Letchmi Estate vs General Secretary
2021 Latest Caselaw 8273 Ker

W.P.(C) No. 25992/2013                  :1:




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT

                     THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                            WP(C).No.25992 OF 2013(Y)


PETITIONER/S:

                 LETCHMI ESTATE, OWNED BY KDHP COMPANY PVT. LTD.
                 MUNNAR, REPRESENTED BY ITS MANAGER (IR) MR.PRINCE THOMAS
                 GEORGE, PIN-685 612.

                 BY ADVS.
                 SRI.P.BENNY THOMAS
                 SRI.D.PREM KAMATH

RESPONDENT/S:

        1        GENERAL SECRETARY, DEVIKULAM ESTATE WORKERS UNION
                 MUNNAR P.O., IDUKKI DISTRICT-685 612.

        2        INDUSTRIAL TRIBUNAL,
                 IDUKKI-685 531.

                 R1 BY ADV. SMT.A.K.PREETHA

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, THE
      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 25992/2013                  :2:




                         Dated this the 12th day of March, 2021.

                                     JUDGMENT

This writ petition is filed by the management challenging the award of

the Industrial Tribunal, Idukki dated 25.01.2013 in I.D No. 38 of 2007,

whereby the punishment of dismissal imposed by the Management against

the workman namely one Sasikumar belonging to the first respondent union

was set aside. However, instead of ordering reinstatement, the Tribunal

directed the Management to pay the workman an amount of Rs.75,000/- as

compensation, apart from his legally entitled terminal benefits but without

any backwages.

2. Brief material facts for the disposal of the writ petition are as

follows:

The petitioner is a company registered under the Indian Companies

Act, 1956 and is engaged in the plantation industry in the State of Kerala. A

workman namely Sri. Sasikumar was charge-sheeted under clause 22(h) of

the standing orders applicable to the Staff Employees, which read thus:

"22(h) "riotous or disorderly behaviour on the premises of the estate or any act subversive to discipline, in that, it is alleged that Sri. Sasikumar No. 5781, Ottaparai Division, cut Sri. Sekhar's (No.5410) leg with a knife on 11th July, 2005 at about 7.45 a.m. causing serious

injury to Sri. Sekhar."

3. A domestic enquiry was conducted into the charges levelled against

the workman. The first respondent Union participated in the enquiry

throughout and cross-examined the management witnesses; but the

workman did not adduce any oral evidence. The Enquiry Officer, after

considering the evidence, found the workman guilty of charges. Taking into

account the gravity of misconduct, he was dismissed from service on

26.06.2006. Aggrieved by the punishment of dismissal, the first respondent

Union raised an industrial dispute by filing a complaint to the Conciliation

Officer and since the conciliation failed, a failure report was sent to the

Government, which in turn, referred the following issue to the Industrial

Tribunal for adjudication:

"whether the dismissal of service of Sri. Sasikumar, PF No. 5781 by the Management of Letchmi Estate, Munnar is justifiable, if not what reliefs he is entitled to get?"

4. The Management as well as the Union entered appearance before

the Tribunal and the Workman filed a claim statement disputing the propriety

of the enquiry and also denying the charges, evident from Ext. P1 dated

04.01.2008 and consequentially claimed reinstatement.

5. A counter statement was filed by the management basically

contending that the enquiry was conducted complying with the principles of

natural justice and the said enquiry was legal, proper and valid, and that

the findings entered into by the Enquiry Officer was based on evidence and

the dismissal of the first respondent was after considering the gravity of

misconduct, evident from Ext. P2. The enquiry file was produced before the

Tribunal. However, the Enquiry Officer could not be examined, since he left

the service of the management and his whereabouts were not known and

thereupon, the enquiry was set aside and the management was given an

opportunity to adduce fresh evidence and accordingly, the management

examined witnesses before the Tribunal. It was after considering the

evidence let in by the management and other documentary evidence that

the Industrial Tribunal had set aside the punishment of dismissal imposed on

the workman, and the consequential orders were passed as is specified

above. It is, thus, challenging the legality and correctness of the award

passed by the Industrial Tribunal, the writ petition is preferred.

6. The incident leading to the issuance of chargesheet against the

workman are as follows:

According to the Management witness No.1, the Deputy General

Manager of the Estate, the incident occurred on 11.07.2005 at about 7.45

a.m., outside the muster ground, which was witnessed by MW2, the

Assistant Field Officer of the Estate. The workman was given duty of weeding

and Sri. Sekhar, the workman, who suffered injury, was given the duty of

spraying. The workers, who go for the work of weeding, will carry knives

along with them. While MW2 was sitting in the muster room, the workman

and the injured. Sekhar were arguing with each other and there were about

15 persons in the muster yard. The injured workman asked the workman to

go for spraying work along with him, which he refused. Even though the field

officer warned the workmen, the argument continued and accordingly, MW2

asked Supervisor Rajan to solve the issue. On the basis of the instruction

given so, the Supervisor separated the workmen, while other workers were

standing in a circle around them. While so, the injured workman assaulted

the workman and he fell down with the knife. At that point of time, the

workman in the lying position itself inflicted a cut injury on the thigh of the

injured workman causing serious injuries. The police registered a crime.

However, the workman was acquitted.

7. After assimilating the evidence tendered by the Management as

well as the workman, the Industrial Tribunal found that the Management

proved the charge against the workman. However, the Tribunal went on to

consider as to whether the extreme punishment of dismissal was required.

While appreciating the evidence, the Tribunal found that the injured

workman had started the incident by provoking the workman and ultimately

assaulted him and he fell down, which led to the unfortunate incident of the

workman inflicting a serious injury on the thighs of the injured workman. It

was also found that the injured workman, without any authority, was

insisting the workman to go with him for the work of spraying, while the

work given to the workman by the management was weeding. It was also

found by the Industrial Tribunal that it was not due to the cut injury suffered

by the injured workman that he died, but for other reasons. It was also

found that the action of the workman in inflicting the knife injury was a

subversive to the discipline. However, it was found that the workman is not

to be given the extreme punishment of dismissal, since the incident has

occurred due to the provocation caused by the injured workman.

8 The Industrial Tribunal also found that the workman had inflicted

the injury to protect himself from further aggravated act from the side of the

injured workman and therefore, even though the act of the workman was

subversive to discipline, the extreme punishment of dismissal would be

harsh.

9. However, learned counsel for the petitioner Sri. Benny P. Thomas

submitted that the Tribunal went wrong in ordering compensation, since

whatever be the provocation, it was not proper on the part of the workman

to inflict injury using the knife, which ultimately interfered with the

discipline maintained in the estate among the workers.; that even if the

workman was not the aggressor, so far as the management is concerned,

prevalence of the discipline in the estate is a vital requirement, and

therefore, having found that the Management has proved the charge against

the workman, it was not proper on the part of the Industrial Tribunal to

have interfered with the punishment of dismissal and ordering

compensation.

10. On the other hand, Smt. A.K. Preetha, the learned counsel

appearing for the first respondent Union, submitted that the Industrial

Tribunal has appreciated the evidence let in by the authorities threadbare

and has arrived at the conclusion that the workman was entitled to get

compensation, since the incident occurred solely due to the provocation and

the act of indiscipline from the side of the injured workman, and if the

provocation was avoided, there would not have been any incident at all.

11. I have appreciated the rival submissions made across the Bar and

perused the materials on record . The findings with respect to the

establishment of the charge by the management is not at all assailed by the

first respondent Union and therefore, there is no need to adjudicate any

issue with respect to the findings of the Industrial Tribunal in regard to the

charge proved by the management against the workman.

12. The sole question to be considered is whether any manner of

interference is required to the compensation ordered by the Industrial

Tribunal, and the setting aside of the punishment of dismissal. On an

appreciation of the facts and circumstances and the evidence of the

management as well as the workman as is discernible from Ext. P3 award of

the Industrial Tribunal, I am of the considered opinion that the Industrial

Tribunal was justified in interfering with the extreme punishment of

dismissal, since even from the evidence let in by the Management through

the field officer MW2, it is clear that the incident has occurred due to the

provocation from the side of the injured workman and he alone manhandled

the workman, consequent to which he fell down and in that lying position

alone, the workman inflicted the injury on the thigh of the injured workman.

Which thus means, even after the workman fell down, the injured workman

went near him and the Industrial Tribunal was of the opinion that the

workman to protect himself from further attack of the injured workman, he

had inflicted the cut injury on the thigh of the injured workman. It was

absolutely relying upon the evidence of MW2 i.e., the Field Officer who

witnessed the incident that the findings were rendered by the Industrial

Tribunal. The Tribunal has also found that the workman has unblemished

service from 1995 onwards, after appreciating the rival submissions in that

regard.

13. In that view of the matter, I am of the considered opinion that the

Industrial Tribunal cannot be found fault in the matter of awarding

compensation of Rs.75,000/- along with other retiral benefits but, without

any backwages. Taking into account the fact that such a finding was

rendered on the basis of the evidence let in by the Management, it cannot be

said that the findings rendered by the Tribunal is so perverse so as to

interfere with the award, exercising the power of judicial review under Article

226 of the Constitution of India. Moreover, Section 11A of the Industrial

Disputes Act, 1947 empowers the Tribunal to modify the punishment

imposed by the Management and give such other reliefs to the workman,

including the award of any lesser punishment in lieu of discharge or

dismissal as the circumstance of the case requires. Therefore, it cannot be

said that the Tribunal is not vested with any powers to modify the

punishment as contented by the learned counsel for the petitioner, even in

spite of the charge established against the workman. I also find that the

punishment was modified by the Tribunal after appreciating the evidence on

record, and the whole episode leading to the incident, and therefore as

discussed above, it cannot be said that the Tribunal did so without any

material on record. Which thus means, the Tribunal did not err in the matter

of exercise of the discretion conferred under law, and accordingly the

findings cannot be said to be patently illegal or irrational. To put it

otherwise, there was evidence on record to justify the ultimate conclusion

arrived at by the Tribunal, and therefore, it can never be said that the

Tribunal violated any rules of procedure or the principles of natural justice,

justifying interference in the award exercising the power of judicial review

under Article 226 of the Constitution of India.

Needless to say, the writ petition fails and accordingly, it is dismissed.

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 P1: COPY OF THE CLAIM STATEMENT DATED 04.01.2008 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D.NO.38 OF 2007.

EXHIBIT P2 P2: COPY OF THE COUNTER STATEMENT DATED 07.03.2008 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN I.D.NO.38 OF 2007.

EXHIBIT P3 P3: COPY OF THE AWARD DATED 25.1.2013 (WRONGLY SHOWN AS 25.1.2012) PASSED BY THE SECOND RESPONDENT IN I.D.NO.38 OF 2007.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS TO JUDGE.

rv