High Court Kerala High Court

S. Ajayakumar vs The President on 11 June, 2009

Kerala High Court
S. Ajayakumar vs The President on 11 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 3730 of 2003(R)


1. S. AJAYAKUMAR, PARAMBUVATHUKKAL,
                      ...  Petitioner

                        Vs



1. THE PRESIDENT, PEROORKADA SERVICE
                       ...       Respondent

2. THE SECRETARY, PEROORKADA SERVICE

3. THE INDUSTRIAL TRIBUNAL,

                For Petitioner  :SRI.GOPAKUMAR R.THALIYAL

                For Respondent  :SRI.N.UNNIKRISHNAN

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :11/06/2009

 O R D E R
                    V.K.MOHANAN, J.
           ----------------------------------------
                  O.P. No.3730 OF 2003
           ----------------------------------------
              Dated, 11th Day of June, 2009

                         JUDGMENT

The petitioner, who is a workman, prefers this writ

petition challenging Ext.P2 award of the Industrial

Tribunal, to the extent the Tribunal ordered retrenchment

of the workman with effect from the date on which he

was dismissed from service, as an appropriate relief, in

spite of the fact that the Tribunal has found that

management failed to prove the charge. Thus the

Tribunal directed the management to treat the workman

as retrenched with effect from 5.1.89 and further

directed to pay all service monetary benefits. In this

writ petition, the main prayer is for the issuance of a

writ of mandamus or any other appropriate writ,

direction or order directing the respondents to reinstate

the petitioner in service forthwith with backwages and all

other service benefits, and for a declaration to that

effect.

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2. The case of the petitioner is that while he was

working as U.D.Clerk in the second respondent bank, he

was suspended from the service of the bank with effect

from 10.4.1984 and, subsequently, the bank issued the

charge memo dated 28.7.86 alleging unauthorised

absence, dereliction of duty and misappropriation of

money. As the management was not satisfied with his

explanation, a domestic enquiry was ordered which

culminated in a report dated 30.10.1988. Accepting the

said report, the management awarded punishment of

dismissal and, accordingly, he was dismissed from

service by order dated 5.1.89.

3. By resorting the statutory remedy as provided

under section 198(4) of the Kerala Cooperative Societies

Act, 1969, he had preferred appeal before the Board of

Directors of the 2nd respondent bank. Though he had

preferred the appeal during the year 1989, the same was

pending for a long period and, finally, the petitioner

workman was informed by letter dated 2.12.1994 of the

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2nd respondent that the appeal was rejected. Thus,

against the order of dismissal of the appeal, the petitioner

had raised an industrial dispute before the conciliation

officer on 3.4.1995, which ultimately resulted in Ext.P1 by

which the Government referred the dispute for adjudication

of the Tribunal. Thus finally, the Tribunal passed the

award and the Tribunal is of the opinion that the enquiry

conducted was not in compliance with the principles of

natural justice and the findings of the enquiry officer was

perverse and not supported by legal evidence. On the

basis of such finding, the Tribunal quashed the enquiry

report and findings but permitted the management to

lead evidence with reference to the charge levelled

against the workman. Thus after considering the

evidence on record, the Tribunal further held that “in the

absence of cash book, ledger, vouchers and other connected

documents and on the basis of the audit report and the awards

in ARC cases, it is not possible to hold that the management has

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conclusively proved that the workman is guilty of different

items of misappropriation as mentioned in the charge sheet”.

Accordingly, the Tribunal held that the management has

not succeeded in proving the different items of

misappropriation alleged against the workman. But at

the same time the Tribunal by the impugned award has

held that in view of the circumstances mentioned

therein , if reinstatement of the workman in service is

ordered, the same will affect confidence and goodwill of

the members and customers of the management bank and

thereby adversely affect the business of the management

bank. Hence, the management is directed to treat the

workman as retrenched with effect from 5.1.89, the date

on which he was dismissed from service. The

management is also directed to pay wages for the period

when he was under suspension after deducting subsistence

allowance. It is the above award challenged in this writ

petition.

4. Along with the writ petition, the petitioner has

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produced Ext.P1 order of the government by which the

dispute was referred. Reference was to the effect as to

“whether dismissal of Sri S.Ajayakumar, U.D.Clerk from the

services of the Peroorkada Service Co-operative bank from

10.4.1984 is justifiable, and, if not, what relief he is entitled

to ? ”

5. The petitioner, while filing the reply affidavit to

the counter affidavit filed by the respondent, produced

Ext.P3, by which he requested the first respondent to pay

the monetary benefit which is legally due to him in terms

of the award and also for reinstatement in service as UDC.

It is specifically stated in Ext.P3 that the above request

was made without prejudice to his right to challenge the

award in the appropriate forum for getting order of

reinstatement and backwages, continuity of service and

all other benefits. He had also produced Ext.P4

communication received from the respondent/bank by

which he was informed that the bank has decided to

implement the award as per its decision. According to the

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petitioner Ext.P4 was issued on 17.10.2002 as a reply to

Ext.P3 request.

6. Denying all the averments and contentions raised

in the writ petition, the respondents have filed counter

affidavit dated 8.4.2003. Besides the above, the

respondents have also filed a statement dated 18.4.2003

and additional statement dated 16.10.2003. The sum and

substance of the contentions raised by the respondents is

to the effect that considering the allegations and charges

levelled against the workman, the Tribunal has come into

a conclusion that such a workman cannot be ordered to be

reinstated in service and therefore, appropriate relief in

favour of the workman was granted which was accepted

by the workman and hence, no interference is warranted.

It is also the specific contention of the respondents that

on the basis of the materials available on record, the

Tribunal has already come into specific findings on fact

which shall not be disturbed by this court under Article

226 of the constitution of India since it will amount to

exercise of appellate jurisdiction, over the Tribunal, which

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is impermissible.

7. I have heard the learned counsel appearing for

the petitioner/workman and also the learned counsel for

the respondents management and also the learned

Government Pleader.

8. The learned counsel for the petitioner strenuously

argued that, in Ext.P2 award, the Tribunal has already

found against the management, in answer to the question

referred to the Tribunal for its decision as to whether

the dismissal of the workman/petitioner is justifiable or

not. If that be so, the Tribunal ought to have ordered

reinstatement of the petitioner in the service of the bank.

But by way of relief, punishment was imposed against the

workman at the instance of the Tribunal and directed the

management to treat the petitioner workman as a

retrenched employee. According to the learned counsel,

the Tribunal has no jurisdiction to issue such direction,

especially, when the finding on the question referred is in

favour of the workman. Thus according to the petitioner,

the workman is entitled to get reinstated in the service of

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respondent bank with backwages and all other monetary

benefits.

9. On the other hand, Sri Unnikrishnan, the learned

counsel appearing for the respondents vehemently

argued that in view of Section 11A of the Industrial

Disputes Act, the direction issued by the Tribunal is

within its jurisdiction. According to the learned counsel,

the conduct on the part of the workman is highly

condemnable and he cannot be reinstated in service

because the business undertaken by the respondent

employer mainly deals with general public involving cash

transaction. According to the learned counsel, the

Tribunal has issued such a direction considering the fact

that the management has lost confidence on the workman

petitioner and hence, the Tribunal ordered to pay

compensation treating him as a retrenched workman. The

learned counsel submitted that the management wants to

put an end to the dispute and that is why they accepted

the award and, accordingly, they were prepared to pay

the monetary benefits as ordered by the Tribunal.

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10. I have carefully considered the contentions

advanced by the learned counsel appearing for the

petitioner as well as the respondents and also perused the

materials on record.

11. It is true that the allegation raised against the

petitioner/workman is very serious and quite unbecoming

on the part of a workman in an establishment, especially,

in a cooperative institution like the respondent bank. At

the instance of the petitioner, a labour dispute had arisen

which ultimately referred as Ext.P1 for the decision of the

Industrial Tribunal. I have also perused Ext.P1 wherein

the question referred is `whether the dismissal of the

petitioner from the service of the respondent bank is

justifiable'(emphasis supplied). As indicated earlier, the Tribunal

has already found that the domestic enquiry was not in

accordance with the procedure and not in compliance

with the provisions of natural justice and the findings of

the enquiry officer are perverse and not supported by

legal evidence. After such finding, the management was

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given opportunity to adduce evidence to substantiate the

allegations as well as the findings of the domestic enquiry.

Accordingly, from the side of the management, MW1 to

MW3 were examined and documents such as M1 to M14

were produced as documentary evidence from the side of

the management. After examining those evidence,

including oral evidence of the witnesses and the

documentary evidence of the management, the Tribunal

has held that the management has failed to prove

conclusively the guilt of the workman in accordance with

the charges against him. From the above, it is crystal

clear that the finding of the Tribunal on the basis of the

reference is against the management and in favour of the

workman.

12. The learned counsel for the respondents

submitted that in view of section 11A of the Industrial

Dispute Act, the Tribunal has ample power to give such

other reliefs to the workman, instead of reinstatement,

including awarding any lesser punishment. I am unable

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to accept the above contention. For convenience, Section

11A of the Industrial Disputes Act, can be quoted which

reads as follows:

“11A: Powers of Labour Court,
Tribunal, and National Tribunal to give
appropriate relief in case of discharge or
dismissal of workmen:

Where an industrial dispute relating to the
discharge or dismissal of a workman has been
referred to a Labour Court, Tribunal or National
Tribunal for adjudication and, in the courts of
the adjudication proceedings, the Labour Court,
Tribunal or National Tribunal, as the case may be,
is satisfied that the order of discharge or
dismissal was not justified, it may, by its award,
set aside the order of discharge or dismissal and
direct reinstatement of the workman on such
terms and conditions, if any, as it thinks fit, or give
such other relief to the workman including the
award of any lesser punishment in lieu of discharge
or dismissal as the circumstances of the case may
require;

PROVIDED, that in any proceeding under this
section the Labour Court, Tribunal or National
Tribunal, as the case may be, shall rely only on the
materials on record and shall not take any fresh
evidence in relation to the matter”.

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Section 11A of the Act captioned in such a way. From the above,

it appears that the Labour Court, Tribunal and National

Tribunal have powers to give appropriate relief in case of

discharge or dismissal of workmen. In terms of the caption

and section as indicated above, the section clearly worded,

from which, it can be seen that when a reference is made

regarding the discharge or dismissal of workman, and, if the

Tribunal is of the opinion that the said punishment is not

justifiable, the Tribunal by way of award can set aside the

order of discharge or dismissal and direct reinstatement of

the workman on such terms and conditions as it thinks fit.

The next part of the section start with, “or” , and further states

that , “give such relief to the workman including the award of

any lesser punishment in lieu of discharge or dismissal as the

circumstances of the case may require”. It is on the basis of

the above part of the above section, the learned counsel tried

to justify the direction issued by the Tribunal. If once the

Tribunal finds that the dismissal or discharge is not justifiable,

the only relief that can be given is reinstatement of workman

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on such terms and conditions according to the facts and

circumstances involved in the case. Thus, if the Tribunal is

of the opinion that though the dismissal or termination is

justifiable, instead of confirming such punishment, a lesser

punishment can be awarded in lieu of discharge or dismissal

as the circumstances of the case may require. It is beyond

dispute that a punishment presupposes proved charge or to

award a punishment or finding of guilt is a condition

precedent. Therefore, the question of award of lesser

punishment will arise only if the guilt is proved. On a close

reading of Section 11A, it can be seen that the enquiry to be

undertaken by the Tribunal or Labour Court is two folded.

First point to be considered as to whether the charge

against the workman is proved or not. If the answer is

negative, there is no question of inflicting any punishment

and in that case, the punishment of dismissal or termination

has to be set aside. On the other hand, if the finding is

against the workman, the next enquiry must be about the

nature and quantum of punishment and the correctness of the

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punishment awarded. At this stage, even if the charge is

proved, a lesser punishment in lieu of termination or dismissal

can be awarded, as appropriate relief in favour of the

workman, considering the legislative object behind the

provisions of Sections 11A as specifically incorporated in an

Act – a welfare Act- relating to Industrial dispute. In the

present case, in answer to the reference, the Tribunal has

already found that the management has failed to establish the

charge against the workman. If that be so, I am of the firm

opinion that the Tribunal has exceeded its jurisdiction in giving

direction to the management to treat the petitioner workman

as retrenched workman when the finding to the issue referred

to is against the management and in favour of the workman.

Therefore, that part of the award is liable to be set aside.

13. It is beyond dispute that the workman was placed

under suspension with effect from 10.4.1984 and thereafter

dismissed from service with effect from 5.1.89. Thus the

petitioner workman is out of service for more than 25 years.

In such circumstances, I am of the view that there is no

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meaning in remanding the matter to the Tribunal for making a

fresh award. As per Ext.P2 award, the Tribunal has already

directed the management to pay wages for the period when

the workman was under suspension, after deducting

subsistence allowance if any paid, and also to pay

retrenchment compensation, gratuity and wages during the

period of suspension after deducting subsistence allowance if

any paid to the workman. The learned counsel for the

respondents emphatically submitted that while exercising

jurisdiction under article 226, this Court is not expected to sit

in appeal over the Tribunal and therefore, there is no scope

for interference with the orders of award passed by the

Tribunal. The above submission of the learned counsel is

on the basis of the decisions of the Supreme Court in

M/s.Tulsidas Paul v. The Second Labour Court. (1972 (4)

SCC 205) ; P.G.I. of Medical Education Research, &,

Chandigar v. Raj Kumar (2001(2) SCC 54). In the above

decisions, the Apex Court has held that ” in exercise of its

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jurisdiction under Article 226, the High Court cannot sit

in appeal over the orders of industrial tribunal. Its

jurisdiction is supervisory, and therefore, it interferes if

the jurisdiction conferred on such tribunals is improperly,

or in non-compliance of well established principles,

exercised or for any such other reasons”. From the

foregone discussion, and the facts referred above in this

proceedings, what considered is the jurisdiction of the

Tribunal Court under section 11A of the Industrial Disputes

Act and whether the Tribunal has exceeded the jurisdiction

conferred on it when the award was passed. Regarding the

facts, now there is no controversy since the same is settled

by the finding of the Tribunal, which I am not proposed to

reopen and to come into any finding.

14. The learned counsel for the petitioner also argued

that the petitioner had preferred Ext.P3 petition for

reinstatement and there is vacancy available to accommodate

him. In the light of the finding arrived by me, and the relief

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proposed to grant, the above point need not be considered .

15. In the light of the above facts and circumstances,

this writ petition is allowed upholding the finding of the

Tribunal with respect to the question referred to it, but setting

aside the direction for treating the petitioner as a retrenched

workman. The respondents are directed to reinstate the

petitioner in service within one month from the date of

producing a copy of this judgment and the petitioner is

directed to produce the same before the 2nd respondent, and

also, there will be a direction to give his backwages and all

monetary benefits for the entire period, after deducting the

amount, if any, paid towards the subsistence allowance, and

to regularize his service in accordance with law.

The Writ Petition is allowed.

V.K.MOHANAN, JUDGE

kvm/-

O.P.No.3730/03
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V.K.MOHANAN, J.

O.P.No.3730 of 2003

JUDGMENT

Dated:.11.6.2009.