Kerala High Court
Parayil Kunhiraman Nair vs Sasikumar K on 17 October, 2024
Author: K. Babu
Bench: K. Babu
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
WP(C) NO. 17647 OF 2021
PETITIONER:
PARAYIL KUNHIRAMAN NAIR,
MANAGING DIRECTOR, KVR MOTOR CARS PVT LTD,
1/1046 C, D&E 'KVR FIAT', KANNUR ROAD,
KOZHIKODE 673 005, REPRESENTED THROUGH POWER OF
ATTORNEY HOLDER JAYARAJAN N.T. NIRVITHI,
THAVAKKARA, KANNUR.
BY ADVS.
P.VIJAYAMMA
J.SURYA
PRINSUN PHILIP
V.KRISHNA MENON
RESPONDENTS:
1 SASIKUMAR K.,
MEETHALEVEETIL HOUSE, NANMANDA P.O,
KOZHIKODE 673 613.
2 THE LABOUR COURT,
KOZHIKODE 9, (DELETED ) ,
(SUO MOTU DELETED AS PER ORDER DATED 02.09.2021)
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W.P.(C)No.17647 of 2021 2
ADDL. R2. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF LABOUR,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.
(SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENT NO.
2. AS PER ORDER DATED 02.09.2021.)
R1 BY ADV P.M.UNNI NAMBOODIRI
R2 BY G.P.SRI.G GORDEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C)No.17647 of 2021 3
"C.R."
JUDGMENT
The challenge in this writ petition is to the award dated
3.4.2021 passed by the Labour Court, Kozhikode, in Industrial Dispute
No.55 of 2017. K.V.R Motor Cars Private Limited represented by its
Managing Director, is the petitioner (hereinafter referred to as "the
Management"). Sri.Sasikumar K. is the respondent (hereinafter
referred to as "the workman").
Facts:
2. Under Section 10(1)(c) of the Industrial Disputes Act,
1947, the Government of Kerala on 11.8.2017 referred the industrial
dispute to the Labour Court. The dispute reads thus:-
"Whether the dismissal of Sri.K.Sasikumar, worker of KVR
Motors Cars Private Limited, West Hill, Kozhikode, as a result
of punishment inflicted by way of disciplinary action is
justifiable or not? If not, what are the remedies available to
him?"
3. The workman had been employed by the Management as
an electrician from 7.10.2018 on a monthly salary of Rs.11,500/-. On
30.3.2015, his employment was re-designated as `Maintenance cum
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Driver'. On 24.8.2016, the Management assigned a job to which the
workman failed to perform. A show cause notice was issued to the
workman. A domestic enquiry was conducted. The workman was
found guilty and dismissed from the employment.
4. The workman pleaded that on 24.8.2016, in response to
the assignment given to him, he had informed the Management that he
would not be able to attend the job due to the illness of his child, who
has been suffering from cerebral ailments and in need of daily medical
attention. According to the workman, the domestic enquiry was
conducted without following the rules and natural justice. The
workman pleaded that it was under compulsion he had to affix his
signature in the letter assigning re-designation of his employment as
'Maintenance cum Driver'.
5. The Management pleaded that the workman was
dismissed from service on justifiable terms. He had indulged in very
serious misconduct and dereliction of duty against the better interest
and welfare of the establishment. He proved to be unfit to continue as
an employee under the Management. The domestic enquiry conducted
was free, fair, and impartial, strictly conformed to the statutory rules
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and regulations, and it observed the principles of natural justice. The
workman has been employed as 'Maintenance cum Driver' in the
Management since 2013. The Management never employed him as an
'Electrician'.
6. I have heard the learned counsel appearing for the
Management and the learned counsel appearing for the workman.
7. The learned counsel appearing for the Management
submitted that the finding of the Labour Court that the Enquiry Officer
conducted the enquiry in violation of the principles of natural justice is
without any foundation. The reasoning applied to set aside the enquiry
report by the Labour Court is against the settled principles of law.
8. The learned counsel appearing for the workman
submitted that the domestic enquiry violated the principles of natural
justice. It is submitted that the relevant documents relied on by the
Management in the enquiry were not served to the workman at the
time of giving evidence.
9. The learned counsel appearing for the Management
submitted that this is a fit case in which the matter is liable to be
remitted to the Labour Court to consider the same afresh.
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10. The Labour Court considered the validity of the enquiry
report as a preliminary issue and set aside the same, holding that the
Enquiry Officer conducted the enquiry in violation of the principles of
natural justice. The Management, without prejudice to its plea that the
enquiry was proper and binding, adduced evidence before the Labour
Court justifying its action.
11. While trying the preliminary issue, the Labour Court
examined the Enquiry Officer as MW1, and marked Ext.M1 enquiry file.
The workman was examined as WW1, and Exts.W1 to W12 were
marked on his side.
12. In further enquiry after the preliminary order, the HR
Manager of the Management gave evidence as MW1 and Exts.M1 to
M28 were marked on the side of the Management. The workman gave
evidence as WW1 and proved Exts.W1 to W12.
13. The principles to be followed in a proceeding on a
reference under Section 10 or by way of an application under Section
33 of the Industrial Disputes Act are the following:-
(1) In a case where no domestic enquiry was held or after the
Management takes the stand that it does not rely upon a domestic
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enquiry that may have been held by it, the Management may straight
away adduce evidence before the Labour Court justifying its action. The
Labour Court shall consider the evidence before it on merits and record
a finding thereon.
(2) In a case where a domestic enquiry had been held, the
Management may rely upon it or, in the alternative, without prejudice
to its right to contend that the enquiry was proper and binding,
simultaneously adduce evidence before the Labour Court justifying its
action.
(3) In a case where the Management relies on the enquiry conducted
by it and simultaneously adduces evidence, the Labour Court has to
consider whether the proceedings conducted by the Management are
valid and proper. If the enquiry proceedings conducted by the
Management are found to be proper and valid, there is no question of
consideration of the evidence adduced before it. But, if the Labour
Court holds that the domestic enquiry proceedings have not been held
properly, it exercises the jurisdiction to deal with the merits of the
dispute based on the evidence tendered by both sides.
(4) In a case where domestic enquiry had been conducted by the
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Management, and it relies on it, the Labour Court may try the validity
of the domestic enquiry as a preliminary issue. If the finding on the
preliminary issue is against the Management, it is open to the
Management to lead further evidence. On the other hand, if the finding
on the preliminary enquiry is in favour of the Management, no
additional evidence needs to be adduced. When the Labour Court
decides the preliminary issue against the Management, it has to prove
by adducing proper evidence that the workman is guilty of misconduct
and that the action taken by it is just and proper.
(5) The Management has every right to attempt to sustain its order by
adducing independent evidence before the Labour Court if such a
request is made before the proceedings are closed. If no such request
is made, the Labour Court will consider whether the enquiry
proceedings have been held properly and the findings are justified. In
such a situation, the duty of the Labour Court is only to consider the
validity of the domestic enquiry as well as the finding recorded therein,
and the Labour Court has, in such a situation, no duty to suo motu
invite the employer to adduce evidence before the Labour Court to
justify the action taken by it. (vide: Delhi Cloth and General Mills
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Co. v. Ludh Budh Singh [(1972) 1 SCC 595].
14. In the present case, the Management without prejudice
to its plea that the enquiry was proper and binding, availed its right to
adduce additional evidence after the Labour Court considered the
validity of the domestic enquiry.
15. The challenge in this proceeding is two-fold;
(1) the finding of the Labour Court that the domestic enquiry was in
violation of the principles of natural justice is against the settled
principles of law.
(2) The award passed, after considering the evidence adduced on both
sides, is perverse, and hence, there is a gross and manifest failure of
justice.
16. I shall first consider the preliminary finding of the
Labour Court on the validity of the domestic enquiry report.
17. The workman raised the contention that the Enquiry
Officer did not give the copies of the documents relied on by the
Management. The Labour Court perused Ext.M1 file relating to the
domestic enquiry. The Enquiry Officer has recorded that he examined
MW1 on 23.12.2016. Thereafter, the matter was adjourned for cross-
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examination to 30.12.2016. The proceedings do not contain any
endorsement that the workman was served with the document list and
witness list on that day. A list of 16 documents was produced by the
Management before the Enquiry Officer on 23.12.2016. Seventeen
documents were marked. Without giving those documents, the Enquiry
Officer has commenced the enquiry by examining MW1. Ext.M1 file
reveals that the workman had requested to get the documents. The
Labour Court, after perusing Ext.M1 enquiry file, concluded that in the
proceedings dated 30.12.2016, the entire proceedings were written in
Malayalam, and an endorsement in small size letters was seen in
English stating that the documents produced by the Management were
offered to the workman but he refused to accept them and hence cross-
examination was adjourned to 5.1.2017. The Labour Court found that
such an endorsement was made by the Enquiry Officer to help the
Management. The Labour Court has also noted that the workman
admitted in the cross-examination on 30.12.2016 that he refused to
accept the documents given by the Enquiry Officer because he was not
given permission by the Enquiry Officer to appoint a lawyer. Relying on
this submission, the learned counsel for the petitioner submitted that
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the finding of the Labour Court that the enquiry was conducted in
violation of the principles of natural justice is without any foundation.
The specific finding of the Labour Court is that the documents relied on
by the Management were not tendered to the workman so as to
facilitate him in defending the case of the Management. The Labour
Court noted that Ext.W7 letter dated 6.1.2017 given by the workman
and marked by the Enquiry Officer indicates that he had requested to
furnish copies of the documents and copies of the depositions. Ext.W8
is another letter dated 21.4.2017 submitted by the workman to the
Enquiry Officer requesting him to furnish copies of all the documents
and copies of the depositions of the witnesses. Relying on Exts.W6(a),
W7 and W8, the Labour Court found that the copies of the documents
were not furnished to the workman by the Enquiry Officer till
30.12.2016, and thereafter, MWs 1 to 5 were examined, and Exts.M1 to
M17 were marked in the enquiry proceedings. The Labour Court found
that there is a clear indication of an infraction of the principles of
natural justice, which is sufficient enough to hold that the domestic
enquiry is vitiated.
18. Now, coming to the challenge on the award, the
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Management levelled the following charges against the workman:-
(1) The workman disobeyed the order of his official superior to take a
Fiat Liniya car to a customer at Malappuram on 24.8.2016.
(2) The workman disobeyed the directions to do some silly maintenance
work in a showroom, which was shifted to another place.
(3) On 1.8.2016, the workman refused to do some electrical wiring
works in connection with the fitting of a television in the new building of
the establishment as directed by the Sales Manager Sri Abeesh. .
(4) On 11.7.2016, the workman refused to purchase a bicycle from
Ernakulam, which was intended to be placed on the top of an Aventura
car.
(5) The workman committed dereliction of duty by disobeying the
direction of the Sales Manager to take KL 11 B 205 Car at 1 p.m. to
Nilambur for a test drive.
(6) The workman refused to remove a Dish Antenna of Sun Direct to fit
in the new showroom.
(7) The workman refused to comply with the direction to shift an air
conditioner from the cabin of the Account Manager of the establishment
to a new building.
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(8) He refused to do some electrical work utilising the service of outside
electricians.
(9) The workman refused to obey the direction to bring a chair from the
main office to the yard of the establishment.
(10) He unauthorisedly interfered with the transactions between the
service advisors and customers.
(11) On 2.1.2017, the workman refused to do some electrical repair
works in the establishment where on the previous day a fire took place.
19. Both sides adduced evidence on the various charges
levelled against the workman.
20. The first charge was that the workman disobeyed the
order of his official superior to take a Fiat Liniya car to a customer at
Malappuram on 24.8.2016. The workman contended that on
24.8.2016, no such direction was given to him. He stated that on
23.8.2016, he was directed to take a Punto white car for a test drive to
a customer, namely Ramees, at Perinthalmanna. According to the
workman, he took the car to Perinthalmanna on the specific day. He
further stated that on 24.8.2016 at about 1.51 pm Sri.Roshan, a staff in
the Management, called him over the telephone and directed him to
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bring back the Punto car from Perinthalmanna. The case of the
workman was that 24.8.2016 was Sree Krishna Jayanthi day, and
hence, he expressed the difficulties in bringing the car from
Perinthalmann within the time span as directed by the Management.
He made it clear that he could reach back only at about 9 p.m. on that
day. The Labour Court found that the Management failed to prove that
on 24.8.2016, as levelled in the charge, the Management gave a
direction to the workman to bring a Fiat Liniya Car to a customer at
Malappuram.
21. The second charge is that he disobeyed a direction to fill
chemicals in the water treatment plant. Ext.M1 appointment letter
shows that the workman was appointed with the responsibility to do
general maintenance. The Management failed to prove that filling
chemicals in the water treatment plant was the duty of the workman.
22. The further allegation of the Management is that the
workman failed to do some electrical wiring works in connection with
the fitting of a television set in the new building on 1.8.2016. The
stand of the workman was that he did not have the technical knowledge
to shift and fit the LED TV. The Labour Court found that the workman
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never deliberately disobeyed any direction in this regard.
23. Yet another charge is that on 11.7.2026, the workman
disobeyed a direction by the Sales Manager to go and purchase a
bicycle from Ernakulam. The workman explained that if he had left for
Ernakulam to purchase a cycle on 11.7.2016, he could not have taken
his son to the hospital for emergency treatment. According to the
workman, he had expressed his difficulty to the Works Manager and
that he was exempted from that duty. The Labour Court, therefore,
found that this charge levelled against the workman was without any
basis.
24. The Management raised a further charge that on
19.8.2016 the workman refused to take a car to Nilambur for a test
drive. The workman took the stand that in the morning he was
entrusted to do some work and only after completion of that work he
was directed to take a car to Nilambur for test drive and therefore, he
could reach there only after 12 noon. The Labour Court found that the
explanation given by the workman was satisfactory.
25. Another charge against the workman is that on
1.9.2016, he refused to remove a dish antenna of Sun Direct from the
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Management establishment and to place it in the new showroom. The
stand of the workman was that he had no knowledge of how to do such
work, and therefore, he expressed his inability to do so to the HR
Manager. In view of the nature of the work assigned to the workman,
it is to be inferred that he had no sufficient knowledge to do the said
work.
26. The Management further alleged that on 13.5.2016, he
refused to undertake the work of shifting an air conditioner from the
cabin of the Account Manager to the new building. The workman
denied this allegation. The Labour Court found that even if such a
direction was given to the workman, he was not familiar with the said
work.
27. The Management alleged that on 1.6.2016, the
workman refused to do some electrical work using the service of
outside electricians. The Labour Court found that the workman was not
familiar with the work directed to be done by him.
28. The further allegation against the workman was that on
26.8.2016, he refused to bring a chair from the main office to the yard
of the Management establishment. According to the workman, when he
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reached halfway to do the work, another man did the work. The
specific stand of the workman was that he had not refused to do the
said work.
29. Another allegation against the workman was that he
unauthorisedly interfered with the transactions between service
advisors and customers at the front office of the Management
establishment. After perusing the relevant file, the Labour Court found
that a disciplinary action was initiated against the workman in this
regard, but the same was closed, and therefore, this allegation cannot
be permitted to be raised in the present proceedings.
30. Finally, the Management alleged that on 2.1.2017, the
Sales Manager directed the workman to do some electrical repair work
in the area where a fire had occurred on the previous day. The
workman contended that it was true that a fire took place on the
previous day in the back office section of the establishment. But, he
was not directed to do any electrical work there. The Labour Court
noted that the alleged incident occurred on 2.1.2017. But, he was
dismissed from the service as early as on 26.11.2016 as per the show
cause notice and charge sheet. Therefore, the allegation that he
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refused to do electrical work on 2.1.2017 is totally false.
31. I have gone through the materials placed before the
Court. The findings of the Labour Court were based on relevant
evidence. I failed to find an error of law, which is apparent on the face
of the record that needs to be corrected in the writ jurisdiction. There
is no patent perversity in the findings of the Labour Court. I am unable
to find any gross and manifest failure of justice or flouting of any basic
principles of natural justice. It is a settled proposition of law that in the
exercise of its powers of superintendence under Article 227 of the
Constitution, the High Court can interfere with the order of the Labour
Court only when there has been patent perversity in the orders of the
Court and where there has been gross and manifest failure of justice or
the basic principles of natural justice have been flouted. I am of the
considered view that the Labour Court has exercised its discretion,
keeping in view the pleadings and evidence.
32. A writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals : these are cases
where orders are passed by inferior courts or tribunals without
jurisdiction, or is in excess of it, or as a result of failure to exercise
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jurisdiction. A writ can similarly be issued where, in the exercise of
jurisdiction conferred on it, the court or tribunal acts illegally or
improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order or where the
procedure adopted in dealing with the dispute is opposed to principles
of natural justice. There is, however, no doubt that the jurisdiction to
issue a writ of certiorari is a supervisory jurisdiction, and the court
exercising it is not entitled to act as an appellate court. This limitation
necessarily means that findings of fact reached by the inferior court or
tribunal as a result of the appreciation of evidence cannot be reopened
or questioned in writ proceedings. An error of law that is apparent on
the face of the record can be corrected by a writ, but not an error of
fact, however grave it may appear to be. In regard to a finding of fact
recorded by the Tribunal, a writ of certiorari can be issued if it is shown
that in recording the said finding, the Tribunal had erroneously refused
to admit admissible and material evidence or had erroneously admitted
inadmissible evidence, which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that would be
regarded as an error of law, which can be corrected by a writ of
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certiorari. In dealing with this category of cases, however, we must
always bear in mind that a finding of fact recorded by the Tribunal
cannot be challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned finding.
The adequacy or sufficiency of evidence led on a point, and the
inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ court. It is within these limits that the jurisdiction
conferred on the High Courts under Article 226 to issue a writ of
certiorari can be legitimately exercised (vide: Sayed Yakoob v.
K.S.Radhakrishnan (AIR 1964 SC 477).
33. The High Court cannot exercise its power under Article
227 of the Constitution as an appellate court or reappreciate evidence
and record its findings on the contentious points. Only if there is a
serious error of law or the findings recorded suffer from error apparent
on record can the High Court quash the order of a lower court (vide:
Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Co. Ltd.
[(2014) 6 SCC 434].
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34. While exercising the jurisdiction under Articles 226
and/or 227 of the Constitution in matters like the present one, the High
Courts are duty-bound to keep in mind that the Industrial Disputes Act
and other similar legislative instruments are social welfare legislations
and the same are required to be interpreted keeping in view the goals
set out in the Preamble of the Constitution and the provisions contained
in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A
in particular, which mandate that the State should secure a social order
for the promotion of welfare of the people, ensure equality between
men and women and equitable distribution of material resources of the
community to subserve the common good and also ensure that the
workers get their dues (vide: Harjinder Singh v. Punjab State
Warehousing Corporation [(2010) 3 SCC 192]).
35. Once the Labour Court has exercised the discretion
judicially, the High Court can interfere with the award, only if it is
satisfied that the award of the Labour Court is vitiated by any
fundamental flaws (vide: K.V.S.Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39].
36. The Management has a contention that it lost
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confidence in the workman, and therefore, his reinstatement in service
is practically impossible. Loss of confidence cannot be subjective and
based on the formative opinion of the Management. To ascertain loss
of faith, an objective test is to be undertaken. The Management has to
plead and prove the following things to rely on the theory of loss of
confidence:
(i) the workman is holding a position of trust and confidence; (ii) by
abusing such position, he commits acts which result in forfeiting the
same; and (iii) to continue him in service would be embarrassing and
inconvenient to the employer or would be detrimental to the discipline
or security of the establishment. (vide: Kanhaiyalal Agrawal and
Others v. Factory Manager, Gwalior Sugar Company Ltd. [(2001)
9 SCC 609]).
37. In my considered view, the Management failed to
establish loss of confidence in the workman as alleged.
The writ petition fails. Accordingly, it is dismissed.
Sd/-
K.BABU
Judge
TKS
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APPENDIX OF WP(C) 17647/2021
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE PRELIMINARY ORDER DATED
18-06-2020 OF THE SECOND RESPONDENT IN
I.D NO. 55/2017.
Exhibit P2 A COPY OF THE AWARD OF THE SECOND
RESPONDENT DATED 3-4-2021 IN I.D NO.
55/2017.
Exhibit P3 A COPY OF THE LETTER DATED 2-08-2021.
TKS
