IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 WP(C).No. 30929 of 2005(F) -------------------------- ID.123/1991 of LABOUR COURT, KOLLAM .................... PETITIONER: ------------ THE EZHUKONE COCONUT PROCESSING AND MARKETING CO-OP.SOCIETY LTD.NO. Q.75, EZHUKONE P.O., KOLLAM, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.K.RAMAKUMAR SRI.T.RAMPRASAD UNNI RESPONDENTS: ------------- THE AREA COMMITTEE SECRETARY, KERALA CO-OPERATIVE EMPLOYEES UNION, KOTTARAKKARA AREA, C/O.SECRETARY, THRIKKANNAMANGAL S.C.BANK LTD., KOTTARAKKARA P.O. ADDL.R2: G.V. RAJASEKHARAN PILLAI AGED 53, S/O. P. VELAYUDHA KURUP, SREETHILAKAM, ERUMPANAGAD P.O., EZHUKONE. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 24.7.07 IN I.A. NO.3258/07). BY ADV. SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAMY DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30929/05 APPENDIX EXT.P1: COPY OF THE ENQUIRY REPORT DTD. 14.11.1990. EXT.P2: COPY OF THE AWARD DTD 13.1.2003 IN I.D.NO.123 OF 1991 OF LABOUR COURT, KOLLAM. EXT.P3: COPY OF THE ORDER DTD 31.1.2004 IN CLAIM PETITION NO.41/2003 IN I.D. 123/91 OF THE LABOUR COURT, KOLLAM. EXT.P4: COPY OF THE DEMAND NOTICE FOR REVENUE RECOVERY DTD. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.30929 OF 2005 ---------------------------------------- Dated this the 3rd day of January, 2008 JUDGMENT The petitioner in this writ petition is the management in I.D. No.123/91 before the Labour Court, Kollam. The management is challenging Ext.P2 award of the Labour Court in that I.D. The issue referred for adjudication was, “Dismissal of Sri. C.V. Rajasekharan Pillai, Salesman”. Since the dismissal was after conducting an enquiry, the Labour Court considered the validity of the enquiry as a preliminary point and found that the enquiry was not valid and proper. After setting aside the enquiry, the management was given an opportunity to substantiate their case. The management only examined two witnesses. The Labour Court found that the evidence of those witnesses were not sufficient to prove the charges against the workman which in any event were only general in nature and not specific. On such finding, the Labour court set aside the punishment of dismissal passed by the management against the workman and directed the management W.P.(c) No.30929/05 2 to reinstate the workman in service with full backwages, continuity of service and attendant benefits. That Ext.P2 award is under challenge in this writ petition. 2. The preliminary order by which the enquiry was set aside is annexed to the award itself. From the same I find that the Labour Court set aside the enquiry on the ground that there was no charge sheet produced in the enquiry. The finding in this regard is as follows: “It is needless to observe that before the enquiry starts the delinquent should know the charges against him. The charges should be specific so that the delinquent will have an opportunity to defend the case. The grievance of the delinquent is that no charge is framed against him. Now examining the evidence of MW2 the enquiry officer he says that the management did not issue any charge sheet to be delinquent. He avers that it was he who framed the charge against the delinquent. What exactly is the charge framed against the delinquent is not clear to this witness. The charge alleged to have been framed by the enquiry officer is not traceable in the record of the enquiry proceedings. MW1 would say that he handed over the charge to the management but that charge does not find a place in M1 record. Moreover he says that he sent a copy of the charge to the delinquent but the case of the delinquent is he did not get the charge sheet at all frame any quarter. In order to prove that MW1 has forward the copy of the charge sheet to the W.P.(c) No.30929/05 3 delinquent, there are no postal receipts or postal acknowledgements, adduced in evidence. The definite case of the worker examined in this case is that no charge sheet was framed or issued to him. The charge was not framed by the enquiry officer and it was not read out to him according to MW1. On a careful examination of the evidence it is amply clear the enquiry should start from the charge. There is no convincing evidence that charge was framed either by the enquiry officer or by the management. It is seen that from the records charge is not framed, the very foundation of the enquiry is vitiated, the principles of natural justice and fair play is denied to the delinquent”. When the enquiry officer himself deposes before the Labour Court that the management did not issue any charge sheet to the delinquent and that he was who framed charges against the delinquent, the enquiry based on those charges which itself were never issued to the workman cannot be sustained by any stretch of imagination. Therefore the preliminary order setting aside the enquiry cannot be faulted in any manner. 3. Now coming to the further evidence adduced by the management I must state that the same is also far from satisfactory. According to the management, they had issued a show cause notice to the workman to which he had filed an W.P.(c) No.30929/05 4 explanation. On finding that the explanation is not satisfactory an enquiry was ordered. Even in that show cause notice the allegations against the workman as found from the award are as follows: 1) The workman refused to do the duties assigned to him by the Secretary on the ground that he was deputed to do the work of salesman in the feeds unit alone. 2) The workman failed to maintain the feeds stock register upto date. 3) The workman committed dereliction of duty in maintaining the stock register and did not maintain the accounts properly in the stock register. 4) The workman included the stock in the register which were not available in the godown. 5) The workman filed complaints before the authorities against the appointment of Secretary with a view to tarnish the image of the managing committee. 6) The workman gave evidence in arbitration case to favour a former Secretary, who was dismissed from service due to serious corruption allegations. 7) The workman failed to submit the accounts regarding the purchase of molasses. 8) The workman had conducted in a disorderly and unbecoming manner so as to subvert the discipline of the Society. W.P.(c) No.30929/05 5 A mere reading of the above charges would show that they are not specific and as vague as vague can be. No specific instances are mentioned but general allegations. Further two witnesses were examined before the Labour Court to prove these charges. No documents were produced by the management to prove any of the misconducts, other than Exts.M1 to M5. The Labour Court found that Exts.M1 to M5 did not in any way prove the allegations in the show cause memo dated 19.3.1990 based on which only the petitioner sought to prove the misconducts against the workman. On a reading of the award, I have no reason to come to the conclusion that the award is in any way perverse, without which finding I cannot interfere with Ext.P2 award in exercise of my extraordinary discretionary jurisdiction under Article 226 of the Constitution of India. Therefore I do not find any merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.30929/05 6