IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23645 of 2003(M)
1. THE PRESIDENT,
... Petitioner
Vs
1. N.MAHEENDRAN, NELLERI HOUSE,
... Respondent
2. INDUSTRIAL TRIBUNAL,
For Petitioner :SRI.M.SASINDRAN
For Respondent :SRI.K.S.MADHUSOODANAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :05/10/2009
O R D E R
P.R.RAMACHANDRA MENON, J.
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WP(C) NO. 23645 OF 2003
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Dated this the 5th day of October, 2009
J U D G M E N T
Ext.P5 order passed by the second respondent Industrial Tribunal
Kozhikode in I.D. No. 1/2002 has been subjected to challenge from the
side of the management, contending that interference with the order of
dismissal invoking the power under Section 11 A of the ID Act is not correct
or proper.
2. The first respondent worker was an employee of the petitioner.
He was working as a sales man-cum-attender, having independent charge
of a store, where various consumer items were being stored by the
petitioner Society. On 25.03.1997, the Secretary of the Society made a
surprise inspection of the store, when serious irregularities were noted;
particularly with regard to the collection of higher sales price in respect of
various items, than the prescribed amount and also mishandling of the
daily cash, leading to tarnishing the image of the Society as well. Since
there was no satisfactory explanation from the part of the employee, Ext.P1
charge sheet was issued placing him under suspension, pending enquiry.
On conclusion of the domestic enquiry, Ext.P3 enquiry report was
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submitted by the enquiry officer, which was considered by the management in
the light of the relevant records and after appreciating the entire facts and
figures it was held that the misconduct levelled against the delinquent
employee was proved and accordingly, he was dismissed from the service of
the Society, which led to reference of the industrial dispute to the second
respondent for adjudication.
3. In response to the claim statement preferred from the part of the
worker, the petitioner management filed Ext.P4 written statement, seeking to
sustain the course pursued by them. Validity of the domestic enquiry was
considered as a preliminary issue. After evaluating the materials on record,
the Tribunal arrived at a finding that, the domestic enquiry was conducted
adhering to the principles of natural justice and that the finding was very
much legal and proper. Thereafter, the Tribunal proceeded to consider the
proportionality of the punishment imposed, as discussed in paragraph 7
onwards of Ext.P5. It has been observed by the Tribunal that, the first charge
narrated in Ext.P1 charge sheet stands proved, as correctly held by the
enquiry officer, in so far as the factum of excess collection of the sale price
from the members stands vindicated; whereas the second limb regarding the
alleged diversion/shortage of stock proportionate to the quantum of excess
collection was not at all proved. In other words, the allegation regarding the
mis appropriation of the sale proceeds is stated as not proved and
WPC NO.23645/2003 3
accordingly, the Tribunal arrived at a finding that no loss was caused to the
Society, particularly when the excess price collected was also stated as
remitted to the Society.
4. In paragraph 9 of the impugned order, the Tribunal has observed
that the second charge regarding the non remittance of the daily cash on the
very next day, involving ‘temporary mis appropriation’ is only of two to three
days in each case and hence that, it could not be taken as warranting
dismissal. It was after considering the above aspects; particularly as to the
‘no loss’ caused to the Society and also that the alleged temporary mis
appropriation was only in view of the delay of 2 to 3 days in remitting the
amounts; that the punishment of dismissal awarded by the management was
intercepted, invoking the power under Section 11 A of the I.D. Act.
Accordingly, the worker was ordered to be reinstated with 50% back wages,
holding that forfeiture of 50% back wages will constitute suitable punishment;
which forms the subject matter of challenge before this Court.
5. Learned counsel for the petitioner/Management submits that, the
charges proved are of serious consequences and that the Tribunal has
extended misplaced sympathy by substituting the punishment of dismissal
with reinstatement denying only 50% back wages; which actually is a boon to
the worker, resulting in total miscarriage of justice. The learned counsel for
the worker submits that, in view of the settled position of law, denial of 50%
WPC NO.23645/2003 4
back wages is to be regarded as proper punishment, which is sought to be
controverted from the part of the petitioner/Management, stating that the
previous instances of misconduct in respect of the very same employee have
not been properly weighed by the Tribunal, particularly when a lesser
punishment was imposed, taking a lenient view since the worker had pleaded
guilty seeking for the indulgence as evident from Ext.P2. But as rightly
observed by the Tribunal, this aspect, as dealt with under charge No. 3, was
not separately considered by the enquiry officer and no separate finding was
arrived at on this point. However, the fact remains that, the said aspect,
though does not constitute a separate charge, was a fact brought out by the
records in the course of the proceedings and was liable to be looked into by
the Tribunal while fixing the quantum of punishment invoking the power under
Section 11 A of the ID Act.
6. Yet another important aspect to be noted is that, the Tribunal
made interference under section 11 A of the ID Act observing that the ‘excess
collection’ has already been remitted to the Society and hence no ‘actual loss’
was caused to the Society. But it has to be borne in mind that, the second
limb of the charge (as to the mis appropriation of the proportionate stock) was
held as not proved, for the reason that no prior stock verification was
conducted by the Society. In other words, the worker has been given some
‘benefit of doubt’ and that is all. The collection of ‘excess charge’ in respect
WPC NO.23645/2003 5
of the sale commodity stands proved and as it stands so, when there is
excess collection, there will either be proportionate diversion of the stock or
there is an unlawful enrichment to the Society. To put it more clear, the
persons who purchased various articles from the Society have suffered a
loss, in having parted with more amount than that was actually payable. This
vital aspect, as to the loss caused to the members or the consumers who
purchased the articles from the store and ‘the loss of good will’ and reputation
to the Society, which forms part of the first charge has not been properly
considered by the Tribunal while interfering with the punishment.
7. Yet another aspect is that, even in cases of reinstatement,
awarding of back wages is not automatic, in view of the law declared by the
Apex Court on the point as reported in Essen Deinki Vs. Rajiv Kumar [2002
(8) SCC 400]. It also cannot be a matter of dispute any further, in view of the
dictum in M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of
Hindustan Tin Works Pvt. Ltd. & others [AIR 1979 SC 75] and subsequent
verdicts on the point, holding that the burden to plead and prove that the
worker was not having any alternative employment and income is cast upon
the worker himself. There is absolutely no discussion of evidence in this
regard, any where in paragraph 8 or 9 or elsewhere in Ext.P5 so as to sustain
granting of 50% back wages to the first respondent/worker.
8. In the above circumstances, this Court finds that the exercise of
WPC NO.23645/2003 6
power by the second respondent Tribunal under Section 11 A of the I.D. Act
substituting the punishment imposed by the Management is not correct or
proper and that the same has to be reconsidered taking note of the
observations made above. Accordingly Ext.P5 is set aside to the said extent
and the matter is remanded; which shall be reconsidered and finalised as to
the proportionality of the punishment, as expeditiously as possible, at any rate
within three months from the date of receipt of a copy of this judgment. Both
the parties shall appear before the Tribunal on 10.12.2009.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON
JUDGE
dnc