Kerala High Court
Adeecco India Private Limited vs The Labour Court, Ernakulam on 12 June, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 28507 OF 2020
PETITIONER/S:
ADEECCO INDIA PRIVATE LIMITED
BRIGADE METROPOLIS, B-9, 13TH FLOOR, ITPL MAIN ROAD,
GARUDACHAR PALYA, MAHADEVPURA, BENGALURU BANGALORE -
560048, REPRESENTED BY ITS DIRECTOR (ADDRESS SHOW IN THE
AWARD OF THE LABOUR COURT, 41/1041 A, 1ST FLOOR, KRC HOUSE,
VEEKSHANAM ROAD, KOCHI - 682018, NO.LONGER EXISTS AS
PETITIONER HAS CLOSED DOWN THE PREMISES)
BY ADV A.K.PREETHA
RESPONDENT/S:
1 THE LABOUR COURT, ERNAKULAM
KOCHI - 682018, REPRESENTED BY SECRETARY.
2 SARASAN J.S, AINIKKAD HOUSE, PANAMBUKAD, VALLARPADOM
P.O, ERNAKULAM - 682504.
3 CIPLA LIMITED, T.P.V-190 D, COCHIN PUBLIC SCHOOL ROAD,
KARIMAKKAD, THRIKKAKARA, KOCHI - 682021, REPRESENTED BY
ITS MANAGING DIRECTOR.
BY ADVS.SRI.B.ASHOK SHENOY; SMT.PREETHI RAMAKRISHNAN (P-
212); SRI.P.S.GIREESH; SRI.T.C.KRISHNA; SRI.C.ANIL KUMAR
SRI.RIYAL DEVASSY; SMT.MEDAYILTANYA MARIE VICTO
SRI.PRATAP ABRAHAM VARGHESE; SMT.ASHA K.SHENOY; SRI.
JUSTIN JACOB- SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.28507/2020
-2-
JUDGMENT
The petitioner, an employer, has filed the present writ
petition impugning the Award passed in Ext.P7 by the Labour
Court, Ernakulam, on 25.02.2020 in Industrial Dispute No.21 of
2017. The Labour Court, vide the impugned Award, has
directed the petitioner-management to reinstate the second
respondent, the workman, with full back wages, continuity of
service, and all other attendant benefits.
2. The petitioner is a licensed contractor having a
license issued under the Contract Labour (Regulation and
Abolition) Act 1970. The petitioner had entered into a contract
with M/s Cipla Limited, the 3rd respondent, for the supply of
depot workers for carrying various items of work such as
packing, loading etc. The petitioner had deployed 38
workmen, including the 2nd respondent, in the Cochin Depot of
the 3rd respondent Company. The 2nd respondent/workman,
while employed on the premises of the 3rd respondent, was
involved in serious misconduct of sexual harassment.
2.1 The Internal Complaints Committee (for short, 'the
ICC') enquired about the complaint from the victim under the
provisions of the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act 2013 (for short,
'the Act'). The ICC, after collecting the evidence and
considering the stand of the 2nd respondent, who was given the
full opportunity to defend himself, found the 2nd respondent
guilty of the misconduct of sexually harassing the complainant
at the workplace. Section 13(4) of the Act mandates the
employer to act upon the recommendation of the ICC within
sixty days from the date of receipt of the recommendation. A
report of the ICC was provided to the 2nd respondent along
with a show cause notice requiring his explanation on the
report of the ICC. The report of the ICC has been placed on
record as Ext.P1.
2.2 The explanation furnished by the 2nd
respondent/workman was not found to be satisfactory and
considering the grave misconduct proved against the 2nd
respondent by the ICC, he was dismissed from service with
effect from 08.04.2016. Against the order of punishment of
dismissal, the 2nd respondent raised an industrial dispute
before the District Labour Officer, Ernakulam. The petitioner
filed a detailed objection before the District Labour Officer,
contending that action had been initiated against the 2nd
respondent under the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act and
that industrial dispute would not be maintainable in the facts
of the case.
2.3 Thereafter, the 2nd respondent raised an industrial
dispute under Section 2A(2) of the Industrial Disputes Act 1947
before the Labour Court. The following dispute was referred
to the Labour Court for decision:
"1. Whether the termination of service of Sri
Sarasan J S by the management is justifiable or not?
2. If not, what are the reliefs he is entitled to?"
The petitioner produced the files pertaining to the enquiry
conducted by the ICC, which was constituted under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act 2013. The Labour Court was of the opinion
that the management failed to produce the enquiry report of
the domestic enquiry. What was produced was the ICC report
consisting of three members, however, none of them came to
the witness box to prove the report of the ICC.
2.4 Relying on the judgment of this Court in Sibu L S v.
Air India Ltd, New Delhi1 the Labour Court held that the ICC
was required to conduct an enquiry in the same manner to
prove the misconduct as in disciplinary proceedings referable
to Service Rules. No such enquiry was conducted and based on
the report of the ICC, the petitioner was dismissed from
service. No disciplinary proceedings were instituted against
the 2nd respondent and dismissing the 2nd respondent from
service was against the law. Therefore, the 2nd respondent was
entitled to reinstatement with full back wages, continuity of
service and all other attendant benefits.
3. The learned Counsel for the petitioner has
submitted that the 2nd respondent/workman was given full
opportunity before the ICC who participated in the enquiry
conducted by the ICC. The ICC report was provided to the
2016 (2) KHC 569
workman with a show-cause notice. The workman filed his
reply to the show cause notice, and after considering the reply,
a decision was taken to inflict the punishment of dismissal
from service as the misconduct was of grave and serious
nature. The workman has never challenged the ICC enquiry
report. The Management was obliged to take action within
sixty days of the date of the report of the ICC. All due
procedure was followed, and therefore, the finding of the
learned Labour Court that there was a violation of the
principles of natural justice is not correct, and the impugned
Award is against the law and liable to be set aside.
4. On the other hand, the learned Counsel for the
workman has submitted the ICC did not enquiry into the
matter under the relevant Service Rules and therefore, the
said enquiry committee report could be a piece of evidence but
that cannot be the sole basis, for inflicting the punishment on
the workman. It is further submitted that the petitioner did
not produce any evidence before the Labour Court to support
the charge of misconduct against him. As the enquiry was not
conducted under the relevant Service Rules for taking
disciplinary action, the dismissal of the workman from the
service only on the grounds of the report of the ICC was totally
unjust and improper, and the same has been held so by the
Labour Court. Therefore, this Court may not interfere with the
said finding of the Labour Court.
5. I have considered the submissions advanced on
behalf of both parties and have gone through the report of the
ICC, which has been placed on record as Ext.P1.
5.1 The respondent/workman was given an
opportunity to file his objection to the show cause notice. He
was also provided with the report of the ICC. The
respondent/workman was given the full opportunity to
defend himself by the ICC. This report of the ICC was produced
before the Labour Court. The workman never disputed the
report of the ICC. Therefore, it was not required to be proved
as held by the Labour Court. When the report was not in
dispute, there was no requirement to prove the report as the
admitted facts are not required to be proved. If the Labour
Court was of the opinion that the domestic enquiry was
required to be instituted, the Labour Court could have given
the opportunity to the employer to conduct the domestic
enquiry or should have directed the employer and employee
to produce the evidence regarding the misconduct before the
Labour Court itself. The workman himself did not produce any
evidence in his support.
5.2 When the ICC report was not in dispute, the finding
of the Labour Court that the report was not proved is wholly
incorrect. In view thereof, this Court finds that the Labour
Court has misled itself in allowing the claim of the
respondent/workman and granting the relief for
reinstatement with full back wages and continuity of service.
When the misconduct of the workman is grave and serious
regarding the sexual harassment of a female employee and
that allegation was found proved in the ICC report in which
the workman participated and was given a copy of the enquiry
report along with the show cause notice, this Court is of the
view that there was no violation of the principles of natural
justice.
5.3 So far as the question of domestic enquiry is
concerned, the Labour Court ought to have given the
opportunity to the employer and employee to lead their
evidence in support of and against the charge of misconduct.
Therefore, the impugned Award is set aside. The same is
remitted back to the Labour Court to decide afresh after giving
the opportunity to the petitioner/employer and the workman
to lead their respective evidence in support of and against the
charge of misconduct of sexual harassment at the workplace
by the workman. On remand, the Labour Court shall conclude
the proceedings expeditiously, preferably within a period of
four months, and pass fresh orders in accordance with the law.
With the aforesaid observations and directions, the writ
petition stands finally disposed of.
Sd/-
DINESH KUMAR SINGH
JUDGE
jjj
APPENDIX OF WP(C) 28507/2020
PETITIONER ANNEXURES
Annexure I True copy of the letter of appointment issued to the
Petitioner in IA dated 1.2.2013
Annexure II True copy of the wage slip of the Petitioner in I.A. for
the month of March 2016
EXHIBIT P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
2ND RESPONDENT TO THE DISTRICT LABOUR OFFICER,
ERNAKULAM DATED 29.04.2016.
EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER BEFORE THE DISTRICT LABOUR OFFICER,
ERNAKULAM DATED 22.06.2016.
EXHIBIT P1 TRUE COPY OF THE REPORT OF THE INTERNAL
COMPLAINTS COMMITTEE.
EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE PETITIONER IN ID NO.21 OF 2017 ON THE FILES OF
THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE AWARD DATED 25.02.2020 PASSED
BY THE 1ST RESPONDENT IN ID NO.21/2017.
EXHIBIT P5 TRUE COPY OF THE CLAIM STATEMENT FILED BY THE
2ND RESPONDENT IN ID NO.21 OF 2017 ON THE FILES OF
THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DISMISSAL ISSUED BY THE
PETITIONER TO THE 2ND RESPONDENT.
