IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 OP.No. 27951 of 2000(C) ----------------------------------- PETITIONER(S): ----------------------- KUNNATH PAPER MILLS (PVT.) LIMITED, REP.BY FRANCIS KUNNATH, MEENKARA, P.O. PALGHAT DISTRICT. BY ADVS. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT(S): ------------------------- 1. INDUSTRIAL TRIBUNAL, PALGHAT. 2. LABOUR COURT, KOZHIKODE. 3. A.K.DANDAPANI, KUNNATH PAPER MILLS, WORKER, MEENKARA DAM QUARTERS, MEENKARA DAM P.O., PALGHAT. 4. A.THANKAVELU, EX-WORKER KUNNATH PAPER MILLS, ATTAYEMPATHY P.O., PALGHAT. *ADDL. R5 TO R7 IMPLEADED. 5. ANAND BABU, S/O. LATE A.K.DANDAPANI, POOCHCHANARI, AMBARAMPALAYAM P.O., COIMBATORE DISTRICT, TAMIL NADU STATE. 6. KALEESWARI W/O.LATE DANDAPANI POOCHCHANARI, AMBARAM PALAYAM P.O., POLLACHI TALUK , COIMBATORE DISTRICT, TAMIL NADU STATE. 7. SILAMBARASSI, W/O. MURUKESAN KAREEKUTTY P.O., VAZHACHAL . *ADDL. R5 TO R7 ARE IMPLEADED AS PER ORDER DTD. 26.9.2005 IN IA. NO.13775/2005. OP. NO. 27951/2000 ADDL. R8 TO R10 IMPLEADED. 8. UDAYAKUMAR, S/O. LATE A.THANKAVELU, AGED 27 YEARS, RESIDING AT ATTYAMPATHY, GOVINDAPURAM P.O., PIN.678 507, PALAKKAD DISTRICT. 9. SMT.PARAMESWARI, S/O. LATE A.THANKAVELU, AGED 46 YEARS, RESIDING AT ATTAYAMPATHY, GOVINDAPURAM P.O., PIN 678 507, PALAKKAD DISTRICT. 10. SMT.LATHA, D/O. LATE A.THANKAVELU, AGED 29 YEARS, RESIDING AT ATTAYAMPATHY, GOVINDAPURAM P.O., PION 678 507, PALAKKAD DISTRICT. *ADDL. R8 TO R10 ARE IMPLEADED AS PER ORDER DTD. 17.9.09 IN IA NO.11255/2009. R1 & R2 BY GOVT. PLEADER SRI.T.N.MANOJ R3 TO R10 BY ADV. SRI.P.K.MADHUSOODANAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.46955,52899 /2000 & 32714/2001 IN OP. 27951/2000 DISMISSED 30/08/2010 SD/- C.T.RAVIKUMAR, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPROVAL PETITION, UNDER SECTION 33 (2)(b) OF THE I.D.ACT DTD. 18.6.1988. P2:- COPY OF THE AWARD OF THE IST RESPONDENT IN ID. NO.32/94 DTD. 19.1.1996. P3:- COPY OF THE JUDGEMENT IN OP. NO.7490/90 DTD. 7.12.1998. P4:- COPY OF THE CLAIM PETITIN CP. NO.30/1999 DTD. 15.3.1999. P5:- COPY OF THE RECEIPT FOR ADVANCE SALARY PAYMENT FOR THE MONTH OF DECEMBER, 2000 DTD. 16.12.2000. P6:- COPY OF THE SALARY SLIP FOR THE MONTH OF APRIL, 2001 DT.D 5.5.2001. P5:- COPY OF THE DD. NO.435/01 DTD. 5.6.01 DRAWN ON THE NEDUNGADI BANK LTD., THRISSUR, ISSUED TO THE IST PETITIONER. (CMP. NO. 32714/2001) P6:- COPY OF THE D.D. NO.2622 DTD. 2.2.01 DRAWN ON THE NEDUNGADI BANK LTD., THRISSUR ISSUED TO THE IIND PETITIONER(CMP. NO.32714/2001) RESPONDENT'S EXHIBITS R3(a):- COPY OF THE MP.14/88 IN ID. 29/88 ALONG WITH AS AFFIDAVIT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. TRUE COPY P.S. TO JUDGE tss C.T.RAVIKUMAR, J. --------------------------------------- O.P.No.27951 of 2000 ---------------------------------------- Dated 30th August, 2010 JUDGMENT The Management in I.D.No.32 of 1994 filed this original petition challenging Ext.P2 award passed by the first respondent - Industrial Tribunal, Palakkad in I.D.No.32 of 1994. As per the same, it was held as follows: “7. In the aforesaid circumstance an award is passed holding that the dismissal of A.K.Dandapani and A.Thankavelu, the workers of Kunnath Paper Mills (P) Ltd., Meenkara shall take effect subject to the verdict of the Kerala High Court in O.P.No.7490/90 N. The workmen shall be free to approach the appropriate forum for the settlement of their claims, if any, arising out of the proceedings under section 33(2)(b) subject to the result of above O.P. In the meantime the Management shall re-employ the above two workmen as fresh employees with effect from the date of enforcement of this award. The reference order is answered accordingly with the above direction.” Messrs A.K.Dandapani and A.Thankavelu are arrayed respectively as respondents 3 and 4 in this original petition. Subsequent to Ext.P2 award they had filed Ext.P4 before the second respondent alleging non- compliance with the directions in Ext.P2 to re-employ them as fresh employees with effect from the date of enforcement of Ext.P2 award. It is subsequent to the filing of Ext.P4 that the petitioner herein filed this original petition mainly seeking the following prayers:- “(i) declare that Exhibit P2 award is illegal and void; (ii) issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibits P2 and P4;” WP(C).No.27951/2000 2 2. At the outset, it is to be stated that respondents 3 and 4 who were the workers of the petitioner are no more and their legal heirs got themselves impleaded in this original petition as additional respondents 5 to 10. 3. The facts in brief are as follows: Respondents 3 and 4 were workers of the petitioner. They were charge-sheeted alleging the following misconducts: “(1) That on 6.8.1987 the delinquents were not present for work without any reason and thus caused dereliction of duty. (2) That on 6.8.1987 to 7.8.1987 the delinquents along with some outsiders unlawfully and by force prevented the loyal workers from attending to their work and sent them back by threatening them and caused the work in the factory standstill and also caused huge loss and difficulties to the factory by their willful act and thus caused indisciplinary behaviour and committed criminal offences and, (3) That on 1.9.1987 between 9 a.m. and 10 a.m. both delinquents along with some outsiders unlawfully formed themselves into groups and obstructed the car of Sri.Thomas Kunnath, a management staff and pulled him out from the car by force and lifted him up by catching his legs and hands and put him down at the Mill gate after covering a distance of about 600 metres and threatened him by saying “RWLÐO കളയ” and also gheraoed him. Sri.K.T.Antony (father of Sri.Thomas Kunnath) and his another son who came there to pacify the workers were also gheraoed by them all and thereafter the police came and arrested them all and registered a case against them.” A domestic enquiry was conducted on the aforesaid charges and the enquiry officer found them guilty of the said charges and consequently WP(C).No.27951/2000 3 respondents 3 and 4 were dismissed from service. It is their dismissal that led to I.D.No.32 of 1994. As per G.O.(Rt)No.1057/89/LBR dated 2.6.89 the following issues were referred for adjudication: Whether the dismissal of A.K.Dandapani and A.Thankavelu, workers of Kunnath Paper Mills (P) Limited, Meenakara is justified ? If not, what are the reliefs to which they are entitled ? The validity of the domestic enquiry conducted against respondents 3 and 4 was decided as a preliminary issue. The enquiry officer who conducted the domestic enquiry was examined as MW1 and the enquiry file was marked as Ext.M1. On the side of the workmen the third respondent was examined as WW1 and no documents were marked on the side of the workmen. As already noticed, the validity of the domestic enquiry was considered as the preliminary issue. After conducting an enquiry into the same, in accordance with law, it was held that the domestic enquiry conducted against respondents 3 and 4 was valid and the contentions raised on behalf of respondents 3 and 4 herein to assail the domestic enquiry were rejected. The questions viz., whether the dismissal from service awarded to the workmen viz., respondents 3 and 4 is proportionate to the gravity of misconducts proved against them and whether the punishment of dismissal would take effect without the approval of the said punishment by the Labour Court under WP(C).No.27951/2000 4 section 33(2)(b) of the Industrial Disputes Act, 1947 were then considered. With respect to the first question of proportionality of the punishment imposed on respondents 3 and 4 it was held that it is proportionate to the gravity of the misconducts alleged and proved against them. Charge Nos.1 and 2 as extracted above would reveal that allegations were unauthorised absence and dereliction of duties besides prevention of the loyal workers of the petitioner from attending the work and thus causing huge loss and difficulties. In this context, it is apposite to note that respondents 3 and 4 did not challenge Ext.P2 award. As per Ext. P2, the findings that charge Nos.1 and 2 were proved against respondents 3 and 4 were upheld. At the same time, it was held that finding of guilt in respect of those two charges are not sufficient to impose the extreme penalty of dismissal on them. With respect to the third charge, the proven misconduct against the workmen was that on 1.9.1987 they along with some outsiders obstructed the car of Sri.Thomas Kunnath, a Managing staff, pulled him out of the car and put him down at the mill gate. That apart, he was threatened. Commission of gharao against K.T.Antony and Sri.Paul was also alleged against respondents 3 and 4. In the said context, the fact that the said subject matter led to C.C.No.440 of 1987 before the Judicial First Class Magistrate's Court, Chittur was also WP(C).No.27951/2000 5 taken into account. In the said criminal case, there were altogether 43 accused. Based on the oral testimony of Sri.K.T.Antony and Sri.Thomas who were examined in C.C.No.440 of 1987 as PWs 3 and 2 respectively it was contended on behalf of respondents 3 and 4 that their oral evidence in the domestic enquiry should not have been relied on by the Enquiry Officer to prove charge No.3 as proved against them. The contention is that there was incongruity and contradiction in their oral testimony in C.C.No.440 of 1987 and at the domestic enquiry. However, the said contention was not accepted by the first respondent. But, after scanning the oral evidence tendered by the said persons it was found that they did not specifically speak about the overt acts on the part of respondents 3 and 4. It was further found that even under charge No.3, there is no definite accusation against them. In other words, it was found that the specific acts of misconducts were not specifically mentioned in charge No.3. Allegation of being a member of an unlawful assembly alone would not be sufficient to sustain the charge levelled under charge No.3. Based on such conclusion it was held that the extreme punishment of dismissal was not warranted in view of the fact that the whole incident took place as part of the strike due to the denial of employment to some workers and that there was no bad records in respect of WP(C).No.27951/2000 6 respondents 3 and 4. In short, it was after appreciating the entire evidence and all the aspects of the matter that the Industrial Tribunal came to the conclusion that the punishment of dismissal imposed on respondents 3 and 4 is disproportionate to the gravity of the proven offence. It was found that denial of backwages and all other benefits arising out of their past service could be a sufficient punishment for the misconducts committed by them. It was based on such findings that the petitioner was directed to re-employ them as fresh employees with effect from the date of enforcement of Ext.P2 award. Ext.P2 award was passed on 19.1.1996. Later, alleging non-compliance with the directions in Ext.P2 award relating re-employment Ext.P4 was filed before the second respondent. It is only thereafter viz, after 4 ½ years that the petitioner approached this Court by filing this original petition. 4. A scanning of the grounds raised in this original petition would reveal that there is absolute absence of challenge against the specific finding in Ext.P2 that the punishment of dismissal from service was disproportionate to the gravity of the charges alleged and proved against respondents 3 and 4. In other words, even after suffering Ext.P2 award the petitioner did not challenge the same by raising grounds against the specific finding that the punishment of dismissal WP(C).No.27951/2000 7 from service of respondents 3 and 4 was disproportionate to the gravity of the charges levelled against them. 5. It is true that Ext.P2 has been captioned as a preliminary order. A perusal of Ext.P2 would reveal that an order of dismissal awarded against respondents 3 and 4 was ordered to take effect subject to the verdict in O.P.No.7490 of 1990. O.P.No.7490 of 1990 was filed by the petitioner herein on being aggrieved by the dismissal of the petition filed under section 33(2)(b) of the Industrial Disputes Act before the Labour Court seeking approval of the action taken against respondents 3 and 4. As already noticed hereinbefore, the action taken against respondents 3 and 4 culminated in their dismissal from service. The said petition was dismissed for default and the petition for restoration of the same was also dismissed. It is challenging the dismissal of the said restoration petition that O.P.No.7490 of 1990 was filed. This Court as per Ext.P3 judgment quashed Ext.P2 therein viz., the order dismissing the restoration petition and directed the second respondent herein, viz., the Labour Court, Kozhikode to consider the petition filed by the petitioner for restoration of the petition filed under section 33(2)(b) of the Industrial Disputes Act on merits and in accordance with law. Essentially, the contention of the petitioner is that taking note of the pendency of WP(C).No.27951/2000 8 O.P.No. 7490 of 1990 Ext.P2 award should not have been passed. In fact, it is contended that since Ext.P1 approval petition is now pending, an order of approval, if granted by the Labour Court, would render Exts.P2 and P4 nonest and illegal. In the context of the contentions the following aspects assume relevance. Ext.P2 award is dated 19.1.1996 and Ext.P3 judgment of this Court is dated 7.12.1998. Even then, this original petition challenging Ext.P2 award was filed only on 29.9.2000. It is thus evident that much prior to the passing of Ext.P3 judgment Ext.P2 award was passed. I am of the considered view that, in all fairness, the petitioner should have brought it to the notice of this Court, while passing Ext.P3 judgment, regarding the existence of Ext.P2 award. In fact, only after respondents 3 and 4 filed Ext.P4 petition under Section 33(c)(2) of the Industrial Disputes Act that this original petition was filed. As stated earlier, even then, the petitioner had not chosen to challenge Ext.P2 on merits. A scanning of the grounds would reveal that the petitioner challenges Ext.P2 solely on the ground of Ext.P3 judgment whereby Ext.P1 approval petition was restored. I do not think that the same would ipso facto render Ext.P2 award nonest and illegal. True that, in Ext.P2 it is stated that the order thereunder would be subject to the result of O.P.No.7490 of 1990. At the same time, it is evident from Ext.P2 that the order of the WP(C).No.27951/2000 9 punishment of dismissal from service imposed on respondents 3 and 4 was interfered by the second respondent on the ground of disproportionality and the same was subsequently modified as one for denial of backwages and all other benefits arising out of their past service. In short, in the light of Ext.P2 award and in the eye of law, the punishment of dismissal from service is not in existence. Section 11A of the Industrial Disputes Act empowers the Tribunal to interfere with the quantum of punishment. In the course of adjudication of the proceedings referred to the Industrial Tribunal, if the Tribunal satisfies that the order of dismissal from service was not justified, it is well within its power under section 11A to interfere with the said order of dismissal and to direct for reinstatement on such terms and conditions or give such other reliefs to the workmen including award of a lesser punishment in lieu of dismissal from service. As noticed hereinbefore, as per Ext.P2, the order of dismissal imposed on respondents 3 and 4 was virtually interfered with by the Tribunal as per Ext.P2 and virtually the same was modified as a lesser punishment in lieu of dismissal. The lesser punishment imposed in lieu of dismissal was denial of all backwages and all other benefits arising out of past service. In the light of section 11 A of the Industrial Disputes Act, 1947, it cannot be said to be an act without jurisdiction and, in fact, it is well within its WP(C).No.27951/2000 10 jurisdiction. That apart, there is no challenge against the said action on the part of the Industrial Tribunal in awarding a lesser punishment in lieu of dismissal of respondents 3 and 4 in this original petition. The said position is obvious from a perusal of grounds A to D in this original petition. When that be the position, Ext.P2 award to that extent calls for no interference. When once it is so found, the inescapable conclusion is that the action on the part of respondents 3 and 4 in approaching the second respondent by filing Ext.P4 cannot be said to be premature or improper. Ext.P2 award is dated 19.1.1996 and Ext.P3 judgment was rendered in O.P.No.7490 of 1990 on 7.12.1998. The petitioner who had suffered Ext.P2 award on 19.1.1996 did not bring it to the notice of this Court while rendering Ext.P3 judgment. In fact, at the time of passing of Ext.P3 judgment the punishment of dismissal from service was not in existence in the light of Ext.P2 award and the said punishment was modified and a lesser punishment as mentioned above was imposed on them in lieu of dismissal. In short, in the light of Ext.P3 the petitioner cannot contend that Ext.P2 cannot be construed as an award passed by the Industrial Tribunal. It is an award passed by the Industrial Tribunal and it is effected on the expiry of 30 days from the date of its publication in the Kerala Gazette. When once it is taken its effect, the action on the part of respondents 3 and 4 WP(C).No.27951/2000 11 in approaching the Labour Court by filing Ext.P4 cannot be said to be premature. At any rate, in view of the subsequent development, I am unable to hold that Ext.P2 award is premature and illegal merely on account of pendency of Ext.P1 approval. Evidently, the petitioner was not properly prosecuting his cause. The discussions made as above would compel me to come to the conclusion that Ext.P2 award calls for no interference solely on account of Ext.P3 judgment and the consequential pendency of Ext.P1 approval petition. In the absence of any challenge against Ext.P2 award on merits, in view of the reasons mentioned above, I am of the considered view that Ext.P2 requires no interference. There is no merit in this original petition and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS