IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 31129 of 2004(E) -------------------------------------- PETITIONER(S): ------------------------ P.J. VINCENT, PUTHER THARAYIL VEEDU, P.O. CHETTIPUZHA, THRISSUR. BY ADV. MR.P.RAMAKRISHNAN RESPONDENT(S): ------------------------- 1. THE INDUSTRIAL TRIBUNAL, PALAKKAD. 2. EDDY CURRENT CONTROL INDIA LIMITED, POTTA, CHALAKUDY, TRICHUR, REPRESENTED BY ITS GENERAL MANAGER. BY MR.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31129/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AWARD DT. 11.8.04 PASSED BY THE IST RESPONDENT IN ID. 63/02. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- WPC. No.31129 OF 2004 ---------------------------------------- Dated, the 20th day of July, 2009 JUDGMENT Challenging Ext.P1 award of the Industrial Tribunal, Palakkad, in I.D.No.63/2002, the workman preferred this writ petition. The prayer is for the issuance of a writ of certiorari or any other appropriate writ, order or direction directing the Ist respondent to take up I.D.No.63/2002 on to its file and dispose of the matter in accordance with law, and for a declaration that Ext.P1 award upholding the order of dismissal is arbitrary and illegal. 2. The petitioner/workman joined in the service of the respondent/management on 11.12.1980 as a Clerk and the said appointment was confirmed on 11.6.1984. After that, while the petitioner was working in the Accounts Department, he was transferred to the Personal Department where also he was doing various clerical works. With effect from 1.4.1984, the name of his post was changed as Assistant Personnel Officer. Even though there was change in the designation of the post, the work was same as that of the Clerk. During the period from 21.9.2000 to 31.10.2000, he was on medical leave. According to WPC 31129/04 -:2:- the workman, he was not provided ESI benefit when he was on sick leave . Therefore he made a complaint before the management about the denial of ESI benefit as a result of non- payment of ESI contribution by the management. It is the specific case of the workman that when he reported for duty after the expiry of the medical leave, he was not permitted to work. Therefore, he preferred a complaint before the Judicial First Class Magistrate, Chalakudy against the Managing Director of the management company alleging offences punishable under sections 405 and 406 of IPC. According to the petitioner, since he had preferred complaint against the management, the management levelled certain allegations against him and a charge sheet dated 13.1.2001 was served on him to which he filed a proper reply . But dissatisfied with the reply, the management appointed an enquiry officer and finally on the basis of the report of the domestic enquriy, the petitioner was dismissed from service with effect from 28.4.2001. Consequently, the petitioner raised a dispute and , though the conciliation proceedings was conducted, the same was resulted in failure, consequent to which the dispute WPC 31129/04 -:3:- was referred under section 10 of the Industrial Dispute Act by the Government of Kerala. The dispute was numbered as I.D.No. 63/2002 in the Industrial Tribunal, Palakkad. The workman has filed a claim statement before the management and the management filed reply statement to the claim preferred by the petitioner. On the basis of the rival contentions and pleadings, the Tribunal formulated four issues for its consideration. During the trial in the Tribunal, two witnesses, one witness each from the side of the management and workman, were examined. Exts. M1 to M5 were produced and marked from the side of management. Ext. W1 was produced from the side of the workman. The Tribunal as per its Ext.P1 award found that all the charges proved against the workman, except the misconduct of unauthorized absence, are grave enough to impose the punishment of dismissal. Thus, according to the Tribunal, no interference is warranted with the punishment of dismissal. It is the above finding and award challenged in this petition. WPC 31129/04 -:4:- 3. I have heard the learned counsel appearing for the petitioner and also the learned senior counsel appearing for the management. 4. The counsel for the petitioner submitted that the petitioner was constrained to file a complaint before the Magistrate, because, the management clandestinely denied the benefit under the provisions of the ESI Act even though contributions were recovered from the wages of the petitioner/workman. According to the learned counsel, resorting a statutory provision would not amount to misconduct. It is also the case of the counsel for the petitioner that the workman has categorically admitted sending of letter to the Managing Director of the management company assigning sufficient reasons and justifying his stand. It is the specific contention of the learned counsel that the Tribunal has miserably failed to pass a speaking order. It is pointed out that after narrating the facts in the award, even without referring to the materials, evidence and also the reply of the WPC 31129/04 -:5:- workman, the Tribunal has found that the management has succeeded in proving the guilt of the workman, which, according to the learned counsel, is highly illegal and arbitrary. 5. On the other hand, Sri M. Pathrose Mathai, the Senior counsel for the 2nd respondent/management submitted that this Court has no jurisdiction to interfere with the order of the Tribunal , especially, when the finding and order of the Tribunal are within its permitted jurisdiction. It is pointed out that while answering the issue referred to it, the Tribunal need not go into the detailed appreciation of the evidence and materials, and, what expected from the Tribunal is to find out whether there is any plausible ground for the enquiry officer in order to arrive at his finding. It is also pointed out that when the guilt of the delinquent employee or workman is proved, the Tribunal will not be justified in interfering with the punishment. In support of the above submission, the learned counsel very much placed reliance on the WPC 31129/04 -:6:- decisions of the Supreme Court in Amrit Vanaspathi Co.Ltd. v. Khem Chand and Another (2006(3) LLJ 344 (SC) ; U.P. State Road Transport Corporation v Suresh Pal (2006 (3) LLJ 967(SC) and L & T Komatsu Ltd. v. N.Udayakumar (2008 (1) LLJ 849). 6. I have carefully considered the arguments advanced by the counsel for both sides and also perused the Ext.P1 award. 7. As discernible from Ext.P1 order, the issue referred to the Tribunal for adjudication is “ Whether the dismissal of Sri Vincent, the employee of Eddy Current Controls India Ltd., is justifiable? If not what are the benefits he is entitled to?” It goes without saying that dismissal is a more severe and major punishment. Of course, the management has every authority and right to impose any punishment as contemplated by its standing order in accordance with the seriousness of the allegations which are proved. By introduction of Section WPC 31129/04 -:7:- 11A of the ID Act, vast powers are given to Labour court, Tribunal or National Tribunal as indicated by the very caption of the said section. Even in case of the discharge or dismissal is proved, I am of the view that Ext.P1 award has to be examined in the light of the above statutory background. According to the Tribunal, out of the five charges, except misconduct of unauthorized absence , all remaining charges are grave enough to impose punishment of dismissal. The Tribunal went to the extent to say that Charge No.1 alone is sufficient to justify the punishment of dismissal. Though I have repeatedly perused Ext.P1 award, I failed to find out any considerable discussion or reference to the evidence and materials relied on by the disciplinary authority and the enquiry officer in favour of their finding in the award. The Tribunal is a machinery created as per the provisions of the Industrial Dispute Act, 1947 which designed for the settlement of disputes that arose in the industrial area. It is a welfare Act. Various rights are ensured to the WPC 31129/04 -:8:- workmen. If that be so, being a court of law, the Industrial Tribunal is expected to pass a speaking order. The mere statement, i.e., “since there is sufficient evidence in the enquiry in support of all the charges, it cannot be held that the findings of the Enquiry Officer are perverse”, is not sufficient to satisfy the requirement of a speaking order. As I pointed out earlier, in the given statutory background, especially, the workmen is facing with a severe punishment of dismissal, the Tribunal is expected to deliver a speaking order in support of its finding by referring to the materials and evidence on record, and especially, explanation or defence of the workman. But unfortunately, such an approach is not seen adopted in this case. 8. Inviting my attention to para 8 of the decision of the apex Court in Amrit Vanaspathi Co.Ltd v. Khem Chand and Another (2006(3) LLJ 344) (SC), the learned senior counsel for the respondent submitted that the WPC 31129/04 -:9:- Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. I duly endorse the above statement of the learned senior counsel. But as I pointed out earlier, it is open to the Tribunal , at least to refer the materials and evidence - not for an elaborate appreciation of the same - but to justify its own finding. But in the present case, as pointed out by the counsel for the petitioner, there is no such reference. The learned senior counsel also invited my attention to the decision of the Apex Court in U.P.State Road Transport Corporation v. Suresh Pal (2006 (3) LLJ 967)(SC), in which the apex Court has held: “Normally, Courts do not substitute the punishment unless they are shocking disproportionate and if the punishment is interfered or substituted lightly in exercise of their extraordinary jurisdiction, then it will amount to abuse of the process of Court”. According to me, the above question does not arise in this case because the very finding of the Tribunal regarding WPC 31129/04 -:10:- the charge against the petitioner itself is not sustainable for the reason which I discussed above. The learned counsel for the petitioner invited my attention to the decision of the Apex Court in Workmen of Balmadies Estates v. Management Balmadies Estate and Ors (2008 (3) KLT Suppl.1314 (SC). In paragraphs 9 and 10 of the above decision, the Apex Court has held : “Learned Counsel for the respondents supported the order of the learned Single Judge and the Division Bench. The power of the Labour Court under the Act has expanded vastly after the introduction of Section 11A of the Act into the Statute. This was emphasized by this Court in The Workmen of M/s.Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management and Others (1973 (1) SCC 813) and Sadhu Ram v. Delhi Transport Corporation (1983(4) SCC 156) and Indian Overseas Bank v. I.O.B Staff Canteen Workers' Union and Anr. (2000(4) SCC 245). 10. It is fairly well settled now that i n view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic Tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Indian WPC 31129/04 -:11:- Evidence Act, 1872 (in short the “Evidence Act”) is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.” (emphasis supplied) The above decision would show that the power of the Labour Court under the Act has expanded vastly after the introduction of Section 11A of the Statute. On the strength of the above decision, the position is clear that the Labour Court in appropriate case considered the evidence which has been considered by the Domestic Tribunal and in given case, such conclusion can be different from the one arrived at by the Domestic Tribunal, though it is not necessary to consider the same by using the same yardstick as of civil Court. On application of the above dictum, I am of the view that the Tribunal has miserably failed in considering the matter in accordance with the jurisdiction vested upon it as per the WPC 31129/04 -:12:- statute. 9. In the result, Ext.P1 award is set aside and the matter is remitted back to the Tribunal for fresh consideration by giving opportunity to both the petitioner as well as the respondent, including the opportunity to adduce fresh evidence, if necessary. Since the matter is related to the year 2002, the Tribunal is directed to dispose of the matter as expeditiously as possible. The writ petition is allowed to the above extent. V.K.MOHANAN, JUDGE kvm/- WPC 31129/04 -:13:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..