IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1185 of 2005(N)
1. THE MANAGER, LAHAI ESTATE,
... Petitioner
Vs
1. THE PRESIDENT, RANNI PLANTATIONS
... Respondent
2. LABOUR COURT, KOLLAM.
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :SRI.KRB.KAIMAL (SR.)
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :10/09/2009
O R D E R
P.R. RAMACHANDRA MENON J. (C.R.)
~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C) No. 1185 of 2005
~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 10th day of September, 2009
JUDGMENT
Ext. P1 Award passed by the Labour Court, Kollam ordering
reinstatement of the additional 3rd respondent in service of the
petitioner/Management with back wages is the issue involved in this
Writ Petition.
2. The sequence of events is as as follows: The additional 3rd
respondent (hereinafter referred as ‘Worker’) was a rubber tapper
engaged by the Management in their estate. According to the
Management, she committed theft of 2 Kgs of dried latex and 200 gms
of freshly collected rubber from the estate; which was recovered from
her residence, pursuant to the search conducted at 4.30 PM on
20.6.1990, when the room was checked by the Field Officer in the
presence of Assistant Manager and Assistant Field Officer, leading to
the disciplinary proceedings, issuing charge sheet and conducting
enquiry in this regard. The misconduct on the part of the worker also
led to a criminal case filed before the concerned Magistrate’s Court.
Pursuant to the enquiry, the delinquent employee was found as guilty
on proving the charges levelled against her and she was dismissed
from service w.e.f. 17.8.90.
WP (C) No. 1185 of 2005
: 2 :
3. Subsequently, as per judgment dated 15.6.1992 in CC 329 of
1990, the Judicial Magistrate of First Class, Ranni acquitted the
accused (Worker) under Section 248 (1) of the Cr.P.C., holding that
the prosecution had failed to prove the case. The Worker represented
through the Union had raised an industrial dispute, which was referred
to be adjudicated by the second respondent/Labour Court, pursuant to
which, it was numbered as ID 84 of 1994, to decide the matter as to
whether the dismissal of Smt. Janamma (concerned worker) was
justifiable.
4. On completion of the pleadings from both the sides, evidence
was let in by the Management availing the very first opportunity to have
their action justified; particularly since the ‘enquiry file’ was not
produced before the Labour Court. Two witnesses were examined from
the part of the Management as MWs1 and 2, while the Worker herself
got examined as WW1 and produced a certified copy of judgment of the
concerned Magistrate’s Court acquitting her, as Ext. W1. The second
respondent, on conclusion of the evidence observed that, the evidence
let in before the Labour Court was much less, when compared to the
evidence let in before the Criminal Court and accordingly, it was held
that the charges levelled against the delinquent employee were not
proved. The punishment of dismissal were interfered with and the
WP (C) No. 1185 of 2005
: 3 :
Worker was directed to be reinstated with back wages and all other
attendant benefits w.e.f. 3.11.93, which in turn is subjected to challenge
from the part of the Management.
5. The learned counsel appearing for the Management submits
that, there is absolutely no discussion of the evidence adduced before
the second respondent/Labour Court, while passing Ext.P1 Award. The
learned counsel also referred to the depositions of witnesses
concerned (produced as Exts.P5 to P7) and placed reliance on the
admission made from the part of the Worker, when examined as WW1,
conceding that the incriminating materials forming subject matter of the
alleged theft were recovered from her premises, though according to
her, it was not brought in by her. The learned counsel further referred to
’17’ other specific instances of imposing various punishments upon the
Worker, as narrated in paragraph 2 of the Writ Petition pointing out that,
all such instances were after conducting proper domestic enquiry. It is
also brought to the notice of this Court that, in view of a similar
misconduct, involving theft of scrap rubber from the estate on 26.11.77,
she had been dismissed from the service and subsequently, taking a
lenient view, was reinstated on 22.7.79. It is also brought to light that,
the concerned Worker was suspended from the service on several
occasions as a measure of punishment, as provided under the standing
WP (C) No. 1185 of 2005
: 4 :
orders, and that she was ‘warned’ about 9 times. The above specific
instances of insinuation have not been rebutted neither from the part of
the first respondent Union nor from the part of the additional 3rd
respondent/Worker herself and as such, it is to be presumed that the
averments raised by the Management in this regard are quite correct
and sustainable, particularly, in view of the fact that the unrebutted
pleadings are liable to be treated as admissions.
6. The learned counsel appearing for the additional third
respondent/Worker submits that, she belongs to the lowest strata of the
society; that she is innocent and Ext.P1 Award is not liable to be
interfered under any circumstance. The learned counsel also made
reference to the case put forward by the said Worker that the search
and seizure conducted on 20.6.90 was not proper and that, it was
rather planted at the instance of her neighbour by name ‘Pulickal
Varghese’, with whom the additional 3rd respondent/Worker was in
inimical terms for nearly 22 years. It is also sated that, the residence of
the Worker was left open by her, as it was the usual practice. No proof
is there, as to any complaint filed against the said neighbour ‘Varghese’
at any point of time. The case has been sought to be moulded, placing
some reliance on Ext.P8 verdict passed by the Criminal Court, whereby
the Worker/accused was acquitted, pointing out that the reasoning
WP (C) No. 1185 of 2005
: 5 :
given by the Labour Court referring to the volume of evidence let in
before the Criminal Court leading to the acquittal, is liable to be held as
correct and proper.
7. As noted hereinbefore, there is absolutely no discussion with
regard to the evidence let in by the Management to sustain the
dismissal. The Labour Court simply made a casual reference that, the
circumstances under which MWs1 and 2, who were the Management
witnesses and employees of the Management had let in evidence is
conceivable; however forgetting the fact that there was absolutely no
case for the Worker as to any instance of hostility, mala fides or
victimization on the part of the Management or the Management
witnesses, except the inimical terms with her neigbour ‘Varghese’. It
appears that, the second respondent/Labour Court was carried away by
the alleged ‘volume of evidence’ stated as let in before the Criminal
Court and the quantum of evidence let in before the Labour Court,
stated as much less. In other words, the evidence was being
considered by its ‘volume’ rather than by evaluating the same as a
whole. It is settled law that the evidence is not to be ‘counted’ but to be
‘weighed’, where the Labour Court has gone wrong.
8. Another important aspect to be looked into is that the inference
with the quantum of punishment is possible only as provided under
WP (C) No. 1185 of 2005
: 6 :
Section 11 (A) of the Industrial Disputes Act. The scope of inference
has been explained by the Apex Court on many an occasion and it is
very much discernible from the decision rendered by a Division Bench
of this Court as well, in Cochin Shipyard Ltd. V. Industrial Tribunal
(2006 (2) KLT 825) . Similarly, mere acquittal in a criminal case cannot
constitute the position to hold that, the accused/delinquent is entitled to
be absolved from all the charges in a departmental proceedings, as
held in Suresh Kumar Vs. Travancore Devaswom Board (2005 (3)
KLT 723). Obviously, Ext.P8 judgment passed by the concerned
criminal court is not an ‘honourable acquittal’ and the Worker/delinquent
was acquitted only for the fact that prosecution did not succeed in
proving the offence so as to impose the punishment on the accused. By
virtue of the settled position of law, the Management is very much at
liberty to deal with the misconduct by way of disciplinary proceedings to
arrive at the guilt of the delinquent employee independently, where the
degree of proof is entirely different, as preponderance of probability is
enough and there is no allergy even to ‘hear-say’ evidence as made
clear by the Apex Court in State of Haryana and another Vs. Rattan
Singh (1982 (1) LLJ 46) and Shri. J. D. Jain Vs. The Management of
State Bank of India and anther (1982 (1) LLJ 54). This is more so,
when the antecedents of the delinquent employee are also permissible
WP (C) No. 1185 of 2005
: 7 :
to be looked into, while fixing the quantum of punishment. As such, it
was not at all correct or proper for the Labout Court to have interfered
with the punishment quite mechanically, ordering reinstatement with
back wages.
9. With regard to the question of ‘back wages’, it has been made
clear by the Apex Court on many an occasion including in the decisions
reported in State of Maharashtra Vs. Reshma Remesh Meher (2008
(8) SCC 664) and Kanpur Electricity Supply Co. Ltd. Vs. Shamim
Mirza (2009 (1) SCC 20) that the payment of back wages is not
automatic. It will depend upon the various facts and circumstances,
including the availability of any alternate employment for the Worker
concerned. As per the decision of the Apex Court reported
in Talwara Co.op Credit & Service Society Ltd. Vs. Sushil Kumar
(2008 (9) SCC 486), it has been held that the burden is very much upon
the employee to prove that she/he was not having any employment and
was not having any income in this regard, to sustain payment of back
wages or even a portion of the same. Absolutely no evidence was let in
from the part of the Union or Worker in this regard and this has not
been considered by the Labour Court as well.
10. For the reasons stated hereinbefore, the finding and
reasoning given by the Labour Court cannot be sustained in any
WP (C) No. 1185 of 2005
: 8 :
manner and as such, Ext.P1 Award is set aside and the matter is
remanded to the second respondent/Labour Court for adjudicating the
issue afresh. It is also made clear that, both the sides will be at liberty to
adduce further evidence, if any. The second respondent shall consider
and finalize the matter accordingly, as expeditiously as possible, at any
rate within three months from the date of receipt of a copy of this
judgment. Both the sides shall appear before the second respondent on
15th October, 2009 so as to enable the second respondent to fix the
next date of posting and to proceed with further steps.
The Writ Petition is allowed to the above extent. No cost.
P. R. RAMACHANDRA MENON, JUDGE
kmd