IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 OP.No. 28085 of 2002(R) ----------------------- PETITIONER(S): --------------- PRESIDENT, KARAMVELI CO-OPERATIVE BANK LTD., NO.45, NELLIKKALA P.O. PATHANAMTHITTA DISTRICT. BY ADV. SRI.BIJI MATHEW SRI.S.BALAKRISHNAN CHETTIAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, LABOUR DEPARTMENT, THIRUVANANTHAPURAM. 2. PRESIDING OFFICER, LABOUR COURT, KOLLAM. 3. M.N.ANU, MOORIKKATHU VADAKKETHIL, KOZHENCHERRY P.O., PATHANAMTHITTA. ADV. SRI.V.G.ARUN FOR R3 SRI.T.R.HARIKUMAR FOR R3 MR.K.S.MOHAMMED HASHIM, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.28085/2002 ORDERS ON CMP NOS.47785 OF 2002 & 5545 OF 2003 IN OP NO.28085/2002 DISMISSED. 19/08/2009 SD/-(ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF MASS PETITION DATED 02/05/1995 SUBMITTED BEFORE THE PETITIONER BY 16 PERSONS. P2 : COPY OF ENQUIRY REPORT DATED 29/12/1995 BY SHYAM MOHAN LAL K., ENQUIRY OFFICER. P3 : COPY OF NOTICE DATED 30/12/1995 (SHOW CAUSE NOTICE) ISSUED TO R3 EMPLOYEE. P4 : COPY OF RESOLUTION NO.99/95-96 DATED 09/01/96 OF THE GOVERNING BODY OF THE CO-OPERATIVE SOCIETY. P5 : COPY OF REPLY LETTER DATED 29/07/1996 RECEIVED BY THE PETITIONER FROM THE D.L.O., PATHANAMTHITTA. P6 : COPY OF COUNTER STATEMENT FILED ON 24/11/2001 BEFORE THE LABOUR COURT, KOLLAM BY THIS PETITIONER. P7 : COPY OF AWARD G.O.(Rt.)NO.799/2002/LBR DATED 12/04/2002 ISSUED BY THE LABOUR COURT, KOLLAM IN I.D.NO.21/97 DATED 05/02/2002. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. No.28085 of 2002 --------------------------------- Dated, this the 19th day of August, 2009 J U D G M E N T The petitioner is the President of a Co-operative Bank. In this original petition, what is under challenge is Ext.P7, an award passed by the 2nd respondent in I.D.No.21/97. 2. Briefly stated the facts of the case are that the 3rd respondent was appointed as a Salesman in a Depot of the petitioner Society. On the allegation of falsification of account and misappropriation of money, he was placed under suspension with effect from 20/05/1995. Charge sheet was issued and as his reply was not satisfactory, a domestic enquiry was ordered to be conducted. Accordingly, after the enquiry that was held, Ext.P2 report was submitted finding the Workman guilty of the charges. The Sub Committee of the Society issued a show cause notice to the Workman and rejecting his reply, the Workman was dismissed from service. 3. In the appeal that was filed, on the finding that the President of the Society is the disciplinary authority, who could have O.P.No.28085/2002 -2- imposed the order of punishment, the matter was remitted. Accordingly, the President issued notice and considering his reply, the Workman was dismissed from service. 4. The 2nd respondent thereupon, raised a dispute under Section 2A of the Industrial Disputes Act, questioning the validity of his dismissal. The conciliation failed, and finally, the validity of the dismissal of the 3rd respondent with effect from 09/01/1996 was referred for adjudication to the 2nd respondent. Before the Labour Court, parties filed their pleadings, the validity of the enquiry was raised as a preliminary issue, and the Labour Court by its order dated 14/01/2002, held the enquiry to be vitiated. Thereupon, the Society was given an opportunity to adduce evidence before the Labour Court in justification of the action it initiated against the 3rd respondent. 5. Accordingly, evidence was adduced. Five witnesses examined at the side of the management, and documents were also marked. Finally, the Labour Court held that the management failed to prove the charges levelled against the workman, and on that basis, set aside the order of dismissal. Taking note of certain O.P.No.28085/2002 -3- incidents of misappropriation in the Depot, where the workman was the Salesman, the Labour Court directed that the workman be reinstated with continuity of service and other benefits, but however, restricting backwages to 75%. It is challenging this award, this original petition is filed. 6. A reading of Ext.P7 award shows that there were seven charges levelled against the workman, and in support thereof, MWs. 2 to 5 were examined before the Labour Court. The Labour Court made extensive reference to the evidence adduced by these witnesses, and the Labour Court finally concluded that the Management has failed to prove the charges levelled against the workman. Paragraphs 13 to 17 of the award shows that the evidences tendered by these witnesses, MWs 2 to 5, have been appreciated by the Labour Court meticulously and conclusions have been arrived on appreciating the evidences. 7. Although, the learned counsel on both sides, have read out the aforesaid portion of the award in its entirety, having appreciated all the findings, I have absolutely no reason to take a view different from what is taken by the Labour Court. If so, the O.P.No.28085/2002 -4- only option available to this Court is to uphold the findings of the Labour Court, which is purely factual. 8. However, there is one aspect of the matter, which is to be noticed, that the workman had filed C.M.P.No.5545/2003 praying for a direction to the management to pay him the last drawn wages as provided under Section 17B of the Industrial Disputes Act. To this C.M.P., the petitioner has filed an affidavit, paragraph 3 of which reads as under:- “3. The averments contained in the 3rd paragraph of the affidavit is not true. The petitioner has sufficient income and source of livelihood. It is humbly submitted here that the petitioner is a businessman of Readymade Cloths and its distributor. Moreover the petitioner is conducting tours and travels. The petitioner owned 3 autorickshaws bearing Reg.Nos.KL3 C 8519, KL3 G 6123 and KL3 3851. All these autorickshaws are plying on the roads. He also owned an Air Conditional Tourist Taxi Car bearing No.KLO 3D 9151 apart from other landed properties and getting sufficient income for the livelihood. These facts were deliberately suppressed before this Hon'ble Court.” This shows that the workman was gainfully employed, and apparently for that reason further orders on the C.M.P. were not pursued by the workman. In such circumstances, I do not think that O.P.No.28085/2002 -5- the workman is justifiably eligible for payment of any amount as backwages. Therefore, the direction in the award to pay 75% of the backwages will stand deleted. 9. Therefore, this original petition is disposed of deleting the direction, in so far as the backwages are concerned, and confirming the award in all other respect. This original petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg