IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 36624 of 2004(I) -------------------------- PETITIONER: ------------ THE MANAGER, LAHAI ESTATE, RANNI, PERINAD P.O. \ BY ADV. SRI.E.K.NANDAKUMAR SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------- 1. THE GENERAL SECRETARY, PATHANAMTHITTA JILL THOTTAM THOZHILALI UNION(HMS), RANNI, PERINAD P.O. 2. THE LABOUR COURT, KOLLAM. BY ADV. SRI.KRB.KAIMAL (SR.) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 36624/04. APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PRELIMINARY ORDER DTD.4.9.04. P2. COPY OF THE REPORT DTD.20.8.94 OF K.T.SHAJI. P3. COPY OF THE REPORT OF P.K.NARAYANAN. P4. COPY OF THE CHARGE SHEET. P5. COPY OF THE REPORT OF THE ENQUIRY OFFICER. P6. COPY OF THE CLAIM STATEMENT BY R1. P7. COPY OF THE WRITTEN STATEMENT BY BEFORE R2 sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 36624 of 2004 ================== Dated this the 16th day of June, 2008 J U D G M E N T The petitioner management in I.D.No.49/1996 before the Labour Court, Kollam, challenges the preliminary order passed by the Labour Court in that I.D. 2. The issue referred for adjudication was: “Whether dismissal of Sri.Raju, worker by the management at Iahair Estate, Perunad is justifiable? If is not the relief entitled to the worker” 3. The Labour Court found that the enquiry was not proper and valid on two grounds. First is that, the charges were vague. Second is that the workman was not given opportunity to cross examine witness and to adduce defence evidence. This finding in the preliminary order is challenged by the petitioner- management. 4. According to the management, the workman never raised a contention that charges were vague. He also did not want to cross-examine the witnesses of the management in the enquiry and he never asked for opportunity to adduce evidence in defence. According to the counsel for the petitioner, in the w.p.c.36624/04 2 original notice issued to the workman itself, it is specifically stated that the workmen would be given opportunity to adduce evidence in support of his defence. The petitioner never wanted to examine any witnesses in defence or to produce any documents. He did not file any list of witnesses or any list of documents. Therefore, according to the management, the two findings are clearly perverse and liable to be set aside. 5. On the other hand, the learned counsel for the workman would point out that in Ext.P6 claim statement filed by the workman it has been specifically contended that the enquiry officer did not write the proceedings correctly and did not allow the workman to examine defence witnesses. He would submit that it is as a protest against that, the delinquent workman refused to sign the enquiry proceedings. He would raise another contention that even otherwise, the enquiry proceedings are vitiated in so far as the entire proceedings were conducted in English although the workman was a fully illiterate person which has been specifically found in the order. 6. In answer to these contentions of the workman, the counsel for the management would contend that there is no w.p.c.36624/04 3 finding on that point and it was not on that ground the Labour Court found the enquiry vitiated. He would further contend that the workman had no such case before the enquiry officer. 7. I have considered the rival contentions in detail. 8. As far as the finding that the charges are vague, the claim statement of the workman itself proves to the contrary. In the claim statement in paragraph 2 it is stated thus: “2. On 20.8.94 the Manager Lahai Estate R.Perunad.P.O. (hereinafter called the Management) issued charge sheet to Raju alleging that he had committed misconducts with the scope of clauses a c and h of the standing orders. It was alleged in the charge sheet as follows: (a) Wilful insubordination on disobedience whether alone or in combination with another or others of any lawful and reasonable orders of superior (c) Theft and or dishonesty in connection with the employers business or property (h) Riotous on disorderly behaviour on the premises of the estate on subversive to decipline. That it is alleged that on 20.8.1994 while you were tapping in your block in field No.70 c, your tapping assistant has taken away field coagulam in a bucket. This has been detected by Asst. Field Officers Prashobhkumar. Mr.P.O.Varghese and supervisor Sri.Saji while enquiring about this your assistant has assault [sic] them by using knife & stone.” I do not find anything remotely suggesting vagueness in the charge. In fact in the claim statement, the workman does not have a case that the charges are vague. He had perfectly understood the charges and pretended innocence. He does not w.p.c.36624/04 4 state that he was unable to understand the charges or that he is unable to answer the charges because the charges were vague. Therefore, the finding that the charges are vague is clearly perverse. 9. As far as the second finding that the workman was not given opportunity to adduce defence evidence is concerned, although there is such a contention raised in the claim statement, the workman had no case that he had asked for a chance to adduce evidence which was refused by the enquiry officer. He also does not have a case that he has submitted list of witnesses and list of documents which were refused to be acted upon. If the workman wanted to adduce evidence he should have told the enquiry officer that he had evidence in defence for which he needs time. Nowhere is there a finding in the preliminary order that the workman had in fact asked for such an opportunity which was denied to him. Therefore, the second finding also is perverse. In the above circumstances, I am satisfied that Ext.P1 preliminary order is clearly unsustainable. 10. However, in paragraph 9 of the order the Labour Court had held thus: w.p.c.36624/04 5 “9. Now, a perusal of the enquiry file, which contains the charge, the enquiry report and the evidence recorded by the enquiry officer shows that all such proceedings are seen recorded in English. Admittedly the worker is fully illiterate (even his signature is by affixing thumb impression). It has come out from the evidence of MW1, the enquiry officer that he knew the vernacular. So there was no need for going for an interpreter and record the proceedings and even the deposition of local witnesses and English.” 11. The above issue does not appear to have been properly considered by the Labour Court and no finding is also seen entered in respect of the same. In fact it is not on that ground that the Labour Court has found the enquiry vitiated. In the above circumstances, Ext.P1 preliminary order is quashed and the matter is remanded to the Labour Court for fresh consideration in accordance with law and the observation herein contained. It would be open to the workman to raise his contention regarding the observation in paragraph 9 of the preliminary order extracted above also which shall also be considered by the Labour Court and fresh preliminary order passed considering that aspect also. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.36624/04 6