N.M. DINESAN Vs. MANJUSHA

JUDGEMENT

(1.) As the issue involved in both these original petitions arises in connection with an order of termination of services of a workman, who is the petitioner in both the original petitions, they are taken up for consideration together and disposed by this common judgment.

(2.) OP(LC) 1/2015 is filed by the workman, aggrieved by an award of the labour court in I.D.No.5/2012. In the O.P, the workman challenges Ext.P1 preliminary order, as also Ext.P2 final award of the Tribunal in I.D.No.5/2012. In O.P.(LC) 4/2015, the workman impugns Ext.P1 order of the labour court in C.P.No.6/2012 filed for reliefs under section 33 C (2) of the ID Act. The brief facts necessary for the disposal of both the original petitions are as under:

(3.) The petitioner was working as a bar man at the Gino Bar, Kakkanad, which was run by the respondent management. While he was working as a bar man, an inspection was conducted by the quality control squad of the management, which detected three opened bottles of brandy, two bottles of high class rum and two bottles of old port rum, with reduced strength. Pursuant to the inspection, a mahazar was drawn up, on which the signature of the workman, as also other witnesses were obtained. The management thereafter sought an explanation from the workman, and after finding the explanation to be unsatisfactory, suspended the workman with effect from 15.11.2010. The enquiry, in connection with the charges alleged against the workman, was entrusted with an enquiry officer, who proceeded to conduct the enquiry. He then submitted a report dated 22.06.2011, which was served on the workman, along with a translation of the report in Malayalam. Thereafter, after complying with the procedure of issuing a show cause notice to the workman, calling for his explanation to the enquiry report, as also issuing a show cause notice as regards the proposed punishment, the explanation submitted by the workman was considered, and he was dismissed from service with effect from 09.08.2011. The workman, challenged the dismissal order through the I.D., that was raised under Section 2A(2) of the Industrial Dispute Act 1947. The labour court, which adjudicated the issue, first considered the preliminary issue as to whether the enquiry that was conducted against the workman was fair and proper. By Ext.P1 preliminary order, the labour court found that the contention of the workman that documents that were sought for had not been furnished to him by the management, and that he had not been served with a notice with regard to the enquiry and further, that the documents which he had called for from the side of the management, had not been allowed by the enquiry officer, were all not established, and proceeded to find that the enquiry was conducted in a fair manner, and without prejudice to the worker. In the result, the preliminary order was passed holding that the enquiry officer conducted the enquiry properly by complying with the principles of natural justice. Thereafter, the labour court proceeded to consider the merits of the case with regard to the punishment of dismissal from service, that was imposed on the petitioner workman. The labour court, on an analysis of the evidence on record, found that there was no effective dispute with regard to the seizure of the bottles, and the drawing up of the mahazar by the management. It was also found that there was no effective rebuttal of the evidence that was available on record to show that, at the time of inspection by the management squad, the petitioner was the only one present in the bar. It was further established that more than one bottle of the same brand of liquor had been kept open by the petitioner, who was serving as the bar man on the said date. The petitioner had also not established any animosity on the part of the management witnesses MW1 to MW3, so as to discredit their deposition, at the time of the enquiry before the enquiry officer. These aspects led the labour court to find that on merits, the petitioner had not established a case warranting the interference by the labour court with the findings of the enquiry officer in the enquiry report. The labour court then proceeded to consider the issue of proportionality of the punishment that was imposed on the petitioner. It found that, inasmuch as the offence alleged against the petitioner, which subsequently stood established against the petitioner in the enquiry proceedings, was of such a nature that it led to a loss of confidence in the functioning of the petitioner, the order of dismissal that was imposed upon the petitioner by the management, did not require any interference. By Ext.P2 award, therefore, the labour court found against the petitioner by upholding the finding of the management, both on the issue of establishment of guilt, as also on the quantum of punishment imposed. The learned counsel for the petitioner would vehemently contend that both, on the preliminary issue which was decided in Ext.P1 order, and on the merits of the case which was the subject matter of Ext.P2 award, the labour court erred in not considering the factors that were germane to an adjudication before the labour court.