IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 21683 of 2005(F)
1. THE GENERAL SECRETARY,
... Petitioner
2. C.A.GEORGE, WORKER, AFDC LTD.,
3. JIJI JOHN, WORKER, AFDC LTD.,
4. DELEEP KUMAR C.R. WORKER, AFDC LTD.,
Vs
1. THE MANAGER, ACCELERATED FREEZE DRYING
... Respondent
2. THE LABOUR COURT, KOLLAM.
For Petitioner :SRI.N.R.CHANDRASEKHARAN
For Respondent :.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/07/2007
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)NOs.21683,25354 OF 2005
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DATED THIS THE 18th DAY OF JULY, 2007
JUDGMENT
The management and union in the same industrial dispute has
come up before this Court challenging the award in that industrial
dispute by filing these two writ petitions. W.P.(C)No.25354/05 is filed
by the management and W.P.(C)No.21683/05 is filed by the union. For
convenience I would refer to the pleadings and documents available in
W.P.(C)No.25354/05. The industrial dispute is in I.D.No.123/95
before the Labour Court, Kollam. The issue referred for adjudication
was as follows:
“Whether the dismissal of four workers
namely S/Sri. C.A. George, Joy Chacko, Dileep
Kumar and Jiji John is justifiable, if not, what
remedy entitled to them”
Since the dismissal of the workers were after conducting domestic
enquiries , the Labour Court considered the validity of the enquiry as a
preliminary point and came to the conclusion that the enquiries are
unsustainable. Therefore, the management was given opportunity to
adduce fresh evidence. The management adduced fresh evidence.
However, the evidence did not find favour with the Labour Court and
W.P.(c)Nos.21683/05 & con.case 2
the Labour Court found that the charges were not proved.
Accordingly, by Ext.P5 final award, the dismissal of the four workers
by the management was held to be unjustified and they were
directed to be reinstated with 25% backwages and attendant
benefits. The management is challenging Ext.P14 preliminary order
and Ext.P15 final award. The union espousing the cause of the
workmen are challenging that part of the award by which 75%
backwages were denied to them.
2. The contention of the management is that the findings
in the preliminary order, that the charges were vague and the
enquiries were not conducted properly, are unsustainable.
According to the Management, Ext.P2 show cause notice was first
issued to the workmen on the basis of Ext.P1 complaint from the
Supervisor. After obtaining replies from them, Ext.P4 was issued
intimating them that the explanations are unsatisfactory and
therefore domestic enquiries have been ordered. The submission is
that Ext.P2 read with Ext.P4, would show that the charges were
definite and not at all vague. He would further submit that the
finding that the preliminary order is bad is also perverse. The
learned counsel for the management further submits that even
assuming that even if the findings in the domestic enquiry cannot be
sustained, on the basis of the evidence adduced before the Labour
Court, the management has clearly proved the misconducts against
W.P.(c)Nos.21683/05 & con.case 3
the workmen. According to the learned counsel for the
management since the management has succeeded in proving the
charges, the punishment of dismissal imposed on the workmen
should have been upheld as the punishment was commensurate
with the gravity of the misconduct. In support of the contention,
they rely on the decisions of the Supreme Court of India in Bharat
Forge Co.Ltd. Vs. Uttam Manohar Nakate (2205 (1) CLR 533)
and the Bombay High Court in Golden Chemicals Ltd Vs.
Mohamad Azam Dil & Anr. (2007 LLR 432) as also that of the
Supreme Court of India in State of Hariyana and another Vs.
Rattan Singh (1982(1) LLJ 46).
3. In answer to the contentions of the management, the
learned counsel for the Union would submit that the preliminary
order and the findings in the final award are perfectly valid and
proper and are not liable to be interfered with by this Court. He
would take me through the findings in the case and would attempt
to show that there is absolutely no evidence adduced by the
management to prove the misconduct against the workmen.
4. I have considered the rival contentions in detail. I will
first deal with the question as to whether the charges are vague.
For that I must first consider the original show cause notice issued
to the workers which is produced as Ext.P2. The same which is in
Malayalam, roughly translated into English, would read as follows.
W.P.(c)Nos.21683/05 & con.case 4
“On 16.12.93, you were working in the third
shift (1.00 a.m. to 9.00 a.m.). But from 2.40 a.m.
onwards you, without doing the work, you went to
the rest room and slept there. When you were so
found sleeping, the Junior Supervisor Sri. Nelson at
3.40 a.m. called you, but you refused to obey and
behaved indecently towards him. Thereafter, as
directed by the shift -in -charge and the Asst.
Manager, Sri. Viji Antony, Senior Supervisor Sri.
Sasidharan K.V. came and called you thrice (at 3.50
a.m., 4.00 a.m.,4.15 a.m.), in spite of which you
refused to come out of the rest room and to
continue the work. Thereafter, you came for work
only at 6.15.
Your above acts constitute very serious
dereliction of duty”
To this, Ext.P3 reply was filed by the workers. The management
issued Ext.P4 wherein the show cause notice and reply thereto were
referred to and it was stated that the worker has committed the
following misconducts.
“1. On 16.12.93 while on the third
shift, worker slept.
2. The worker behaved indecently
to Supervisor Mr. Nelson.
3. The worker behaved
irresponsibly at a place where perishable
food items were being handled.”
5. On a reading of Exts.P2 and P4 together, I am not
satisfied that the charges are vague enough to hold that the enquiry
is bad on that ground. At least, the first charge is clearly definite
and not at all vague. Since the first charge alone was seriously
raised by the management before the Labour Court at the time of
adducing fresh evidence, I am inclined to consider whether that
W.P.(c)Nos.21683/05 & con.case 5
charge has been proved before the Labour Court first, since if the
same is held in the affirmative it is not necessary to go into the
question as to whether the preliminary order holding the enquiry as
invalid is correct or not.
6. The union has produced the evidence of the witnesses
before the Labour Court along with their counter affidavit to the
petition under Section 17B. The Labour Court found that the first
charge of sleeping while on duty has not been proved on the ground
that the person, who went to the workers for calling them for duty 2
or 3 times, namely, Sri. Nelson, was not examined as a witness.
This finding is in paragraph 7 of Ext.P15 award, which reads thus.
” Now, the question is whether the
management has been successful in proving the
allegation in charge No.1 that the 4 workers while
working in the shift from 1.00 a.m. to 9.00 a.m.
were sleeping in the rest room between 3.30 a.m.
and 6 a.m. Even the charge issued to the workers
in this regard does not specify the time and no
statement of allegations are appended to the
charge. Only in the evidence it is elaborated that
they were sleeping at the rest room between 3.30
a.m. to 6.15 a.m. MW2 the Supervisor examined
does not specifically say that he has seen the
employees sleeping in the rest room, nor has he
an allegation that he went to the rest room and
called the workers for duty. MW2 admitted that he
has given them break for rest at 2.40 a.m. and
according to the evidence of MW2, it is one Nelson,
a Junior Supervisor, who went to the workers for
calling them for duty 2 or 3 times. This person
was not cited and examined. It is stated that MW2
reported the matter to the Assistant Manger and
he had also gone to call the workers for duty. This
man was also not examined to say that he has
seen the persons sleeping while on duty and in
W.P.(c)Nos.21683/05 & con.case 6
spite of his calling them they refused to attend
duty.”
(underlining supplied)
7. I am of opinion that this finding particularly the
underlined portion is not in accordance with the evidence given by
Sri. Sasidharan K.V., Shift Supervisor. The case of the
management was that at 3.40 a.m. Sri. Nelson, Junior Supervisor
went to call the workers in the rest room and the workers were
found sleeping and they did not come for duty. Thereafter, it was
the said Sasidharan, who went to call them thrice between 3.50
a.m. and 4.15 a.m., but the Labour Court has misread this evidence
and entered a finding that it was the said Sri. Nelson, who went to
call the workers two or three times. This is clearly a perverse
finding based on the evidence of Sri. Sasidharan K.V., who
categorically stated that he, himself had gone to call the workers
thrice between 3.15 a.m. and 4.50 a.m.
8. The learned counsel for the Union would vehemently
argue that going by the evidence of the management read with the
evidence of the workmen, there was no sufficient evidence to find
the workmen guilty. I do not agree with the learned counsel for the
Union. In Ext.R1(k) deposition of Sri. Sasidharan K.V. (MW2), he
categorically stated that at 2.40 a.m., the workers were given rest
till 3.40 a.m. and when they were called by Sri. Nelson, Junior
Supervisor at 3.40 a.m., they were sleeping in the rest room and in
W.P.(c)Nos.21683/05 & con.case 7
spite of calling them, they did not come for work. He then
categorically stated that between 3.50 a.m. and 4.15 a.m. thrice he,
himself went and called the workers and they did not respond. He
also stated that thereafter he reported the matter to the Asst.
Manager, Sri. Viji Antony, who also called the workers, who
responded angrily. He further stated that it was at 6.15 that they
came for work. This evidence is more than sufficient in a labour
case to prove that the management has proved the misconduct of
sleeping while on duty. I am constrained to observe that the
Labour Court weighed the evidence as in a criminal case. It is
settled law that the degree of proof required in a labour case is
neither that of proof beyond a reasonable doubt as in a criminal
case or preponderance of probability as in a civil case. The strict
and sophisticated rules of evidence under the Indian Evidence Act
may not apply. All materials which are logically probative for a
prudent mind are permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus and credibility.(see
Rattan Singh’s Case, supra). Therefore just because the said
Nelso was not examined, the same does not in any way undermine
the evidence of MW2.
9. Of course, the learned counsel for the Union would say
that the workers were engaged in the work of pre-processing and
only because they did not have enough work, they did not come for
W.P.(c)Nos.21683/05 & con.case 8
work. I do not find any merit in this contention also. In Ext.R1(m),
evidence of one of the workers, he had categorically stated that
during the shift in question, the workers were given the work of
“case loading and shifting”. Their contention was that only because
that work was not there, they went to take rest. As and when there
was work, they came and did the work is the contention. But the
Union themselves in cross examination of MW2 brought out that
there was in fact work of loading which needed to be done and the
concerned workers did not attend that work in spite of direction in
that regard. They also brought out in cross examination that there
were other workers doing the very same work, at the relevant time.
10. In view of the above discussion, I am of opinion that the
finding of the Labour Court that the first charge has not been
proved is clearly perverse. That being so, I am inclined to hold that
the workers concerned were guilty of the first charge of sleeping
while on duty.
11. The learned counsel for the management would contend
that once sleeping while on duty is proved as a misconduct
committed by the workmen, going by the decisions quoted by them,
(Bharat Forge’s Case and Golden Chemicals case, supra)
clearly, the punishment of dismissal cannot be stated to be
disproportionate to the gravity of the misconduct. Going through
the decisions, I find that in those decisions, the Courts came to that
W.P.(c)Nos.21683/05 & con.case 9
conclusion not merely based on the misconduct alone but taking
into account the attendant circumstances and based on the past
records of the workmen involved in that case. The management has
no case that the past conduct of the workmen was in any way
faulty. Therefore, I am not inclined to apply the very same yardstick
in this case also. Therefore, I do not think that the punishment of
dismissal imposed on the workmen by the management was the
proper punishment and I find that it was in fact excessive.
Therefore, while holding that the first charge against the workmen
was proved, I do not find it necessary to interfere with the ultimate
relief granted by the Labour Cout to the workers, namely
reinstatement with 25% backwages and attendant benefits. I feel
that the denial of 75% backwages would be sufficient punishment
for the workmen.
12. I also note the two decisions referred to by the learned
counsel for the Union namely, Hindustan Tin works Pvt.Ltd and
The Employees of M/s. Hindustan Tin Works Pvt. Ltd. And
others (1979(2) SCC 80 and Allahabad Jal Sansthan Vs. Daya
Shankar Rai & Anr. (2005 (5) SC 112). Those decisions are
relied on to contend that payment of full backwages is the rule
when the misconduct is found to be not proved. I am of opinion
that those decisions are not applicable, once I found that the first
charge of sleeping while on duty has been clearly found against the
W.P.(c)Nos.21683/05 & con.case 10
workmen. In the above circumstances, although I set aside the
finding in Ext.P5 that the first charge has not been proved, I am not
interfering with the ultimate relief granted to the workmen in the
award.
These writ petitions are disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
W.P.(c)Nos.21683/05 & con.case 11