Kerala High Court
P.Vinod vs Industrial Tribunal on 24 June, 2025
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(C) NO. 20525 OF 2006
PETITIONER:
KDHP COMPANY PRIVATE LIMITED
(PREVIOUSLY KNOWN AS TATA TEA LIMITED),
MUNNAR WORKSHOP & ENGINEERING DEPARTMENT,
REPRESETNED BY ITS MANAGER (IR), MR.G.SOMANATHAN.
BY ADVS.
SHRI.BENNY P.THOMAS (SR.)
SRI.E.K.NANDAKUMAR (SR.)
RESPONDENTS:
1 P.VINOD
HOUSE No.IX/852, HIGH RANGE CLUB ROAD,
MUNNAR P.O., IDUKKI.
2 INDUSTRIAL TRIBUNAL,
IDUKKI.
BY ADVs.
SRI.A.JAYASANKAR
SRI.MANU GOVIND
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.06.2025, ALONG WITH WP(C).22663/2006, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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W.P.(C).Nos.20525 & 22663 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(C) NO. 22663 OF 2006
PETITIONER:
P.VINOD
NIRAVATH KRISHNA BHAVAN,
VALAYANCHIRANGARA, PERUMBAVOOR-683556.
BY ADVS.
SRI.A.JAYASANKAR
SRI.MANU GOVIND
RESPONDENTS:
1 INDUSTRIAL TRIBUNAL,
IDUKKI,
ELAPPARA P.O.
2 KANNAN DEVAN HILLS PLANTATIONS (PRIVATE) LIMITED,
(FORMERLY TATA TEA LIMITED), REPRESENTED BY ITS
INDUSTRIAL RELATIONS MANAGER, MUNNAR, IDUKKI
DISTRICT.
BY ADVS.
SRI.E.K.NANDAKUMAR (SR.)
SHRI.M.GOPIKRISHNAN NAMBIAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.06.2025, ALONG WITH WP(C).20525/2006, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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W.P.(C).Nos.20525 & 22663 of 2006
3
S.MANU, J.
-------------------------------------------
W.P.(C).Nos.20525 & 22663 of 2006
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Dated this the 24th day of June, 2025
JUDGMENT
These two writ petitions were filed by the management
and the workman aggrieved by award dated 25.1.2006 in
I.D.No.92/2000 of the Industrial Tribunal, Idukki. W.P.
(C)No.20525/2006 was filed by the management aggrieved by
the finding that the workman is entitled for reinstatement with
50% of backwages. W.P.(C)No.22663/2006 was filed by the
workman discontented with limiting of back wages to 50%.
2. The workman was an Assistant Technical Officer in
the unit of the management at Munnar workshop. He was
charge-sheeted by the management. Relevant portions of the
charge sheet dated 19.8.1999 are extracted hereunder for
clarity :-
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"CHARGE SHEET
It is alleged against you as under:
You have been responsible for the following
omissions/commissions as per a recent investigation carried out
by the Internal Auditors.
1. BUNGALOW PAINTING
Against a budget sanction of Rs. 12,500/- each for 3
bungalows, the amount spent for painting the bungalows of
Messrs. Jagdish Kumar, K.N. Krishnan and Jamal Rasheed was
Rs.20,664.28. But, in addition to the above, the Nadiar bungalow
and the bungalow occupied by Mr. Koshy Chacko were painted at
a cost of Rs.18,613.85 and Rs.6,590.52 respectively for which
there was no sanction and thus incurred an over expenditure of
Rs.8,368.65.
2. MONSOON DAMAGE
The actual length of the revetment constructed near Mr.
Edwin Selvaraj's old quarters was found to be 53.6 metres against
59.1 metres shown in the measurement sheet, ie., an excess of
5.5 metres.
3. SRISHTI COMPLEX PAINTING
Wide variations in consumption of paints have been observed
in the Srishti Complex painting works carried out under your
supervision as detailed below:
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Area Quantity Quantity Excess
painted Required Used Consum-
Sq.m. Kg/lit. Kg/lit ption
Kg/lit.
Water proof painting 5695.7 569.57 725 155.43
Diste-mpering and
Snowcerm
Painting of Wood 779.63 77.96 103 25.04
work
4. Mr. SAMINATHAN'S BUNGALOW REPAIRS
The number of tiles debited to the above job is not
commensurate with the area of tiling work done as shown below:
Tiles Tiles
required Debited
Kitchen slab work - black tiles 42 Nos 60 Nos.
Kitchen and bathroom walls 195 Nos. 250 Nos.
- grey tiles
Bathroom floor - grey tiles 42 Nos. 60 Nos.
Also the following materials were found lying in the bungalow
premises:
One bag of cement, solidified
Five PVC pipes of 10" length.
Though an amount of Rs.15,905/- was debited to the bungalow
repairs account in March 1999 being the cost of 43 Nos., GCI
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sheets, the sheets have not been used in the bungalow, nor was
there any documentary evidence such as materials transfer
notes/despatch notes etc., for verification.
5. Dr.MATHEW VARKEY'S BUNGALOW
The number of tiles debited is not commensurate with the area
tiling work done as shown below:
Tiles Tiles
required debited
Wall tiling - 12" x 8" mint 205 Nos. 675 Nos.
grey tiles
Floor tiling - 12" x 12" tiles 53 Nos. 110 Nos.
6. HIGH RANGE SCHOOL BUILDING PAINTING
Wide variations in the quantity of paints required and quantity
debited to the job are noticed, as shown below:
Quty. Quty.
required debited
Kg/Lit Kg/Lit.
Oil bound distemper 183.19 203
Plastic Emulsion 15.72 44
Snowcerm 228.8 350
Cement (for cement washing) 222 bags 500 bags
7. KUTTIAR BUNGALOW SURROUNDING/BUILDINGS ROOF
PAINTING:
Against the sanctioned amount of Rs.75,000/-, an amount
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Rs.84,763.73 has been spent for the above work; also it is seen
although the quantity of the enamel paint required was only
37.74 litres a quantity of 110 litres has been debited to the job.
8. RO STAFF REST ROOM AND TEA TASTING ROOM
On verification the total area covered with tiles was found to
be 140.68 sq.m. against 165.95 sq.m. shown in the
measurement sheet. The number of tiles debited to the job is
found to be far in excess compared to the actual requirement as
shown below:
Requirement Quty.Debited
Wall tiling 896 1000
Floor tiling 967 1180
9 Dr. RAJESH EAPEN'S BUNGALOW
Credit given to the contractor for fixing glazed tiles was for
147.54 sq.m against 82.21 sq.m actually done. Also difference is
noticed in the use of Gl pipes debited for construction of a lean-
to at the rear of the bungalow as follows:
50 mm pipes 40 mm pipes
Debited to the job 18.90 meters 19.20 meters
Found on 17.55 meters 15.90 meters
physical verification
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If the above allegations are found to be true, you will be guilty
of misconducts amounting to:
"Willful insubordination or disobedience whether alone or
in combination with another or others of any lawful and
reasonable order of a superior",
"Theft, fraud, or dishonesty in connection with the
employer's business or property",
"Riotous or disorderly behaviour on the premises of the
estate or any act subversive of discipline", and
"Habitual absence from duty, habitual late attendance
and/or habitual neglect of work",
as per clauses (a) (c) (g) and (i) of the Certified Standing Order
No. 14 applicable to you."
3. Domestic inquiry was thereafter conducted against
the workman. The workman submitted a representation
expressing no confidence on the inquiry officer appointed by the
management. However, he later attended the inquiry and
participated in the proceedings. Apart from the presenting
officer, an internal auditor of the management was examined.
The workman did not examine any witnesses on his side.
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Exts.M1 to M8 were produced by the presenting officer. The
inquiry officer analysed each of the charges and found charges
1, 4(part), 5, 7 and 8 proved against the workman. Copy of the
findings was provided to the workman and he submitted his
representation in response to the same. The management later
decided to dismiss the workman from the service with effect
from 7.1.2000.
4. The workman raised industrial dispute. Conciliation
was conducted, however it failed. On receiving the failure
report, Government referred the issue for adjudication by the
Industrial Tribunal. The issue referred was - 'Whether the
dismissal of Sri.P.Vinod with effect from 7.1.2000 is justifiable?
If not, what relief he is entitled to?'
5. The case was registered as I.D.No.92/2000 by the
Tribunal. Management and the workman entered appearance
and filed their pleadings.
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6. In the claim statement filed by the workman, several
contentions were raised which were refuted by the management
in its written statement. Workman thereafter filed a rejoinder.
Claim statement filed by the workman has been produced as
Ext.P3, written statement of the management as Ext.P4 and
rejoinder of the workman as Ext.P5 in this writ petition. Two
witnesses were examined by the management before the
Tribunal. Wage slip of the 1st respondent, leave applications
submitted by two workers and recommended by the workman
and the inquiry file were produced by the management. No
evidence was adduced by the workman.
7. Admittedly, no preliminary order was passed by the
Tribunal. The Tribunal passed the impugned award on
25.1.2006. The Tribunal after examining the matter disagreed
with the findings of the inquiry authority on all five charges,
found to be proved by the inquiry authority. Tribunal held that
the first respondent was not guilty of any of the charges. The
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Tribunal directed the petitioner to reinstate the first respondent
in service with 50% back wages and all other benefits.
8. Heard the learned Senior Counsel
Sri.E.K.Nandakumar appearing for the petitioner and learned
counsel Sri.A.Jayasankar appearing for the first respondent.
Also, I have perused the pleadings and the documents
produced.
9. The learned Senior Counsel appearing for the
petitioner submitted that the impugned award is vitiated by
procedural irregularities causing serious prejudice to the
petitioner management as also erroneous exercise of the
jurisdiction by the Tribunal. He contended that the Tribunal
committed a grave error by not passing a preliminary order.
The learned Senior Counsel invited my attention to the counter
statement filed before the Tribunal by the petitioner
management. In paragraph 3 of the counter statement the
management had specifically pleaded that whether the first
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respondent was a workman under the Industrial Disputes Act
may be decided as a preliminary issue. In paragraph 8 of the
written statement the petitioner management had made
another specific statement that, in case the inquiry was found
vitiated in any manner by the Tribunal, the management may be
permitted to adduce fresh/additional evidence to prove the
misconduct before the Tribunal. The learned Senior Counsel
submitted that in spite of such specific pleadings, the Tribunal
did not pass a preliminary order and failed to provide
opportunity to the management to adduce additional evidence.
Relying on various reported judgments of the Hon'ble Supreme
Court, the learned Senior Counsel submitted that, it was
indispensable to provide opportunity to the management to
adduce additional evidence, if the Tribunal was of the view that
the inquiry was vitiated. He hence contended that the failure to
pass a preliminary order has to be considered as a fatal error
committed by the Tribunal and on that ground alone the award
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is liable to be set aside.
10. The learned Senior Counsel further contended that
the Tribunal has committed serious errors in rendering the
impugned award. He argued that the Tribunal has acted like an
appellate authority over the findings of the inquiry officer. He
submitted that the Tribunal differed with the findings of the
inquiry officer, not on the basis of any evidences but merely on
surmises. He contended that the Tribunal has in fact substituted
the findings of the domestic inquiry with its own findings which
were all based on conjectures and surmises. After referring to
various judgments on the scope of interference by Industrial
Tribunals and specifically with regard to the band width of the
jurisdiction under Section 11A of the Industrial Disputes Act, the
learned Senior Counsel submitted that the Tribunal has
approached the matter and rendered the impugned award
ignoring the settled principles regarding the jurisdiction of the
Industrial Tribunal. The learned Senior Counsel further
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submitted that the Industrial Tribunal did not enter into any
finding that the conclusions of the inquiry officer against the
first respondent were perverse or unsustainable for lack of
evidence. He hence submitted that the interference by the
Tribunal and substitution of the findings were therefore wholly
unjustified. The learned Senior Counsel also made reference to
the evidence adduced in domestic inquiry in support of the
charges proved against the first respondent and submitted that
the evidence unerringly pointed out the huge losses caused to
the petitioner management. The learned Senior Counsel further
contended that such acts or omissions causing serious loss to
the management could not have been lightly dealt with and
hence the management was perfectly justified in imposing the
punishment of termination of service on the first respondent. He
hence submitted that the interference by the Tribunal was
totally improper and illegal. He pointed out that the workman
had submitted an application under Section 17B of the I.D.Act
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and last drawn wages were being paid to the workman during
the pendency of the writ petition. He concluded his submissions
by asserting that the impugned award was not sustainable in
any view of the matter.
11. The learned counsel for the 1st respondent submitted
that the proceedings initiated by the petitioner management
against the first respondent was in fact without sufficient
reasons. He referred to the charges leveled against the first
respondent and pointed out that all of them were with respect
to maintenance and construction activities held during the
relevant period. Referring to various items of charges the
learned counsel pointed out that the allegations were trivial in
nature and the proceedings were therefore not justified. He
also submitted that the workman had met with an accident on
14.4.1999 and was on medical leave for a long period. He was
later suspended on 8.10.1999. The submission of the learned
counsel is that the first respondent was proceeded against for
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various things happened during his absence from duty also. He
submitted that the charges were therefore not sustainable. The
learned counsel further pointed out that there was no allegation
of dishonesty on the part of the first respondent and no
evidence was adduced to the effect that the first respondent
was dishonest and obtained any gain. The learned counsel
further submitted that the management had appointed a former
employee as the inquiry officer and the inquiry officer was
biased. Though this was pointed out during the inquiry, the said
contention was not accepted by the inquiry authority. Ignoring
the said contention of the first respondent, the inquiry authority
proceeded against him. He hence submitted that serious
prejudice was caused to the first respondent.
12. With respect to the contention of the petitioner
management that the Industrial Tribunal erred in not passing a
preliminary order, the learned counsel for the first respondent
submitted that there was no occasion and requirement to pass
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such a preliminary order in the case at hand, as no such specific
request was raised during the trial and no effort was properly
made by the management in that regard. He contended that the
statement in paragraph 8 of the written statement of the
management was not sufficient. The Industrial Tribunal has not
hence committed any error by not passing the preliminary order.
The learned counsel, in response to the contentions raised by
the petitioner management submitted that perversity of the
findings of the inquiry officer was also substantiated before the
Tribunal and hence the interference by the Tribunal was just and
proper.
13. Learned counsel for the first respondent further
contended that it is not totally beyond the jurisdiction of the
Tribunal to re-appreciate the evidence. He submitted that the
jurisdiction of the Tribunal is not so restricted as canvassed by
the learned Senior Counsel and in appropriate cases re-
appreciation of evidence and entering into different findings is
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well within the competence of the Tribunal. He therefore
contended that the Tribunal has correctly held with respect to
the five charges found by the inquiry officer against the first
respondent, that they were not properly proved. He also
submitted that the conclusion of the Tribunal that the first
respondent was entitled for reinstatement needs no interference
by this Court. He further contended that the only fault
committed by the Tribunal was in limiting the back wages to
50%. The contention of the learned counsel is that, the Tribunal
having found that none of the charges were proved against the
first respondent, should have granted full back wages to the first
respondent as termination of service by the petitioner
management was wholly unjustified.
14. The learned Senior Counsel appearing for the
petitioner relied on the following judgments in support of his
contentions:-
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1. Kurukshetra University v. Prithvi Singh
[2018 II LLJ 257 (SC)].
2. Standard Chartered Bank v. R.C.
Srivastava [JT 2021 (9) SC 471].
3. West Bokaro Colliery(Tisco,Ltd.) v. Ram
Pravesh Singh [2009 (4) L.L.N.599].
4. Usha Breco Mazdoor Sangh v.
Management of Usha Breco Ltd. and
Another [2008 II LLJ 945(SC)].
5. General Manager, Electrical Rengali
Hydro Electric Project, Orissa and Others
v. Sri Giridhari Sahu and others [2020 III
LLJ 257 (SC)].
6. Uttar Pradesh State Road Transport
Corporation v. Gajadhar Nath [2022 I LLJ
254(SC)].
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15. In Kurukshetra University v. Prithvi Singh [2018
II LLJ 257 (SC)] the Hon'ble Supreme Court held as follows:-
"20. So the question, which the Labour Court was
expected to decide in the first instance as a
"preliminary issue", was whether the domestic enquiry
held by the appellant (employer) was legal and proper.
In other words, the question to be decided by the
Labour Court was whether the domestic enquiry held by
the appellant was conducted following the principles of
natural justice or not.
21. If the domestic enquiry was held legal and proper
then the next question which arose for consideration
was whether the punishment imposed on the
respondent (delinquent employee) was proportionate to
the gravity of the charge leveled against him or it called
for any interference to award any lesser punishment by
exercising the powers under Section 11-A of the ID Act.
22. If the domestic inquiry was held illegal and
improper then the next question, which arose for
consideration, was whether to allow the appellant
(employer) to prove the misconduct/charge before the
Labour Court on merits by adducing independent
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evidence against the respondent (employee). The
appellant was entitled to do so after praying for an
opportunity to allow them to lead evidence and
pleading the misconduct in the written statement. (see-
also Para 33 at page 1665/66 of Shankar Chakravarti v.
Britannia Biscuit Co. Ltd. and Another (supra)).
23. Once the appellant (employer) was able to prove
the misconduct/charge before the Labour Court, then it
was for the Labour Court to decide as to whether the
termination should be upheld or interfered by
exercising the powers under Section 11-A of the ID Act
by awarding lesser punishment provided a case to that
effect on facts is made out by the respondent
(employee).
24. We are constrained to observe that first, the Labour
Court committed an error in not framing a "preliminary
issue" for deciding the legality of domestic enquiry and
second, having found fault in the domestic inquiry
committed another error when it did not allow the
appellant to lead independent evidence to prove the
misconduct/charge on merits and straight away
proceeded to hold that it was a case of illegal
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retrenchment and hence the respondents' termination
is bad in law."
16. In Standard Chartered Bank v. R.C. Srivastava
[JT 2021 (9) SC 471] the Hon'ble Supreme Court held as
follows:-
"18. In the instant case, after we have gone
through the record, we find that the Tribunal has
converted itself into a Court of Appeal as an
appellate authority and has exceeded its
jurisdiction while appreciating the finding recorded
in the course of domestic enquiry and tested on the
broad principles of charge to be proved beyond
reasonable doubt which is a test in the criminal
justice system and has completely forgotten the
fact that the domestic enquiry is to be tested on
the principles of preponderance of probabilities and
if a piece of evidence is on record which could
support the charge which has been levelled against
the delinquent unless it is per se unsustainable or
perverse, ordinarily is not to be interfered by the
Tribunal, more so when the domestic enquiry has
been held to be fair and proper and, in our view,
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the Tribunal has completely overlooked and
exceeded its jurisdiction while interfering with the
finding recorded during the course of enquiry in
furtherance of which, the respondent was
dismissed from service and the High Court has also
committed a manifest error while passing the
judgment impugned.
19. The decision of the Labour Court should not be
based on mere hypothesis. It cannot overturn the
decision of the management on ipse dixit. Its
jurisdiction under Section 11-A of the Act 1947
although is a wide one but it must be judiciously
exercised. Judicial discretion, it is trite, cannot be
exercised either whimsically or capriciously. It may
scrutinize or analyse the evidence but what is
important is how it does so."
17. In West Bokaro Colliery (Tisco, Ltd.) v. Ram
Pravesh Singh [2009 (4) L.L.N.599] the Hon'ble Supreme
Court held as follows:-
"17. After going through the order of the Industrial
Tribunal, we are of the opinion that the Tribunal
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has interfered with the findings recorded by the
domestic tribunal as if it was the Appellate
Tribunal. There was evidence present on record
regarding indecent, riotous and disorderly
behaviour of the respondent towards his superiors.
The management witnesses who were present at
the scene of occurrence have unequivocally
deposed about the misbehaviour of the respondent
towards his superiors. Their evidence has been
discarded by the Tribunal by observing that in the
absence of independent evidence, the statements
of the workmen who were present at the scene of
occurrence could not be believed. The Industrial
Tribunal fell in error in discarding the evidence
produced by the Management only because the
independent witnesses were not produced."
18. In Usha Breco Mazdoor Sangh v. Management of
Usha Breco Ltd. and Another [2008 II LLJ 945 (SC)] the
Hon'ble Supreme Court held as follows:-
"26. Indisputably, in the event, fresh evidence is
adduced before the Labour Court by the
Management, the Labour Court will have the
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jurisdiction to appreciate the evidence. But, in a
case where the materials brought on record by the
Enquiry Officer fall for re-appreciation by the
Labour Court, it should be slow to interfere
therewith. It must come to a conclusion that the
case was a "proper" one therefore. The Labour
Court shall not interfere with the findings of the
Enquiry Officer only because it is lawful to do so. It
would not take recourse thereto only because
another view is possible. Even assuming that, for
all intent and purport, the Labour Court acts as an
appellate authority over the judgment of the
Enquiry Officer, it would exercise appropriate
restraint. It must bear in mind that the Enquiry
Officer also acts as a quasi-judicial body. Before it,
parties are not only entitled to examine their
respective witnesses, they can cross-examine the
witnesses examined on behalf of the other side.
They are free to adduce documentary evidence.
The parties as also the Enquiry Officer can also
summon witnesses to determine the truth. The
Enquiry Officer can call for even other records. It
must indisputably comply with the basic principles
of natural justice.
.......................................................................
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34. The upshot of our discussion is that the
decision of the Labour Court should not be based
on mere hypothesis. It cannot overturn a decision
of the Management on ipse dixit. Its jurisdiction
under Section 11-A of the Act although is a wide
one, must be judiciously exercised. Judicial
discretion, it is trite, cannot be exercised either
whimsically or capriciously. It may scrutinize and
analyse the evidence but what is important is how
it does so."
19. In General Manager, Electrical Rengali Hydro
Electric Project, Orissa and Others v. Sri Giridhari Sahu
and others [2020 III LLJ 257 (SC)] the Hon'ble Supreme Court
held as follows:-
"27. In Durga Das Basu "COMMENTARY ON THE
CONSTITUTION OF INDIA" 9th Edition, in regard to
the concept of no evidence, we find the following
discussion:
"No evidence' does not mean only a total
dearth of evidence. It extends to any case
where the evidence taken as a whole is not
reasonably capable of supporting the finding,
or where, in other words, no tribunal could
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reasonably reach that conclusion on that
evidence. This "no evidence" principle clearly
has something in common with the principle
that perverse or unreasonable action is
aunauthorised and ultra vires. An order made
without "any evidence" to support it is in truth,
made without order made without "any
evidence is worthless, it is equal to having "no
evidence" jurisdiction." (Emphasis supplied)
28.In fact, in the decision relied upon by the
applicants, viz., Management of Madurantakam
Coop. Sugar Mills Limited v. S.Viswanathan
(supra), it is, inter alia, held as follows:
"12. 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...."
20. In Uttar Pradesh State Road Transport
Corporation v. Gajadhar Nath [2022 I LLJ 254 (SC)] the
Hon'ble Supreme Court held as follows:-
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"5. The scope of an adjudicator under the
Industrial Disputes Act, 1947 may be noticed. The
domestic inquiry conducted can be permitted to be
disputed before the Tribunal in terms of Section
11A of the Act. This Court in a judgment reported
as Workmen of Firestone Tyre and Rubber Co. of
India (P.) Ltd. v. Management & Ors. held that in
terms of Section 11A of the Act, if a domestic
inquiry has been held and finding of misconduct is
recorded, the authorities under the Act have full
power and jurisdiction to reappraise the evidence
and to satisfy themselves whether the evidence
justifies the finding of misconduct. But where the
inquiry is found to be defective, the employer can
lead evidence to prove misconduct before the
authority. This Court held as under:
"32. From those decisions, the following
principles broadly emerge :-
(1) The right to take disciplinary action and to
decide upon the quantum of punishment are
mainly managerial functions, but if a dispute is
referred to a Tribunal, the latter has power to
see if action of the employer is justified.
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W.P.(C).Nos.20525 & 22663 of 2006
(2) Before imposing the punishment, an employer
is expected to conduct a proper enquiry in
accordance with the provisions of the Standing
Orders, if applicable, and principles of natural
justice. The enquiry should not be an empty
formality.
(3) When a proper enquiry has been held by an
employer, and the finding of misconduct is
plausible conclusion flowing from the evidence,
adduced at the said enquiry, the Tribunal has no
jurisdiction to sit in judgment over the decision of
the employer as an appellate body. The
interference with the decision of the employer will
be justified only when the findings arrived at in the
enquiry are perverse or the management is guilty
of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an
employer or if the enquiry held by him is found to
be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, had to
give an opportunity to the employer and employee
to adduce evidence before it. It is open to the
employer to adduce evidence for the first time
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
justifying his action, and it is open to the employee
to adduce evidence contra.
(5) The effect of an employer not holding an
enquiry is that the Tribunal would not have to
consider only whether there was a prima facie
case. On the other hand, the issue about the
merits of the impugned order of dismissal or
discharge is at large before the Tribunal and the
latter, on the evidence adduced before it, has to
decide for itself whether the misconduct alleged is
proved. In such cases, the point about the exercise
of managerial functions does not arise at all. A
case of defective enquiry stands on the same
footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the
evidence placed before it for the first time in
justification of the action taken only, if no enquiry
has been held or after the enquiry conducted by an
employer is found to be defective.
(7) It has never been recognised that the
Tribunal should straight way, without anything
more, direct reinstatement of a dismissed or
discharged employee once it is found that no
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
domestic enquiry has been held or the said enquiry
is found to be defective.
(8) An employer, who wants to avail himself of the
opportunity of adducing evidence for the first time
before the Tribunal to justify his action, should ask
for it at the appropriate stage. If such an
opportunity is asked for, the Tribunal has no power
to refuse. The giving of an opportunity to an
employer to adduce evidence for the first time
before the Tribunal is in the interest of both the
management and the employee and to enable the
Tribunal itself to be satisfied about the alleged
misconduct.
(9) Once the misconduct is proved either in the
enquiry conducted by an employer or by the
evidence placed before a Tribunal for the first time,
punishment imposed cannot be interfered with by
the Tribunal except in cases where the punishment
is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the
order of dismissal, whether a workman should be
reinstated or paid compensation is, as held by this
Court in Management of Panitole Tea Estate v.
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
Workmen, (1971) 1 SCC 742 within the judicial
decision of a Labour Court or Tribunal."
21. The Tribunal held with respect to the first charge
alleged against the 1st respondent that it was not proved stating
that the 1st respondent was not responsible for painting five
bungalows instead of three bungalows or for incurring any
expenditure more than allotted in the budget. This conclusion
was adopted for the reason that MW1 was a qualified Civil
Engineer and he was not expected to blindly accept assurance
by the 1st respondent that the fund allotted was sufficient to
paint 5 bungalows. Regarding Charge No.4(a), the Tribunal held
that MW1 Assistant Manager, a qualified Civil Engineer had
visited the site and it was difficult to assume that he would have
signed on the bill of materials on 24.3.1999 if the number of
tiles as per requisition was excessive. As far as charge No.4(b)
is concerned, the Tribunal took note of the fact that the 1 st
respondent had met with an accident and was on leave from
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
14.4.1999 and hence he cannot be blamed for leaving some
materials in the work site. With respect to charge No.5 Tribunal
held that for want of original estimate for the work in Dr.Mathew
Varkey's bungalow, it was not possible to determine whether
tiles debited to the job was commensurate with the area of work
estimated. Regarding charge No.7 pertaining to Kuttiar
Bungalow surrounding/building roof painting, the Tribunal
concluded that the charge was not proved. The Tribunal held
that it was difficult to assume that the management would have
issued requisition to materials department without ascertaining
the actual requirement. Similarly, regarding charge No.8
Tribunal accepted the version of the 1st respondent that wastage
of tiles will be up to 24.72%.
22. Perusal of Ext.P6 award shows that the Tribunal
undertook extensive analysis of the evidence recorded in the
course of inquiry and arrived at conclusions partly relying on
materials on record and rest by employing guesswork. The
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
Tribunal discarded every conclusions of the inquiry officer
against the 1st respondent and substituted them with fresh
findings. The Tribunal therefore acted in this case absolutely as
an appellate authority and arrived at contrary conclusions on
each charge proved in the domestic inquiry . The parameters
adopted for analysing the evidence was not of preponderance of
probability but much higher as if the misconduct should have
been proved beyond all reasonable doubts. In view of settled
principles of law regarding the scope of jurisdiction of the
Industrial Tribunal under Section 11A, in my considered view the
Tribunal has seriously erred in rejecting every conclusion of the
inquiry authority by substituting the findings arrived at by it.
Tribunal failed to keep in mind the restricted scope of
interference.
23. Failure of the Tribunal to pass a preliminary order
was also improper. The learned Senior Counsel for the
Management had pointed out that the case was adjourned by
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W.P.(C).Nos.20525 & 22663 of 2006
the Tribunal after hearing the parties on the propriety of inquiry
and without passing preliminary order and without hearing the
parties further, the award was passed after some time. The said
course adopted by the Tribunal was definitely improper. I find
considerable merit in the contention that the said omission has
caused serious prejudice to the petitioner. The proper recourse
is therefore to remit the matter for fresh consideration by the
Tribunal. I am conscious of the fact that the dispute was
registered in the year 2000 and the award was passed in 2006
and consequently there will be some difficulties for the parties
when the matter is remanded. However, in my considered view
the proper course open to this Court in the facts and
circumstances of this case is to remit the matter for fresh
consideration.
24. In view of the above discussion, the impugned award
is set aside. The matter is remitted to the Tribunal for fresh
consideration. As the case was of the year 2000, the Tribunal
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
may make endeavour to conclude the proceedings at the
earliest. As the award has been set aside and the matter is
being remitted, no separate order is required in
W.P.(C)No.22663/2006.
Writ Petitions are disposed of as above.
Sd/-
S.MANU
JUDGE
skj
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W.P.(C).Nos.20525 & 22663 of 2006
APPENDIX OF WP(C) 20525/2006
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF CHARGE SHEET DATED
19.8.1999 ISSUED BY THE PETITIONER TO
THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE FINDINGS OF THE
ENQUIRY OFFICER DATED 15.12.1999.
Exhibit P3 TRUE COPY OF THE CLAIM STATEMENT FILED
BY THE 1ST RESPONDENT IN I.D. NO.
92/2000 BEFORE THE 2ND RESPONDENT DATED
5.1.2001.
Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONER IN I.D.
NO.92/00 BEFORE THE 2ND RESPONDENT DTD.
2.8.2001.
Exhibit P5 TRUE COPY OF THE REJOINDER FILED BY THE
1ST RESPONDENT IN I.D. 92/00 BEFORE THE
2ND RESPONDENT DTD 5.10.2001.
Exhibit P6 TRUE COPY OF AWARD PASSED BY THE 2ND
RESPONDENT IN I.D. 92/00 DTD.
25.1.2006.
2025:KER:45806
W.P.(C).Nos.20525 & 22663 of 2006
APPENDIX OF W.P.(C)No.22663/2006
EXT.P1 : TRUE COPY OF THE AWARD DTD.25.1.2006
PASSED BY THE 1st RESPONDENT IN
I.D.No.92/2000.
