High Court Kerala High Court

A.Gopalakrishnan vs President on 22 July, 2009

Kerala High Court
A.Gopalakrishnan vs President on 22 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 29108 of 2001(M)



1. A.GOPALAKRISHNAN
                      ...  Petitioner

                        Vs

1. PRESIDENT,VETTIKKATTIRI SER.CO.OP.BANK
                       ...       Respondent

                For Petitioner  :SRI.P.C.SASIDHARAN

                For Respondent  :SRI.K.M.SATHYANATHA MENON

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :22/07/2009

 O R D E R
                   ANTONY DOMINIC,J.
                ---------------------
              O.P.Nos.29108 & 13182/2001
             ------------------------
           Dated this the 22nd day of July, 2009.

                        JUDGMENT

O.P.No.13182/01 has been filed by the President and

Secretary of Vettikkattiri Service Co-operative Bank Ltd.,

challenging the award rendered by the Industrial Tribunal,

Palakkad in I.D.No.74/99, ordering reinstatement of the

first respondent workman with 50% back wages. The

workman has filed O.P.No.29108/01, challenging the said

award to the extent 50% back wages is denied to him.

Issues raised being common, these writ petitions are heard

and disposed of together. For convenience, I shall refer to

the exhibits marked in O.P.No.13182/01.

2. The workman was a junior clerk in the Bank

referred to above. On the allegation of having committed

certain misconducts, including misappropriation and

fabrication of records, he was placed under suspension on

O.P.Nos.29108/01 & anor. 2

1.11.1995. He was issued Ext.P1 charge sheet and following

this, an Enquiry Officer was appointed and an enquiry was

conducted. Finally, Ext.P8 report was submitted by the

Enquiry Officer finding the workman guilty of six out of seven

charges levelled against him.

3. A copy of the enquiry report was furnished to the

workman and after considering his representation against the

findings of the Enquiry Officer, the report was accepted by the

Sub Committee of the Board of Directors and finally the

workman was dismissed from service, with effect from

1.11.1995. He filed Ext.P2 appeal to the Board of Directors

which was considered by the appellate authority and by Ext.P3

(2) resolution passed on 13.3.1998, the appeal was rejected.

That resolution was forwarded to the workman by Ext.P3

communication.

4. The workman thereafter raised an individual

dispute as contemplated under Section 2A of the Industrial

Disputes Act and by Ext.P4 order the legality of the dismissal

O.P.Nos.29108/01 & anor. 3

of the workman was referred for adjudication to the Industrial

Tribunal.

5. The Tribunal registered the reference as I.D.No.74/99.

Ext.P6 is the claim statement of the workman. Ext.P5 is the

written statement and Ext.P7 is the rejoinder filed by the

workman. Finally, Ext.P9 award was rendered by the Tribunal

directing reinstatement of the workman with 50% back wages

which is under challenge in these original petition.

6. Ext.P9 award shows that the validity of the enquiry

was considered by the Industrial Tribunal as a preliminary

issue and by its proceedings dated 21.12.2000, the Tribunal

found the enquiry to be legal and valid. However, detailed

order was reserved to be delivered along with the final award.

It is stated that thereafter the parties were heard on 25.1.2001

on the proportionality of punishment and thereafter the award

in question was rendered.

7. The award shows that the enquiry file was perused by

the Tribunal. The Tribunal found the description of the

O.P.Nos.29108/01 & anor. 4

documents to be irregular but however, held the same to be

insufficient to set aside the enquiry held. Proceeding further,

the Tribunal examined the correctness of the findings of the

enquiry officer. The Tribunal held that broadly four charges

were levelled against the workman and that since the findings

of the enquiry officer are based on some evidence, the

findings cannot be held to be perverse. It is also held that the

enquiry is not vitiated for any procedural irregularity and that

it was held in compliance with the principles of natural justice.

8. Thus after upholding the enquiry and the findings of

the Enquiry Officer, in paragraph 7 of the award, the Tribunal

posed the question whether the charges proved against the

workman would amount to grave misconducts warranting the

extreme punishment of dismissal from service. This obviously

is in exercise of the Tribunal’s power under Section 11A of the

I.D Act.

9. Accordingly, the gravity of the misconducts for

appreciating the proportionality of the punishment imposed

O.P.Nos.29108/01 & anor. 5

was examined and the Tribunal concluded that, it cannot be

held that the Workman had committed the misconduct of

misappropriation or falsification of records, vide paragraph

10 of the award. Again in paragraph 11, the Tribunal held that

charge numbers II and IV mentioned in paragraph 5 of the

award, would not amount to misconducts and the said

allegation has been raised without any bona fides. Proceeding

further in paragraph 12 it is held that charge No.III mentioned

in paragraph 5 of the award proved against the workman has

to be considered as a misconduct warranting disciplinary

action. Therefore, of the four charges that are broadly

classified in paragraph 5 of the Award, except in relation to

charge No.III, the Tribunal has held that the other misconducts

are either not misconducts or that, the workman has not

committed the same.

10. In my view, the approach adopted by the Tribunal

cannot be upheld. As held by the Apex Court in Workmen of

Fire stone Tyre & Rubber Co. V. Management & ors.(1973(2)

O.P.Nos.29108/01 & anor. 6

LLJ 278), while exercising the power under Section 11A of the

Industrial Disputes Act, the Tribunal has first to examine the

validity of the enquiry conducted. Once an enquiry has been

held to be validly conducted and the findings of the enquiry

officer are also upheld, the Tribunal has to consider whether

the punishment imposed is proportionate to the gravity of the

misconduct.

11. In this case, as mentioned in paragraph 3 of the

award, by proceedings dated 21.12.2000, the Tribunal held

the enquiry to be legal and valid. In the award itself, while

giving its reasons in support of the aforesaid findings, the

Tribunal has held that the enquiry was held in accordance

with the principles of natural justice, that it was not vitiated

for any procedural error and that the findings of the Enquiry

Officer are based on some evidence and therefore cannot be

held perverse. Once the enquiry has been upheld and the

findings of the Enquiry Officer are also held as not perverse,

in my view all that remains to be done by the Tribunal is to

O.P.Nos.29108/01 & anor. 7

decide on the proportionality of the punishment based on the

material on records, as provided in the proviso to Section 11 A

of the Industrial Disputes Act. In that process, the Tribunal

cannot once again examine the findings of the Enquiry Officer

each of the misconducts and decide as to whether those

misconducts are proved or whether the acts alleged against

the workman are misconducts at all. In this case, while

exercising its powers under Section 11-A of the Industrial

Disputes Act, the Tribunal clearly committed a grave error

and for that reason, the award cannot be up held.

12. Therefore O.P.No.13182/01 is disposed of quashing

Ext.P9 award rendered by the Industrial Tribunal in

I.D.No.74/99 and the Tribunal is directed to reconsider the

matter and decide on the proportionality of punishment

imposed on the workman, petitioner in O.P.No.29108/01. This

shall be done as expeditiously as possible and at any rate

within 2 months from the date of production of a copy of the

judgment.

O.P.Nos.29108/01 & anor. 8

In so far as O.P.No.29108/01 is concerned, now that I

have set aside the award and the matter has been remanded

for fresh consideration, there is no question of allowing this

Original Petition. Dismissed.

(ANTONY DOMINIC)
JUDGE
vi/

O.P.Nos.29108/01 & anor. 9

BY GOVT. PLEADER SRI. K.C. SANTHOSHKUMAR

ANTONY DOMINIC,J.

———————

O.P.Nos.29108 & 13182/2001

———————-

Dated this the 22nd day of July, 2009.

JUDGMENT

O.P.Nos.29108/01 & anor. 10