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