P.Kunjukrishnan vs The Secretary
2022 Latest Caselaw 2270 Ker

         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

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

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

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

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

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

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

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

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.

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

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

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

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.

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

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

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

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

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

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

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.