IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 35023 of 2003(T)
1. FERTILISERS AND CHEMICALS TRAVANCORE LTD
... Petitioner
Vs
1. O.P.ARAVINDAKSHAN, SENIOR DRAFTSMAN,
... Respondent
2. LABOUR COURT, ERNAKULAM.
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.C.P.SUDHAKARA PRASAD (SR.)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/04/2008
O R D E R
S.SIRI JAGAN, J.
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W.P.(C) No. 35023 of 2003(T)
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Dated this the 7th day of April, 2008
JUDGMENT
The management in ID No.45/1996 of industrial dispute
before the Labour Court, Ernakulam is challenging Ext.P1 award
passed by the Labour Court in that ID, in this writ petition. The
issue referred for adjudication was:
“Whether Shri.O.P.Aravindakshan, (workman), who has
removed from the rolls of the FACT (CD) on account of
prolonged absence is entitled to reinstatement with
backwages.”
2. The case of the management was that the petitioner
was transferred by order dated 27.6.1992 and he was due to
report for duty from 28.6.1992 from FACT Ambalamedu (Cochin
Division) to Willington Island, the workman did not report for
duty, Instead he sent a telegram dated 4.7.1992 saying that he
is on medical leave. The saying was not followed up with any
Medical Certificate or any leave application. Subsequently,
workman sent a letter stating that he is suffering from blood
pressure and he has been advised further treatment and bed
rest. He further requested the management to grant and
W.P.(C) No. 35023/2003/T -2-
regularise medical leave from 28.6.1992 and extent the same till
he joins duty on recovery from his illness. Thereafter the
management issued Exts.P8 & P9 communication directing him to
report for duty as directed by the superior officer. The workman
did not respond to the same and remain absent. Therefore, by
Ext.P10, he was removed from the rolls with effect from
20.12.1992. Against the same, workman raised industrial
dispute which culminated in Ext.P1 award by which the Labour
Court directed payment of 50% backwages from 28.6.1992 till
the date of superannuation. Since pending the dispute the
workman superannuated from service. That award is under
challenge before me.
3. The management would contend before me that apart
from sending a telegram and Ext.P7 letter dated 13.10.1992, the
workman never applied for leave or submitted any medical
certificate before the management which is a requirement under
Ext.P6 standing orders of the company. The counsel for the
management would submit that he also did not respond to the
repeated notices issued to him directing him to report for duty.
According to the management, in such circumstances the
W.P.(C) No. 35023/2003/T -3-
management was justified in assuming that the workman had
abandoned his service. They also rely on the decision in
Syndicate Bank v. General Secretary, Syndicate Bank
Staff Association and another (2000 LAB I.C. 2326) in
support of their contentions.
4. On the other hand, the learned counsel for the
workman would argue in sustaining Ext.P1 award. According to
him, during the relevant period he was totally bed ridden with
high blood pressure and at no time the management directed him
to produce any medical certificate or to appear the company
medical officer. He would also point out that the company
medical officer was also aware of his illness and in such
circumstances, it was incumbent upon the management to give
him an opportunity to produce leave application and medical
certificate. He would submit that he had produced three medical
certificates from an Ayurvedic Doctor before the Labour Court,
relying on which only the Labour Court found in his favour. He,
therefore, submits that Ext.P1 award is perfectly valid and
proper.
5. I have considered the rival contentions in detail.
W.P.(C) No. 35023/2003/T -4-
6. Even bearing in mind the limitations of my jurisdiction
under Article 226 and 227 of Constitution of India in interfering
with awards of Labour Courts and the Industrial Tribunals, I am
not satisfied that Ext.P1 award can be sustained. Here is a case
where a workman has been transfered on 27.6.1992 to another
office of the establishment within the Ernakulam city itself which
is not far away from the original office where he was working. He
did not report for duty on 28.6.1992 to the transferred office. Of
course, he requested for leave but he did not pursue that. Ext.P6
standing orders specifically prescribed the procedure for obtaining
leave. It would insist submission of a leave application alongwith
a medical certificate when leave is applied for on medical
grounds. The company has a fulfledged hospital also where the
workman can obtain free treatment. Although workman would
contend that he was dissatisfied with the treatment, he has not
produced any document regarding any treatment at the company
hospital. All that the Labour Court refers to some earlier
treatment in the company hospital. The workman has no case
that he submitted any leave application at any time except Ext.P7
letter. Although he had produced three medical certificates
W.P.(C) No. 35023/2003/T -5-
before the Labour Court, he has no evidence to the effect that
he produced the same before the management. On the other
hand, the Labour Court “categorically found that it is from that
there is no evidence to prove the originals of the above medical
certificates were submitted or workman in the company though
the workman claims so.” As I have already stated Ext.P7 as the
only letter apart from the telegram which the workman has sent
to the company that is dated 13.10.1992, at that time
admittedly, Ext.R(1)(a) medical certificate dated 28.6.1992 was
in his possession. In Ext.P7, he does not say that it was being
forwarded along with Ext.P7. The petitioner had produced two
more medical certificates dated 27.8.1992 and 26.10.1992.
These also were not produced before the management but only
before the Labour Court. The workman has no explanation
whatsoever as to why he did not produce the same before the
management. Further, in all those medical certificates he was
suffering from stated as Vatharakthavikaram. The workman did
not also examine the Ayurveda Doctor who is stated to have been
issued the medical certificate. There is no explanation
whatsoever as to why the medical certificate does not state blood
W.P.(C) No. 35023/2003/T -6-
pressure. Nothing is explained as to whether the decease is the
the same as the blood pressure. In fact, the workman has filed
an appeal before the Board of Directors of the company along
with that also the workman did not produce any medical
certificate whatsoever and admittedly, he had not produced any
leave application except Ext.P7. In spite of all these negative
evidence against the workman, the Labour Court has assumed
everything in his favour to find that his removal from service was
unsustainable. It is in some more similar circumstances that the
supreme court has referred the decision in Syndicate Bank’s case.
Therein the Supreme Court has held thus:
“14. In the present case action was taken by
the Bank under Clause 16 of the Bipartite Settlement.
It is not disputed that Dayananda absented himself
from the work for a period of 90 or more consecutive
days. It was thereafter that the Bank served a notice
on him calling upon to report for duty within 30 days of
the notice stating therein the grounds for the Bank to
come to the conclusion that Dayananda had no intention
of joining duties. Dayayanda did not respond to the
notice at all. On the expiry of the notice period Bank
passed orders that Dayananda had voluntarily retired
from the service of the Bank.
15. Now what are the requirements of
principles of natural justice, which are required to be
observed? These are: (1) workman should know the
nature of the complaint or accusation; (2) an
opportunity to state his case; and (3) the managementW.P.(C) No. 35023/2003/T -7-
should act in good faith which means that the action of
the management should be fair, reasonable and just.
All these three criteria have been fully met in the
present case. Principles of natural justice are inbuilt in
Clause 16 of the Bipartite Settlement. When evidence
was led before the Tribunal, Bank produced the
registered covers, which had been received back with
the endorsement “refused” and the addressee “not
found during delivery time”. Dayananda said he never
refused to receive the notice. In these circumstances
Tribunal thought it necessary to hold that notice was
not served on Dayananda as the Bank did not examine
the postman. The notice was sent on the correct
address of Dayanada and it was received back with the
postal endorsement “refused”. A clear presumption
arose in favour of the Bank and against Dayananda. Yet
the Tribunal held that no notice was given to Dayananda
as postman was not produced by the Bank. This
appears to us to be rather an incongruous finding by
the Tribunal. Unfortunately, High Court did not go into
this question at all. Considering the conduct of
Dayananda all this period and after three years of his
having voluntarily retired from the Bank in terms of
Clause 16 of the Bipartite Settlement his statement
that he did not receive the notice was a sheer lie. His
whole edifice was built on falsehood and yet the
Tribunal was there to give him relief on the platter
though at the same time criticised his conduct during
his employment with the Bank.
16. It is no point laying stress on the
principles of natural justice without understanding
their scope or real meaning. There are two essential
elements of natural justice which are: (a) no man shall
be Judge in his own cause; and (b) no man shall be
condemned, either civilly or criminally, without being
afforded an opportunity of being heard in answer to
the charge made against him. In course of time by
various judicial pronouncements these two principles ofW.P.(C) No. 35023/2003/T -8-
natural justice have been expanded, e.g., a party must
have due notice when the Tribudnal (sic) will proceed;
Tribunal should not act on irrelevant evidence or shut
out relevant evidence; if the Tribunal consists of
several members they all must sit together at all times;
Tribunal should act independently and should not be
biased against any party; its action should be based on
good faith and order and should act in just, fair and
reasonable manner. These in fact are the extensions or
refinements of the main principles of natural justice
stated above.
17. Bank has followed the requirements of
Clause 16 of the Bipartite Settlement. It rightly held
that Dayananda has voluntarily retired from the service
of the Bank. Under these circumstances it was not
necessary for the Bank to hold any inquiry before
passing the order. An inquiry would have been
necessary if Dayananda had submitted his explanation
which was not acceptable to the Bank or contended
that he did report for duty but was not allowed to join
by the Bank. Nothing of the like has happened here.
Assuming for a moment that inquiry was necessitated,
evidence led before the Tribunal clearly showed that
notice was given to Dayananda and it is he who
defaulted and offered no explanation of his absence
from duty and did not report for duty within 30 days
of the notice as required in Clause 16 of the Bipartite
Settlement.
18. This undue reliance on the principles of
natural justice by the Tribunal and even by the High
Court has certainly led to miscarriage of justice as far
as Bank is concerned. Conduct of Dayananda as an
employee of the Bank has been astounding. It was not a
case where the Tribunal should have given any relief to
Dayananda and yet the Bank was directed to reinstate
him with continuity of service and mercifully the latter
part of the relief High Court struck down. There was
no occasion for the Tribunal to direct that DayanandaW.P.(C) No. 35023/2003/T -9-
be reinstated in service or for the High Court not to
have exercised its jurisdiction under Article 226 of the
Constitution to set aside the Award.”
7. In the above circumstances, I have no difficulty in
coming to the conclusion that the award of the Labour Court is
clearly perverse and against the evidence adduced before it.
Therefore, Ext.P1 award is liable to be set aside. I do so. From
the files, I find that there was two orders on 5.8.2004 and
7.12.2005, a total amount of Rupees One Lakh has been directed
to be paid. It is admitted before me that the same has been paid.
Taking a lenient view, I direct that the amount need not be
recovered from the workman.
The writ petition is disposed of as above.
S.SIRI JAGAN,
JUDGE
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