Point of Law : An opportunity to lead evidence to prove misconduct independently of domestic enquiry ought to have been granted.

JUDGMENT :

BECHU KURIAN THOMAS, J.

1. An order of reinstatement of a workman with 50% backwages directed by the Labour Court, is under challenge in this proceeding under Article 226 of the Constitution of India.

2. The writ petitioner expired in the year 2012 and his legal heirs are arrayed as additional petitioners 2 to 4. The reference in this judgment as 'petitioner' indicates the original writ petitioner.

3. The petitioner is the owner of an establishment called Imperial Bakery. He alleged that a salesman by name Suresh Babu (for short the workman), who was drawing wages of Rs.1,950/- per month, used to commit misconduct repeatedly. Still, petitioner continued to employ him as he was a relative. However, on 07-09-1998, according to the petitioner, the workman was caught red-handed receiving money from customers without creating invoices. Petitioner also alleged that on issuing a notice to the workman, he abandoned the employment feeling guilty, and due to the continued absence, the workman conveyed his intention not to continue the employment with the petitioner.

4. According to the petitioner, though the workman had abandoned his employment, the first respondent Union issued a notice on 16-10-1998 alleging that petitioner denied employment to the workman. Subsequently, conciliation proceedings were initiated. While the conciliation was going on, workman resorted to unlawful agitation and strike in front of the petitioner’s establishment, resulting in the shop’s closure. Later, the workman assaulted the petitioner’s son, causing severe injuries and a crime had to be registered. Due to the serious incidents that occurred and in view of the abandonment of employment, petitioner did not agree to the demands made by the Union and hence the conciliation failed and the dispute was referred to the Labour Court for adjudication on the question as to whether the denial of employment to Shri. Suresh Babu, by the management of Imperial Bakery, is justifiable? If not, the relief to which he is entitled?

5. In the claim petition filed by the Union on behalf of the workman before the Labour Court, it was stated that he was employed for a salary of Rs.2,100/- per month and that the management was displeased with the workman and five others joining an organisation called Vanijya Vyavasaya Mazdoor Sangh due to which the management refused to permit the workman to attend work from 05-02-1999 onwards, thus denying employment. It was further pleaded that on 15-02-1999, it was the son of the petitioner who attacked the workman and not as alleged by the petitioner. Thus the first respondent denied abandonment of employment by the workman.

6. Before the Labour Court, the management examined one witness as MW1 and marked Ext.M1 to Ext.M13, while the first respondent examined the workman as WW1. By the impugned award dated 17-05-2005, the Labour Court found the allegation of denial of employment to be justified and directed reinstatement of the worker with 50% back wages and attendant monetary benefits. The writ petition has been preferred challenging the aforementioned award of the Labour Court.

7. Sri E.K.Nandakumar, the learned Senior Counsel appearing for the petitioner, vehemently submitted that the award of the Labour Court is wholly erroneous, perverse and unsustainable. It was also argued that the Labour Court brushed aside important pieces of evidence including Ext.M5 and Ext.M10. Great stress was made to the alleged refusal of the workman to report for work pursuant to the show cause notice Ext.M5 dated 08-09-1998 (marked as Ext.P2 in this writ petition). It was further contended by the learned Senior Counsel that the subsequent events that included registration of the criminal case for assaulting the son of the original petitioner ought to have been borne in mind by the Court to decline reinstatement.

8. It was also submitted that the Labour Court merely accepted the ipse dixit of the workman and failed to consider that there was no evidence to