IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 36221 of 2003(K) -------------------------- PETITIONER(S): --------------- THE DIRECTOR M/S. CASINO HOTEL WILLINGDON ISLAND KOCHI – 3. BY ADV. SRI.JOSEPH KODIANTHARA BY ADV. SRI.TERRY.V.JAMES RESPONDENT(S): --------------- 1. THE WORKMEN OF THE ABOVE CONCERN REP. BY THE PRESIDENT CASINO HOTEL EMPLOYEES' UNION WILLINGDON ISLAND KOCHI – 3. 2. THE SECRETARY, CASINO HOTEL EMPLOYEES' UNION WILLINGDON ISLAND KOCHI – 3. 3. THE LABOUR COURT ERNAKULAM. BY GOVERNMENT PLEADER SRI.K.RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.36221 OF 2003 EXT.P1 TRUE COPY OF AWARD DATED 23.4.2003 PASSED BY THE 3RD RESPONDENT IN I.D.NO. 63 OF 1996. EXT.P2 TRUE COPY OF CHARGE SHEET DATED 10.6.1994 ISSUED BY THE PETITIONER TO THE WORKMAN INVOLVED IN THE DISPUTE. EXT.P3 TRUE COPY OF EXPLANATION DATED 3.6.1994 SUBMITTED BY THE WORKMAN TO THE MANAGEMENT. EXT.P4 TRUE COPY OF LETTER DATED 2.6.1994 FROM ONE SRI.SHOUKATH HUSAIN TO THE MANAGEMENT. //TRUE COPY// P.A. TO JUDGE. P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.36221 of 2003 ------------------------------- Dated this the 19th day of August, 2010 J U D G M E N T Ext.P1 award passed by the Labour Court, Ernakulam, in I.D.No.63 of 1996 is under challenge in this writ petition. The brief facts of the case are as follows. 2. Sri.K.P.Baiju, order taker in the petitioner's hotel was charge sheeted as per Ext.P2 memo of charges dated 10.6.1994. The charges levelled against him were as follows:- “1. That three(3) pegs of Grand Father Brandy has been sold by you on 31.5.1994, while you were on duty in the Bar. But no bill has been raised or money remitted by you on that day for the same. 2. That two and a half (2 ½) pegs of Mansion House Brandy has been sold by you on 31.5.1994 while you were on duty in the bar. But you have billed onl7y for two (2) pegs vide bill No.32564 dated 31.5.1994, and have not remitted the amount collected for the other (½) peg on that day.” It was also alleged that the said acts constitute theft, fraud and/or dishonesty in connection with the establishment's business and/or property and amount to misconduct. W.P.(C) No.36221/2003 2 3. Before Ext.P2 memo of charges was issued, a memo dated 2.6.1994 had been issued to the employee setting out the very same charges and calling for his explanation. On receipt of the said memo, employee submitted Ext.P3 reply dated 4.6.1994, wherein he attempted to explain his failure to bill a customer for three pegs of brandy and also to bill another customer for ½ a peg of liquor supplied to him. The management was not satisfied with the said reply and Ext.P2 memo of charges was issued. An enquiry into the charges was held with notice to the employee. The enquiry officer submitted a report dated 12.4.1995, finding the employee guilty of the charges. Accepting the report of the enquiry officer, the management dismissed the employee from service by order passed on 17.4.1995, which led to the dispute that was referred to the Labour Court, Ernakulam, for adjudication. 4. Before the Labour Court, the employee filed a claim statement contending that there was no evidence in support of the charges levelled against him and that the finding W.P.(C) No.36221/2003 3 of the enquiry officer that he is guilty of the charges is not supported by the evidence on record. He also contended that the punishment of dismissal from service is disproportionate to the gravity of the proved charges. The management filed a statement justifying the action taken by him. The Labour Court, after hearing both sides, held that the domestic enquiry was validly and properly held and that the finding of guilt entered by the enquiry officer is based on the evidence on record. The Labour Court however held purely on sympathetic considerations that the punishment of dismissal from service is disproportionate and that reinstatement in service without backwages would meet the ends of justice. Ext.P1 award was accordingly passed. Hence, this writ petition. 5. I heard Sri.Terry V.James, the learned counsel appearing for the petitioner. Though the respondents have been served by special messenger, they have not chosen to enter appearance. The learned counsel appearing for the petitioner relying on the decisions of the Apex Court in Janatha W.P.(C) No.36221/2003 4 Bazaar South Kanara Central Co-operative Wholesale Stores Ltd. & Others v. Secretary, Sahakari Noukarara Sangha & Others (2000 (2) LLJ 1395) and The Depot Manager, APSRTC v. B.Swamy (AIR 2007 SC 2731) contended that the Labour Court has on misplaced grounds of sympathy interfered with the order of punishment and that when an act of misappropriation is proved, even if the amount involved is small, no question of showing sympathy arises. The learned counsel further contended that as the misconduct which involves a dishonest act has been proved and the employer has lost confidence in the employee, the Labour Court ought to have declined to interfere with the punishment awarded by the employer. 6. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The Labour Court has in Ext.P1 award found that the enquiry into the charges levelled against the employee was validly and W.P.(C) No.36221/2003 5 properly held. It also found that the evidence adduced in the enquiry justifies the finding of the enquiry officer that the employee is guilty of the charges levelled against him. The Labour Court however interfered with the punishment imposed on the employee for the reason that the amount misappropriated was only minimal. The Apex Court has in Janatha Bazaar South Kanara Central Co-operative Wholesale Stores Ltd. & Others v. Secretary, Sahakari Noukarara Sangha & Others (2000 (2) LLJ 1395) held as follows:- “6. ........ Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. Re.Municipal Committee Bahadurgarh v. Krishnan Behari & Ors., AIR 1996 SC 1249 : 1996(2) SCC 714. In U.P.State Road Transport Corporation v. Basudeo Chaudhary & Anr., 1997 11 SCC 370, this Court set aside the judgment passed by th High Court in a case where a conductor serving with the Uttar Pradesh State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs.65/- to the Corporation by issuing tickets to 23 passengers for a sum of Rs.2.35 but W.P.(C) No.36221/2003 6 recovering @ 5.35 per head and also by making entry in the way bill as having received the amount of Rs.2.35, which figure was subsequently altered to Rs.2.85. The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corporation Ltd. & Anr. v. Kala Singh & Ors., 1997 6 SCC 159 : (1997-II-LLJ- 1041), this Court considered the case of a workman who was working as a Dairy Helper- cum-Cleaner for collecting the milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held that “in view of proof of misconduct a necessary consequence will be that Management has lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the I.D Act to grant relief with minor penalty.” 7. In the instant case, the employee had even in Ext.P2 reply submitted by him to the memo issued by the employer admitted the fact that he had failed to raise correct bills in respect of two sales. Before the enquiry officer also, the W.P.(C) No.36221/2003 7 said charge was admitted. Therefore, the Management had established the fact that employee had committed misappropriation. An employee who is charged with the duty to collect the bill amount from customers after issuing proper bills is obliged to account for the money collected by him, and therefore, the mere fact that no previous history of such misconduct has been proved cannot a reason to hold that a lenient view should be taken, even though the employee has committed an act of misappropriation. In my opinion, on the admitted facts of the case and in the light of the findings in the enquiry, the Labour Court ought to have declined to interfere with the punishment awarded by the employer. In the light of the evidence adduced in the enquiry wherein the guilt of the employee was established, I am of the opinion that the punishment of dismissal from service cannot be said to be excessive or disproportionate. I am therefore of the opinion that the award passed by the Labour Court directing reinstatement of the employee may cannot be sustained. W.P.(C) No.36221/2003 8 In the result, I allow the writ petition and quash Ext.P1. The parties shall bear their respective costs. P.N.RAVINDRAN, Judge. nj.