Labour Law; P. Cherian Urumis Vs. Labour Court [Kerala High Court, 29-09-2016]

Labour Law – When the enquiry was found to have been held in violation of principles of natural justice and the punishment of dismissal is set aside seeing that the charges are not proved, as a normal and natural consequence, the employee ought to have been put back to his position as if there was no order of dismissal. Hence the setting aside of the punishment of dismissal cannot also be said to be perverse. The declaration of entitlement of the workman for reinstatement was only a consequential order.

Enquiry

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.V.ASHA, J.

W.P.(C) Nos.18148 & 12129 of 2008

Dated this the 29th day of September, 2016

ID.NO. 49/1993 OF LABOUR COURT, ERNAKULAM

PETITIONER

P. CHERIAN URUMIS, ALUVA.

BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SRI.T.S.SARATH SRI.P.A.MOHAMMED SHAH

RESPONDENT(S)

1. THE LABOUR COURT, ERNAKULAM.

2. HINDALCO INDUSTRIES LIMITED, (FORMERLY INDIAN ALUMINIUM COMPANY LIMITED), ALUPURAM, SMELTER, ALUPURAM P.O., REPRESENTED BY ITS VICE PRESIDENT.

3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR, SECRETARIAT, THIRUVANANTHAPURAM.

R1 & R3 BY GOVERNMENT PLEADER SRI.GIKKU JACOB R2 BY SRI.M.PATHROSE MATTHAI,SENIOR ADVOCATE ADVS. SMT.MARIAM MATHAI SRI.SAJI VARGHESE

JUDGMENT

Both these writ petitions are filed challenging the award of the Labour Court in ID No.49 of 1993 dated 12.7.1995. W.P.(C) No.12129 of 2008 is filed by the management, the Hindalco Industries Ltd. and W.P.(C) No 18148 of 2008 is filed by the workman to the extent the Labour Court limited the back wages to 25%. The parties and documents referred to in this judgment are as described in W.P.(C) No. 18148 of 2008 filed by the workman.

2. The petitioner was working as Fitter Grade I in the 2 nd respondent Company. It is the common case of both sides that at the time of joining the company, all the Fitters are given a set of tools and they were allotted a locker for keeping the tools locked. The key of the lockers are to be kept by the Fitters.

3. According to the management there were a series of complaints as to missing of tools. Therefore an inspection was conducted in the company. In the inspection, the security officer found that several tools were kept in the locker of the petitioner which were not supplied to him and not included in the list of tools supplied to him. Thereupon Ext.P1 memo of charges was issued to him on 14.9.1991. The allegation was that when the security officer checked the personal tool locker of petitioner to verify its contents in the presence of the petitioner, Sri.N.K.John, General Foreman, Mechanical Maintenance, and Sri.K.V.Sebastian, Security Guard, it was found that tools and other items belonging to the company other than those issued to the petitioner for his day to day work were seen removed and kept inside his personal locker. Accordingly a list of tools found there were prepared which the petitioner signed in their presence. Therefore, it was alleged that the petitioner deliberately and unauthorizedly removed the listed tools and other items and thereby committed grave mistake of theft of company property, which if proved would be a major offence under Standing Order 26b(iii). The petitioner was directed to show cause against the proposed disciplinary action.

4. Petitioner submitted Ext.P2 explanation dated 1.10.1991 saying that the tools found in his box were those allotted to him, when he joined in the company as Fitter in April 1977 and those issued thereafter by way of replacement or addition. He also stated that the duplicate keys of the tool boxes allotted to the Fitter group are kept with the supervisor who has free access to the tool boxes/lockers. After receipt of petitioner’s explanation, an enquiry officer was appointed for conducting a domestic enquiry against the petitioner; the enquiry officer Sri.V.G.Ranganathan fixed the enquiry on 9.10.1991. While so Ext.P3 charge sheet dated 10.10.1991 was issued, amending the memo of charges to the effect that the petitioner had deliberately and unauthorizedly removed the listed tools and other items and that the above act, if proved, would constitute theft or fraud or dishonesty connected with the business of the company or the property of the company or its employees:- a major offence under standing order 26(b)(iii). Thereafter the enquiry was fixed on 31.10.1991.

5. The complaint of the petitioner is that the presenting officer examined all the three witnesses on the same day, though petitioner objected to the same saying that the list of witnesses or list of documents relied on by the management were not given to him. Petitioner submits that he did not either cross examine the witnesses of the management or examine any witness on his side; the enquiry officer closed the evidence on the same day; while he was waiting for the enquiry report, the petitioner received Ext.P4 letter dated 2.1.1992 of the Enquiry Officer informing him that the presenting officer Sri.R.Padmanabhan requested to record his statement in the enquiry to be treated as his oral evidence and he wanted to give additional evidence. It was informed that the presenting officer Sri.R.Padmanabhan wanted to give additional evidence and requested to treat the statement recorded by him as oral evidence and therefore allowing his request, enquiry officer requested the petitioner to appear before the enquiry officer on 13.1.1992, to cross examine Sri.R.Padmanabhan. The petitioner was also informed that he can bring a co-worker of his choice for his defence. The petitioner submits that the enquiry officer erred in reopening the evidence without notice to the petitioner on the request and calling for his objections on it. Therefore the entire proceedings starting from the re-opening of evidence was illegal and an intimation given after the reopening of evidence would not satisfy the principles of natural justice or the prescribed procedure for departmental inquiry. Petitioner, though appeared before the inquiry officer, did not cross examine the presenting officer. Thereafter the petitioner received Ext.P5 order dated 28.1.1992 informing him that he was dismissed from service with immediate effect. Petitioner challenged Ext.P5 order taking up the matter under the Industrial Disputes Act. The Labour Court passed Ext.P6 award in ID.No.49 of 1993 and upheld the order of dismissal. Petitioner challenged the award filing O.P.No.5517 of 1997 before this court. In the judgment-Ext.P7 dated 1.9.2005, this court found that the dismissal from service of the petitioner without furnishing him a copy of the enquiry report was in gross violation of the principles of natural justice and therefore remitted the matter to the Labour Court for fresh consideration. The management took up the contention that no prejudice was caused to the petitioner by not furnishing the enquiry report and in the absence of any prejudice the order of dismissal was not liable to be interfered with. But this court found that an opportunity was inevitable in the case, even going by the very conduct of the disciplinary authority in imposing the punishment. This court found that when the enquiry officer had held that the charges were proved, the disciplinary authority went beyond the findings holding that materials were kept in the personal locker with the ulterior motive of removing the same from the factory itself and that in case the delinquent was given an opportunity at any stage before the findings were accepted or before the punishment was imposed then only the disciplinary authority would have been justified in saying that enquiry was conducted in a reasonable manner. The contention of the management that non-supply of inquiry report did not cause any prejudice to the petitioner was already repelled by this court, distinguishing the judgment in Union Bank of India V Vishwamohan : [(1998)4 SCC 310] relied on by them. It was further found that the disciplinary authority examined the past record of overstayal of petitioner, which had no relevance in imposing punishment for the impugned misconduct. The matter was remitted to the the Labour Court to find whether the disciplinary authority had rendered a proper satisfaction on the guilt of the petitioner in tune with the principles of natural justice. The management took up the matter in W.A.No.2296 of 2005 and the Division Bench in Ext.P8 judgment dated 1.8.2006 found that there was no plea raised before the Labour Court regarding non supply of copy of the enquiry report and the management should be given an opportunity to put forward their plea on that question. The Division Bench found that the Labour Court justified the punishment even before considering the validity of the inquiry. The Division Bench directed that the Labour Court had to consider all the points with reference to the violation of principles of natural justice and then arrive at a finding and thereafter to consider the aspect of punishment, after hearing both sides. Ext.P9 award dated 26.3.2007, which is impugned in these cases was passed by the Labour Court thereafter.

6. The Labour Court considered three issues viz. whether the inquiry was held complying with the principles of natural justice; whether the findings of inquiry officer are in conformity with evidence in the inquiry and whether the punishment is proportionate to the misconduct. After perusing the enquiry files, Labour Court found that the list of witnesses or of documents were not furnished to the delinquent; the presenting officer examined all the witnesses and marked all the documents in a single day and that after completing the entire proceedings of enquiry, when it was posted for hearing, the presenting officer gave a letter to the inquiry officer requesting to adduce additional evidence and inquiry officer without furnishing a copy of the letter to petitioner, permitted to adduce additional evidence, in order to cover up the lacuna created by other witnesses on the aspect of “intention of dishonest”, which was not proved in the inquiry, on a finding from the inquiry officer. The Labour Court found that the enquiry officer was biased. It was found that before permitting the presenting officer to tender additional evidence the enquiry officer ought to have called for objections, if any, of the petitioner. Seeing that the copy of the inquiry report was not furnished to the workman, on account of which he lost his opportunity to give explanation on the findings against him, Labour Court found that the enquiry officer had acted in violation of the principles of natural justice and therefore the enquiry report was liable to be set aside. Further, it was found that the charge itself was vague and management was not sure whether it was fraud or theft or dishonest act connected with the business of the company. On the charges alleged, the Labour Court found that the tools were not taken outside the factory; therefore, at the most the management could have taken action for return of the tools entrusted. From the deposition of the petitioner as WW1, the Labour Court found that the workman was not given any list of tools given to him at the time of joining. Accordingly, it was found that the enquiry officer’s finding as to the guilt of the petitioner was incorrect and that the charges were not proved. Hence the punishment was set aside and it was ordered that the petitioner would be reinstated in service with continuity and 25% back wages. It is that part of the award which is under challenge in the writ petition filed by the workman in not granting full backwages, whereas the management challenges the entire award.

7. According to the petitioner, when the Labour Court found that the punishment was illegal, there was no reason for limiting the back wages to 25% that too without assigning any reason for the same. The learned counsel for the petitioner argued that there will be extra tools in the locker of every workman since the additional supply of tools were not being incorporated in the list and in the case of the petitioner right from 1977 there had been several additions/replacement of tools which were not incorporated in the list and there was no reason for the allegations levelled against him.

8. The learned counsel for the petitioner relied on the judgment of the Apex Court in