{"id":33515,"date":"2009-09-10T00:00:00","date_gmt":"2009-09-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-the-president-on-10-september-2009"},"modified":"2015-01-20T08:29:49","modified_gmt":"2015-01-20T02:59:49","slug":"the-manager-vs-the-president-on-10-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-the-president-on-10-september-2009","title":{"rendered":"The Manager vs The President on 10 September, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
The Manager vs The President on 10 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 1185 of 2005(N)\n\n\n1. THE MANAGER, LAHAI ESTATE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE PRESIDENT, RANNI PLANTATIONS\n                       ...       Respondent\n\n2. LABOUR COURT, KOLLAM.\n\n                For Petitioner  :SRI.ANTONY DOMINIC\n\n                For Respondent  :SRI.KRB.KAIMAL (SR.)\n\nThe Hon'ble MR. Justice P.R.RAMACHANDRA MENON\n\n Dated :10\/09\/2009\n\n O R D E R\n                   P.R. RAMACHANDRA MENON J.                (C.R.)\n                    ~~~~~~~~~~~~~~~~~~~~~~~\n                      W.P.(C) No. 1185 of 2005\n                    ~~~~~~~~~~~~~~~~~~~~~~~\n            Dated, this the 10th day of September, 2009\n\n                              JUDGMENT\n<\/pre>\n
       Ext. P1 Award passed by the Labour Court, Kollam ordering<\/p>\n
reinstatement of the additional 3rd respondent in service of the<\/p>\n
petitioner\/Management with back wages is the issue involved in this<\/p>\n
Writ Petition.\n<\/p>\n
       2. The sequence of events is as as follows: The additional 3rd<\/p>\n
respondent (hereinafter referred as ‘Worker’) was a rubber tapper<\/p>\n
engaged by the Management in their estate.          According to the<\/p>\n
Management, she committed theft of 2 Kgs of dried latex and 200 gms<\/p>\n
of freshly collected rubber from the estate; which was recovered from<\/p>\n
her residence, pursuant to the search conducted at 4.30 PM on<\/p>\n
20.6.1990, when the room was checked by the Field Officer in the<\/p>\n
presence of Assistant Manager and Assistant Field Officer, leading to<\/p>\n
the disciplinary proceedings, issuing charge sheet and conducting<\/p>\n
enquiry in this regard. The misconduct on the part of the worker also<\/p>\n
led to a criminal case filed before the concerned Magistrate’s Court.<\/p>\n
Pursuant to the enquiry, the delinquent employee was found as guilty<\/p>\n
on proving the charges levelled against her and she was dismissed<\/p>\n
from service w.e.f. 17.8.90.\n<\/p>\n
 WP (C) No. 1185 of 2005
\n                                   : 2 :<\/span><\/p>\n
       3. Subsequently, as per judgment dated 15.6.1992 in CC 329 of<\/p>\n
1990, the Judicial Magistrate of First Class, Ranni acquitted the<\/p>\n
accused (Worker) under Section 248 (1) of the Cr.P.C., holding that<\/p>\n
the prosecution had failed to prove the case. The Worker represented<\/p>\n
through the Union had raised an industrial dispute, which was referred<\/p>\n
to be adjudicated by the second respondent\/Labour Court, pursuant to<\/p>\n
which, it was numbered as ID 84 of 1994, to decide the matter as to<\/p>\n
whether the dismissal of Smt. Janamma (concerned worker) was<\/p>\n
justifiable.\n<\/p>\n
       4. On completion of the pleadings from both the sides, evidence<\/p>\n
was let in by the Management availing the very first opportunity to have<\/p>\n
their action justified;  particularly since the ‘enquiry file’ was not<\/p>\n
produced before the Labour Court. Two witnesses were examined from<\/p>\n
the part of the Management as MWs1 and 2, while the Worker herself<\/p>\n
got examined as WW1 and produced a certified copy of judgment of the<\/p>\n
concerned Magistrate’s Court acquitting her, as Ext. W1. The second<\/p>\n
respondent, on conclusion of the evidence observed that, the evidence<\/p>\n
let in before the Labour Court was much less, when compared to the<\/p>\n
evidence let in before the Criminal Court and accordingly, it was held<\/p>\n
that the charges levelled against the delinquent employee were not<\/p>\n
proved. The punishment of dismissal were interfered with and the<\/p>\n
 WP (C) No. 1185 of 2005
\n                                    : 3 :<\/span><\/p>\n
Worker was directed to be reinstated with back wages and all other<\/p>\n
attendant benefits w.e.f. 3.11.93, which in turn is subjected to challenge<\/p>\n
from the part of the Management.\n<\/p>\n
       5. The learned counsel appearing for the Management submits<\/p>\n
that, there is absolutely no discussion of the evidence adduced before<\/p>\n
the second respondent\/Labour Court, while passing Ext.P1 Award. The<\/p>\n
learned counsel also referred to the depositions of             witnesses<\/p>\n
concerned (produced as Exts.P5 to P7) and placed reliance on the<\/p>\n
admission made from the part of the Worker, when examined as WW1,<\/p>\n
conceding that the incriminating materials forming subject matter of the<\/p>\n
alleged theft were recovered from her premises, though according to<\/p>\n
her, it was not brought in by her. The learned counsel further referred to<\/p>\n
’17’ other specific instances of imposing various punishments upon the<\/p>\n
Worker, as narrated in paragraph 2 of the Writ Petition pointing out that,<\/p>\n
all such instances were after conducting proper domestic enquiry. It is<\/p>\n
also brought to the notice of this Court that, in view of a similar<\/p>\n
misconduct, involving theft of scrap rubber from the estate on 26.11.77,<\/p>\n
she had been dismissed from the service and subsequently, taking a<\/p>\n
lenient view, was reinstated on 22.7.79. It is also brought to light that,<\/p>\n
the concerned Worker was suspended from the service on several<\/p>\n
occasions as a measure of punishment, as provided under the standing<\/p>\n
 WP (C) No. 1185 of 2005
\n                                    : 4 :<\/span><\/p>\n
orders, and that she was ‘warned’ about 9 times. The above specific<\/p>\n
instances of insinuation have not been rebutted neither from the part of<\/p>\n
the first respondent Union nor from the part of the additional 3rd<\/p>\n
respondent\/Worker herself and as such, it is to be presumed that the<\/p>\n
averments raised by the Management in this regard are quite correct<\/p>\n
and sustainable, particularly, in view of the fact that the unrebutted<\/p>\n
pleadings are liable to be treated as admissions.<\/p>\n
       6. The learned counsel appearing for the additional third<\/p>\n
respondent\/Worker submits that, she belongs to the lowest strata of the<\/p>\n
society; that she is innocent and Ext.P1 Award is not liable to be<\/p>\n
interfered under any circumstance. The learned counsel also made<\/p>\n
reference to the case put forward by the said Worker that the search<\/p>\n
and seizure conducted on 20.6.90 was not proper and that, it was<\/p>\n
rather planted at the instance of her neighbour by name ‘Pulickal<\/p>\n
Varghese’, with whom the additional 3rd respondent\/Worker was in<\/p>\n
inimical terms for nearly 22 years. It is also sated that, the residence of<\/p>\n
the Worker was left open by her, as it was the usual practice. No proof<\/p>\n
is there, as to any complaint filed against the said neighbour ‘Varghese’<\/p>\n
at any point of time. The case has been sought to be moulded, placing<\/p>\n
some reliance on Ext.P8 verdict passed by the Criminal Court, whereby<\/p>\n
the Worker\/accused was acquitted, pointing out that the reasoning<\/p>\n
 WP (C) No. 1185 of 2005
\n                                     : 5 :<\/span><\/p>\n
given by the Labour Court referring to the volume of evidence let in<\/p>\n
before the Criminal Court leading to the acquittal, is liable to be held as<\/p>\n
correct and proper.\n<\/p>\n
      7. As noted hereinbefore, there is absolutely no discussion with<\/p>\n
regard to the evidence let in by the Management to sustain the<\/p>\n
dismissal. The Labour Court simply made a casual reference that, the<\/p>\n
circumstances under which MWs1 and 2, who were the Management<\/p>\n
witnesses and employees of the Management had let in evidence is<\/p>\n
conceivable; however forgetting the fact that there was absolutely no<\/p>\n
case for the Worker as to any instance of hostility,        mala fides or<\/p>\n
victimization on the part of the Management or the Management<\/p>\n
witnesses, except the inimical terms with her neigbour ‘Varghese’. It<\/p>\n
appears that, the second respondent\/Labour Court was carried away by<\/p>\n
the alleged ‘volume of evidence’ stated as let in before the Criminal<\/p>\n
Court and the quantum of evidence let in before the Labour Court,<\/p>\n
stated as much less.       In other words, the       evidence was being<\/p>\n
considered by its ‘volume’ rather than by evaluating the same as a<\/p>\n
whole. It is settled law that the evidence is not to be ‘counted’ but to be<\/p>\n
‘weighed’, where the Labour Court has gone wrong.<\/p>\n
      8. Another important aspect to be looked into is that the inference<\/p>\n
with the quantum of punishment is possible only as provided under<\/p>\n
 WP (C) No. 1185 of 2005
\n                                    : 6 :<\/span><\/p>\n
Section 11 (A) of the Industrial Disputes Act. The scope of inference<\/p>\n
has been explained by the Apex Court on many an occasion and it is<\/p>\n
very much discernible from the decision rendered by a Division Bench<\/p>\n
of this Court as well, in Cochin Shipyard Ltd. V. Industrial Tribunal<\/a><\/p>\n
(2006 (2) KLT 825) . Similarly, mere acquittal in a criminal case cannot<\/p>\n
constitute the position to hold that, the accused\/delinquent is entitled to<\/p>\n
be absolved from all the charges in a departmental proceedings, as<\/p>\n
held in Suresh Kumar Vs. Travancore Devaswom Board (2005 (3)<\/p>\n
KLT 723). Obviously, Ext.P8 judgment passed by the concerned<\/p>\n
criminal court is not an ‘honourable acquittal’ and the Worker\/delinquent<\/p>\n
was acquitted only for the fact that prosecution did not succeed in<\/p>\n
proving the offence so as to impose the punishment on the accused. By<\/p>\n
virtue of the settled position of law, the Management is very much at<\/p>\n
liberty to deal with the misconduct by way of disciplinary proceedings to<\/p>\n
arrive at the guilt of the delinquent employee independently, where the<\/p>\n
degree of proof is entirely different, as preponderance of probability is<\/p>\n
enough and there is no allergy even to ‘hear-say’ evidence as made<\/p>\n
clear by the Apex Court in State of Haryana and another Vs. Rattan<\/p>\n
Singh (1982 (1) LLJ 46) and Shri. J. D. Jain Vs. The Management of<\/p>\n
State Bank of India and anther (1982 (1) LLJ 54). This is more so,<\/p>\n
when the antecedents of the delinquent employee are also permissible<\/p>\n
 WP (C) No. 1185 of 2005
\n                                   : 7 :<\/span><\/p>\n
to be looked into, while fixing the quantum of punishment. As such, it<\/p>\n
was not at all correct or proper for the Labout Court to have interfered<\/p>\n
with the punishment quite mechanically, ordering reinstatement with<\/p>\n
back wages.\n<\/p>\n
      9. With regard to the question of ‘back wages’, it has been made<\/p>\n
clear by the Apex Court on many an occasion including in the decisions<\/p>\n
reported in State of Maharashtra Vs. Reshma Remesh Meher (2008<\/p>\n
(8) SCC 664) and Kanpur Electricity Supply Co. Ltd. Vs. Shamim<\/p>\n
Mirza (2009 (1) SCC 20) that the payment of back wages is not<\/p>\n
automatic. It will depend upon the various facts and circumstances,<\/p>\n
including the availability of any alternate employment for the Worker<\/p>\n
concerned. As per the decision of the Apex Court reported<\/p>\n
in Talwara Co.op Credit & Service Society Ltd. Vs. Sushil Kumar<\/p>\n
(2008 (9) SCC 486), it has been held that the burden is very much upon<\/p>\n
the employee to prove that she\/he was not having any employment and<\/p>\n
was not having any income in this regard, to sustain payment of back<\/p>\n
wages or even a portion of the same. Absolutely no evidence was let in<\/p>\n
from the part of the Union or Worker in this regard and this has not<\/p>\n
been considered by the Labour Court as well.\n<\/p>\n
      10. For the reasons stated hereinbefore, the finding and<\/p>\n
reasoning given by the Labour Court cannot be sustained in any<\/p>\n
 WP (C) No. 1185 of 2005
\n                                    : 8 :<\/span><\/p>\n
manner and as such, Ext.P1 Award is set aside and the matter is<\/p>\n
remanded to the second respondent\/Labour Court for adjudicating the<\/p>\n
issue afresh. It is also made clear that, both the sides will be at liberty to<\/p>\n
adduce further evidence, if any. The second respondent shall consider<\/p>\n
and finalize the matter accordingly, as expeditiously as possible, at any<\/p>\n
rate within three months from the date of receipt of a copy of this<\/p>\n
judgment. Both the sides shall appear before the second respondent on<\/p>\n
15th October, 2009 so as to enable the second respondent to fix the<\/p>\n
next date of posting and to proceed with further steps.<\/p>\n
      The Writ Petition is allowed to the above extent. No cost.<\/p>\n
                               P. R. RAMACHANDRA MENON, JUDGE<\/p>\n
kmd<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court The Manager vs The President on 10 September, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 1185 of 2005(N) 1. THE MANAGER, LAHAI ESTATE, … Petitioner Vs 1. THE PRESIDENT, RANNI PLANTATIONS … Respondent 2. LABOUR COURT, KOLLAM. For Petitioner :SRI.ANTONY DOMINIC For Respondent :SRI.KRB.KAIMAL (SR.) The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-33515","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThe Manager vs The President on 10 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-manager-vs-the-president-on-10-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Manager vs The President on 10 September, 2009 - 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