Kerala High Court
General Secretary vs Kannan Devan Hills Planttions Company ... on 7 February, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
WA NO. 703 OF 2018
FROM JUDGMENT DATED 25/07/2017 OF THE LEARNED SINGLE JUDGE
IN WPC 1028/2010
APPELLANT:(1ST RESPONDENT)
GENERAL SECRETARY
WORKERS CONGRESS,
MUNNAR P.O, IDUKKI DISTRICT.
BY ADV SRI.P.RAMAKRISHNAN
RESPONDENTS:(PETITIONER & 2ND RESPONDENT)
1 KANNAN DEVAN HILLS PLANTATIONS COMPANY (P) LTD
KDHP HOUSE, MUNNAR - 683 612,
REPRESENTED BY ITS SENIOR MANAGER(IR)
MR.G. SOMANADHAN.
2 INDUSTRIAL TRIBUNAL
IDUKKI, PIN - 685 603.
SRI P BENNY THOMAS.
R1 SR GP SRI T. K VIPINDAS
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Writ Appeal No.703 of 2018
2
AMIT RAWAL & C.S.SUDHA, JJ.
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Writ Appeal No.703 of 2018
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Dated this the 07th day of February, 2024
JUDGMENT
Amit Rawal, J.
This intra court appeal is preferred against the judgment of the
learned Single Bench whereby the award of the Labour Court ordering
reinstatement without any back-wages has been set aside. The case set up
by the appellant worker was that he was working as a Cooli with the first
respondent and was allotted a room to live along with 2,400 sq.ft as the
backyard. His brother being an employee was allotted similar property and
incidentally was his immediate neighbour with the same area at the
backyard.
2. Brother submitted a complaint before the authorities against
the appellant for having encroached his land. On the basis of the said
complaint, management issued a show cause notice resulting into a charge
sheet. An enquiry officer was appointed and indicted him of misconduct
resulted into dismissal. Labour Court noticing all the contentions, found
that the punishment of dismissal on the alleged encroachment which no
longer existed as, during the pendency of the dispute before the Labour
Court, had released the land of alleged encroachment, set aside the
dismissal and ordered for reinstatement. Management challenged the award
before the single bench on the ground that if the workers are permitted to
encroach the area belonging to the plantation/management harshest
punishment will act as a deterrent to all the employees. Axe has to fall on
somebodies head. Learned Single Bench accepted the contention of the
management though mentioning that the punishment was harsh, set aside
the award and modified the dismissal into discharge. It is in that
circumstances, the workman has filed the intra court appeal.
3. Mr. P.Ramakrishnan, learned counsel appearing on behalf of
the appellant submitted that the order of the learned Single Bench is not
sustainable in the eyes of the law for the reason that though the alleged
encroachment was admitted by the workman, the management failed to
take any steps to fortify the contents of the complaint submitted by the
brother. When the alleged misconduct which was not of that serious nature
no longer existed, enquiry should have been dropped with a warning or
minor punishment. He was a daily worker and in order to sustain had
picked up the job much later after realising that lot of time would be
consumed for ending the litigation. That cannot be a deterrent for awarding
back-wages or composition if this Hon'ble Court deem it appropriate.
4. On the other hand, the learned counsel appearing on behalf of
the management supported the order of the learned Single Bench and
submitted that during the pendency of the writ petition an application under
Section 17B of the Industrial Dispute Act, 1947 was submitted. It was
allowed and the management was ordered to pay last drawn wages. After
having paid approximately one lakh rupees in 2014 it surfaced that
workman had taken up employment in some other institution. An
application was submitted placing on record the documents to substantiate
the assertion but the application has not been disposed of while deciding
the writ petition, therefore, the workman was gainfully employed and not
entitled to any back-wages or compensation. If the harshest punishments
are not imposed on a workman indulging into encroachment of the
management land, management would not be left with any inch of land and
would be employed into unnecessary litigation.
5. We have heard the learned counsel for the parties and
appraised the paper book. Facts as noticed above, on the basis of which
enquiry was ordered and the workman was dismissed from service are not
in dispute. Learned Single Bench in paragraph 6 of the judgment noted as
follows-
"There is hardly any dispute regarding encroachment. Pending
the matter before the Tribunal, Murugan withdrew from
encroachment and filed an affidavit referring to these aspects.
The Tribunal took a lenient view and ordered reinstatement
without any back wages. The Tribunal was of the view that the
denial of backwages, therefore, is sufficient to meet the ends of
justice as a punishment."
6. It is a matter of fact that the workman during the pendency of
the matter before the Labour Court leased the land purported to have been
under his encroachment. Management ought to have noticed this fact and
imposed less harsher/minor penalty instead of dismissal. It is very difficult
for a daily wager to make both ends meet and feed his family in case the
workman on such allegations are dismissed. No doubt in paragraph 7 it
was found that the punishment was harsh but despite that, order of
dismissal was modified into discharge. It is a matter of fact that the
workman was sanguine of the reinstatement as early as possible. But
owing to the prolongation of the litigation, had no other course but to adopt
alternative employment as a daily wager. Such factors cannot be a ground
for denying compensation or even back-wages as, in the present era, it is
very arduous to feed the family and sustain. Workman at the time of
dismissal, was aged about 46 in 2011. By this time, he has become over-
aged for re-employment. Accordingly we set aside the order of the learned
Single Bench and modify the order of the Labour Court, instead of ordering
reinstatement, there shall be a compensation as full and final of ₹2,00,000/-
(Rupees two lakhs only) to be paid within a period of one month from the
date of receipt of certified copy of this Judgment.
Writ appeal stands disposed off.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
Jms
