IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 38083 of 2007(H) -------------------------- ID.84/2003 of INDUSTRIAL TRIBUNAL, IDUKKI .................... PETITIONER: ------------ 1. HIGH RANGE ESTATE EMPLOYEES ASSOCIATION (CITU) MUNDAKKAYAM,KOTTAYAM,REPRESENTED BY ITS GENERAL SECRETARY. 2. THE KERALA STATE ESTATE & PLANTATION WORKERS UNION (TUCI),MUNDAKKAYAM PO PAINGANA, REPRESENTED BY ITS SECRETARY. 3. AKHILA KERALA PLANTATION LABOUR UNION (UTUC) MUNDAKKAYAM PO ,KOTTAYAM REPRESENTED BY ITS GENERAL SECRETARY. BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND RESPONDENTS: ------------- 1. THE INDUSTRIAL TRIBUNAL IDUKKI. 2. MUNDAKKAYAM ESTATE (HARISONS MALAYAM LTD MUNDAKKAYAM KOTTAYAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.E.K.NANDAKUMAR FOR R2 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 SRI.K.JOHN MATHAI FOR R2 SRI.P.BENNY THOMAS FOR R2 SRI.ANIL D. NAIR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 38083/07. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER DTD.11.8.06 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.38083 of 2007 ================== Dated this the 30th day of June, 2008 J U D G M E N T The petitioners are three unions involved in I.D.Nos.84 and 85 of 2003 and 3 of 2004 before the Industrial Tribunal, Idukki. They are challenging Ext.P1 preliminary order passed by the Industrial Tribunal in those industrial disputes on the question of validity of the enquiry in those disputes, wherein the issue involved was the validity of the punishment imposed on the workmen involved in those industrial disputes. The only contention now urged before me by the petitioners is Ground “C” in the writ petition which reads thus: “C. The evidence given by the manager as MW1 before the enquiry officer was in 'English'. The enquiry officer himself translated the same. Workers who are all tappers - hardly having any proficiency in English- could never follow the language much less than their co- worker/observer, yet another tapper. Recording deposition of the main witness, upon which the entire case is built, in an alien undecipherable language - so as to workers and their co-worker/observer are concerned, amounts to violation of natural justice.” 2. It is not disputed before me that the enquiry file would not reveal that the workers raised objection against examination of MW1 without a translator. In fact the petitioners have no case w.p.c.38083/07 2 that such an objection was raised before the enquiry officer at any time. It is not disputed before me that the enquiry file on the face of it would not prove the said contention of the petitioners. Therefore, the only way the petitioners can prove their case is by raising such a ground in the claim statement and adducing evidence before the Industrial Tribunal in support of the said contention. The petitioners did not adduce any evidence whatsoever before the Tribunal. The questions as to whether the manager, MW1 was examined in English, whether enquiry officer translated the deposition in Malayalam and whether the translation and recording of deposition were correct, are questions of fact which have to be proved by evidence. It is not disputed before me that the evidence of MW1 was recorded in Malayalam. The learned counsel for the 2nd respondent would assert that MW1, though a North Indian, knew Malayalam perfectly well and he was examined in Malayalam and the workmen with the help of their co-worker cross examined MW1 in detail. They had also put their signature in all the pages of the deposition of MW1 without any objection whatsoever. Further, there is no whisper of such an allegation in the claim statement w.p.c.38083/07 3 submitted by the petitioners. First time this contention was raised in the argument notes submitted by the Advocate for the petitioners before the Tribunal, for two of the petitioners. In fact, while the enquiry officer was examined before the Tribunal, except the question as to whether MW1 was examined in English, no other question whatsoever was asked in this respect. The answer to that question was that the witness does not remember. The Tribunal in the preliminary order does not refer to such contention raised by the petitioners. I am sure that if such a contention was seriously raised, the Tribunal would have at least referred to such a contention. Since this is a ground which goes to the root of the matter in so far as that would, if proved, vitiate the enquiry, the fact that the petitioners did not raise it at any time before filing of the argument notes would, go to show that there is no merit in their contention that they had any such contention at any stage of the proceedings either before the enquiry officer or before the Tribunal. In any event they have not adduced any evidence whatsoever before the Tribunal to prove such a contention raised for the first time which is not evident from the enquiry file. I do not think that I can countenance such w.p.c.38083/07 4 an argument in this writ petition. No other contentions are raised before me in respect of the preliminary order. Therefore, I do not find any merit in the challenge against Ext.P1 preliminary order and accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge