IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 24324 of 2005(U) ------------------------------------ PETITIONER(S): ----------------------- JET AIRWAYS (INDIA) LIMITED, SM CENTRE, ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI-400 059 REPRESENTED BY ITS GENERAL MANAGER-HR. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE BY ADVS.RI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH RESPONDENT(S): ------------------------- 1. THE LABOUR COURT, KOZHIKODE. 2. MR.K.N.SURESHKUMAR, `SREE PATH', C/O.KALA RICE MILL, KAITHAKUNDA, P.O.AYIKKARAPADI, ERNAD TALUK, MALAPPURAM DT.-673 637. R2 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE R2 BY ADV. SRI.P.K.VIJAYAMOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2011, THE COURT ON 18/03/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.24324/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CLAIM STATEMENT DT. 20.9.2002 FILED BY THE 2ND RESPONDENT IN I.D. 4/2002(C) BEFORE THE IST RESPONDENT. P2:- COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER DT.D 16.1.2003 IN ID. NO.4/2002 (C) AGAINST EXT.P1. P3:- COPY OF THE ENQUIRY FILE AND CONNECTED DOCUMENTS DT.18.8.2001 FILED BY THE PETITINER IN ID. NO.4/2002 (VC) BEFORE IST RESPONDENT. P4:- COPY OF THE PRELIMINARY ORDER DTD. 14.6.2005 PASSED BY THE IST RESPONDENT IN ID. NO.4/2002. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 24324 of 2005-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. JUDGMENT The management is the petitioner. The challenge is against Ext.P4 order passed by the Labour Court. The same is a preliminary order. 2. Heard Shri E.K. Nandakumar, learned Counsel for the petitioner and Shri M.K.Damodaran, learned Senior Counsel appearing for the second respondent. 3. Shri M.K. Damodaran, learned Senior Counsel for the second respondent submitted that a preliminary order passed by the Labour Court is not liable to be challenged in a writ petition, as it is premature. It is pointed out that the remedy of the petitioner, if any, is to challenge the final award. 4. Learned Counsel for the petitioner, Shri Nandakumar submitted that in the preliminary order the Labour Court set aside the enquiry report on the alleged violation of the principles of natural justice and on the ground that the conclusions arrived at are perverse. It is pointed out that in that process the Labour Court has made certain observations in the order which will prejudice the management in the subsequent stage and therefore 24324/2005 2 the writ petition is maintainable. 5. The case of the petitioner is the following: The petitioner is a public limited company engaged in the airline business and is operating flights within and outside the country. The second respondent was working as Senior Security Assistant in the petitioner company at Calicut Airport. The incident which led to the disciplinary action, had occurred on 15.5.2001. He had to board a flight to Mumbai and the schedule time for departure was 15.30 hrs. The allegation is that at 14.25 hrs, while he was walking towards the baggage screening machine, it was noticed that he was under the influence of alcohol. When questioned by the Captain, he admitted that he had consumed alcohol. He was therefore directed by the Airport Manager to obtain a doctor's certificate from the doctor at the Airport before checking in. He was asked to follow the security officer to the doctor's room. He, however, refused to obey the instructions and disappeared from the scene. Thereafter, he approached the Security Officer and the Airport Manager and requested them to accept him on board. When his request was turned down, Mr. Suresh Kumar proceeded to the aircraft through the security entrance gate by-passing the security check thus violating all safety and security norms. He was served with a charge sheet containing the following misconducts: 24324/2005 3 i) Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline; and ii) Willful subordination or disobedience, whether alone, or in combination with others, to any lawful and reasonable order of a superior.” Thereafter, a domestic enquiry was conducted. As the charges were proved in the enquiry, the management imposed the punishment of dismissal from service after considering various aspects. I.D. No.4/2000 was referred before the Court. After the pleadings were completed before the Labour Court, the question whether the enquiry was conducted in violation of the principles of natural justice, was considered. Evidence was let in and arguments were heard. The Labour Court found in the preliminary order that the enquiry held by the management was in violation of the principles of natural justice and that the findings are perverse. 6. It is the case of the learned Counsel for the management that while considering the above issue, the Labour Court has erred on many aspects. It is pointed out that mere assumed violation of the principles of natural justice cannot be a ground to set aside an enquiry unless prejudice has been proved by the workman. It is further pointed out that while considering the second point regarding the perversity of the findings in the enquiry report, various opinions have been made by the Labour Court 24324/2005 4 which include sustainability of the charge itself which cannot be justified, as the same will prejudice the management. 7. A reading of Ext.P4 order shows that the Labour Court raised three points: (i) Whether the enquiry was properly held in accordance with principles of natural justice? (ii) Whether the charges stands proved by legally acceptable evidence? (iii) Whether the findings are perverse or tainted or not? and (iv) Is the enquiry vitiated on any grounds? The domestic enquiry was conducted by a lawyer at Calicut bar who was no more while the matter was pending before the Labour Court. The enquiry report and the files were proved in evidence through the Presenting Officer. The workman was also examined. In paragraphs 7 and 8 of Ext.P4 order, the Labour Court was of the view, after considering the argument of the worker, that he was denied an effective opportunity to cross examine the witnesses whose list was supplied only at the commencement of the enquiry and copies of documents were also not served to him in advance. The management contended that it was not necessary in all cases to supply the witness list and copies of documents relied upon by the management. It was held by the Labour Court that prejudice is a matter to be established from the facts and circumstances of each case depending upon the essentiality and relevancy. The worker could effectively cross-examine and 24324/2005 5 contradict the witnesses only on the basis of their prior statements and documents. It was further held that the late production of Exts.M1 and M4 at any rate would definitely result in considerable prejudice to the worker as he is losing an opportunity to confront with the contents, test their veracity and discredit their testimonies. It is also observed that this is more so in this case where documents relied on are material documents having nexus with the incident and very much relied upon by the Enquiry Officer in rendering the findings. Accordingly, it was held that non supply of witness list and document list infringes the principles of natural justice resulting in considerable prejudice to the worker. 8. Therefore, it is essentially a case where the Labour Court found that as the witness list and document list were not supplied well in advance to the worker, the same has prejudiced the defence of the worker. 9. Learned Counsel for the petitioner relied upon the decision of a Division Bench of this Court in St. Thomas Mission Hospital v. State of Kerala (2007 (2) KLT 415) to contend that such alleged violation of the principles of natural justice cannot be a ground to set aside the enquiry report. 10. A reading of the said judgment shows that therein the Labour 24324/2005 6 Court set aside the enquiry report on certain grounds including non issuance of memo of charges and denying the assistance of a lawyer as well as the fact that the enquiry officer was a close associate of the Legal Adviser of the management. On all these three grounds this Court, relying upon the well settled principles laid down by various decisions of the Apex Court, found that the order passed by the Labour Court cannot be justified. The said case was one wherein the legal issues were involved which ultimately, were concluded in favour of the management. Herein, the circumstances are different. The issue that was considered herein by the Labour Court was a factual one alone i.e. non supply of documents and witness list well in time. It is in that context it was held that the principles of natural justice has been violated, after analysing the evidence. 11. That the workman should get an effective opportunity to defend himself in the enquiry, cannot admit of any doubt. The principles of natural justice cannot be applied as a straight jacket formula to all fact situations, which is a well settled principle. Therefore, each case will have to be decided on its own merits No principle will have any universal application in such cases. Here, a reading of Ext.P4 shows that the Labour Court, after analysing the facts and evidence, found that there was violation of the principles of natural justice. It is not as if any relevant evidence was 24324/2005 7 not considered and any apparent error is there in entering the findings on this aspect. Therefore, being a finding of fact, normally this Court will be loathe to interfere with the same under Article 226/227 of the Constitution of India. The Labour Court also found that the same has prejudice the workman. Therefore, I reject the said contention. 12. Herein, the management, in their written statement had pleaded for giving an opportunity if the Labour Court finds that the enquiry was held in violation of the principles of natural justice. Therefore, as rightly pointed out by the learned Counsel for the petitioner, the management will have to be given an opportunity to adduce evidence in support of the charges and the punishment imposed. 13. Normally, the discussion would have been concluded thus. But my attention is invited to paragraphs 10 and 12 of Ext.P4 order. Therein, with regard to the alleged consumption of alcohol by the workman, the Labour Court observed in para 10 as follows: “So unlike cases of smoking near a dangerous place, I do not think that mere consumption of alcohol will amount to misconduct especially in the absence of any statutory prohibition. More so, in this case his status was nothing more of a passenger. “ Again, in para 12, with regard to his presence near the Aircraft allegedly in 24324/2005 8 violation of the instructions, the Labour Court observed thus: “There is no case for the management that he was obliged to travel only by Aircraft. So, the incident is unrelated with his service. To attract employment misconduct incident should have rational connection with the employment of the assailant and the victim or with the conduct as such that the worker is unworthy to be employed. In my view the mere presence of the worker near the Aircraft after consuming alcohol will not amount to an act subversive of discipline.” Finally, after holding that the findings of the enquiry officer are perverse, the domestic enquiry was set aside. 14. Elaborate arguments were made by both sides on the observations referred to above. It is the case of the learned Counsel for the petitioner that the above observations are without any basis and will reflect upon the sustainability of the charges and it will prejudice them, as the management will be adducing evidence further. It is pointed out that such opinion on the charges was not required to be made for deciding the question whether the findings of the enquiry officer are perverse or not. 15. Shri M.K. Damodaran, learned Senior Counsel for the second respondent submitted that there was no charge with regard to the alleged consumption of alcohol. It was also submitted that mere presence near the 24324/2005 9 Aircraft will not invite any disciplinary action. It is therefore submitted that the Labour Court was right in making these comments and opinions. It is therefore pleaded that no interference is called for. 16. Evidently, the power of the Labour Court in such matters is limited to the question whether the findings are perverse or tainted or not. The order Ext.P4 is a preliminary order. Once the enquiry report is set aside, the management will have to be given an opportunity, if they have pleaded for it, at the earliest point of time to adduce evidence. Herein, there is no dispute that they had pleaded for getting an opportunity to adduce evidence in case the enquiry report is found to be vitiated. Therefore, once the preliminary order is passed, the Labour Court will have to proceed to the next stage. Shri Damodaran submitted that actually the matter was posted for adducing evidence, but at that point of time this writ petition was filed and since they had adduced no evidence nothing remains to be done by the Labour Court. But, evidently in this writ petition there is an interim order and therefore the petitioner will have to be given an opportunity in the light of the fact that they had pleaded for such an opportunity if the enquiry report is set aside. 17. True that the Labour Court had to consider whether the findings are perverse or not. But it could have stopped by analysing the evidence 24324/2005 10 and considering the findings. But the crucial observations in paragraphs 10 and 12 really go to the root of the matter as regards the sustainability of the alleged misconduct also. Only after the management is allowed to let in evidence and while considering various aspects on the merits alone, any formation of opinion is required. Evidently, the observations are thus beyond the scope of the point raised for consideration for passing the preliminary order. Those two objected paragraphs are mere opinions made by the Labour Court. Of course, normally when the final order is yet to be passed, any observations in the preliminary order of this nature may bind the Labour Court in considering the matter independently at the final stage. 18. Of course, the second point that had to be considered was with regard to the perversity of the findings. The evidence had to be analysed and the conclusions of the enquiry officer had also to be discussed. But beyond that, the Labour Court need not have commented upon the charge of misconduct levelled against the second respondent. The assumption that “mere consumption of alcohol will not amount to misconduct, especially in the absence of any statutory prohibition,” need not have been made. At any rate, it is not a matter which emanated from the evidence adduced before the enquiry officer. Similarly, the comment made in para 12 with regard to the alleged presence of the second respondent near the Aircraft 24324/2005 11 after consuming alcohol; that it will not amount to an act subversive of discipline, cannot also be justified. 19. The order Ext.P4 being a preliminary one, does not call for any interference with regard to the two aspects, i.e. the finding on the alleged violation of the principles of natural justice and the setting aside of the enquiry report. But, I am of the view that the crucial observations in paragraphs 10 and 12 which are quoted in para 13 above, need not have been there, as the final award is yet to be passed. Therefore, the said observations are expunged, to avoid any future controversies in the matter. Ext.P4 is modified to that extent The writ petition is dismissed subject to the above. No costs. (T.R. Ramachandran Nair, Judge.) kav/