IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 8104 of 2008(M) ------------------------- ID.64/2003 of LABOUR COURT, KOLLAM .................... PETITIONER(S): ---------------------- K.SANTHOSH, K.S.NIVAS, NEAR RAILWAY STATION, CHIRAYINKEEZHU. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): ------------------------ 1. LABOUR COURT, KOLLAM. 2. THE SECRETARY, CHIRAYINKEEZHU SERVICE CO-OPERATIVE BANK LTD. NO.1155, CHIRAYINKEEZHU. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR ADV. SRI.D.SOMASUNDARAM FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2009 ALONG WITH WPC NO. 30854 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8104 of 2008(M) APPENDIX PETITIONER'S EXHIBITS: Ext.P1 - TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 2ND RESPONDENT. Ext.P2 - TRUE COPY OF THE TERMINATION ORDER. Ext.P3 - TRUE COPY OF THE REFERENCE ORDER. Ext.P4 - TRUE COPY OF THE AWARD OF THE LABOUR COURT, KOLLAM DATED 17.10.2006. TRUE COPY PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) Nos.8104 of 2008 & 30854 of 2007 ................................................. Dated this the 13th day of August, 2009 J U D G M E N T These writ petitions are filed by the management and the workman in I.D. No.64 of 2003 before the Labour Court, Kollam. Both of them are challenging the award of the Labour Court in that I.D. The Management is challenging the award itself primarily on the ground that the Labour Court did not have the jurisdiction to entertain the dispute. Of course they also challenge the award on merits. The workman is challenging that part of the award whereby after directing his reinstatement in service the Labour Court limited the backwages to only 25%. 2. The issue referred for adjudication was: “Whether the termination of Sri. K.Santhosh, Salesman by the management of the Chirayinkeezhu Service Co-operative Bank Limited No.1155 is justifiable? If not what relief he is entitled to?” 3. The workman was dismissed from service on 22.2.2002 without conducting any enquiry on certain allegations of misconduct. The workman contended before the Labour Court W.P(C) Nos.8104 of 2008 & 30854 of 2007 -2- that false allegations were raised solely to dismiss the worker. The management contended that he was only a temporary appointee as a salesman of Neethi Medical Store of the Management Society and his service was totally unsatisfactory in so far as twice he was found guilty of serious misconducts twice and he was reinstated after tendering apology, after remitting the proportionate liability for shortage of stock for which the workman was found to be liable. According to the Management the workman again stole some records of the store and gave it to a relative to file a complaint before the Lok Ayuktha against the bank. After adjudication the Labour Court found that no enquiry was conducted to prove the guilt of workman and that before the Labour Court also the management could not adduce sufficient evidence to prove the guilt of the workman. Accordingly, the Labour Court directed the Management to reinstate the workman in service with 25% backwages. 4. The management challenges the award primarily on the ground that in view of the decision of the Supreme Court in The Co-operative Central Bank Ltd. and others v. The Additional Industrial Tribunal Andhra Pradesh and Others AIR 1969 (2) SCC 43, the Labour Court did not have jurisdiction W.P(C) Nos.8104 of 2008 & 30854 of 2007 -3- to adjudicate dispute and the workman should have been relegated to the remedy by way of arbitration under the Kerala Co-operative Societies Act. The contention is that in so far as the Act provides for an arbitration dispute before the Registrar, ID under the Industrial Disputes Act is not maintainable. This is controverted by the counsel for the workman on two grounds. Even going by the Supreme Court decision relied on by the management, jurisdiction of Labour Court would be ousted only if the dispute between the management and the workman was capable of being decided by the Registrar of Co-operative Societies in an arbitration case. According to the learned counsel, at the relevant time, when workman was dismissed from service, the Kerala Co-operative Societies Act did not contain any provision whereby an employee of a Co-operative Society could approach the Registrar of Co-opearative Societies under section 69 of the Kerala Co-operative Societies Act. The provision giving jurisdiction to the Registrar of Co-operative Societies to entertain a dispute by an employee regarding his service conditions was introduced by Amendment Act 1 of 2000, which was brought into force only with effect from 2.1.2003. Therefore on 20.2.2002, when the workman was dismissed from service, W.P(C) Nos.8104 of 2008 & 30854 of 2007 -4- there was no provision in the Kerala Co-operative Societies Act, enabling the workman to raise a dispute before the Registrar of Co-operative Societies Act under Section 69 of the Act challenging his dismissal. His other contention is that even the Section 69 as amended in 2003 cannot be pressed into service, for ouster of the Jurisdiction of the Labour Court, in view of the decision of the Supreme Court in Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. 2007(9) SCC 109 wherein the Supreme Court has held that only if presidential assent is obtained for provisions repugnant to the provision in the Industrial Disputes Act, the said repugnant provision would prevail over the provisions of Industrial Disputes Act in the State concerned. The contention is that although Section 69 has been amended providing for reference of a dispute arising in connection with employment of officers and service of different classes of societies including their promotion and inter-se seniority in the year 2003, that amendment has not received presidential assent so far and therefore going by the said Supreme Court decision in Dharappa's case (supra), in Kerala the Labour Court still has jurisdiction to entertain Industrial disputes between Co-operative Societies and their employees W.P(C) Nos.8104 of 2008 & 30854 of 2007 -5- who answer the definition of workman under the Industrial Disputes Act, in respect of their employment. 5. I have considered the rival contentions in detail. 6. In so far as prior to the amendment of Section 69 with effect from 2.1.2003, the dispute between the management and workman was not capable of being decided by the Registrar of Co-operative Societies, even going by the decision of the Supreme Court in Co-operative Central Banks case (supra), relied upon by the petitioner themselves, the jurisdiction of the Labour Court was not ousted. Therefore I do not find any merit in the contention of the Management that the Labour Court did not have jurisdiction to adjudicate the dispute in question. 7. Of course it would have been useful to lay down the law on the other question law raised by the counsel for the workman. But I am inclined not to do so in view of two factors. First is that nobody could with certainty submit before me that the amendment has not yet received presidential assent. In fact a learned Judge of this court has in the decision of Board of Directors, Edava Service Co-op. Bank v. The Co-op. Arbitration Court & Ors. 2008(3) KLT 267, held that dispute relating to the dismissal of an employee of a co-operative society W.P(C) Nos.8104 of 2008 & 30854 of 2007 -6- and who thereby becomes a past employee, is a matter that falls within the purview of disputes which are to be decided by the Co-operative Arbitration Court. In order to render a decision to the effect that for want of presidential assent for the amendment Section 69 of the Kerala Co-operative Societies Act, the Labour Court's jurisdiction is not ousted, I have to differ with that decision and refer the matter to a Division Bench for decision. In view of the fact that I have already found that even otherwise the Labour Court's jurisdiction is not ousted, I do not think that I should decide that question in this writ petition. Therefore that question is left open to be decided in an appropriate case. 8. The management would further contend that the findings of the Labour Court is perverse. But on an reading of the award, I find that the management did not produce any reliable evidence whatsoever in support of the alleged charge against the workman. Of course a feeble contention has been raised to the effect that since the workman is a temporary employee he is not entitled to any reliefs. But as pointed out by the Labour Court, the Industrial Disputes Act does not make a distinction between permanent and temporary workmen. A person who answers the definition of workman as defined in the W.P(C) Nos.8104 of 2008 & 30854 of 2007 -7- Industrial Disputes Act, is certainly entitled to all benefits of the Industrial Disputes Act. Simply because the management has chosen to describe him as a temporary employee, he cannot be deprived of the benefits of the Industrial Disputes Act. For all these reasons, I do not find any reason to interfere with the findings of the Labour Court that the Management has not been able to prove the alleged misconduct against the workman. 9. The learned Counsel for the workman would argue that once it is found that the termination of service of the workman is unjustified the workman is entitled to full backwages. He pointed out that the Labour Court has not given any plausible reason for limiting the backwages to 25%. The counsel for the management would argue that the management is a co-operative bank and workman was earlier twice found guilty of very serious misconduct and a lenient view was taken by the management to reinstate him in service earlier and therefore the decision of the Labour Court to limit the backwages to 25% is perfectly justifiable. The counsel for the workman would also contend that the judgments of Supreme Court permitting limiting of backwages are only in cases where after finding the misconduct as proved, lesser punishment was imposed on the workman in W.P(C) Nos.8104 of 2008 & 30854 of 2007 -8- question. In view of the latest trend of the Supreme Court in the matter of award of backwages to the effect that the award of backwages is not automatic and the same should be in consonance with the facts and circumstances of each case. I am not inclined to interfere with the award of the Labour Court limiting the backwages to 25%. As pointed out by the learned counsel for he management, the management is a Co-operative bank and the workman was twice earlier found guilty of misbehaving with the senior clerk of the bank and liable for shortage of stock out of Rs.20,586.93/-. Those are sufficient justification for limiting the backwages to 25%. I therefore do not find any perversity in the order limiting the backwages to 25%. In view of my above findings, I do not find any merit in the challenge against award by both management and workman and accordingly both the writ petitions are dismissed. S. SIRI JAGAN, JUDGE rhs