Kerala High Court
C.X.Philomina vs Kerala State Handloom Development ... on 9 September, 2015
Author: Anil K. Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
WA.No. 1320 of 2016 () IN WP(C).31881/2009
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 31881/2009 of HIGH COURT OF KERALA DATED
09-09-2015
APPELLANT/2ND RESPONDENT:
------------------------
C.X.PHILOMINA
KALARIKKAL HOUSE, MANGAZHA, NEDUTHALA, KOCHI-23.
BY ADVS.SRI.P.U.SHAILAJAN
SRI.M.SURESH KUMAR
SMT.D.N.NISHANI
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
----------------------------------------
1. KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LIMITED
P.M. 32/249, THILLERI ROAD, KANNUR-670001,
REPRESENTED BY ITS MANAGING DIRECTOR MR. B.ARUL SELVAN.
2. THE LABOUR COURT
KANNUR-670001.
R1 BY SRI.K.JOHN MATHAI
R2 BY SENIOR GOVERNMENT PLEADER SRI. T. RAJASEKHARAN NAIR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31-08-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
~~~~~~~~~~~~~~~~~~~~~~
W.A. No. 1320 of 2016
~~~~~~~~~~~~~~~~~~~~~
Dated, this the 31st day of August, 2016
JUDGMENT
Ramachandra Menon, J.
This appeal has been preferred by the second respondent in the writ petition i.e. the concerned worker, who was sought to be dismissed by the Management/writ petitioner in respect of the certain proven misconducts. The cause of action relates to denial of approval by the Labour Court in a petition filed under Section 33 (2)
(b) of the Industrial Disputes Act, 1947 (I.D. Act in short). The challenge raised by the appellant to set aside the domestic enquiry was upheld by the Labour Court, for the reason that the worker was not permitted to be represented by a Lawyer, however granting an opportunity to the management to substantiate the position by adducing fresh evidence. This was stated as without any regard to the law declared by the Apex Court in Delhi Cloth and General Mills Co. Vs. Ludh Budh Singh [1972 (1) SCC 595] and hence challenged by the Management in the Writ Petition. The learned single Judge though upheld the Preliminary Award passed by the W.A. No. 1320 of 2016 : 2 : Labour Court, went further and permitted the writ petitioner/management to proceed with the domestic enquiry after permitting to be represented through a Lawyer. This is challenged in this appeal filed by the worker.
2. The sequence of events is as follows : The appellant was working as a Store Keeper in the first respondent Corporation. While so, certain misconducts were levelled against her and she was served with a show-cause notice. Since explanation submitted by the appellant was not satisfactory, domestic enquiry was ordered. The appellant sought for permission to be represented through a lawyer, allegedly because of the complicated facts and legal position involved. It was not acceded to and the application came to be rejected. Ultimately, on the basis of the evidence adduced, a finding on guilt was arrived at by the Enquiry Officer. The finding in the enquiry was accepted by the Disciplinary Authority, who imposed punishment of dismissal. However, by virtue of the pendency of some matter before the Labour Court in connection with the affairs of the Management establishment, approval of the Labour Court was sought for by filing a petition under Section 33 (2) (b) of the I.D. Act. The prayer was opposed from the part of the worker. It was contended by the Management that the enquiry was conducted adhering to the W.A. No. 1320 of 2016 : 3 : principles of natural justice and that, if for any reason the enquiry was invalidated, the Management might be given an opportunity to adduce evidence to substantiate the case before the Court.
3. After hearing both the sides, the Labour Court made a specific reference to the charges levelled against the worker, which were in the following terms :
"(1) You had vide Packing list No. 462 dated 02.04.03 despatched 500 set Mundu and 260 Sarees to Regional Store, Trivandrum and Regional Store Trivandrum accepted only 260 sarees and returned 500 Nos. set Mundus. However you have not taken sufficient care to record into the stock 500 Nos Set mundus valuing Rs.2,03,250/-
(2) You have failed to record the receipt of return goods from Trivandrum valuing Rs.2,03,250/- for your illegal gain. (3) Gross negligence in your work leading to loss of Rs.2,03,250/- to the Corporation.
(4) You have not exercised due caution as is expected from a Store Keeper, who is the custodian of goods in the store worth crores of Rupees.
(5) Misappropriation of fabrics amounting Rs.2,03,250/- from the store of the Corporation.
(6) Misconduct within Rule 108, Clause No. 2.3 and 6 of the Service Rules of Corporation.
It was contended that the charges levelled against the delinquent W.A. No. 1320 of 2016 : 4 : employee was of complicated nature and that she would not be in a position to defend the enquiry properly. The submission made from the part of the worker, that the Enquiry Officer was a former employee of the Management, and that he was showing more loyalty to the Management, was also taken note of. After weighing the facts and figures, the Labour Court arrived at a finding that the denial of opportunity to the worker to be represented through a Lawyer amounted to infringement of natural justice. It was accordingly, that a Preliminary Award was passed holding that the domestic enquiry was bad; however, granting an opportunity for the Management to establish the misconduct of the worker by adducing fresh evidence.
4. The Management because aggrieved of the said Preliminary Award approached this Court by filing the writ petition, mainly pointing out that, in view of the decisions rendered by the various High Courts and the Supreme Court, it was not obligatory for the Management to give an opportunity to be represented through a Lawyer in a domestic enquiry. It was contended that, in the absence of any provision forming part of the Service Rules/Standing Orders permitting such exercise, for being represented through a Lawyer, the Labour Court ought not to have granted the relief.
5. After completion of service of notice, the matter was heard W.A. No. 1320 of 2016 : 5 : in detail. Taking note of the particular facts and circumstances, the learned single Judge observed that the Labour Court could not be blamed for arriving at a finding as to the fate of the enquiry and intercepting the same. After sustaining the Preliminary Award passed by the Labour Court, the learned single Judge permitted the Management to proceed with further enquiry of their own, permitting the worker to be represented through a Lawyer. This in turn is under challenge at the instance of the worker, contending that in so far as the finding of the Labour Court in the Preliminary Award has been uphold, it was never open for the learned single Judge to have permitted the Management to proceed with Domestic Enquiry, after permitting the worker to be represented through a Lawyer. Since such opportunity has already been provided by the Labour Court in the Preliminary Award, it was for the Management to have adduced evidence before the Labour Court to substantiate their case.
6. The learned counsel for the Management submits that the Management had contended before the Labour Court that, if for any reason the Domestic Enquiry was held as invalid, an opportunity to adduced evidence and to substantiate the case was to be given. The learned counsel submits that the circumstances/scope of permitting the delinquent employee to be represented through a Lawyer has W.A. No. 1320 of 2016 : 6 : been explained by this Court in St. Thomas Mission Hospital Vs. State of Kerala [ILR 2007 (1) 217 = 2007 (2) KLT 415] [cited supra] holding that unless and until the service rules or standing orders permit, delinquent workman cannot, as of right, claim assistance of a Lawyer. The position has not undergone any change and the delinquent employee does not have any vested right to be represented through a Lawyer, except in the circumstances mentioned. The learned counsel for the Management points out that the Management would not have ventured to challenge the Preliminary Award, but for the wrong declaration of law made by the Labour Court, enabling the worker to be represented through a Lawyer in a Domestic Enquiry; which if permitted would affect similar proceedings pending before the Management. The right to be represented through a Lawyer cannot be claimed as a matter of right, which depends upon the facts and circumstances of each case.
7. Coming to the instant case, with reference to the facts and particular nature of charge levelled against the employee, the Labour Court arrived at a finding that the denial to be represented through a Lawyer would result in violation of the principles of natural justice. This in fact has been upheld by the learned single Judge. That apart, it is also relevant to note that the respondent/Management W.A. No. 1320 of 2016 : 7 : Corporation had clearly stated in the pleadings raised before the Labour Court that, if the Domestic Enquiry was found to be invalid, the petitioner Management might be given an opportunity to establish the misconduct by adducing direct evidence before the Labour Court. This pleading has been specifically adverted to by the Labour Court in paragraph 12 of Ext. P3.
8. In the above circumstances, there cannot be any dispute that the further endevour to establish the misconduct by adducing evidence has to be before the Labour Court. We make it clear that Ext. P3 Preliminary Award does not warrant any interference. The verdict passed by the learned single Judge stands modified accordingly.
The Writ Appeal is disposed of.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
ANIL K. NARENDRAN, JUDGE kmd /True copy/ P.A. to Judge