IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 OP.No. 6812 of 2002(J) -------------------------------- PETITIONER(S): --------------------- THRISSUR DISTRICT PRIVATE HOSPITAL AND PHARMACY WORKERS UNION (AITUC),REPRESENTED BY ITS SECRETARY, P.U.KRISHNANKUTTY BY ADV. SMT.P.A.ANITHA RESPONDENT(S): ------------------------ 1. M.E.S. THAIVALAPPIL MUSTHAFA HOSPITAL, CHOTTUVA, THRISSUR DISTRICT, REPRESENTED BY ITS MANAGER. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. R1 BY ADV. MR.P.RAMAKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 6812/2002-J ORDER ON C.M.P. NO.12029/2002 IN O.P. NO. 6812/2002 DISMISSED 06/11/2009. SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER. EXT.P2: COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER. EXT.P3: COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO REENA DATED 08/01/1998. EXT.P4: COPY OF THE LETTER OF 1ST RESPONDENT TO NASEEMA DATED 21/01/1998. EXT.P5: COPY OF THE LETTER OF 1ST RESPONDENT TO REENA DATED 21/01/1998. EXT.P6: COPY OF THE LETTER OF 1ST RESPONDENT TO PHILOMINA DATED 21/01/1998. EXT.P7: COPY OF THE GAZETE NOTIFICATION PUBISHING AWARD I.D. NO.19/99. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 6812 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th November, 2009. J U D G M E N T The Union in I.D. No.19/1999 before the Industrial Tribunal, Palakkad is challenging Ext. P7 award passed by the Tribunal in that I.D., in this original petition. The issue referred for adjudication was: “Whether the dismissal of Smt. P.R. Nazeema, Smt. P.O. Reena and Smt. Philomina Abraham from the service by the management of M.E.S. Thyvalappil Musthafa Hospital, Chetuva, Thrissur is justifiable? If not what remedies they are entitled to get.” Since the workmen were dismissed from service after conducting domestic enquiries, the Tribunal first considered the question as to whether there is any infirmity in the procedure adopted in the domestic enquiries. Although in the claim statement, the Union had disputed the legality of the domestic enquiry, when the enquiry officer was examined, the Union did not cross examine the enquiry officer. At the time of hearing also, counsel for the Union did not raise any arguments regarding the procedural irregularity in conducting the enquiries. The Tribunal also found from the enquiry file that the three employees fully participated in the enquiries through out with the assistance of a union leader and the management witnesses were cross examined on their behalf. Further, the workmen also adduced defence evidence in the enquiry. Taking into account all thees circumstances, the Tribunal found that there is no procedural infirmity in the domestic enquiries conducted against the employees. Thereafter, the Tribunal re-appreciated the evidence in the domestic enquiries and came to the conclusion that there was nothing on record which would disprove the findings of the enquiry officer. Accordingly, the Tribunal confirmed the guilt of the workmen in respect of the misconducts alleged against them. Considering the O.P. No. 6812/02 -: 2 :- gravity of the misconducts, the punishment in respect of two of the workmen were confirmed, but in the case of the 3rd workman, taking into account the circumstances of her case, the punishment of dismissal was converted into one of discharge. This award is under challenge before me. 2. I have heard both sides. 3. In this original petition, the grounds raised by the petitioner against the award are only of violation of principles of natural justice in conducting the enquiries. They would allege mala fides and victimization. They also complain that since the management was permitted to engage an advocate, which was denied to the charge- sheeted workers, the same would amount to violation of principles of natural justice. A further ground is taken in respect of the workman whose punishment was converted to one of discharge to the effect that the compensation should also have been ordered with effect from the date of suspension. The contention regarding procedural irregularity in conducting the enquiries has been considered by the Tribunal in paragraph 2 of the award thus: “2. The aforesaid three employees were dismissed from service on 21.1.1998, by taking separate disciplinary action against them. Three separate domestic enquiries were held and on the basis of the findings of the Enquiry Officer render in these enquiries, they were dismissed from service. Though the union disputed the legality of the domestic enquiries in its claim statement dated 5.7.1999, by raising all sort of objections against the enquiry proceedings as well as the Enquiry Officer, when the Enquiry Officer was examined before this Court as MW1, he was not cross examined by the learned counsel for the union. MW1 had conducted all the three enquiries. At the time of final hearing also, the learned counsel for the union did not raise any objection regarding the procedural aspect of the enquiry. A perusal of the deposition of MW1 and Ext. M1-M3 enquiry files shows that the three employees participated in the enquiries throughout with the assistance of a union leader and the management-witnesses were cross-examined on their behalf. The employees also adduced defence evidence in the enquiries. Therefore, I find that there is no procedural infirmity in conducting the domestic enquires against the employees.” O.P. No. 6812/02 -: 3 :- From the same, I find that although in the claim statement the union had questioned the validity of the enquiry before the Tribunal, they did not raise such a contention. They also did not cross examine the enquiry officer to challenge the validity of the enquiry. The Tribunal also found that there was nothing in the enquiry file, which would suggest that there was an procedural infirmity in conducting the domestic enquiries against the employees. That being so, I am unable to countenance the contention of the petitioner regarding any procedural irregularity in the conduct of the enquiries. Apart from the same, there is no other ground raised in the original petition regarding the sustainability of the findings in the enquiries. From a reading of the award, I find that the Tribunal had re-appreciated the evidence and did not find anything on record to show that the findings of the enquiry officer were unsustainable. In view of the same, I do not think that in respect of the same also, the petitioner is entitled to any relief and the petitioner has also not raised any grounds in that regard. 4. Of course, the union has a case that the punishment is disproportionate to the gravity of the misconduct. The management is a hospital. For effective functioning of a hospital, disciplined employees are a must. The misconducts proved against the workmen involve serious indiscipline as well as refusal to discharge their duties to the patients admitted in the hospital. Evidently, such employees who do not have any regard to the safety and well being of the patients cannot be retained in a hospital. Therefore, I am unable to agree with the counsel for the union that the punishment imposed is disproportionate to the gravity of the misconduct. The contention that the 3rd workman should have been given compensation for the period of suspension is also devoid of any merit since she was also found guilty. O.P. No. 6812/02 -: 4 :- In the above circumstances, I do not find any merit in the contentions in the original petition. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/