(Ajay Rastogi and Vikram Nath, JJ.)
Jomy Xavier, Managing Partner Walliawarum Plantations, Kerala _______________________________________________ Appellant;
v.
B. Rajagopal and Another ________________________ Respondent(s).
Civil Appeal No(s). 2083-2084/2012, decided on May 19, 2022
The Order of the court was delivered by
Order
1. The present appeals are directed against the judgment and order passed by the Division Bench of the High Court of Kerala impugned dated 3rd March, 2010.
2. The brief facts relevant for the purpose are that the respondent no. 1/workman joined service as a field staff in April, 1991. For the alleged misconduct which was committed in discharge of his duties, a charge memo was served upon him dated 4th September, 1997. Extract of the charge memo reads as follows:
“Your reply dated 10.9.1997 to the notice dated 4.9.1997 issued to you, has been received. Various assertions in your aforesaid reply having no nexus with the charges leveled against you as per notice dated 4.9.1997, are not being dealt with now. However, your explanations to the charges leveled against you are not satisfactory. Therefore, you are issued a charge sheet as hereunder.
“Due to enmity of majority of workmen employed in the coffee and cardamom estate of Walliawaram Plantations situated at Nelliampathy; you while residing in your house at Arumannoor with the knowledge of the management since 24.7.1997, along with your brother, B. Anilkumar acting on your instigation had on several occasions in the month of August 1997 threatened and caused mental pain by stating “Your son will be killed” to Mr. K. M. Xavier residing at Kadakkassery House, Kanjikuzhi, at his house, who is the father of the partners and who is leading a retired life due to sickness and old age. Further, you had on several occasions threatened him over phone stating “I am going to the estate, and if anybody dares to touch me, I will kill your son.”
Further, on 1.9.1997 at about 3 p.m., when Shri. Johny Joseph who is one of the owners of the estate was on his way to his house at Ayyarkunnam, you along with your brother, B. Anilkumar obstructed the car while in front of Ayyarkunnam High School, having followed and overtaken it. After obstructing the car when you shouted “Can’t you issue notice terminating my services, you rascal?” and when Mr. Johny replied asking you to pose it to the person authorized for it at Kottayam and not to him, you again shouted “That useless is of no use.” You forcefully got into the car stating that he should not be allowed to leave. When the car started slowly moving forward, you tried to stop the car by pushing the gear lever, tried to take off the switch key, caught hold of his hand and switched off the car by forcibly pressing the clutch. When you threatened to stab him with knife, people around gathered hearing the commotion and thereupon you alighted from the car and went off with your brother by scooter.”
3. After holding inquiry, respondent no. 1/workman was found guilty and punished with penalty of dismissal from service by an order dated 7th April, 1998. The order of dismissal dated 7th April, 1998 travelled to be adjudicated by the Industrial Tribunal on a reference being made by the appropriate Government. The Industrial Tribunal, after taking into consideration the material on record, arrived to a conclusion that the domestic inquiry is fair and the procedure as prescribed by law has been complied with and he has rightly been held guilty in the domestic inquiry. However, at the same time, while exercising its power under Section 11A of the Industrial Disputes Act, 1947(for short the “Act 1947”), the Industrial Tribunal arrived to a conclusion that the penalty of dismissal from service inflicted upon the respondent no. 1/workman is disproportionate to the charge which was found proved against him and in consequence thereof, directed the appellant to reinstate the workman in service and in lieu of dismissal, the penalty of back wages was inflicted upon him.
4. That became the subject matter of challenge at the instance of the present appellant by filing of a writ petition before the High Court and a cross writ petition was filed by the respondent no. 1/workman and both writ petitions were disposed of by a common order and while accepting the writ petition filed at the instance of the appellant, award of reinstatement passed by the Labour Court dated 31st December, 2003 was set aside.
5. The learned Division Bench of the High Court, while examining the matter in totality, arrived to a conclusion that so far as the finding of guilt which has been recorded in the Course of the domestic inquiry stands established but was of the view that the power of Section 11A which has been exercised by the Industrial Tribunal appears to be justified and accordingly restored the award under the judgment impugned dated 3rd March, 2010 which is under challenge in the present appeals before us.
6. The charges which were levelled against the respondent no. 1/workman of which a reference has been made, once stands proved ordinarily it was not open for the Industrial Tribunal to interfere unless the penalty inflicted upon the delinquent-workman was shockingly disproportionate to the nature of misconduct stands proved in exercise of its power under Section 11A of the Act 1947. At this stage, without expressing any opinion on merits, consider it appropriate that let the respondent no. 1/workman who had served for seven years as a field staff in the office of the present appellant may be adequately compensated in lieu of reinstatement and a compensation of Rs. 2 lakhs in lieu of reinstatement, in our considered view appears to be reasonable in the facts and circumstance of the present case.
7. Consequently, the appeals succeed and are partly allowed and in lieu of reinstatement respondent no. 1/workman shall be paid a compensation of Rs. 2 Lakhs and the same shall be made over to him within a period of eight weeks from today. The judgment of the Division Bench stands modified accordingly.
8. Pending application(s), if any, shall stand disposed of.
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