IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 14925 of 2004(B) -------------------------- PETITIONER(S): ------------------ THE PRESIDENT, PARIYARAM SERVICE SAHAKARANA BANK LTD.NO.Q.391, ILANTHUR, PATHANAMTHITTA. BY ADV. SRI.P.C.SASIDHARAN SRI.NISHIL.P.S. RESPONDENT(S): ------------------- 1. C.A.THOMAS, CHEMPAKATHINAL, PARIYARAM P.O., ILANTHOOR, PATHANAMTHITTA. 2. THE LABOUR COURT, KOLLAM. ADV. SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.14925/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER DT 27.5.93. EXT.P2: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT 17.5.2003. EXT.P3: TRUE COPY OF THE ORDER OF THE 2ND RESPONENT DT 17.1.2004. EXT.P4: TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT DT 20.1.2004. EXT.P5: TRUE COPY OF THE SCHOOL ADMISSION REGISTER. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 14925 OF 2004 (B) ===================== Dated this the 17th day of July, 2009 J U D G M E N T The 1st respondent was a salesman in a store maintained by the Pariyaram Service Sahakarana Bank, the President of which is the petitioner herein. On certain allegations of misconduct, after conducting an enquiry against him, the 1st respondent was dismissed from service. 1st respondent raised a dispute under Section 2A of the Industrial Disputes Act. On failure of conciliation, the issue regarding the validity of the dismissal was referred for adjudication to the 2nd respondent Labour Court under Section 10 of the Industrial Disputes Act. The reference was registered as ID No.78/94. 2. After completing the pleadings, as a preliminary issue, the validity of the enquiry was examined by the Labour Court. The Labour Court by Ext.P2 order dated 17/5/2003 held that the domestic enquiry was vitiated in as much as it was held in violation of the principles of natural justice. 3. In the written statement filed by the petitioner, there was no prayer that in the event domestic enquiry is held invalid, WPC 14925/04 :2 : it should be given an opportunity to justify his action before the Labour Court itself. In view of this lacuna in the pleadings, the petitioner filed CMP 234/03 dated 17/1/04 before the Tribunal praying for an amendment to the written statement to the aforesaid effect. That was declined by the Labour Court as per Ext.P3 order. Thereafter the Labour Court took up the dispute for final hearing on 20/1/2004 and passed Ext.P4 award. In the award, for the reason that the enquiry has been set aside, the Labour Court directed reinstatement of the workmen with full back wages for the period during which he was kept out of service and also with continuity of service. Before the award was passed, the workmen had already reached the age of superannuation in October 2003, and therefore there was no question of reinstating him. 4. The management filed this writ petition challenging the award in its entirety. Although counsel for the Management would argue that Labour Court erred in declining their prayer for amending the written statement as per Ext.P3 order, I am not persuaded to agree with the same in view of the law laid down by the Apex Court in the judgment in Karnataka State Road WPC 14925/04 :3 : Transport Corporation v. Lakshmidevamma (AIR (2001) SC 2090). Learned counsel for the petitioner then canvassed on the illegality committed by the Labour Court in awarding full back wages to the workmen for the period he was kept out of service. He made reference to the Apex Court judgments in U.P.State Brassware Corporation Ltd. v. Uday Narain Pandey {(2006) 1 SCC 479} and J.K.Synthetics Ltd. v. K.P.Agrawal {(2007) 2 SCC 433}. It is contended that even if a workmen is ordered to be reinstated, still the question as to whether he should be paid back wages or not is a matter which ought to have been considered by the Labour Court having due regard to the capacity of the employer, the conditions of employment, the evidence adduced regarding the employment or non employment of the workmen during which he was within the period etc. It is stated that none of these factors have been considered by the Labour Court. On the other hand, on the basis that full back wages is a natural consequence of reinstatement, the same has been awarded. 5. Although the counsel for the workmen wanted to sustain the award as such, having gone through the award in its WPC 14925/04 :4 : entirety, I am inclined to agree with the counsel for the petitioner that there has not been any consideration of the relevant aspects in relation to the award of back wages in Ext.P4 award. 6. Having regard to the above facts and also taking into account that the workmen was kept out of service for the period from 3/8/92 till his retirement in October 2003, I am satisfied that ends of justice will be satisfied, if the workmen is awarded 50% of the back wages for the said period. Accordingly, writ petition is disposed of modifying the direction in Ext.P4 award and directing that the workmen shall be paid 50% of the back wages for the period he was kept out of service. In all other respects, the award will stand confirmed. ANTONY DOMINIC, JUDGE Rp