~~~~~~~~~~~ Antony Dominic, J.
This Writ Appeal is filed against the judgment of this Court dismissing W.P.(C) No.20970/2006.
2. We heard the appellant who appeared as party-in- person, learned counsel appearing for respondents 1 and 2, the employer, and the Government Pleader appearing for 3rd respondent.
3. The appellant was an employee of respondents 1 and 2. While working as a senior Clerk, he was alleged to have committed the misconduct of abusing the Assistant Advertisement Manager and using vulgar language against him. It was also alleged that when a memo was sought to be served on him for the above alleged misconduct, on 7.11.2000 he is alleged to have again repeated his misconduct and abused the person who was entrusted with the duty to serve such memo. Following this, disciplinary action was initiated against the appellant and memo of charge was also issued.
4. An advocate was appointed as the Enquiry Officer.
Enquiry was conducted and report was submitted finding him guilty. On receipt of the report of the Enquiry Officer, copy of the report was sent to the workman calling upon him to file his objections, if any, against the findings of the Enquiry Officer. Accordingly, he filed his objections. The matter was considered by the disciplinary authority, in the light of the objections filed by the appellant, and, finally, considering the gravity of the misconduct proved against him, the appellant was dismissed from service on 28.8.2001.
5. An industrial dispute was raised by his union and on the failure of conciliation, the justifiability of the action of the management in dismissing the appellant from service was referred by the Government of Kerala to the Labour Court, Kozhikode for adjudication under the Industrial Disputes Act. The reference was registered as I.D.No.16/2002. Before the Labour court, parties filed their pleadings and the validity of the enquiry was considered as a preliminary issue. The Labour court, by Ext.P5 order dated 15.7.2005, held that the enquiry was fairly and properly held in accordance with law and that the findings of the Enquiry officer are not vitiated on any grounds.
6. Subsequently, the Labour court passed Ext.P7 award upholding the punishment of dismissal imposed on the appellant. Challenging the above, the appellant filed the Writ Petition, which was dismissed by the learned Single Judge. It is aggrieved by this judgment, the appeal is filed.
7. We heard the appellant and also the learned counsel appearing for respondents 1 and 2. Although the judgment under appeal shows that before the learned Single Judge the contentions urged by the appellant were that his request for a co-worker to assist him in the enquiry was denied by the Enquiry Officer, that he was denied an opportunity to explain the charges, that he was denied an opportunity to adduce evidence and that the punishment of dismissal imposed on him was disproportionate to the misconduct proved, before us various contentions including the above were reiterated and we shall deal with the same.
8. The first contention raised by the appellant was that the Labour court did not hear him before passing the impugned award. As we have already stated, this was a case where the dispute was sponsored by his trade union and it was the trade union, which was prosecuting the case before the Labour court, and the appellant was not a party to the adjudication. When a trade union has espoused the case of a workman and prosecuting the case before the Labour court, Industrial Disputes Act does not recognise any right for individual representation for the workman concerned, even if the reference pertains to any action initiated against him. Therefore, the appellant, despite being the workman involved in the dispute, cannot be heard to complain that the award was rendered without hearing him.
9. Yet another contention in this context was that the award was rendered by the Labour court without hearing the counsel, who was representing the appellant. According to the appellant, the dispute was posted to 28.6.2005 for hearing on the proportionality of the punishment and that his counsel was absent on that day. Thereupon, the Labour court heard the counsel for the management and reserved the dispute for passing award. It is stated that immediately thereafter explaining the reasons for his absence, his counsel filed Ext.P6 petition requesting for giving him an opportunity to argue the case before award is passed. It is stated that without passing orders on the application, Labour court proceeded to pass Ext.P7 award on 23.7.2005 and thereafter passed Ext.P8 order rejecting Ext.P6 application on 9.9.2005. This, according to the learned counsel, amounts to denial of an opportunity of hearing, violating the principles of natural justice rendering the award itself illegal.
10. Although it is factually correct that on 28.6.2005, in the absence of the counsel for the appellant, the Labour court had reserved the dispute for award, Ext.P8 order passed by the Labour court rejecting Ext.P6 application shows that such a course of action was necessitated on account of the previous conduct of the parties in remaining absent on several occasions. In such a situation, we cannot find fault with the Labour court for having proceeded to reserve orders in the absence of the counsel and in rejecting Ext.P6. Further, Ext.P7 award, by which the dismissal was confirmed also shows that inspite of the fact that the counsel for the appellant was absent, the Labour court considered the proportionality of the punishment imposed. Therefore, not only the action of the Labour court is valid but also the action of the Labour court in proceeding with the matter has not caused any prejudice to the appellant.
11. The appellant then contended that the charges are vague and that though the case was originally posted on 30.7.2005, it was preponed and award was rendered on 23.7.2005. The appellant also contended that in the enquiry the management was represented by a legally trained person and that he was not given an opportunity to be represented by an Advocate or atleast a representative of his own choice. First of all, none of these contentions were raised either in the pleadings before the Labour court or before the learned Single Judge and therefore, we are not inclined to allow the appellant to raise these contentions now. Therefore, we are not prepared to deal with these contentions raised in the first time in the appeal.
12. The appellant then contended that though the Labour court rendered its award on 23.7.2005, by the award, the appellant had given retrospective validation to the dismissal order passed on 28.8.2001. This, according the appellant, is illegal and, at best, the dismissal order can have effect only with prospective effect. We cannot accept this contention also.
13. The Labour court was examining the correctness of the action taken by the management and by the impugned award the Labour court has upheld such action. Such an award is always with reference to the date on which such action is taken and will be valid with reference to the date on which the
dismissal has been ordered. In other words, the award of the Labour court will relate back to the date on which the workman has been dismissed. This theory of relation back has been accepted by the Supreme Court in several judgments, the last of which is Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v Ram Gopal Sharma [(2002)2 SCC 244].
14. The appellant finally contended that, at any rate, the punishment imposed on him is disproportionate to the misconduct proved. As we have already noticed, the misconduct proved against the workman is that he has used vulgar and abusive words against the officers and that he behaved in a riotous and disorderly manner. Such misconduct is certainly a grave one and if the disciplinary authority considered the punishment of dismissal as the appropriate punishment, such a decision of the disciplinary authority cannot be said to be one shocking the conscience of this Court justifying interference with the same.
15. Appellant then contended that the word 'maire' used by him is not an obnoxious word warranting disciplinary action. According to him, he hails from Tamil Nadu, where, this word means 'hair' . However, the appellant is a person who is familiar with Malayalam language and as everybody knows, in the Malayalam language, the word used by the appellant is an obnoxious and unparliamentary one and the usage of which, at a workplace is intolerable. Therefore, we cannot accept the contention of the appellant that elsewhere in the country the word is parliamentary and therefore should be considered parliamentary in this State also.
16. For all these reasons, we do not find anything illegal either in the award or the findings of the learned Single Judge justifying interference in this appeal.
Appeal fails and it is dismissed.
SD/-
ANTONY DOMINIC, JUDGE.
SD/- ALEXANDER THOMAS, JUDGE.
ps/18/6/2014 //True copy// PA to Judge