IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36111 of 2003(M)
1. TRAVANCORE DEVASWOM BOARD,
... Petitioner
Vs
1. THE LABOUR COURT, ERNAKULAM.
... Respondent
2. BHUVANENDRAN NAIR,
3. B.SUNDERASHAN,
For Petitioner :SRI.M.K.CHANDRAMOHAN DAS, SC, TDB
For Respondent :SRI.P.RAMAKRISHNAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :12/10/2009
O R D E R
P.R.RAMAN &
P.R. RAMACHANDRA MENON, JJ.
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WP(C) NO. 36111 OF 2003 & 6221 OF 2004
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Dated this the 12th day of October, 2009
J U D G M E N T
P.R.RAMACHANDRA MENON, J
The challenge in both these Writ Petitions is against Ext.P1 Award
passed by the Labour Court, Ernakulam whereby the petitioners in WP(C)
6221/2004 have been ordered to be reinstated in service, however denying
50% back wages. WP(C) 36111/2003 has been preferred by the
Travancore Devaswom Board (Management) seeking to sustain the
dismissal of the delinquent employees imposed by the Management, while
the other Writ Petition has been preferred by the delinquent employees
seeking to interfere with the denial of the 50% back wages.
2. The first petitioner in WP(C) 6221/2004 was employed as the
`First Mahout’ in the Kodungoor Devaswom; while the second petitioner
was working as the `Second Mahout’ in Chirakadavu Devaswom. Both the
above persons were served with a charge sheet dated 29.11.1990 alleging
various misconducts, mainly that they along with some others had jointly
tortured the elephant by name Viswanathan with stick, arrow, iron rod etc.
during the nights of 04.07.1990 to 09.07.1990 in the compound of the
WPC NO.36111/2003 &
6221/2004 2
Tirunakkara Mahadeva Temple, finally leading to the death of the elephant
occurred on 09.07.1990; thereby causing heavy loss to the Management
Devaswom and tarnished the image of the Devaswom Board in the general
public. Since the delinquent employees denied charges levelled against
them, a domestic enquiry was conducted. On conclusion of the enquiry,
the Enquiry Officer found that the charge No. 1 levelled against the
delinquent employees stood proved; whereas the other charges, as to
consumption of intoxicating drinks within the Devaswom compound and on
such other heads were held as not proved. On the basis of the proven
misconduct, considering the gravity of the same, the Management
Devaswom dismissed both the above employees from the service; which
led to separate industrial disputes referred and numbered as ID Nos. 8/97
and 11/97 before the Labour Court, Ernakulam.
3. On entering appearance, both the sides submitted their
pleadings. The Enquiry Officer was examined as MW1 and the Enquiry
File was marked as M1 on the side of the Management; while nobody was
examined and no document was produced from the side of the workmen.
The Labour Court considered the validity of the domestic enquiry as a
preliminary issue and after going through the enquiry report and the
proceedings, it was held that the Enquiry Officer had conducted the
domestic enquiry adhering to the principles of natural justice and that the
WPC NO.36111/2003 &
6221/2004 3
same was valid and proper.
4. After upholding the validity of the enquiry as above, the Labour
Court, proceeded to analyse the question whether, the finding of the
Enquiry Officer was based on the evidence adduced in the enquiry. It was
observed by the Labour Court that, the materials in record did not show
that the workmen had tortured the elephant with ‘iron weapons’, with
intention to cause death of the elephant and hence that it could not be
found that the workmen had any such common intention. It was
accordingly held that the Management had failed to prove the first charge;
simultaneously observing that the Management had not sought for any
opportunity to substantiate their case before the Labour Court by raising
necessary pleadings in the written statement. Accordingly, the Labour
Court held that there was no scope for adducing any fresh evidence and
since the dismissal of the workmen was held as unsustainable; they were
ordered to be reinstated, however denying 50% of the back wages;
sustainability of which, to the extent the parties have lost, is under
challenge in the above Writ Petitions.
5. Learned Counsel for the petitioner Devaswom in WP(C)
36111/2003 referred to the sequence of events and asserted that the
presence of the workmen with sticks and such other weapons near the
elephant in the nights between 04.07.1990 and 07.07.1990, has been
WPC NO.36111/2003 &
6221/2004 4
brought in evidence by some of the witnesses examined in the enquiry.
Their `presence’ near the elephant is in fact conceded from the part of the
workmen themselves. It is also pointed out that undue reliance is placed
on the `motive’ of the delinquent employees, which is stated irrelevant in
disciplinary proceedings, simultaneously adding that the evidence on
record very much substantiates the charge; particularly when
`preponderance of probability’ is enough to prove the charges in a
domestic enquiry. Learned counsel for the workmen, who are petitioners in
WP(C) 6221/2004, submits that the finding and reasoning given by the
Labour Court, absolving the workmen from the charge and setting aside
the punishment of dismissal is very much correct and proper; however
pointing out that there is no justification for having denied 50% of the back
wages while ordering reinstatement.
6. Considering the rival contentions as to the sustainability of the
finding rendered, we perused the records including the deposition of
witnesses. It is very much seen from the evidence tendered by the
witnesses, particularly PW10 and 13 that the said witnesses had seen the
delinquent workmen near the elephant between 04.07.1990 and
07.07.1990, armed with stick and such other means. In response to the
moulded question put forth to them (as desired to be), as to torturing of the
WPC NO.36111/2003 &
6221/2004 5
elephant, it has been answered by the said witnesses confining it just as
`answer to the question’. But it remains a fact that the delinquent persons
were never employed as mahouts of the elephant Viswanathan and they
had absolutely no need, necessity or occasion to have come anywhere
near the said elephant (as they were admittedly mahouts of some other
elephants). The version of the delinquent employees that they were
standing near the elephant to watch the `domestication methods’ being
pursued by the concerned mahouts of the elephant Viswanathan does not
inspire any confidence at all; as the delinquent employees were not part of
the general public who reached the spot just because of enthusiasm to see
the training techniques, but were working as full fledged mahouts of other
elephants in Kodungoor Devaswom and Chirakkadavu Devaswom
respectively.
7. It is very much in evidence that the elephant by name
Viswanthan was being tortured by several persons during the period from
04.07.1990 to 07.07.1990 and finally, the elephant succumbed to the
injuries on 09.07.1990 as revealed from the report on post-mortem,
showing the cause of death as the result of torture. The reasoning given
by the Labour Court in paragraph 11 of the Award for interfering with the
finding and punishment is that the concerned witnesses (PW10 and 13)
WPC NO.36111/2003 &
6221/2004 6
have not spoken as to the `specified dates’ on which the concerned
workmen had beaten the elephant; that such and such mahouts had
inflicted such and such injuries with such and such weapons and further
that the evidence on record did not show that the delinquent employees
had tortured the elephant “with iron weapons, with intention to cause the
death of the elephant” and hence that the charge was not proved.
8. Going by the evidence on record and the degree of proof
required, it is seen that the Labour Court has proceeded on the wrong path,
in so far as the evidence was being counted, instead of weighing the same
as a whole. Undue reliance has been placed by the Labour Court as to the
alleged `motive’ of the workmen whose presence near the elephant with
sticks and arms stands very much vindicated. Further, based on the
evidence, the Labour Court had arrived at a finding in the very same
paragraph (para 11) that the present workmen had also beaten the
elephant, though it is stated that there was no evidence that they had
tortured the elephant “with iron weapons with intention to cause death” of
the elephant. It is well settled that, unlike in a criminal case,
preponderance of probability is enough to prove the charge in a domestic
enquiry and there is no allergy even to `hear-say’ evidence as made clear
by the Apex Court in the decisions rendered in State of Haryana and
WPC NO.36111/2003 &
6221/2004 7
another Vs. Rattan Singh [1982 (1) LLJ 46], S.N. Nagarajalu etc… and
others Vs. Railway Board and others [1982 (2) LLJ 54]. Going by the
materials on record, the relevant provisions of law and the binding judicial
precedents, it cannot but be said that the Labour Court has gone wrong
while interfering with the finding in respect of charge No. 1.
9. With regard to the punishment of dismissal imposed by the
Management and the scope of denial of 50% back wages, it can no more
be a matter of dispute that granting of back wages or a portion of the same
even in cases of reinstatement is `not automatic’ and it depends upon
various facts and circumstances including absence of any other
employment or income, the burden to prove which, is very much upon the
workers themselves as made clear by the Apex Court on many an
occasion. It is also brought to the notice of this Court that the other
mahouts who had tortured the elephant leading to its death occurred on
09.07.1990 had also been dismissed from the service of the Devaswom,
based on the very same domestic enquiry and that the same has become
final. Considering the facts and figures, the heinous act pursued by all
concerned, resulting in the death of the elephant, can’t but be deprecated.
At the same time, taking note of the fact that the extent of involvement of
the petitioners in WP(C) 6221/2004 in beating/torturing the elephant is not
clearly discernible, we find that some allowance can be given to them.
WPC NO.36111/2003 &
6221/2004 8
10. In the above circumstances, while sustaining the finding on the
`first charge’ as arrived at by the Enquiry Officer and the Management, we
hold that the punishment of `dismissal’ be modified as `removal from the
service’, granting a total sum of Rs.2,00,000/- each towards the service
benefits payable under various heads. Taking note of the fact that the
delinquent employees were paid their last drawn wages in respect of the
period from November 2003 to 20.01.2006, pursuant to the interim orders
dated 20.01.2006 in I.A. 18824/2005 and I.A. 18825/2005 in WP(C)
36111/2003, we direct the Management Devaswom (petitioner in WP(C)
36111/2003 and the second respondent in WP(C) 6221/2004) to pay the
balance amount to top up the figure to Rs.2,00,000/- each to both the
petitioners in WP(C) 6221/2004. The balance amount shall be paid to the
workers as above, as expeditiously as possible, at any rate within two
months from the date of receipt of a copy of this judgment; failing which it
will carry interest at the rate of 7% per annum.
Both the Writ Petitions are disposed of accordingly.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE
dnc