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.
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O.P. No.3730 OF 2003
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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/-
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V.K.MOHANAN, J.
O.P.No.3730 of 2003
JUDGMENT
Dated:.11.6.2009.