{"id":223577,"date":"2009-06-11T00:00:00","date_gmt":"2009-06-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-ajayakumar-vs-the-president-on-11-june-2009"},"modified":"2016-08-27T22:57:45","modified_gmt":"2016-08-27T17:27:45","slug":"s-ajayakumar-vs-the-president-on-11-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-ajayakumar-vs-the-president-on-11-june-2009","title":{"rendered":"S. Ajayakumar vs The President on 11 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
S. Ajayakumar vs The President on 11 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 3730 of 2003(R)\n\n\n1. S. AJAYAKUMAR, PARAMBUVATHUKKAL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE PRESIDENT, PEROORKADA SERVICE\n                       ...       Respondent\n\n2. THE SECRETARY, PEROORKADA SERVICE\n\n3. THE INDUSTRIAL TRIBUNAL,\n\n                For Petitioner  :SRI.GOPAKUMAR R.THALIYAL\n\n                For Respondent  :SRI.N.UNNIKRISHNAN\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :11\/06\/2009\n\n O R D E R\n                    V.K.MOHANAN, J.\n           ----------------------------------------\n                  O.P. No.3730 OF 2003\n           ----------------------------------------\n              Dated, 11th Day of June, 2009\n\n                         JUDGMENT\n<\/pre>\n
      The petitioner, who is a workman, prefers this    writ<\/p>\n
petition challenging Ext.P2 award of the Industrial<\/p>\n
Tribunal, to the extent the Tribunal ordered retrenchment<\/p>\n
of the workman with effect from the date on which he<\/p>\n
was dismissed from service, as an appropriate relief, in<\/p>\n
spite of the fact     that the Tribunal     has found that<\/p>\n
management failed to        prove the charge.      Thus the<\/p>\n
Tribunal directed the management to treat the workman<\/p>\n
as retrenched     with effect   from   5.1.89 and    further<\/p>\n
directed to pay all service monetary benefits. In this<\/p>\n
writ petition, the main prayer is for the      issuance of a<\/p>\n
writ of mandamus or         any other appropriate      writ,<\/p>\n
direction or order directing the respondents to reinstate<\/p>\n
the petitioner in service forthwith with backwages and all<\/p>\n
other service benefits,    and    for a declaration to that<\/p>\n
effect.\n<\/p>\n
O.P.No.3730\/03
\n                                -:2:-<\/span><\/p>\n
     2. The case of the petitioner is that while he was<\/p>\n
working as U.D.Clerk in the second respondent bank, he<\/p>\n
was suspended from the service of the bank with effect<\/p>\n
from 10.4.1984 and, subsequently, the bank issued the<\/p>\n
charge memo dated 28.7.86            alleging   unauthorised<\/p>\n
absence,     dereliction  of duty and misappropriation of<\/p>\n
money. As the management was not satisfied with his<\/p>\n
explanation, a domestic        enquiry was ordered which<\/p>\n
culminated in a report dated 30.10.1988. Accepting the<\/p>\n
said report, the management        awarded   punishment of<\/p>\n
dismissal     and,   accordingly, he was     dismissed from<\/p>\n
service by order dated 5.1.89.\n<\/p>\n
       3. By resorting the statutory remedy as provided<\/p>\n
under section 198(4) of the Kerala Cooperative Societies<\/p>\n
Act, 1969, he had preferred appeal before the Board of<\/p>\n
Directors of the 2nd respondent bank.       Though he    had<\/p>\n
preferred the appeal during the year 1989, the same was<\/p>\n
pending     for a long period and, finally,    the petitioner<\/p>\n
workman was informed by letter dated 2.12.1994 of the<\/p>\n
O.P.No.3730\/03
\n                                  -:3:-<\/span><\/p>\n
2nd   respondent     that the appeal was rejected.        Thus,<\/p>\n
against the order of dismissal of the appeal, the petitioner<\/p>\n
had raised an industrial dispute before the conciliation<\/p>\n
officer on 3.4.1995, which ultimately resulted in Ext.P1 by<\/p>\n
which the Government referred the dispute for adjudication<\/p>\n
of the Tribunal.      Thus finally, the Tribunal passed the<\/p>\n
award and the Tribunal is of the opinion that the enquiry<\/p>\n
conducted was not in compliance with the principles of<\/p>\n
natural justice and the findings of the enquiry officer was<\/p>\n
perverse and not supported by legal evidence.           On the<\/p>\n
basis of such finding, the Tribunal       quashed the enquiry<\/p>\n
report and findings but permitted the management to<\/p>\n
lead evidence      with reference      to the charge levelled<\/p>\n
against     the workman. Thus after considering             the<\/p>\n
evidence on record, the Tribunal further held that “in the<\/p>\n
absence of cash book, ledger, vouchers and other connected<\/p>\n
documents and on the basis of the audit report and the awards<\/p>\n
in ARC cases, it is not possible to hold that the management has<\/p>\n
O.P.No.3730\/03
\n                               -:4:-<\/span><\/p>\n
conclusively proved that the workman is guilty of different<\/p>\n
items of misappropriation as mentioned in the charge sheet”.<\/p>\n
Accordingly, the Tribunal held that the management has<\/p>\n
not   succeeded    in  proving   the  different  items   of<\/p>\n
misappropriation alleged against the workman. But at<\/p>\n
the same time the Tribunal by the impugned award has<\/p>\n
held that     in view of the     circumstances mentioned<\/p>\n
therein , if reinstatement of the workman in service is<\/p>\n
ordered, the same will affect confidence and goodwill of<\/p>\n
the members and customers of the management bank and<\/p>\n
thereby adversely affect the business of the management<\/p>\n
bank. Hence, the management is directed to treat the<\/p>\n
workman as retrenched with effect from 5.1.89, the date<\/p>\n
on     which he was dismissed from service.            The<\/p>\n
management is also directed to pay wages for the period<\/p>\n
when he was under suspension after deducting subsistence<\/p>\n
allowance. It is the above award challenged in this writ<\/p>\n
petition.\n<\/p>\n
      4. Along with the writ petition, the petitioner has<\/p>\n
O.P.No.3730\/03
\n                                  -:5:-<\/span><\/p>\n
produced Ext.P1 order of the government by which the<\/p>\n
dispute was referred. Reference was to the effect as to<\/p>\n
“whether dismissal of Sri S.Ajayakumar, U.D.Clerk from the<\/p>\n
services of the Peroorkada Service Co-operative bank from<\/p>\n
10.4.1984 is justifiable, and, if not, what relief he is entitled<\/p>\n
to ? ”\n<\/p>\n
      5. The petitioner, while filing the reply affidavit to<\/p>\n
the counter affidavit filed by the respondent, produced<\/p>\n
Ext.P3, by which he requested the first respondent to pay<\/p>\n
the monetary benefit which is legally due to him in terms<\/p>\n
of the award and also for reinstatement in service as UDC.<\/p>\n
It is specifically stated in Ext.P3 that the     above request<\/p>\n
was made without prejudice to his right to challenge the<\/p>\n
award in the appropriate forum for getting order of<\/p>\n
reinstatement and backwages, continuity of service and<\/p>\n
all other      benefits. He had also produced Ext.P4<\/p>\n
communication received        from the respondent\/bank        by<\/p>\n
which he was informed that the           bank has decided to<\/p>\n
implement the award as per its decision. According to the<\/p>\n
O.P.No.3730\/03
\n                                -:6:-<\/span><\/p>\n
petitioner Ext.P4 was issued on 17.10.2002 as a reply to<\/p>\n
Ext.P3 request.\n<\/p>\n
      6. Denying all the averments and contentions raised<\/p>\n
in the writ petition, the respondents have filed counter<\/p>\n
affidavit dated 8.4.2003.        Besides the above, the<\/p>\n
respondents have also filed a statement dated 18.4.2003<\/p>\n
and additional statement dated 16.10.2003. The sum and<\/p>\n
substance of the contentions raised by the respondents is<\/p>\n
to the effect that considering the allegations and charges<\/p>\n
levelled against the workman, the Tribunal has come into<\/p>\n
a conclusion that such a workman cannot be ordered to be<\/p>\n
reinstated in service and therefore, appropriate relief in<\/p>\n
favour of the workman was granted which was accepted<\/p>\n
by the workman and hence, no interference is warranted.<\/p>\n
It is also the specific contention of the respondents that<\/p>\n
on the basis of the materials       available on record, the<\/p>\n
Tribunal has already come into specific findings on fact<\/p>\n
which shall not be disturbed by this court under Article<\/p>\n
226 of the constitution of India since it will amount to<\/p>\n
exercise of appellate jurisdiction, over the Tribunal, which<\/p>\n
O.P.No.3730\/03
\n                               -:7:-<\/span><\/p>\n
is impermissible.\n<\/p>\n
       7. I have heard the learned counsel appearing for<\/p>\n
the petitioner\/workman and also the learned counsel for<\/p>\n
the respondents management and            also the learned<\/p>\n
Government Pleader.\n<\/p>\n
     8. The learned counsel for the petitioner strenuously<\/p>\n
argued that, in Ext.P2 award, the Tribunal has already<\/p>\n
found against the management, in answer to the question<\/p>\n
referred to the Tribunal    for its decision as to whether<\/p>\n
the dismissal of the workman\/petitioner is justifiable or<\/p>\n
not. If that be so, the Tribunal ought to have ordered<\/p>\n
reinstatement of the petitioner in the service of the bank.<\/p>\n
But by way of relief, punishment was imposed against the<\/p>\n
workman at the instance of the Tribunal and directed the<\/p>\n
management to treat       the petitioner workman as       a<\/p>\n
retrenched employee. According to the learned counsel,<\/p>\n
the Tribunal has no jurisdiction to issue such direction,<\/p>\n
especially, when the finding on the question referred is in<\/p>\n
favour of the workman. Thus according to the petitioner,<\/p>\n
the workman is entitled to get reinstated in the service of<\/p>\n
O.P.No.3730\/03
\n                               -:8:-<\/span><\/p>\n
respondent bank with backwages and all other monetary<\/p>\n
benefits.\n<\/p>\n
      9. On the other hand, Sri Unnikrishnan, the learned<\/p>\n
counsel appearing for the        respondents   vehemently<\/p>\n
argued that     in view of Section 11A of the Industrial<\/p>\n
Disputes Act, the     direction issued by the Tribunal is<\/p>\n
within its jurisdiction. According to the learned counsel,<\/p>\n
the    conduct on the part of the workman is       highly<\/p>\n
condemnable      and he   cannot be reinstated in service<\/p>\n
because the business undertaken        by the respondent<\/p>\n
employer mainly deals with general public involving cash<\/p>\n
transaction.    According to the     learned counsel, the<\/p>\n
Tribunal has issued such a direction considering the fact<\/p>\n
that the management has lost confidence on the workman<\/p>\n
petitioner and hence, the Tribunal ordered to pay<\/p>\n
compensation treating him as a retrenched workman. The<\/p>\n
learned counsel submitted that the management wants to<\/p>\n
put an end to the dispute and that is why they accepted<\/p>\n
the award and, accordingly, they were prepared to pay<\/p>\n
the monetary benefits as ordered by the Tribunal.<\/p>\n
O.P.No.3730\/03
\n                                     -:9:-<\/span><\/p>\n
      10.    I have     carefully considered the contentions<\/p>\n
advanced by the learned counsel appearing for the<\/p>\n
petitioner as well as the respondents and also perused the<\/p>\n
materials on record.\n<\/p>\n
      11. It is true that the allegation raised against the<\/p>\n
petitioner\/workman is very serious and quite unbecoming<\/p>\n
on the part of a workman in an establishment, especially,<\/p>\n
in a cooperative institution like the respondent bank. At<\/p>\n
the instance of the petitioner, a labour dispute had arisen<\/p>\n
which ultimately referred as Ext.P1 for the decision of the<\/p>\n
Industrial Tribunal. I have also perused Ext.P1 wherein<\/p>\n
the    question referred is `whether the        dismissal of the<\/p>\n
petitioner from the service of          the  respondent bank is<\/p>\n
justifiable'(emphasis supplied). As indicated earlier, the Tribunal<\/p>\n
has already found that         the domestic enquiry was not in<\/p>\n
accordance with the procedure and not in compliance<\/p>\n
with the provisions of natural justice and the findings of<\/p>\n
the enquiry officer are perverse and not supported by<\/p>\n
legal evidence. After such finding, the management was<\/p>\n
O.P.No.3730\/03
\n                                -:10:-<\/span><\/p>\n
given opportunity to adduce evidence to substantiate the<\/p>\n
allegations as well as the findings of the domestic enquiry.<\/p>\n
Accordingly, from the side of the management, MW1 to<\/p>\n
MW3 were examined and documents such as M1 to M14<\/p>\n
were produced    as documentary evidence from the side of<\/p>\n
the management.       After   examining     those evidence,<\/p>\n
including    oral evidence   of    the witnesses  and   the<\/p>\n
documentary evidence of the management, the Tribunal<\/p>\n
has held that the management           has failed to prove<\/p>\n
conclusively the guilt of the workman in accordance with<\/p>\n
the charges against him.      From the above, it is crystal<\/p>\n
clear that the finding of the Tribunal on the basis of the<\/p>\n
reference is against the management and in favour of the<\/p>\n
workman.\n<\/p>\n
     12.      The learned counsel for the respondents<\/p>\n
submitted that in view of section 11A of the Industrial<\/p>\n
Dispute Act, the Tribunal has ample power to give such<\/p>\n
other reliefs to the workman, instead of     reinstatement,<\/p>\n
including awarding any lesser punishment. I am unable<\/p>\n
O.P.No.3730\/03
\n                                  -:11:-<\/span><\/p>\n
to accept the above contention. For convenience, Section<\/p>\n
11A of the Industrial Disputes Act, can be quoted which<\/p>\n
reads as follows:\n<\/p>\n
             “11A:      Powers of Labour Court,
\n       Tribunal, and National Tribunal to give
\n       appropriate relief in case of discharge or
\n       dismissal of workmen:\n<\/p>\n
             Where an industrial dispute relating to the
\n      discharge or dismissal of a workman has been
\n      referred to a Labour Court, Tribunal or National
\n      Tribunal for adjudication and, in the courts of
\n      the adjudication proceedings, the Labour Court,
\n      Tribunal or National Tribunal, as the case may be,
\n      is satisfied   that the     order of discharge or
\n      dismissal was not justified, it may, by its award,
\n      set aside the order of discharge or dismissal and
\n      direct reinstatement of the workman on such
\n      terms and conditions, if any, as it thinks fit, or give
\n      such other relief to the workman including the
\n      award of any lesser punishment in lieu of discharge
\n      or dismissal as the circumstances of the case may
\n      require;\n<\/p>\n
      PROVIDED, that in      any proceeding under this
\n      section the Labour Court, Tribunal or National
\n      Tribunal, as the case may be, shall rely only on the
\n      materials on record and shall not take any fresh
\n      evidence in relation to the matter”.\n<\/p>\n
O.P.No.3730\/03
\n                                  -:12:-<\/span><\/p>\n
Section 11A of the Act captioned in such a way. From the above,<\/p>\n
it appears that the     Labour Court, Tribunal    and    National<\/p>\n
Tribunal have powers to give appropriate relief in case of<\/p>\n
discharge or dismissal of workmen. In terms of the caption<\/p>\n
and section as indicated above, the section clearly worded,<\/p>\n
from which, it can be seen that when a reference is made<\/p>\n
regarding the discharge or dismissal of workman, and, if the<\/p>\n
Tribunal is of the opinion that the said punishment is not<\/p>\n
justifiable, the Tribunal by way of award can set aside the<\/p>\n
order of discharge or dismissal and direct reinstatement of<\/p>\n
the workman on such terms and conditions as it thinks fit.<\/p>\n
The next part of the section start with, “or” , and further states<\/p>\n
that , “give such relief to the workman including the award of<\/p>\n
any lesser punishment in lieu of discharge or dismissal as the<\/p>\n
circumstances of the case may require”. It is on the basis of<\/p>\n
the above part of the above section, the learned counsel tried<\/p>\n
to justify the direction issued by the Tribunal. If once the<\/p>\n
Tribunal finds that the dismissal or discharge is not justifiable,<\/p>\n
the only relief that can be given is   reinstatement of workman<\/p>\n
O.P.No.3730\/03
\n                                  -:13:-<\/span><\/p>\n
on such terms      and conditions    according to the facts and<\/p>\n
circumstances involved in the case.       Thus, if the Tribunal is<\/p>\n
of the opinion that though the dismissal or termination is<\/p>\n
justifiable, instead of confirming such punishment, a lesser<\/p>\n
punishment can be awarded in lieu of discharge or dismissal<\/p>\n
as the circumstances of the case may require. It is beyond<\/p>\n
dispute that a punishment presupposes proved charge or to<\/p>\n
award a punishment or         finding of guilt    is a condition<\/p>\n
precedent.     Therefore,    the question of award of lesser<\/p>\n
punishment will arise only if the guilt is proved. On a close<\/p>\n
reading of Section 11A, it can be seen that the enquiry to be<\/p>\n
undertaken by the Tribunal or Labour Court         is two folded.<\/p>\n
First point to be considered as to whether the charge<\/p>\n
against the workman is        proved or not.   If the answer is<\/p>\n
negative,    there is no question of inflicting any punishment<\/p>\n
and in that case, the punishment of dismissal or termination<\/p>\n
has to be set aside.     On the other hand, if      the finding is<\/p>\n
against the workman, the next enquiry must be about the<\/p>\n
nature and quantum of punishment and the correctness of the<\/p>\n
O.P.No.3730\/03
\n                                -:14:-<\/span><\/p>\n
punishment     awarded. At this stage, even if the charge is<\/p>\n
proved, a lesser punishment in lieu of termination or dismissal<\/p>\n
can be awarded, as appropriate relief          in favour of the<\/p>\n
workman,     considering the   legislative object behind      the<\/p>\n
provisions of Sections 11A as specifically incorporated in an<\/p>\n
Act – a welfare Act- relating to Industrial dispute.       In the<\/p>\n
present case, in answer to the reference, the Tribunal       has<\/p>\n
already found that the management has failed to establish the<\/p>\n
charge against the workman. If that be so, I am of the firm<\/p>\n
opinion that the Tribunal has exceeded its jurisdiction in giving<\/p>\n
direction to the management to treat the petitioner workman<\/p>\n
as retrenched workman when the finding to the issue referred<\/p>\n
to is against the management and in favour of the workman.<\/p>\n
Therefore, that part of the award is liable to be set aside.<\/p>\n
      13. It is beyond dispute that the workman was placed<\/p>\n
under suspension with effect from 10.4.1984 and thereafter<\/p>\n
dismissed from service with effect from 5.1.89.         Thus the<\/p>\n
petitioner workman is out of service for more than 25 years.<\/p>\n
In such circumstances, I am of the view that there is no<\/p>\n
O.P.No.3730\/03
\n                                   -:15:-<\/span><\/p>\n
meaning in remanding the matter to the Tribunal for making a<\/p>\n
fresh award. As per Ext.P2 award, the Tribunal has already<\/p>\n
directed the management to pay wages for the period when<\/p>\n
the     workman was under suspension, after deducting<\/p>\n
subsistence allowance       if any paid, and also        to pay<\/p>\n
retrenchment compensation,       gratuity and wages during the<\/p>\n
period of suspension after deducting subsistence allowance if<\/p>\n
any paid to the workman.         The learned counsel for     the<\/p>\n
respondents     emphatically submitted that while exercising<\/p>\n
jurisdiction under article 226, this Court is not expected to sit<\/p>\n
in appeal over the Tribunal and therefore, there is no scope<\/p>\n
for interference   with the   orders of   award passed by the<\/p>\n
Tribunal. The above submission of the learned counsel is<\/p>\n
on   the basis of the      decisions of the Supreme Court in<\/p>\n
M\/s.Tulsidas Paul v. The Second Labour Court.<\/a> (1972 (4)<\/p>\n
SCC 205) ; P.G.I. of Medical Education Research, &,<\/p>\n
Chandigar v. Raj Kumar (2001(2) SCC 54).            In the above<\/p>\n
decisions, the Apex Court has held that ” in exercise of its<\/p>\n
O.P.No.3730\/03
\n                                 -:16:-<\/span><\/p>\n
jurisdiction under Article 226, the High Court cannot sit<\/p>\n
in appeal over the orders of industrial tribunal.        Its<\/p>\n
jurisdiction is supervisory, and therefore, it interferes if<\/p>\n
the jurisdiction conferred on such tribunals is improperly,<\/p>\n
or in non-compliance of well established principles,<\/p>\n
exercised     or for any such other reasons”.       From the<\/p>\n
foregone discussion,   and the facts referred   above in this<\/p>\n
proceedings,    what    considered is the jurisdiction of the<\/p>\n
Tribunal Court under section 11A of the Industrial Disputes<\/p>\n
Act and whether the Tribunal has exceeded the jurisdiction<\/p>\n
conferred on it when the award was passed.     Regarding the<\/p>\n
facts,  now there is no controversy since the same is settled<\/p>\n
by the finding of the Tribunal, which I am not proposed to<\/p>\n
reopen and to come into any finding.\n<\/p>\n
      14. The learned counsel for the petitioner also argued<\/p>\n
that the petitioner     had preferred Ext.P3 petition     for<\/p>\n
reinstatement and there is vacancy available to accommodate<\/p>\n
him. In the light of the finding arrived by me, and the relief<\/p>\n
O.P.No.3730\/03
\n                                  -:17:-<\/span><\/p>\n
proposed to grant, the above point need not be considered .<\/p>\n
      15. In the light of the above facts and circumstances,<\/p>\n
this writ petition is allowed upholding the finding of the<\/p>\n
Tribunal with respect to the question referred to it, but setting<\/p>\n
aside the direction for treating the petitioner as a retrenched<\/p>\n
workman.      The respondents are directed to reinstate the<\/p>\n
petitioner   in service within one      month from the date of<\/p>\n
producing a copy of this       judgment and the     petitioner is<\/p>\n
directed to produce the same before the 2nd respondent, and<\/p>\n
also, there will be a direction to give his backwages and all<\/p>\n
monetary benefits for the entire period, after deducting the<\/p>\n
amount, if any, paid towards the subsistence allowance, and<\/p>\n
to regularize his service in accordance with law.<\/p>\n
      The Writ Petition is allowed.\n<\/p>\n<\/p>\n
                                  V.K.MOHANAN, JUDGE<\/p>\n
kvm\/-\n<\/p>\n
O.P.No.3730\/03
\n                  -:18:-<\/span><\/p>\n
                             V.K.MOHANAN, J.\n<\/p>\n
                           O.P.No.3730 of 2003<\/p>\n
                                    JUDGMENT<\/p>\n
                                Dated:.11.6.2009.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-223577","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nS. 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