the request of the workman, it can be seen that he had requested for the adjournment of the proceedings on 23.4.1998 as the union representative was unable to attend the proceedings on that date since his relative expired and the representative went for attending the same. According to the Tribunal, the reason given by the workman for seeking adjournment on 23.4.1998 is reasonable and justified and thus, it was found that the Enquiry Officer should have granted an adjournment of the domestic enquiry which was scheduled on 23.4.1998 for the purpose of providing the workman OP NO.29980 of 2001 :-5-: an opportunity for participating in the domestic enquiry. 5. The jurisdiction of this Court under Article 226 of the Constitution of India is not to sit as an appellate authority upon the finding of the Industrial Tribunal whether preliminary or final. In this juncture, it is relevant to note that so far, the management has no dispute regarding the genuineness and bonafide of the ground mentioned in the application submitted by the workman before the Enquiry Officer. Of course, the attitude of the workman regarding his approach towards the enquiry proceedings has to be assessed from the entire facts and circumstances involved in the case. As pointed out by the learned counsel for the first respondent, the enquiry was postponed not only at the instance of the workman and that too was not on reasonable grounds. As observed by the tribunal itself in Ext.P4 order, on 19.1.1998, the workman submitted an application for adjournment of the enquiry stating that the union representative had to attend a labour conference on that day. On 7.2.1998, the workman submitted an application requesting to give him a copy of the complaint and witness schedule of the management and also requested for adjournment. It was subsequently, the workman was informed about the names of the witnesses of the management and also OP NO.29980 of 2001 :-6-: given a copy of the complaint. On 5.3.1998, the request for adjournment was on the ground that the Union Secretary was hospitalised. It is also relevant to note that on all occasions, after having satisfied with the reasons stated in the application, the enquiry was adjourned. But on 23.4.1998, the request of the workman was declined. It is, thereafter, the enquiry was concluded. As evidenced by the application made by the workman in Ext.P3 mentioned earlier on 23.4.1998, he was not able to participate in the enquiry without the assistance of a representative of his own choice. So, on the ground that on 23.4.1998, the workman sought an adjournment and it cannot be said that the prayer of the workman was arbitrary or without any bona fides or it was a lame excuse. 6. The principles of natural justice demand to give effective and meaningful opportunity to the workman and the same cannot be denied arbitrarily and unreasonably. In the decision relied on by the learned counsel for the petitioner, the Supreme Court has found that the workman has refused to participate in the disciplinary proceedings without any valid reason. But in the present case, as evidenced by Ext.P3, he sought adjournment on valid ground and the same was not disputed by the management. OP NO.29980 of 2001 :-7-: Therefore, the finding of the Tribunal is absolutely correct and no interference is called for. It is also relevant to note that as per Ext.P4 order, as requested by the management, the right to adduce evidence was also reserved. Therefore, it is free to the petitioner, if so advised, to adduce evidence and to substantiate their contentions in support of the charge levelled against the workman. In the light of the above facts and circumstances of the case, I am of the view that there is no merit in the writ petition and accordingly, the same is dismissed. V.K.Mohanan, Judge MBS/ OP NO.29980 of 2001 :-8-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 29980 OF 2001 -------------------------------------------- J U D G M E N T DATED: 17-6-2009 OP NO.29980 of 2001 :-9-: