An employer must conduct a fair and proper disciplinary inquiry to justify dismissal; failure to do so renders the dismissal unjustified.

JUDGMENT

Shircy V.,J.

The General Secretary of Nair Service Society (for short N.S.S) Central Committee, the unsuccessful petitioner, in Writ Petition(C) No. 15039 of 2008 has filed this appeal challenging the judgment of the learned Single Judge dated

28.10.2014.

2. The Brief facts necessary to decide the appeal are as follows: The petitioner is conducting a hospital under the name and style 'N.S.S.Medical Mission Hospital' at Pandalam. The 2nd respondent, (hereinafter referred to as the employee) was an X-ray technician of the hospital. On a complaint filed against him by an inpatient (herein after referred to as the complainant) of the hospital alleging WA 138/2015 2 misbehavior, towards her in the course of taking X-ray on 12.9.2003, a preliminary enquiry was conducted by the Superintendent of the Hospital and he reported that the allegations leveled against him are correct. Acting upon the report, he was placed under suspension. Thereafter, disciplinary proceedings were initiated and an enquiry officer was appointed to conduct an enquiry. The employee filed statement of facts refuting the allegations leveled against him. The disciplinary proceedings culminated in punishment of dismissal from service with effect from 23/09/03, the date of suspension .

3. Then the employee raised an industrial dispute and the Government have referred the dispute for adjudication before the 1st respondent, Labour Court. Before the Labour Court, the petitioner/management filed Ext.P10 written statement. Ext.P11 is the copy of the claim statement filed by the employee. The enquiry officer was examined as MW1 on the side of the petitioner/management and Exts.M1 and WA 138/2015 3 Ext.P1(a) were marked and finally Ext. P12 preliminary order was passed in favour of the employee holding that the enquiry held is vitiated. Ext.P13 is the Award delivered by which he was directed to be reinstated with back wages. Aggrieved by the Award of the Labour Court in the reference (I.D.No. 9/2006), the writ petition was filed by the petitioner. In the writ petition, the petitioner has contended that after the preliminary order was passed, the Labour Court did not give an opportunity to adduce further evidence justifying the action taken by the management against the workman. The reliefs sought for in the writ petition are as follows:

“i. a writ of certiorari qushing/setting aside Ext.P12 preliminary order and Ext.P13 Award of the

1st respondent.

and ii. Such other writ order or direction as this Hon'ble court may deem fit and proper in the facts and circumstances of the case.”

4. The learned Single Judge declined to interfere with WA 138/2015 4 the Award and dismissed the writ petition. Feeling aggrieved, the petitioner has filed this appeal .

5. We heard the learned Standing Counsel for the petitioner/appellant, learned Government Pleader for the 1st respondent and the learned counsel for the 2nd respondent.

6. The 2nd respondent/employee while working as X-ray Technician in N.S.S. Medical Mission Hospital, Pandalam was placed under suspension on 23.9.2003 acting upon Ext.P1 complaint received from the complainant, a lady aged 55 years, who was undergoing treatment as an inpatient. Admittedly, she was admitted in the hospital from 10.9.2003 to 16.9.2003. On 16.09.03, she had complained that the employee had misbehaved with her on 12.9.03 when she was taken to the X-ray room, in course of taking X-ray for her treatment. Ext.P1 is the copy of the complaint filed. Ext.P2 is the notice served on him on receipt of the complaint and Ext.P2(a) is his statement refuting the allegations. In the domestic enquiry, witnesses WA 138/2015 5 were examined as MW1 and MW2 and Ext.M1, M2, M2(a) and M2(b) were marked on the side of the petitioner/management. It is pertinent to note that in the complaint she had alleged that she was taken to the X-ray unit in a wheel chair as she was suffering severe pain, accompanied by her husband and a nurse. It is further alleged in the complaint that