The Director vs Anishkumar.T.S
2021 Latest Caselaw 11642 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                        WP(C).No.9366 OF 2021(U)


PETITIONER/S:

      1         THE DIRECTOR, KERALA STATE I.T.MISSION
                VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.

      2         THE DIRECTOR
                AKSHAYA STATE PROJECT OFFICE,
                MANJALIKULAM ROAD,
                THIRUVANANTHAPURAM-695014.

      3         THE CHIEF CO-ORDINATOR
                AKSHAYA PROJECT OFFICE,
                PATHANAMTHITTA-689645.

      4         THE DISTRICT CO-ORDINATOR
                AKSHAYA STATE PROJECT OFFICE,
                PATHANAMTHITTA-689645.(PRESENTLY DESIGNATED AS
                DISTRICT) PROJECT MANAGER, PATHANAMTHITTA).

      5         THE ASSISTANT DISTRICT CO-ORDINATOR
                AKSHAYA STATE PROJECT OFFICE,
                PATHANAMTHITTA-689645.
                (PRESENTLY DESIGNATED AS DISTRICT PROJECT MANAGER,
                PATHANAMTHITTA).

                BY GOVERNMENT PLEADER

RESPONDENT/S:

      1         ANISHKUMAR.T.S.
                THEKKEKALAYIL, MUTHEDAM P.O, EDAKKARA, NILAMBUR
                TALUK, MALAPPURAM-679331.

      2         THE LABOR COURT
                KOLLAM-691013.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9366 OF 2021                  2




                              JUDGMENT

Dated this the 9th day of April 2021

By this petition, the petitioners/employers has challenged

the award passed by the learned Labour Court, Kollam in

Industrial Dispute case No.41 of 2016, by which the petitioners

herein are directed to reinstate the 1 st respondent in service with

continuity in service as well as attendant benefits, but without

back wages.

2. Heard both sides.

3. Learned Government Pleader appearing for the

petitioners/employers drew my attention to paragraph No.3 of the

petition as well as the grounds raised and contended that the

petitioner is not an 'industry', so also, the 1st respondent was

terminated and that termination is a termination simplicitor which

dos not cast any stigma on the contract employee. Therefore,

according to the learned Government Pleader, the impugned

award is illegal and is liable to be set aside.

4. I have considered the submissions so advanced and

also perused the materials placed before me.

5. The records show that 1st respondent was engaged as

an Assistant Project Co-ordinator with the petitioners from

01.04.2007 and thereafter, he was in the continuous employment

of the petitioners. He came to be terminated from service by the

termination order at Ext.P3 dated 09.10.2013 with effect from

10.10.2013.

6. In pursuant to the industrial dispute referred to the

Labour Court for adjudication, after hearing the parties,the

learned Labour Court passed impugned award at Ext.P8. The

case set out by the 1st respondent/workman was to the effect that

he was in continuous employment of the petitioner from

01.04.2007 as an Assistant Project Co-ordinator and he came to

be dismissed from service with effect from 10.10.2013 arbitrarily,

unreasonably as well as on a mere complaint dated 07.09.2013

by his subordinate named Kumari Swapna, a Block Co-ordinator.

It is alleged by the learned counsel appearing for the 1 st

respondent that he was dismissed without conducting domestic

enquiry, so also without following the principles of natural justice.

7. The petitioners opposed the claim by filing written

statement wherein it is contended that the 1 st respondent was

dismissed from service after Assistant District Co-ordinator had

conducted enquiry and submitted the enquiry report before the

District Co-ordinator and District Collector. It is averred that the

Director had perused the entire enquiry report and instructed the

District Chief Co-ordinator/District Collector to terminate the 1 st

respondent from service. It is further averred that the District

Collector has submitted the inquiry report before the Director on

05.10.2013 and on 07.10.2013, the Director has ordered to

terminate the 1st respondent from service and accordingly the

District Collector terminated the 1st respondent from service.

8. In the reference proceedings, the 1 st

respondent/workman examined himself as WW1 and relied on

documents. The management has also adduced evidence. On

the basis of evidence on record, learned Labour court has held

that there was no valid domestic enquiry before termination of

services of the 1st respondent and he was retrenched from service

without following due process of law.

9. I have seen no merit in the contention of the learned

Government Pleader appearing for the petitioners that the

termination of the 1st respondent was a termination simplicitor,

which is not casting any stigma on him. The termination order

dated 09.10.2013 itself refers to the enquiry report dated

03.10.2013. It is averred in the termination order dated

09.10.2013 that based on the enquiry report dated 03.10.12013,

it has been ordered to end the contract of appointment of the 1 st

respondent and to relieve him with immediate effect and

accordingly, he is terminated and stands relieved with effect from

10.10.2013. This termination order is definitely a stigmatic

termination order based on enquiry report dated 03.10.12013 and

therefore, it cannot be said that the termination of the 1 st

respondent was a termination simplicitor.

10. Even otherwise, it is seen that 1st respondent was in

continuous employment of the petitioners herein from 01.04.2007

from 10.10.2013. There is nothing on record to show that 1 st

respondent was paid retrenchment compensation and he was

terminated after giving one month's notice or notice pay in lieu of

the one month notice as contemplated by the Industrial Disputes

Act.

11. So far as the alleged domestic enquiry is concerned,

the learned Labour Court has perused the file of the so called

enquiry and observed that the said enquiry cannot be a domestic

enquiry . In fact, no charge was famed and it is seen that the

complaint of the co-worker was ever supplied to the 1 st

respondent. Learned Labour Court has observed that enquiry file

does not contain notices issued by the petitioners to the 1 st

respondent and that fact is also admitted by the witness No.4

examined by the petitioners. The enquiry file, as observed by the

learned Labour Court, was not containing any charge framed

against the 1st respondent. The learned Labour Court has

observed that even the co-worker has not deposed anything

serious against the 1st respondent. Even before this Court also, it

is not pointed out that the petitioner was made aware about the

charge levelled against him or that he was given an opportunity to

cross examine the witnesses, if any, examined by the

management in the so called enquiry. Learned Labour Court has

observed that, in fact, there is no such enquiry report dated

03.10.2013 in the file of the enquiry and therefore, the enquriy

which is conduced by the management without charge and the

termination order based on such enquiry report is bad in law.

Learned Labour Court further observed that page No.17 of the

enquiry file shows a single page cryptic report which is not even

referring to the evidence or material against the 1 st respondent

and it is also not containing any finding. Learned Labour court

further observed that the report available in the enquiry file is

only recommending transfer of the 1st respondent for smooth

functioning of the office.

12. I am of the considered opinion that learned Labour

Court as such rightly came to the conclusion that the termination

of the petitioner is illegal. It is worthwhile to mention that even in

the written statement filed by the petitioners before the Labour

Court, there is no payer to prove the alleged misconduct by the 1 st

respondent before the Labour Court.

13. So far as contention of the petitioners that activities of

the petitioners cannot be termed as 'industry', there is no iota of

evidence on record to establish this fact. Even this contention is

not raised in the written statement filed by the petitioners before

the Labour Court. The written statement proceeds on the

premises that the 1st respondent is dismissed from service

because of his misbehaviour towards woman which is a serious

misconduct. The said misconduct is not even sought to be proved

before the Labour Court nor any departmental enquiry was

conducted to establish the guilt of the 1st respondent.

In the light of foregoing discussions, it cannot be said that

the impugned award is either perverse of illegal. It is based on

the materials produced on record of the Labour Court and it

cannot be set aside. Resultantly, the petition is devoid of merits

and the same is accordingly dismissed.

Sd/-

                                               A.M.BADAR
ajt                                               JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE GO(RT0 NO 141/08/ITD DATED
                        7.7.2008

EXHIBIT P2              TRUE COPY OF THE GO(mS) NO 12/2000/ITD
                        DATED 24.6.2000

EXHIBIT P3              TRUE COPY OF ORDER NO AKS/PTA/2013/COM/1
                        DATED 9.10.2013

EXHIBIT P4              TRUE COPY OF THE CLAIM STATEMENT DATED
                        19.8.2017 FILED BY THE 1ST RESPONDENT

EXHIBIT P5              TRUE COPY OF THE WRITTEN STATEMENT DATED

19.10.2018 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF THE REPLICATION DATED 18.11.2018 FILED BY THE 1ST RESPONDENT

EXHIBIT P7 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 28.2.20219 FILED BY THE PETITIONERS

EXHIBIT P8 TRUE COPY OF THE AWARD DATED 27.2.2020 OF THE HON'BLE LABOUR COURT, KOLLAM IN ID NO 41/2016

EXHIBIT P9 TRUE COPY OF SHOW CAUSE NOTICE DATED 22.2.20201 ISSUED BY THE DISTRICT LABOUR OFFICER, PATHANAMTHITTA