IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32425 of 2004(I)
1. KERALA PRIVATE MOTOR & MECHANICAL
... Petitioner
2. S.ANIL KUMAR, PUTHEN VEEDU,
Vs
1. THE PRESIDING OFFICER,
... Respondent
2. QUILON AUTOMOBILES EMPLOYEES
For Petitioner :SRI.H.B.SHENOY
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/06/2004
O R D E R
S.SIRI JAGAN, J
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W.P (C).No.32425 OF 2004
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Dated this the 17th day of June, 2008.
J U D G M E N T
The workman involved in ID No.54/1996 before the
Labour Court, Kollam is the petitioner herein, who
challenges Ext.P7 award passed by the Labour Court in that
ID. The issue referred for adjudication in that ID was as
follows:
“Whether denial of employment to Sri.S. Anilkumar,
conductor with effect from 4.2.1994 by the management of
Quilon Automobile Employee Co-operative Society Ltd.
No.!797, Kadampanadu is justifiable if not the relief entitled
to the worker”.
2. The Labour Court found that the workman was
actually dismissed from service after conducting an enquiry
against which the workman did not raise any objection and
therefore there is no denial of employment. Accordingly,
the Labour Court held that the alleged denial of
employment to the petitioner is not true, that he was
dismissed from service as per a validly conducted enquiry
W.P (C).No.32425 OF 2004 – 2 –
and that he is not entitled to any relief against the
management. This award is under challenge before me.
3. For appreciating the contention of the petitioner in
the right perspective, it is necessary to refer to a few facts
in detail.
4. The complaint which gave rise to the ID was that the
petitioner was denied employment with effect from
4.2.1994. While negotiations between the union and the
management on the question of denial of employment with
effect from 4.2.1994 were pending, the management issued
a show cause notice dated 7.3.1994, to which the petitioner
filed an explanation dated 9.3.1994. Pursuant to the same, a
domestic enquiry also ensued, in which the petitioner
participated. While that proceedings were going on, the
industrial dispute on the issue of denial of employment of
the petitioner with effect from 4.2.1994 came to be referred
for adjudication to the Labour Court, which dispute was
adjudicated by the Labour Court as I.D.No.54/1996. While
that ID was being adjudicated, the management dismissed
W.P (C).No.32425 OF 2004 – 3 –
the petitioner from service with effect from 16.1.1997.
Against the same, the petitioner filed Ext. P5 complaint
before the 1st respondent under section 33A of the
Industrial Disputes Act, in which he challenged the validity
of his dismissal without obtaining prior approval from the
Labour Court as provided under Section 33(2)(b) of the
Industrial Disputes Act. In that compliant, he challenged
the validity of the enquiry as well. He contented that no
charge sheet was issued to the petitioner by the
management, that the charges were framed by the Enquiry
Officer, that the Enquiry Officer did not comply with the
principles of natural justice and that the petitioner was not
given sufficient opportunity to adduce evidence. The
petitioner would submit that the complaint under Section
33A was numbered as ID No.23/2000 and that the same is
still pending adjudication before the Labour Court. It is
while the matters were standing so that Ext.P7 award was
passed holding that the enquiry is valid and proper in so far
as the petitioner has not challenged the validity of the
W.P (C).No.32425 OF 2004 – 4 –
enquiry proceedings in his claim statement.
5. The counsel for the petitioner would argue that the
Labour Court did not appreciate the facts of the case and
the scope of proceedings under Section 33A in the right
perspective. She would point out that the Labour Court
failed to note that the validity of the enquiry and dismissal
was elaborately challenged in the complaint under Section
33A and that the issue in this I.D. was different in so far as
the dismissal of the petitioner was pending adjudication of
the issue of denial of employment. Therefore, she would
submit that the impugned award is totally unsustainable.
6. After understanding the facts as narrated above, I
have no hesitation to hold that the procedure adopted by
the Labour Court is totally against the provisions of the
Industrial Disputes Act. Admittedly, the issue referred for
adjudication was denial of employment with effect from
4.2.1994. It is subsequent to raising of that dispute that the
disciplinary proceedings were initiated against the
petitioner. The management had no case that subsequent
W.P (C).No.32425 OF 2004 – 5 –
to 4.2.1994, the petitioner was reinstated in service before
initiating disciplinary proceedings. On the other hand, they
had participated in the industrial dispute in which the issue
involved was denial of employment with effect from
4.2.1994. It was while the adjudication of that dispute was
going on the petitioner was dismissed from service.
Therefore, at the time of dismissal of the petitioner on
16.1.1997 an industrial dispute relating to denial of
employment to the petitioner was pending adjudication by
the Labour Court itself. In those circumstances, certainly
Section 33(2)(b) of the Industrial Dispute Act is squarely
attracted. The management could not have dismissed the
workman from service without filing an application for
approval of the Labour Court, since an ID in which the
denial of employment of the petitioner was an issue, was
pending adjudication. The Labour Court rightly numbered
the complaint under Section 33A as a separate industrial
dispute and started proceedings in that ID as ID
No.23/2000. In fact, the question of validity of the enquiry
W.P (C).No.32425 OF 2004 – 6 –
etc., and dismissal ought to have been considered in that ID
only and not in ID No. 54/96, as done by the Labour Court.
Therefore the procedure adopted by the Labour Court is
clearly wrong.
7. On merits also, Ext.P7 award appears to be against
the facts of the case. Ext.P5 is the complaint, under Section
33A, filed by the petitioner. In the same, in paragraphs 8 to
12, the petitioner has specifically contended as follows:
8) Regarding the domestic enquiry and subsequent
dismissal the complainant submits as follows:-
The enquiry was conducted even without giving
proper 2nd specific charge sheet to the complainant. The
show cause notice dated 7/3/1994 was issued by the
opposite party to the complainant after the illegal denial of
employment to the complainant with effect from 4/2/1991.
The same was issued by the opposite party with a view to
their avowed purpose to terminate the complainant from
their service at any rate.
9) Though the Enquiry Officer was appointed on
15/3/1994, he purposely prolonged the enquiry proceedings
for a period of two years from 5/5/1994 to 21/6/1996 with
the connivance of the opposite party to harass and
victimise the complainant. During the said period the
opposite party deliberately denied employment to the
complainant.
10) The charge sheet was issued by the opposite
party to the complainant.
The charge was framed by the Enquiry Officer after
the enquiry proceedings commenced. Thus no opportunityW.P (C).No.32425 OF 2004 – 7 –
was given to the complainant for explaining case properly.
The allegations raised in the show cause notice dated
7/3/94 against me are vague and not specific and against
the facts.
11) The Enquiry Officer conducted the enquiry
without complying the principles of natural justice. He did
not record the proceedings and evidences properly. He
was not impartial. He was based against me. He has not
given opportunity to me to adduce my evidences. The
application filed by the complainant praying for allowing to
adduce evidence of the complainant was not allowed by the
enquiry officer.
Therefore, the enquiry report and proceedings are
against facts illegal, improper, and invalid and hence this
Hon’ble Court may set aside the enquiry report.
12) In spite of the repeated written demand of the
complainant the opposite party did not give the copy of
enquiry report and proceedings to the complainant.
Therefore the complainant could not explain the defects of
the enquiry report and proceedings and the findings of the
Enquiry Officer. This is a clear violation of Principles of
Natural Justice.
The extreme punishment dismissal of the complainant
was not necessary and unwarranted on the allegations
raised by the opposite party against the complainant.
The action of the opposite party is dismissing the
complainant is hard and hash and against the Principles of
Natural Justice and it amounts to unfair labour practice and
victimisation.
Therefore I humbly pray that this Hon’ble Court may
be pleased to set aside the dismissal order dated
16/1/1997.”
8. However, in the award, in paragraph 9, the Labour
Court held thus:
“The worker while raising the dispute through the
W.P (C).No.32425 OF 2004 – 8 –
union before the District Labour Officer alleged that it was a
case of denial of employment for no reason and the
existence of the disciplinary proceedings against the worker
was not disclosed. A perusal of Ext.14 and the report of the
enquiry officer shows that the worker was participating the
enquiry through out he had cross examined all the witnesses
examined as MW1 to MW5. As I have earlier stated no
separate claim statement is filed before this court and the
enquiry proceedings are not challenged by the worker in
any manner. In the evidence also the worker is not
canvassing anything against the disciplinary proceedings.
As such there is no reason to discard the enquiry report and
the allegation of the worker that it is a wrongful denial of
employment by the management from 4.2.1994 onwards
totally failed.”
9. The finding in Ext.P7 that the petitioner had not
challenged the enquiry proceedings in any manner is
clearly against the facts of the case in view of Ext.P5
complaint, which has been numbered as an ID and is being
adjudicated. In fact the issue referred in I.D.54 of 1996
namely ‘denial of employment of the petitioner’ was not
adjudicated at all and the Labour Court erroneously
assumed that the two issues merged into one on account of
the subsequent disciplinary proceedings. The Labour Court
lost right of the fact that the contention of the petitioner is
that he was denied employment from 4.2.1994 and that the
management had not case that the disciplinary proceedings
W.P (C).No.32425 OF 2004 – 9 –
was after reinstating him. The Labour Court ought to have
examined whether the subsequent disciplinary proceedings
themselves was not one initiated for overcoming the
illegality of denying employment to the workman. In any
event it is beyond comprehension as to how the Labour
Court could have accepted the dismissal during the
pendency of the dispute on denial of employment as a
defence for justifying the denial of employment. It is
pertinent to note that the Labour Court does not refer to
any contention of the management regarding the status of
the workman from 4.2.1994 to 16.1.1997, whether he was
about from work or was suspended pending enquiry without
a finding on which the issue of denial of employment could
not have been validly disposed of.
10. Further, in paragraph 8 of Ext.P7 award, the
Labour Court holds that the secretary of the society during
1994 was examined as MW2, who deposed that the worker
was dismissed from service for misconduct after due
enquiry. I am at a loss to understand how a secretary of
W.P (C).No.32425 OF 2004 – 10 –
1994 could vouch for the dismissal of an employee on
16/1/1997. That would further show that the Labour Court
did not apply his mind properly to the facts of the case.
For all the above reasons, clearly Ext.P7 award is
clearly vitiated. Accordingly the same is quashed. The
matter is remanded to the Labour Court for fresh
adjudication in accordance with law along with ID No. 23 of
2000 as expeditiously as possible at any rate within four
months from the date of receipt of a copy of this judgment.
This writ petition is allowed as above.
S.SIRI JAGAN, JUDGE
rhs