High Court Kerala High Court

Manager vs General Secretary on 17 June, 2009

Kerala High Court
Manager vs General Secretary on 17 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 29980 of 2001(R)



1. MANAGER,MOONGALAR ESTATE
                      ...  Petitioner

                        Vs

1. GENERAL SECRETARY,HIGH RANGE ESTATE,AITU
                       ...       Respondent

                For Petitioner  :SRI.E.K.NANDAKUMAR

                For Respondent  :SRI.P.RAMAKRISHNAN

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :17/06/2009

 O R D E R
                           V.K.MOHANAN, J.
                  ---------------------------------------------
                      O.P.No. 29980 of 2001 - R
                  ---------------------------------------------
                 Dated this the 17th day of June, 2009

                             J U D G M E N T

The Management in I.D.No.42/99 pending before the

Industrial Tribunal, Idukki is the petitioner in these proceedings in

which Ext.P4 is challenged.

2. Ext.P4 is a preliminary order passed by the said Industrial

Tribunal on the basis of the preliminary question raised by the

management as discernible from paragraph 6 of Ext.P2 written

statement filed by it. As per Ext.P4 order, the learned Tribunal found

that the domestic enquiry was conducted in violation of principles of

natural justice and accordingly, the domestic enquiry is set aside.

But, in Ext.P4 order, the Tribunal has reserved the right of the

management to adduce fresh evidence to prove the charge against

the workman. Ext.P4 order is impugned on various grounds.

Learned counsel for the petitioner submits that though show cause

notice was given to the workman, there was no response and no

explanation was given by the workman. It is also pointed out that on

19.1.1998, 2.2.1998, 7.2.1998, 5.3.1998, 21.3.1998, 15.4.1998 and

23.4.1998, the Domestic Enquiry Officer had given opportunity to the

workman to participate in the enquiry proceedings and the workman

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without appearing and co-operating in the enquiry, sought

adjournment on flimsy grounds. It is also the case of learned

counsel for the petitioner that during the preliminary enquiry, the

management has adduced evidence by examining the witnesses

from their side and also produced Ext.M1, the documentary

evidence pertaining to the enquiry proceedings including the

enquiry report and the documents relied on by the management.

But, according to the learned counsel, the tribunal, even in the

absence of any evidence either oral or documentary from the part

of the workman, regarding their contention with respect the denial

of opportunity, came into a conclusion that there is violation of

principles of natural justice, which is against the evidence and

materials on record. Therefore, according to the learned counsel,

in the absence of any evidence to substantiate the contention of

the workman that no opportunity was given to the workman, the

preliminary finding of the tribunal is liable to be set aide. In

support of the above submission, learned counsel for the petitioner

placed reliance upon the decision of the Apex Court in Bank of

India v. Apurba Kumar Saha [1994-II LLN 56]. In the said

decision, the Apex Court had observed that the employee, after

avoiding filing of written explanation for charges of misconduct

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levelled against him and refusing to participate without any valid

reason in disciplinary proceedings, cannot be permitted to

complain later that he had been denied of a reasonable

opportunity to defend himself.

3. On the other hand, learned counsel appearing for the

first respondent/workman submits that the workman, against

whom the proceedings were initiated, is illiterate and he cannot

face the charge without proper and valid assistance from a man

like a representative of the union or Advocate. Therefore, to

make the opportunity meaningful and effective, the assistance of a

representative of the union was necessary, especially in the light of

the complicated facts and legal issues involved in the case.

Learned counsel for the first respondent pointed out that on

various occasions, the enquiry was adjourned not exclusively at

the instance of the workman and there was also contribution from

the part of the management for adjourning the hearing and to

substantiate the above contention, he had invited my attention to

the proceedings of the Domestic Enquiry Officer. It is also the

case of counsel for the first respondent that the management can

also adduce evidence to substantiate the charge as their right was

reserved in the impugned order and therefore, there is no scope

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for interfering with Ext.P4 order at this stage.

4. I have carefully considered the contentions advanced

by learned counsel for the petitioner as well as the first

respondent. I have also perused Ext.P4 order. In Ext.P4, the

tribunal has recited the proceedings of the Enquiry Officer. After

appreciating the above procedure, the tribunal has found that the

Enquiry Officer was not justified in rejecting the application for

adjournment submitted by the workman on 23.4.1998, on the

ground that his union representative’s relative died and therefore,

the representative was not in a position to participate in the

domestic enquiry. In page 36 of Ext.P3, the said application of the

workman has been exhibited. On a reading of the request of the

workman, it can be seen that he had requested for the

adjournment of the proceedings on 23.4.1998 as the union

representative was unable to attend the proceedings on that date

since his relative expired and the representative went for attending

the same. According to the Tribunal, the reason given by the

workman for seeking adjournment on 23.4.1998 is reasonable and

justified and thus, it was found that the Enquiry Officer should have

granted an adjournment of the domestic enquiry which was

scheduled on 23.4.1998 for the purpose of providing the workman

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an opportunity for participating in the domestic enquiry.

5. The jurisdiction of this Court under Article 226 of the

Constitution of India is not to sit as an appellate authority upon the

finding of the Industrial Tribunal whether preliminary or final. In

this juncture, it is relevant to note that so far, the management has

no dispute regarding the genuineness and bonafide of the ground

mentioned in the application submitted by the workman before the

Enquiry Officer. Of course, the attitude of the workman regarding

his approach towards the enquiry proceedings has to be

assessed from the entire facts and circumstances involved in the

case. As pointed out by the learned counsel for the first

respondent, the enquiry was postponed not only at the instance of

the workman and that too was not on reasonable grounds. As

observed by the tribunal itself in Ext.P4 order, on 19.1.1998, the

workman submitted an application for adjournment of the enquiry

stating that the union representative had to attend a labour

conference on that day. On 7.2.1998, the workman submitted an

application requesting to give him a copy of the complaint and

witness schedule of the management and also requested for

adjournment. It was subsequently, the workman was informed

about the names of the witnesses of the management and also

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given a copy of the complaint. On 5.3.1998, the request for

adjournment was on the ground that the Union Secretary was

hospitalised. It is also relevant to note that on all occasions, after

having satisfied with the reasons stated in the application, the

enquiry was adjourned. But on 23.4.1998, the request of the

workman was declined. It is, thereafter, the enquiry was

concluded. As evidenced by the application made by the

workman in Ext.P3 mentioned earlier on 23.4.1998, he was not

able to participate in the enquiry without the assistance of a

representative of his own choice. So, on the ground that on

23.4.1998, the workman sought an adjournment and it cannot be

said that the prayer of the workman was arbitrary or without any

bona fides or it was a lame excuse.

6. The principles of natural justice demand to give effective

and meaningful opportunity to the workman and the same cannot

be denied arbitrarily and unreasonably. In the decision relied on

by the learned counsel for the petitioner, the Supreme Court has

found that the workman has refused to participate in the

disciplinary proceedings without any valid reason. But in the

present case, as evidenced by Ext.P3, he sought adjournment on

valid ground and the same was not disputed by the management.

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Therefore, the finding of the Tribunal is absolutely correct and no

interference is called for. It is also relevant to note that as per

Ext.P4 order, as requested by the management, the right to

adduce evidence was also reserved. Therefore, it is free to the

petitioner, if so advised, to adduce evidence and to substantiate

their contentions in support of the charge levelled against the

workman.

In the light of the above facts and circumstances of

the case, I am of the view that there is no merit in the writ petition

and accordingly, the same is dismissed.

V.K.Mohanan,
Judge

MBS/

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V.K.MOHANAN, J.

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O.P.NO. 29980 OF 2001

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J U D G M E N T

DATED: 17-6-2009

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