IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 14475 of 2004(W)
1. PALAKKAD PLANTATION AND GENERAL
... Petitioner
Vs
1. NELLIYAMPATHY TEA PRODUCE COMPANY
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/12/2007
O R D E R
S.SIRI JAGAN, J.
=======================
W.P.(C) No. 14475 of 2004
=======================
Dated this the 5th day of December, 2007
JUDGMENT
The Union in ID no.56/2001 before the Industrial Tribunal
Palakkad challenges in this writ petition Ext.P1 award passed by
the Tribunal in that ID. The issue referred for adjudication was
as follows:
“Whether the dismissal of Sri.Murukan and Sri.Arumughan
is justifiable? If not what relief they are entitled to?.”
2. Since the dismissal of the workmen was after having
been found guilty in a domestic enquiry, the validity of the
enquiry was considered as a preliminary point. The tribunal after
adjudication of the preliminary point came to the finding that the
enquiry was conducted validly and properly and that there was
sufficient evidence adduced in the enquiry to support the
charges against the workmen. Thereafter, since the charges
proved against the workmen involved theft of property belonging
W.P.(C) No. 14475 /2004 -2-
to the management, the tribunal upheld the punishment of
dismissal imposed on the workmen.
2. The union is challenging that award on the following
grounds: First is that the workmen were not paid subsistence
allowance during the enquiry. Second, in the enquiry the
management produced documents, copies of which were not
furnished to the workmen. Thirdly, the enquiry officer relied on
statements made by the workmen before the police, which the
enquiry officer ought not to have done.
3. In answer to the same, the counsel for the
management would contend that the workmen were not
suspended as they were only temporary employees. Regarding
the documents the counsel for the management would submit
that list of documents were given in advance to the workmen and
they were also permitted to peruse the documents. Therefore no
principles of natural justice have been violated. Regarding the
reliance on the statements of the workmen before the police,
the counsel would argue that since the Rules of Evidence Act
does not apply to departmental/domestic enquiries, the reliance
on the statements before the police cannot be held against the
W.P.(C) No. 14475 /2004 -3-
validity of the enquiry. He also relies on the Supreme Court in
Kuldip Singh v. State of Punjab (1997 (1) LLJ 131) in this
regard.
4. I have considered the rival contentions in detail.
Regarding the first contention of non-payment of subsistence
allowance, the industrial tribunal has held in paragraphs 2-6 of
Ext.P1.
“The first point raised by the union in the charter of
demands dated 15.1.01 is that the subsistence allowance was not
paid to the delinquent workmen. This union has not denied the
averment of the management that they were only temporary
workmen and they were not suspended from service. According to
management, they remained absent during the relevant time. The
management has also issued showcause notices to the workmen
for unauthorised absence. In the circumstance, it cannot be held
that the workmen were suspended pending enquiry and they were
entitled to claim the subsistence allowance.”
5. In view of the above findings, I do not think that the
enquiry is vitiated for non-payment of subsistence allowance.
Further, non-payment of subsistence allowance alone is not a
ground for vitiating the enquiry unless it is supported by
pleadings and proof of prejudice caused to the workmen on
account of non-payment of subsistence allowance. There is no
pleadings or proof regarding any prejudice caused to the
workmen on account of non-payment of subsistence allowance
W.P.(C) No. 14475 /2004 -4-
in this case. Therefore, I do not find any merit in that
contention.
6. The contention regarding nonsupply of copies of
documents have been dealt with by the tribunal in paragraphs 2-
8 of award, thus:
“The workman had submitted Ext.W6 representation dated
4.11.2000 to the enquiry officer requesting to furnish them
the documents produced on that day. It is seen from the
enquiry proceedings that some material documents were
produced on 4.11.2000 and the same were marked as
Exhibits. The Enquiry Officer has noted in the proceedings
dated 4.11.2000 that the representative of the workmen
requested for the copies of these documents and also for
adjournment of the enquiry for studying the same.
Accordingly, the enquiry was adjourned to 8.11.2000. It is
further observed from the enquiry proceedings dated
8.11.2000, that the Enquiry Officer had asked the delinquent
workmen before the cross-examination of the witness whether
they wanted to read out the documents produced on
4.11.2000. They replied in the negative and this has been
recorded in the enquiry proceedings. In Ext.B4 letter dated
8.11.2000 addressed to the Enquiry Officer, the workmen had
admitted that they had received some of the documents
produced by the management on 4.11.2000. However, it is
not specified therein the details of the documents which were
received or not received by them. The witness, Devadas who
had produced the above documents was cross-examined on
behalf of the workmen only on 8.11.2000. The material
documents which were produced on 4.11.2000 are documents
connected with the police case viz. scene Mahazer, Seizer
Mahazer, release order, confession statement etc. It is clear
from the enquiry file that the list of these documents had been
furnished to the workmen in advance and they were also given
ample opportunity to peruse them during the course of
enquiry. It was therefore possible for the workmen and their
union-representative to study these documents with the
assistance of a legal expert before 8.11.2000 and to get ready
for the cross-examination of Devadas on these documents. IW.P.(C) No. 14475 /2004 -5-
therefore do not find any merit in the contention of the union
that the enquiry is vitiated for the reason of non-furnishing the
copies of certain documents to the workmen.”
7. I do not find any perversity whatsoever in the said
findings. After the production of those documents, at the request
of the workmen, the enquiry was adjourned to enable them to
prepare their defence and they were also given opportunity to
peruse the documents. As such there is no violation of principles
of natural justice as contended by the counsel for the petitioner.
8. Regarding the reliance on the statements made before
the police, it is settled law that Rules of Evidence, under the
Evidence Act are not applicable to proceedings in a domestic
enquiry. Domestic enquiry cannot be equated to a criminal trial.
Further in the decision in Kuldip Singh v. State of Punjab,
Supreme Court has held that statements before the police cannot
be held to be inadmissible in evidence in domestic enquiries.
Therefore the contention of the petitioner on this count also
without any merits.
9. Regarding the question of punishment admittedly the
workmen were found guilty of theft. For such mis-conduct, the
punishment of dismissal from service cannot be held to be
W.P.(C) No. 14475 /2004 -6-
shockingly disproportionate to the gravity of the misconduct. For
the above reasons, I do not find any merit in the writ petition
accordingly, the same is dismissed.
S.SIRI JAGAN,
JUDGE
jp