IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 15880 of 2004(M) ---------------------------------------- PETITIONER(S): ------------------------ B.K.NAIR @ BALAKRISHNAN NAIR, PUTHANVEED, BINANIPURAM P.O., NOW RESIDING AT 'SREE VILAS' VALAYANCHIRANGARA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE BY ADV. MR.T.RAMPRASAD UNNI RESPONDENT(S): ------------------------- 1. THE LABOUR COURT, ERNAKULAM. 2. COMINCE BINANI ZINE LTD., BINANIPURAM, EDAYAR, ALWAYE, REPRESENTED BY ITS GENERAL MANAGER. R2 BY MR.B.S.KRISHNAN, SENIOR ADVOCATE, BY ADV. MR.K.ANAND (A.201), SMT.LATHA KRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15880/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DTD. 12.3.93 IN OP. NO.3619/89. P2:- COPY OF THE LETTER DTD. 25.12.97 SENT BY THE PETITIONER TO ADV. RAVI KUMAR. P3:- COPY OF THE LETTER DTD. 7.4.99 ADDRESSED TO ADV. RAVIKUMAR BY THE PETITIONER. P4:- COPY OF THE LETTER DTD. 12.8.03 ADDRESSED TO ADV. RAVIKUMAR BY THE PETITIONER. P5:- COPY OF THE LETTER ADDRESSED TO THE HONOURABLE CHIEF JUSTICE OF KERALA (IN MALAYALAM). P6:- COPY OF THE LETTER SENT TO THE CHIEF JUSTICE OF KERALA BY THE PETITIONER DT. 21.2.2004. P7:- COPY OF THE AD CARD DTD. 23.11.94. P7(a):- COPY OF THE AD CARD DTD. 5.6.98. P7(b):- COPY OF THE AD CARD DTD. 9.4.99. P7(c):- COPY OF THE AD CARD DTD. 14.8.02. P8:- COPY OF THE AWARD DTD. 7.7.93 IN ID. NO.28/86 PUBLISHED IN THE KERALA GAZETTE DTD. 25.1.94. TRUE COPY P.S. TO JUDGE tss V.K.MOHANAN, J. ---------------------------------------- WPC. No.15880 OF 2004 ---------------------------------------- Dated, 18th day of August , 2009 JUDGMENT Ext.P8 award is under challenge in this writ petition. 2. According to the petitioner, while he was working as an employee of the 2nd respondent company, he was subjected to disciplinary proceedings and, subsequently, he was dismissed from the company and at his instance, a dispute was raised which was referred by the Government as per its order dated 16.5.84 under section 10 of the Industrial Disputes Act, for adjudication and the dispute was entertained as I.D.No.20/86 before the Labour Court, Ernakulam. The charge against the petitioner was that he had committed theft of 3 kgs. of copper from the company. On the same set of allegations, a complaint was also registered against the petitioner. The Tribunal, on 20.3.89, passed a preliminary order by which it was found that there was WPC 15880/04 -:2:- no proper and valid enquiry, since the finding of the enquiry officer is unsustainable and thus, the equiry report was set aside. Aggrieved by the above preliminary order, the management has preferred writ petition before this court which resulted in Ext.P1 judgment dated 12.3.93 in O.P. No.3619/89. By the above judgment, this Court remanded the matter to the Labour Court, directing it to consider the proportionality of the punishment imposed on the delinquent workman. It was in turn of the above remanded order of this Court, the Labour court passed Ext.P8 final award dated 7.7.93 which was published in the Kerala Gazette dated 25.1.94. Thus, challenging the above award, the petitioner preferred this writ petition on 26.5.2004. 3. I have heard Sri K.Ramakumar, the learned Senior Counsel appearing for the petitioner and also Sri B.S.Krishnan, the senior counsel appearing for the 2nd respondent. I have perused Ext.P8 award and also other materials available on record. WPC 15880/04 -:3:- 4. The learned counsel for the petitioner emphatically submitted that Ext.P8 award of the Tribunal was passed behind the back of the petitioner as he was not aware of the proceedings pending before the Labour Court as well as the writ petition before this Court , due to the gross negligence and the condemnable approach of the counsel engaged by the petitioner to defend him in this court. Thus it is pointed out that because of the laches and absence of prompt representation of the counsel for the petitioner, this Court passed Ext.P1 judgment without hearing the petitioner and consequently, the petitioner was not aware of the Labour court proceedings. The whole contention in this writ petition are raised on the basis of the alleged laches on the part of the counsel who was engaged by the petitioner. It is also contended that the management did not adduce any evidence, in spite of the finding of the labour court that the domestic enquiry was invalid. Thus according to the petitioner and his counsel, there was no WPC 15880/04 -:4:- material or evidence to substantiate the allegations and to impose any punishment on the petitioner. According to the learned counsel, as there was no finding regarding the guilt of the petitioner, no punishment can be imposed. Hence, the Labour Court imposed the punishment of discharge in an arbitrary and illegal manner. It is also stated in the grounds that the delay was occurred because of the foul play of the counsel engaged by the petitioner and thus submitted that there is no laches on the part of the petitioner. 5. The counsel appearing for the respondents submitted that as per Ext.P1 judgment, this Court has specifically directed the labour court to consider the question of punishment alone and the other aspect of the proceedings attained a finality by the judgment of this Court. The learned counsel invited my attention to paragraphs 10 and 11 of Ext.P1 judgment. This Court, in paragraph 10 of judgment, has held that the domestic enquiry was conducted in the proper way and the WPC 15880/04 -:5:- enquiry was strictly in compliance with the principles of natural justice. This Court specifically found that the finding arrived at by the enquiry officer was not accepted by the first respondent solely on the basis of the acquittal of the workman by the Criminal court, and further held that the view of the labour court cannot be upheld. This court also found that the finding arrived at by the enquiry officer in the domestic enquiry was not proper and correct. On the basis of the above finding in Ext.P1 judgment, this Court directed the Ist respondent labour court to consider the proportionality of punishment imposed on the workman on the basis of the finding arrived on by the enquiry officer at the domestic enquiry. It was also observed that the findings must be taken as reasonable and proper, and the first respondent was directed to consider the above aspect and to pass final award in ID No.28/86 within three months from the date of receipt of the copy of that judgment . Thus, the learned counsel for the 2nd respondent submitted that WPC 15880/04 -:6:- there was no question of adducing evidence by the management as the issue was already settled by the judgment of this Court as per Ext.P1, the only direction given to the labour court was to consider the quantum of punishment. It is also pointed out by the learned counsel that the writ petition was filed after 10 years of the date of Ext.P8 award. It is also pointed out that the allegations that raised in the writ petition against the counsel for the petitioner engaged by himself, are not grounds to reopen the issue which was already settled. In support of the above contention, the learned counsel placed reliance upon the decision of the Apex Court reported in Kamini Kumar v. State of W.B (AIR 1972 SC 2060) Depot Manager, A.P.S.R.T.C v. Raghuda Siva Sankar Prasad (AIR 2007 SC 152). 6. I have carefully considered the arguments advanced by the counsel for both parties. Admittedly, the dispute arose during the year 1986. The preliminary order was passed by the labor Court on 20.3.89 which was WPC 15880/04 -:7:- challenged by the management before this Curt and this Court passed Ext.P1 judgment. As indicated earlier, this Court found that the equiry was conducted in strict compliance of the principles of natural justice, in a proper and valid manner. Further, the labor court was directed to consider the question of punishment in the following words: .....“Therefore first respondent is directed to consider the proportionality of punishment imposed on the workman, on the basis of the findings arrived at by the enquiry officer at the domestic enquiry, which was held in strict compliance with the principles of natural justice.” Of course, as per the preliminary order, the labour court found that the domestic enquiry conducted by the Equiry Officer is proper and valid and the findings of the Enquiry Officer on the strength of the acquittal of the workman by the criminal court is not legally sustainable. Thus on the basis of the above finding, the labour court held that there was no proper and valid domestic enquiry since the WPC 15880/04 -:8:- findings of the Enquiry Officer was unsustainable and such finding was set aside. The above reasoning and finding of the Labour Court were reversed by this Court by Ext.P1. It is true that there was no representation for the petitioner at the time of passing Ext.P1 judgment. It s also true that the absence of the counsel for the petitioner was specifically noted in the proceedings of this Court. But on a reading of Ext.P1, it can be seen that this Court has considered all the aspects involved in the matter and came into a specific finding regarding the domestic enquiry as referred above. It is also relevant to note that though several facts are averred in the writ petition connected with the alleged negligence or laches on the part of the counsel engaged by the petitioner, as evidenced by his own letters, he made certain attempt agaisnt the same only by 25.12.97. Till that time, according to the petitioner, he was constantly contacting his counsel, but he was made belief that he will handle the matter and his interest will be saved. But there is no WPC 15880/04 -:9:- material or circumstances in support of the above pleading. Nothing is stated in the writ petition so as to infer, any stern or statutory proceedings taken by the petitioner against the so called counsel and his negligence. The petitioner did not approach either the labour court or this court with a prayer to review Ext.P1 judgment of this Court or Ext.P8 award of the labour court. The learned counsel for the 2nd respondent on the strength of the decision of the Apex Court in Kamini Kumar's case (cited supra) submitted that there was delay on the part of the petitioner in challenging Ext.P8 award of the labour court. In the above decision, in paragraph 10, the Honourable Apex Court held : “If this is the position with regard to the petitions under article 32 of the constitution, we do not think that the rule that delay defeats the rights of a party to seek redress, by means of prerogative Writ under article 226 of the Constitution, could be held to be abrogated merely because, if the claim had been brought in a civil court, the period of limitation would not have expired. The question in such cases is WPC 15880/04 -:10:- always whether relief under Art.226 of the constitution could more justly and properly be given than by leaving the parties to the ordinary remedy of a suit. A case in which a tax is imposed under a clearly void law is different from one where seriously contested questions of fact have to be decided before an order of dismissal could be held to be void. In the case before us, the most that the High Court could have done was to quash the order of dismissal and to leave the authorities free to take proceedings afresh against the appellant. The appellant would then have got another long period of years in front of him to go on contesting the validity of proceedings against him until he had gone past the age of retirement. In such cases, it is imperative, if the petitioner wants to invoke the extraordinary remedies available under Article 226 of the Constitution that he should come to court at the earliest reasonably possible opportunity. If there is delay in getting an adjudication, a suit for damages actually sustained by wrongful dismissal may become the more or even the only appropriate means of redress. Every case depends upon its own facts.” 7. As pointed out earlier, the dispute arose during the year 1986 and Ext.P8 final award was passed during the year 1994. The present writ petition is filed during the year 2004. The above WPC 15880/04 -:11:- delay is not properly explained with sufficient materials. However, on examining the issue involved in this case on merit also, I am not proposed to interfere with the award passed by the labour court. The allegation against the petitioner is that he was found in possession of 3 kgs of copper, the property belonged to the 2nd respondent company. On the basis of the same set of allegation, a criminal case was also registered against him, which was ultimately ended in acquittal. In the light of the finding arrived on by the enquiry officer, which was approved by this court as per Ext.P1 judgment, it is quite unbecoming on the part of an employee of an establishment. The labour court as per its Ext.P8 award, punishment of dismissal imposed by the management was reduced into a discharge. In Ext.P8 award, the Labour Court found that the proved misconduct is theft of the property belonging to the management company and thus the misconduct committed by the workman is grave and serious one. It is also found that the workman was working as Senior Operator of the management company and the management has no case that the previous service records of the workman is tainted. Thus, the Tribunal while making the order has considered the entire facts and circumstances involved in the case and found that the punishment of WPC 15880/04 -:12:- discharge is sufficient to meet the ends of justice. While exercising the jurisdiction of this Court under Article 226 of the Constitution of India, this Court is not expected to act as an appellate authority over the Tribunal. It is also pertinent to note that as observed and found by the labour court, the allegation proved against the petitioner is a very serious and grave misconduct by which the management has lost its confidence on the petitioner and therefore, this Court has also to approve the punishment awarded by the Labour Court. The counsel for the 2nd respondent invited my attention to the decision of the Apex Court in Depot Manager, A.P.S.R.T.C v. Raghuda Siva Sankar Prasad (AIR 2007 SC 152) in which in paragraph 24 says: “24. Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there is nothing wrong in the corporation losing confidence or faith in such an WPC 15880/04 -:13:- employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of the punishment.” In the light of the above decision also, no interference is warranted. In the light of the above facts and circumstances, I find no merit in the writ petition and ,accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- WPC 15880/04 -:14:- V.K.MOHANAN, J. WPC No. 15880 OF 2004 JUDGMENT Dated:18.8.2009..