Kerala High Court
P.Kunjukrishnan vs The Secretary on 2 March, 2022
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
WP(C) NO. 28400 OF 2005
PETITIONER:
1 P.KUNJUKRISHNAN,
IMPERIAL BAKERY,
PUNALUR,KOLLAM DISTRICT.
*2 K.R.ANIL,
S/O LATE P.KUNJUKRISHNAN,
'ANIL BHAVAN',
NEAR GOVERNMENT HOSPITAL,
PUNALUR- 691 305, KOLLAM
*3 P.N.RADHAMANI,
W/O LATE P.KUNJUKRISHNAN,
'ANIL BHAVAN',
NEAR GOVERNMENT HOSPITAL,
PUNALUR- 691 305, KOLLAM
*4 K.R.SAJINI,
D/O.LATE P.KUNJUKRISHNAN,
VELLAPALLY HOUSE
VELAREVATTOM, CHERTHALA 688524
*(ADDL.PETITIONERS 2 TO 4 ARE IMLEADED AS PER
ORDER DATED 02/03/2022 IN I.A. NO.4/2018 IN W.P.
(C) NO.28400 OF 2005).
BY ADVS.
SRI.E.K.NANDAKUMAR (SR.)
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
W.P.(C) No.28400/05 -:2:-
RESPONDENTS:
1 THE SECRETARY,
VANIJYA VYAVASAYA MAZDOOR SANGH,
BMS OFFICE, PUNALUR.
2 THE LABOUR COURT
KOLLAM.
BY ADVS.
SRI.B.ASHOK SHENOY
SRI.ABU MATHEW
SMT.LAKSHMI B.SHENOY
SRI.H.B.SHENOY
SRI.P.S.GIREESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31.01.2022, THE COURT ON 02.03.2022 DELIVERED THE
FOLLOWING:
W.P.(C) No.28400/05 -:3:-
"C.R."
BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.28400 of 2005
---------------------------------
Dated this the 2nd day of March, 2022
JUDGMENT
An order of reinstatement of a workman with 50% backwages directed by the Labour Court, is under challenge in this proceeding under Article 226 of the Constitution of India.
2. The writ petitioner expired in the year 2012 and his legal heirs are arrayed as additional petitioners 2 to 4. The reference in this judgment as 'petitioner' indicates the original writ petitioner.
3. The petitioner is the owner of an establishment called Imperial Bakery. He alleged that a salesman by name Suresh Babu (for short the workman), who was drawing wages of Rs.1,950/- per month, used to commit misconduct repeatedly. Still, petitioner continued to employ him as he was a relative. However, on 07-09-1998, according to the petitioner, the workman was caught red-handed receiving money from customers without creating invoices. Petitioner also alleged that on issuing a notice to the workman, he abandoned the W.P.(C) No.28400/05 -:4:- employment feeling guilty, and due to the continued absence, the workman conveyed his intention not to continue the employment with the petitioner.
4. According to the petitioner, though the workman had abandoned his employment, the first respondent Union issued a notice on 16-10-1998 alleging that petitioner denied employment to the workman. Subsequently, conciliation proceedings were initiated. While the conciliation was going on, workman resorted to unlawful agitation and strike in front of the petitioner's establishment, resulting in the shop's closure. Later, the workman assaulted the petitioner's son, causing severe injuries and a crime had to be registered. Due to the serious incidents that occurred and in view of the abandonment of employment, petitioner did not agree to the demands made by the Union and hence the conciliation failed and the dispute was referred to the Labour Court for adjudication on the question as to whether the denial of employment to Shri. Suresh Babu, by the management of Imperial Bakery, is justifiable? If not, the relief to which he is entitled?
5. In the claim petition filed by the Union on behalf of the workman before the Labour Court, it was stated that he was W.P.(C) No.28400/05 -:5:- employed for a salary of Rs.2,100/- per month and that the management was displeased with the workman and five others joining an organisation called Vanijya Vyavasaya Mazdoor Sangh due to which the management refused to permit the workman to attend work from 05-02-1999 onwards, thus denying employment. It was further pleaded that on 15-02-1999, it was the son of the petitioner who attacked the workman and not as alleged by the petitioner. Thus the first respondent denied abandonment of employment by the workman.
6. Before the Labour Court, the management examined one witness as MW1 and marked Ext.M1 to Ext.M13, while the first respondent examined the workman as WW1. By the impugned award dated 17-05-2005, the Labour Court found the allegation of denial of employment to be justified and directed reinstatement of the worker with 50% back wages and attendant monetary benefits. The writ petition has been preferred challenging the aforementioned award of the Labour Court.
7. Sri E.K.Nandakumar, the learned Senior Counsel appearing for the petitioner, vehemently submitted that the award of the Labour Court is wholly erroneous, perverse and unsustainable. It was also argued that the Labour Court brushed W.P.(C) No.28400/05 -:6:- aside important pieces of evidence including Ext.M5 and Ext.M10. Great stress was made to the alleged refusal of the workman to report for work pursuant to the show cause notice Ext.M5 dated 08-09-1998 (marked as Ext.P2 in this writ petition). It was further contended by the learned Senior Counsel that the subsequent events that included registration of the criminal case for assaulting the son of the original petitioner ought to have been borne in mind by the Court to decline reinstatement.
8. It was also submitted that the Labour Court merely accepted the ipse dixit of the workman and failed to consider that there was no evidence to prove the case built up by the workman, and that, in the absence of any evidence, the conclusions arrived at by the Labour Court was perverse and liable to be interfered with by this Court. A distinction was attempted to be drawn to the scope of interference under Article 226 of the Constitution and it was submitted that perversity is not only when there is an absence of evidence to support the findings but will also include cases where the evidence taken as a whole is not reasonably capable of supporting the findings. The learned Senior Counsel further referred to the award of the W.P.(C) No.28400/05 -:7:- Industrial Tribunal, Kollam in ID No.55 of 2000, wherein, the issue was raised by five other workmen who stood in the same position as that of the workman in this case and submitted that the Industrial Tribunal had found in favour of the management.
9. Sri. E.K. Nandakumar, the learned Senior Counsel relying upon the decision in Kurukshetra University v. Prithvi Singh (2018) II LLJ 257 SC) further submitted that, in any event, the Labour Court ought to have permitted the management to lead fresh evidence to prove abandonment and unauthorised absence of the workman. In support of his various contentions, the learned Senior Counsel relied upon the judgments in Management of Madurantakam Coop. Sugar Mills Ltd. v. S.Viswanathan [(2005) 3 SCC 193], General Manager, Electrical Rengali Hydro Electric Project, Orissa and others v. Sri Giridhari Sahu and others [(2020) 3 LLJ 257] and M/s. Bharat Iron Works v. Bhagubhai Balubhai Patel and others (AIR 1976 SC 98). Relying upon the decision in State Bank of Travancore v. Prem Singh (2019 SCC OnLine Del. 8258), it was submitted that when an employee acts in a manner by which the management loses confidence in him, reinstatement cannot be ordered because it would neither be desirable nor W.P.(C) No.28400/05 -:8:- expedient to continue the employee in service. According to the Counsel, it may also be detrimental to the discipline or security of the establishment and in case of loss of confidence, only compensation can be awarded.
10. Sri. Ashok B.Shenoy, the learned counsel for the respondents, on the other hand, contended that the order of the Labour Court warrants no interference, especially in the exercise of jurisdiction under Article 226 of the Constitution of India. It was also submitted that the intention to voluntarily abandon the employment must be proved beyond reasonable doubt and on the facts of the case, such abandonment had not been proved. The counsel further argued that the circumstances like the absence of conduct of any domestic enquiry, absence of proof of any previous misconduct or proof of any reason for abandonment were all matters which weighed with the Labour Court while considering the bonafides of the allegation of abandonment of employment. According to the learned counsel, there was absolutely no evidence to show any abandonment and hence, the Labour Court was justified in directing reinstatement. It was also argued that in any view of the matter, a temporary absence cannot be regarded as abandonment, as held by this W.P.(C) No.28400/05 -:9:- court in Fertilizers and Chemicals Travancore Ltd. v. James Philip and Another (2015 (1) KHC 98) and further that the findings of fact entered into by the Labour Court ought not to be interfered with in exercise of the jurisdiction under Article 226 of the Constitution of India as held in G.T.Lad and Others v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590].
11. While appreciating the respective contentions raised by the learned Counsel on either side, it is necessary to bear in mind the scope of interference under Article 226 of the Constitution of India. It is trite law that the High Court is not a court of appeal in respect of the awards passed by the Labour Court/Industrial Tribunals. Reference can be made to Canara Bank, Circle Office, Tvm. v. D. S Mohini and Others [(2019 (2) KLT SN 69].
12. The scope of interference in the award of a Labour Court is very limited. Interference can be made only when the order of the Labour Court is perverse and there is a total dearth of evidence to support the findings of the Labour Court. If two views are possible from the circumstances brought out on record, merely because the Labour Court chose to adopt one view by itself is not a reason to interfere with the findings of the W.P.(C) No.28400/05 -:10:- Labour Court.
13. In this context, the observations of the Supreme Court in Management of Madurantakam Coop. Sugar Mills Ltd v. S. Viswanathan [(2005) 3 SCC 193] are relevant. It was observed that "Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon."
14. With the above principles in mind when the impugned award is appreciated, it can be understood that the Labour Court found the employer-employee relationship as admitted and that the last drawn wages of the workman was Rs.1,950/- per month. After adverting to the evidence adduced in the case, the Labour W.P.(C) No.28400/05 -:11:- Court held that there was no enquiry proceeding of any nature initiated against the workman and nor was there any evidence of the workman having been caught red-handed for the alleged malpractices with customers. It was also found that the notice issued to the workman on 08.09.1998 had not referred to any specific incident as alleged to have taken place on 07.09.1998. Based on the above findings of fact, the Labour Court concluded that there was no evidence to infer that the workman had abandoned the job. On the other hand, it came to the conclusion that there was a denial of employment, as alleged by the workman.
15. During the course of arguments, the learned Senior Counsel for the petitioner assailed the award of the Labour Court mainly on the ground that the conclusions arrived at by the court was not based on evidence and hence, perversity loomed large in the award, warranting interference by this Court. It was further contended that an opportunity ought to have been granted to prove the allegation of abandonment during the trial.
16. On a consideration of the various circumstances, I find myself unable to agree with the contentions raised by the petitioner for more reasons than one.
W.P.(C) No.28400/05 -:12:-
17. The requirement of conducting an enquiry against misconduct is one of the basic postulates of a fair proceeding before imposing punishment. Merely on an allegation by the management that the workman had abandoned the employment, a court of law cannot come to a finding that the workman had abandoned the employment. When denial of employment alleged by the workman is countered by the plea based on abandonment of employment, it is necessary for the management to prove the abandonment. Indubitably, abandonment of employment by the workman is essentially a question of fact as observed in G.T.Lad and Others v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590].
18. The ideal tool for establishing the plea of abandonment of employment is through an enquiry proceeding. However, there may be situations where the circumstances themselves could lead to an inference that the workman had abandoned the employment, but whether such circumstances exist or not is for the management to prove with through evidence that the workman had abandoned the employment. A long period of unauthorised absence is a certain indication of such abandonment. What constitutes a long period also depends on W.P.(C) No.28400/05 -:13:- the facts of each case.
19. Further, the circumstances proved by the management must lead to only one inference or conclusion that the workman had abandoned the employment. If there is any iota of doubt, or the circumstances do not inspire confidence in the mind of the court about the veracity of the allegation of abandonment of employment alleged by the management, the court will have to discard the plea of abandonment of employment. The burden is entirely upon the management to prove that the workman had abandoned the employment. As observed earlier, one of the methods to prove such abandonment is through enquiry proceedings and when there is an absence of an enquiry proceeding, it cannot be assumed, by a mere plea by the management or by the absence of a reply to a notice - the service of which is not even proved, that there was an abandonment of employment.
20. In cases where the management had failed to conduct an enquiry on the assumption that the workman had abandoned the employment, an opportunity is still available to the parties to prove before the Labour Court itself, by adducing evidence on the nature of abandonment. However, when such evidence is W.P.(C) No.28400/05 -:14:- also not forthcoming, even during the trial before the original forum, a court of law cannot rely merely on the ipse dixit of the management, that the workman had abandoned the employment. The Supreme Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be then open before the Court/Tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties, whether the dismissal or discharge was justified. Reference to the decisions in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory, (AIR 1965 SC 1803), and Delhi Cloth and General Mills Co. v. Ludh Budh Singh [(1972) 1 SCC 595], would be appropriate.
21. In the instant case, as mentioned earlier, admittedly there were no enquiry proceedings. Therefore the management had a primary duty to adduce sufficient evidence during trial before the Labour Court, on the nature of abandonment by the workman. Evidence is lacking to prove a case of abandonment in the instant case. The management witness MW1, during his W.P.(C) No.28400/05 -:15:- evidence, has not given any details of the manner in which the workman had abandoned the employment. The only reliance is upon Ext.M5 which, as rightly noted by the Labour Court, has been denied by the workman. The workman had not only denied receipt of the said notice but had also denied the signature on the said notice. In the absence of any other evidence to show that such a notice was served upon the workman, no reliance can be made upon such a document. On the other hand, the evidence of the workman, as WW1, shows that from 05.09.1999 the workman had been attempting to get back into his employment. In such circumstances, it cannot be held that there was any evidence to prove abandonment of employment, as alleged by the petitioner.
22. As far as the contention regarding failure to reply to Ext.M5 notice is concerned, that by itself is not a reason to assume that the workman had abandoned the employment, in the circumstances of this case. It is pertinent to bear in mind the decision that a temporary absence is not abandonment. If the contention of the petitioner is accepted in its entirety, even then, it could only, at the most, be held that the workman was absent for a temporary period, which by itself is not abandonment. W.P.(C) No.28400/05 -:16:-
23. The Labour Court had, on an appreciation of the entire circumstances, come to the conclusion that Ext.M5 cannot be relied upon. Circumstances like the absence of reference in Ext.M5 to the incident on 07.09.1998, inconsistency in the pleadings of management and the deposition of MW1 as to when the Ext.M5 notice was given to the workman, coupled with the denial of receipt of Ext.M5 by the workman, all of which lends credence to the nature of appreciation carried out by the Labour Court to arrive at the factual findings. The finding of fact by the Labour Court on the said issue and the appreciation of facts, therefore, cannot be said to be perverse or without any basis or evidence.
24. Even otherwise, the contents of Ext.M5 show that it was not a notice regarding abandonment of employment, but was only a show-cause notice asking for his explanation. Ext.M5 was not a notice compelling the presence of the workman to appear for employment nor was there even a whisper of any abandonment of employment.
25. On an appreciation of the above circumstances, this Court is of the view that the evidence taken as a whole is reasonably capable of supporting the findings arrived at by the W.P.(C) No.28400/05 -:17:- Labour Court. On the other hand, there is a dearth of evidence in arriving at a conclusion of abandonment of employment by the workman.
26. In this context, it is relevant to refer to the decision in G.T.Lad and Others v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590] wherein it was held that the High Court could do well, not to interfere with the findings of fact recorded by the Labour Court. Since the Labour Court has found that there was no voluntary abandonment of employment by the workman, which is undoubtedly a finding of fact and there are no circumstances to regard such finding of fact as perverse, the jurisdiction of this Court is not available to the petitioner to set aside the award.
27. The contention of the learned Senior Counsel that in any event an opportunity must be granted to the petitioner to lead fresh evidence to prove the misconduct, relying upon the decision in Kurukshetra University v. Prithvi Singh [(2018) II LLJ 257 SC] is also not tenable. The said decision is distinguishable.
28. In Kurukshetra University's case [(2018) II LLJ 257 SC], the Labour Court had found fault with the domestic enquiry W.P.(C) No.28400/05 -:18:- and in such circumstances, the court held that an opportunity to lead evidence to prove the misconduct independently of the domestic enquiry ought to have been granted. In the instant case, there was no domestic enquiry at all and the petitioner was aware from the beginning that it had to justify its case independent of the domestic enquiry. Further, the petitioner was granted an opportunity to prove the misconduct alleged. The very fact that the petitioner had examined MW1 itself shows that an opportunity was granted by the Labour Court to prove the misconduct. In view of the above, there is no merit in the contention that an opportunity was not granted to the petitioner to adduce the evidence.
29. As regards the contention based on the Award of the Tribunal relating to 5 other workmen who were similarly situated, this Court notices that the said Award was not marked in evidence before the Labour Court. In the absence of such evidence being brought on record, such a contention cannot be considered. Further, the circumstance in which the workman is alleged to have abandoned the employed is not the same as that of those 5 other workmen. Hence drawing a parallel with the Award of the Industrial Tribunal Kollam in ID No.55 of 2000, is W.P.(C) No.28400/05 -:19:- not legally tenable.
30. Finally, the petitioner also questioned reinstatement ordered with 50% backwages. It was submitted that the workman was a person who had brutally attacked the petitioner's son and such a person cannot be reinstated in service and that too, with 50% backwages.
31. It is trite law that once the denial of employment is found in favour of the workman, reinstatement should necessarily be ordered. The exercise of the jurisdiction by the Labour Court to order reinstatement with 50% backwages cannot be said to be perverse in the nature of the circumstances arising in this case.
32. Though this Court would not generally interfere with such conclusions arrived at by the Labour Court, still, having regard to the circumstances like the misconduct alleged being of the year 1998, the allegation of an attack on the petitioner's son in 1999, the workman being out of employment for the last twenty three years, and no orders issued by this Court under section 17B of the Industrial Disputes Act 1942 during the pendency of the writ petition, I am of the view that reinstatement may be inexpedient in the facts of the case. On W.P.(C) No.28400/05 -:20:- the other hand, this is a fit case where, instead of directing reinstatement with 50% back-wages as ordered by the Labour Court, it would be appropriate to direct payment of compensation to the workman in lieu of reinstatement and backwages. The circumstances of the case reveal loss of confidence by the management and the alleged apprehension of the petitioner that reinstatement may result in creating a dent in the discipline of the establishment, cannot be ignored. In the decision in State Bank of Travancore v. Prem Singh (2019 SCC OnLine Del. 8258), it was observed that when an employee acts in a manner by which the management loses confidence in him, reinstatement cannot be ordered because it would neither be desirable nor expedient to continue the employee in service. Reinstatement in the peculiar facts of this case may also be detrimental to the discipline or security of the establishment.
33. I, therefore, modify the award passed by the Labour Court insofar as reinstatement with 50% backwages is concerned, and direct an amount of Rs.5,00,000/- (Rupees Five Lakhs only) to be paid as compensation to the workman in lieu thereof. The quantum of compensation is based on the backwages ordered by the Labour Court, and the age of the W.P.(C) No.28400/05 -:21:- workman (age is presently 60 as per the deposition of WW1). If the compensation is not paid within one month from the date of judgment, the same shall carry an interest at the rate of 9% per annum from the date of this judgment till payment.
The writ petition is dismissed, subject to the above modification.
Sd/-
BECHU KURIAN THOMAS JUDGE vps W.P.(C) No.28400/05 -:22:- APPENDIX OF WP(C) 28400/2005 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AWARD DATED 17.5.05 IN ID NO.56 OF 1999 PASSED BY THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE MEMO DATED 8.9.98 WITH THE ACKNOWLEDGEMENT OF THE WORKMEN.
EXHIBIT P3 TRUE COPY OF THE CLAIM STATEMENT DATED 27.6.2000 FILED BY THE 1ST RESPONDENT IN ID NO.56 OF 1999 BEFORE THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY PETITIONER IN ID NO.56/99 BEFORE THE 2ND RESPONDENT DATED NIL.
EXHIBIT P5 TRUE COPY OF THE AWARD IN ID ANO 55/000 OF THE INDUSTRIAL TRIBUNAL, KOLLAM DATED 3RD JANUARY 2005.