The Managing Director vs Jayaraman.P.S
2022 Latest Caselaw 8471 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
         WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                         WP(C) NO. 17776 OF 2021
PETITIONER/S:

     1       THE MANAGING DIRECTOR
             SREE GOKULAM CHIT AND FINANCE COMPANY LIMITED, GOKULAM
             TOWER, KODAMBAKKAM, CHENNAI-600024, TAMIL NADU,
             REPRESENTED BY ITS DEPUTY GENERAL MANAGER, BYJU M.K,
             S/O.DIVAKARAN, 2ND FLOOR, C.K.TOWERS, KANNUR ROAD,
             NADAKKAVU, KOZHIKODE-673011.

     2       THE EXECUTIVE DIRECTOR
             SREE GOKULAM CHIT AND FINANCE COMPANY LIMITED, GOKULAM
             TOWER, KODAMBAKKAM, CHENNAI-600024, TAMIL NADU,
             REPRESENTED BY BYJU M.K, S/O.DIVAKARAN, DEPUTY GENERAL
             MANAGER, SREE GOKULAM CHIT AND FINANCE COMPANY LIMITED,
             KOZHIKODE BRANCH, 2ND FLOOR, C.K.TOWERS, KANNUR ROAD,
             NADAKKAVU, KOZHIKODE-673011.

             BY ADVS.
             K.M.JAMALUDHEEN
             LATHA PRABHAKARAN



RESPONDENT/S:

             JAYARAMAN.P.S
             9/61E, SAI VISWA VRINDHAVAN, KUZHICHALAPARAMBIL,
             KUNNAMANGALAM, KOZHIKODE-673571.

             BY ADV K.NANDAKUMAR




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17776 OF 2021
                                   2

                             JUDGMENT

Management has assailed the award of the labour court dated

7.1.2021 rendered in I.D No.65/2017 wherein respondent

Jayaraman, workman, in response to the reference of a dispute to

the labour court, has been ordered to be reinstated with 50% of

back wages.

2. The facts in brief are that the respondent workman

joined as a collection agent with the petitioner management on

1.6.2003 and later made permanent. In the year 2009, a special

child was born; when he found difficult to carry the child from

Kalpetta to Kozhikode for treatment, submitted request to the

authorities for transfer. On 24.10.2012 submitted a request for

obtaining leave and thereafter did not join. Vide Ext.P3 dated

12.6.2013 again a request was submitted for transfer but did not

join and this exercise continued till 10.7.2014 vide Ext.P4. On

17.5.2014 he was transferred but again did not join. Since the

management had to take an action, a memo dated 29.2.2016,

Ext.P8 was issued. Finding the reply not satisfactory, a charge

memo dated 30.3.2016 was served with regard to the unauthorized WP(C) NO. 17776 OF 2021

absence from the duty instigating the other workers not to work

and before the enquiry officer he submitted an application dated

8.4.2016 that he would not sign any document or would not appear

till the domestic enquiry is converted into a conciliation

proceedings. The said request was rejected by the enquiry officer,

resulted into issuance of a dismissal order dated

14.7.2016,Ext.P12.

3. Learned counsel appearing on behalf of the petitioner/

management by laying challenge to the award of the labour court

raised the following submissions:

1. Respondent workman throughout this period was gainfully

employed as there is a categorical assertion in the affidavit of the

management which was not subjected to cross examine nor there is

any such iota of assertion or averment in the affidavit of the

workman.

2. There was no need for the enquiry officer to hold ex parte

enquiry which could not have been taken to be against the

management in ordering the reinstatement as there was no

violation of the provisions of Section 25F of the Industrial Disputes WP(C) NO. 17776 OF 2021

Act.

3. No explanation has come forward for unauthorized absence

from 24.10.2012 till the enquiry and thereafter issuance of the

dismissal order. Such a misconduct cannot be condoned as it

would lead to a very anomalous situation in the establishment as

other workers, if the present workman is let off, would also indulge

into such practice.

4. On the other hand, learned counsel appearing on behalf

of the workman submitted that the respondent had not been

accepting the request of the petitioner for transfer as the workman

unfortunately was blessed with a special child who required a

constant treatment and attendance of a parent. The workman was

looking after the child and had no intention to not to carry out his

nature of duties. He was not gainfully employed in any of the

establishment as specifically urged in the affidavit of the

management. Order of the labour court is based upon the

examination of evidence and is perfectly legal and justified.

Enquiry officer did not hold the enquiry; nor submitted enquiry

report; at the best an ex parte enquiry could have been held. In WP(C) NO. 17776 OF 2021

the absence of the same, reinstatement was inevitable.

I have heard the learned counsel for the parties, appraised

the paper book and of the view that the award of the labour court is

liable to be modified to the limited extent of awarding the back

wages. It is settled law that in case of unauthorized absence or for

any other charges the management is required to hold an enquiry

and in the absence of joining of the workman, the enquiry officer is

enjoyed upon an obligation to conduct an ex parte enquiry. No

explanation has come forth on behalf of the management as to why

and under what manner the enquiry officer did not hold an ex parte

enquiry, particularly when workman had intentionally abstained

from joining the enquiry. The management could have examined

the witness and evidence to hold the ex parte enquiry. In the

absence of the same, the reinstatement is inevitable, for, it is a

violation of provisions of Section 25 of the Industrial Disputes Act.

Thus the award of the labour court to the extent of ordering

reinstatement is perfectly legal and justified and do not warrant

any interference. As far as the back wages is concerned, there is a

candid statement of the management in the affidavit filed in WP(C) NO. 17776 OF 2021

support of the examination in chief that the workman was gainfully

employed and not a single suggestion or a word put in the cross

examination. The matter did not stop here. Even the workman in

the entire examination in chief did not utter a word that he was not

gainfully employed. The law on pleadings with regard to gainful

employment is no longer res integra as the onus is on the workman

to assert that he was not gainfully employed and it shifts upon the

management. The management discharged the onus by

categorically stating in the examination in chief and also examined

the doctor as WW2 that the treatment for child was available in

entire Kerala. This aspect has not been appreciated by the labour

court while awarding the back wages to the extent of 50%.

Accordingly, the award of the labour court is modified; it shall be

construed to be reinstatement with no back wages.

Sd/-

sab                                        AMIT RAWAL

                                               JUDGE
 WP(C) NO. 17776 OF 2021


                  APPENDIX OF WP(C) 17776/2021

PETITIONER EXHIBITS

Exhibit P1            TRUE COPY OF THE EXTRACT OF MINUTES OF MEETING
                      DATED 13.06.2021.
Exhibit P2            TRUE COPY OF THE APPOINTMENT ORDER DATED
                      01.06.2003 ISSUE TO THE RESPONDENT.

Exhibit P3            TRUE COPY OF THE LETTER DATED 12.06.2013

ISSUED BY THE RESPONDENT TO THE PETITIONERS.

Exhibit P4 TRUE COPY OF THE COMPLAINT DATED 10.07.2014 BY THE RESPONDENT TO THE DEPUTY LABOUR OFFICER, KALPETTA.

Exhibit P5 TRUE COPY OF THE COMPLAINT DATED 04.03.2015 BY THE RESPONDENT TO THE LEGAL SERVICE AUTHORITY.

Exhibit P6 TRUE COPY OF THE EXPLANATION DATED 27.07.2015 BY THE PETITIONERS TO THE HUMAN RIGHTS COMMISSION.

Exhibit P7 TRUE COPY OF THE COMPLAINT DATED 02.11.2015 BY THE RESPONDENT TO THE DEPUTY LABOUR OFFICER, KALPETTA.

Exhibit P8 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 29.02.2015 ISSUED BY THE PETITIONERS TO THE RESPONDENT.

Exhibit P9 TRUE COPY OF THE MEMO DATED 30.03.2016 ISSUED BY THE PETITIONERS TO THE RESPONDENT.

Exhibit P10 TRUE COPY OF THE LETTER APPOINTING SRI.JANARDHANAN KIDAVU AS ENQUIRY OFFICER ALONG WITH MEMO.

Exhibit P11 TRUE COPY OF THE LETTER SEND BY THE WORKMAN DATED 08.04.2016 TO THE ENQUIRY OFFICER. WP(C) NO. 17776 OF 2021

Exhibit P12 TRUE COPY OF THE DISMISSAL ORDER DATED 14.07.2016 ISSUED BY THE PETITIONERS TO THE WORKMAN.

Exhibit P13 TRUE COPY OF THE COMPLAINT DATED 08.09.2016 BY THE RESPONDENT TO THE DEPUTY LABOUR OFFICER, KALPETTA.

Exhibit P14 TRUE COPY OF THE WRITTEN STATEMENT DATED 25.4.2018 BY THE WORKMAN IN I.D.NO.65/2017 BEFORE THE LABOUR COURT, KOZHIKODE.

Exhibit P15 TRUE COPY OF THE OBJECTION STATEMENT DATED 23.07.2018 BY THE MANAGEMENT IN I.D.NO.65/2017 BEFORE THE LABOUR COURT, KOZHIKODE.

Exhibit P16 TRUE COPY OF THE REJOINDER STATEMENT DATED 27.09.2018 BY THE WORKMAN IN I.D.NO.65/2017 BEFORE THE LABOUR COURT, KOZHIKODE.

Exhibit P17 TRUE COPY OF THE AWARD PASSED IN I.D.NO.65/2017 BY THE LABOUR COURT, KOZHIKODE DATED 07.01.2021.

Exhibit P18 TRUE COPY OF THE PROOF OF AFFIDAVIT WITH CERTIFIED COPY OF THE CROSS EXAMINATION OF THE M,W 1 (MANAGEMENT WITNESS NO.1)

Exhibit P19 TRUE COPY OF THE PROOF OF AFFIDAVIT WITH CERTIFIED COPY OF THE CROSS EXAMINATION OF THE WW 1(WORKMAN WITNESS NO.1)

Exhibit P20 CERTIFIED COPY OF THE DEPOSITION OF WW2 (WORKMAN WITNESS NO.2) WP(C) NO. 17776 OF 2021

RESPONDENT'S EXHIBITS:

Exhibit R1: True copy of the letter dated 1.4.2002 issued by the petitioner company regarding gross wages of the respondent.

Exhibit R2: Standing Disability Assessment Board Certificate dated 26/06/2012

Exhibit R3: True of the report from Speech pathologist and Audiologist smt. Girija dated 24.9.2012

Exhibit R4: Certificate issued by Ashakiran dated 14.08.2013

Exhibit R5 :Notice issued by the District Labour Officer dated 12/05/2014

ExhibitR6: Transfer order issued by the petitioner company dated 17.5.2014

Exhibit R7: Letter issued by the District Labour Officer, Wyanad, dated 17/03/2015

Exhibit R8: True copy of the Order dated 31/08/2015 issued from the Registrar, Kerala State Human Rights Commission dated 5/1/2016

Exhibit R9: True copy of the Government Order dated 01.11.2017