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.
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O.P.No. 29980 of 2001 - R
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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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