IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 22235 of 2005(V) ----------------------------------- PETITIONER : ---------------- KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LIMITED, GANDHI NAGAR, KOCHI 682 020 REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE SRI.RONY J.PALLATH SRI.RADHIKA RAJASEKHARAN P. RESPONDENTS : ------------------- 1. THE LABOUR COURT, KOLLAM. 2. SMT.P.SUSEELA, T.C.21/692, PALLITHANAM LANE, NEDUMKADU, KARAMANA, THIRUVANANTHAPURAM. 3. GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY TO LABOUR, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.V.G.ARUN FOR R2 SRI.T.R.HARIKUMAR FOR R2 GOVERNMENT PLEADER SRI.T.K.VIPINDAS FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22235 of 2005(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE LETTER ISSUED BY SMT.P.L.AMBIKA ADMITTING MISAPPROPRIATION COMMITTED BY HER ALONG WITH 2ND RESPONDENT DATED 17.08.1989 EXT.P2: TRUE COPY OF THE CHARGE SHEET DATED 23.05.1991 ISSUED TO THE 2ND RESPONDENT EXT.P3: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11.12.1993 ISSUED TO THE 2ND RESPONDENT BY THE DISCIPLINARY AUTHORITY EXT.P4: TRUE COPY OF THE AWARD PASSED BY THE 1ST RESPONDENT DATED 18.01.2005 IN I.D.13/1996 EXT.P5: TRUE PHTOCOPY OF THE SALARY BILL OF EMPLOYEES OF TRIVENI DEPARTMENT STORE, TVM. FOR THE MONTHS OF SEPT.1989 EXT.P5(a): TRUE PHOTOCOPY OF THE SALARY BILL OF EMPLOYEES OF TRIVENI DEPARTMENT STORE, TVM. EVIDENSING PAYMENT OF ARREARS OF DA PAID FOR THE MONTH OF SEPT.1989 EXT.P6: TRUE COPY OF SALARY BILL EVIDENSING PAYMENT OF SUBSISTANCE ALLOWANCE TO SMT.SUSEELA RESPONDENTS' EXHIBITS : EXT.R2(a): TRUE COPY OF THE REPLY STATEMENT SUBMITTED TO THE CHARGE MEMO DATED 18.07.1992 EXT.R2(b): TRUE COPY OF THE EXPLANATION DATED 05.01.1994 TO THE SHOW CAUSE NOTICE EXT.R2(c): TRUE COPY OF THE CLAIM STATEMENT DATED 17.09.1997 IN I.D.NO.13 OF 1996 DATED 17.09.1997 EXT.R2(d): TRUE COPY OF THE REPLICATION DATED 14.03.1999 -TRUE COPY- P.A. TO JUDGE HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No.22235 OF 2005 --------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The petitioner is an apex society registered under the Kerala Co-operative Societies Act. The second respondent and one Smt.P.L.Ambika were employed as Sales Assistants at their Triveni Department Store at Thiruvananthapuram. According to the petitioner, the above named Sales Assistants committed several acts of misconduct of misappropriation of money, manipulation of accounts and the cash register and that the said employees misappropriated the Federation's money jointly for making false entries in the accounts, cancelling actual bills, cash received and reducing the total amount of actual receipts of the day at the end of the day or on the next day. 2. It is submitted by the counsel for the petitioner that the Sales Assistant Smt.P.L.Ambika admitted that she along with the second respondent are responsible for misappropriation of money, manipulation of accounts and the cash register and Smt.Ambika offered to pay her share of W.P.(C) No.22235 of 2005 2 misappropriated amount, tendered apology and assured that no such misconduct would be committed in future and further requested not to take any disciplinary action against her. Ext.P1 is the letter. 3. The disciplinary proceedings were initiated against the aforesaid Sales Assistants. Ext.P2 is the true copy of the charge sheet. The second respondent denied the allegations levelled against her. The explanation submitted by the second respondent was found to be unsatisfactory. Therefore, a domestic enquiry was ordered and enquiry officer was appointed. The enquiry officer conducted the enquiry. During the course of enquiry, 6 witnesses were examined and 62 documents were marked on the side of the management. The second respondent examined herself and also the other Sales Assistant as witness and marked two documents. The enquiry officer found that the charges against the second respondent were not proved while the charges against Smt.P.L.Ambika were proved. 4. The disciplinary authority considered the report and findings of the enquiry officer. The disciplinary authority W.P.(C) No.22235 of 2005 3 disagreed with the findings and according to them, the findings are contrary to the evidence adduced during enquiry. The disciplinary authority proceeded against the delinquents and issued show cause notice. The disciplinary authority entered its own finding and came to the conclusion that the second respondent committed misconduct of misappropriation and therefore, decided to impose a punishment on her. It is relevant to note that the disciplinary authority before entering into the finding about the misconduct committed by the second respondent, no notice was issued to her calling upon her to explain as to why no punishment shall be imposed on her. Instead of doing so, the disciplinary authority entered the finding and concluded that the second respondent has committed misconduct of misappropriation and after arriving at such findings, the disciplinary authority issued Ext.P3 notice pointing out that the enquiry officers' findings are baseless and erroneous and therefore, they had to disagree with those findings and that the authority on examination of the documents and other evidence is of the view that the second respondent has committed misconduct of misappropriation. W.P.(C) No.22235 of 2005 4 Therefore, in Ext.P3, the second respondent is called upon to explain as to show cause why her service shall not be terminated with effect from 02.10.1989. The second respondent furnished explanation to the show cause notice. She was called for hearing. After giving her an opportunity of being heard, the Disciplinary Action Committee found that the charges of misconduct numbers 1 to 3 and 6 to 8 were proved and that the second respondent is guilty of the said acts of misconduct. Instead of ordering punishment, the proceedings were submitted to the Board of Directors, who are in fact the appellate authority under Rule 198(4) of the Co-operative Societies Rules. The Board of Directors passed orders dismissing her from service and accordingly, she was dismissed from service. 5. In the industrial dispute raised, the labour court considered the question. The labour court by Ext.P4 order held that the first respondent acted in violation of the provision of Section 11A, placing reliance on the decisions of the Apex Court held that the entire proceedings and the award passed by the first respondent is without jurisdiction, illegal and W.P.(C) No.22235 of 2005 5 invalid. The labour court relied on the decisions reported in State Bank of India and others Vs. K.P.Narayanan Kutty (2003) 2 SCC 449 and Rajendra Kurup Vs. Union of India (1999 (3) KLT 480) and held that when the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officer succeeds before the enquiry officer, he is deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. The labour court based on the said decision rightly held that there is need for giving opportunity to the worker before the disciplinary authority alters, varies or reverses the findings of the enquiry officer. The labour court held that in the present proceedings, the enquiry officer exonerated the second respondent from all the charges but the disciplinary committee take a contrary view proposing a punishment of dismissal from service without giving an opportunity to the delinquent officer to explain her W.P.(C) No.22235 of 2005 6 position. The counsel for the management also admitted that before the decision so taken by the disciplinary committee finding that the delinquent officer had committed misconduct an opportunity was not given to the worker to represent, or she was heard before reversing the findings of the enquiry officer. The labour court further held that since the order of punishment was passed by the Board of Directors instead of disciplinary committee, the right of appeal to the Board of Directors as enjoyed under Rule 198(4) of the Co-operative Societies Rules is also denied to her. Based on the said decisions and other decisions, the labour court straight away held that the dismissal of the worker is illegal and therefore, issued directions to re-instate her forthwith with 75% of the back wages. 6. Learned counsel for the petitioner seriously challenged the findings of the labour court. At the same time, the learned counsel admitted that no opportunity was given to the worker to put her objection against the findings recorded by the disciplinary committee. The learned counsel submitted that it is true that the findings are recorded by the disciplinary W.P.(C) No.22235 of 2005 7 authority on appreciation of evidence that the enquiry officers' findings are without basis and therefore, took a contrary view. It is not disputed before me that the disciplinary committee has the authority either to accept the enquiry report or differ with the view of the enquiry officer and proposes to come to a different conclusion. But such decision shall be taken only after giving an opportunity of hearing to the delinquent worker. If not done, it will be most unfair and iniquitous act done to the worker who had succeeded before the enquiry officer. The labour court followed the principles laid down by the Supreme Court. But the labour court failed to take note of the fact that in Rajendra Kurup's case (supra), the apex court remanded the matter to the disciplinary authority with a further direction to commence the proceedings from the stage of granting opportunity to the charged officer of being heard in the matter regarding the different view expressed by the disciplinary authority. If the proceedings was commenced from the stage of granting opportunity to the charged officer, the charged officer will get a reasonable opportunity to present her case before the disciplinary authority and she can also W.P.(C) No.22235 of 2005 8 avail the appellate remedy available to her before the Board of Directors. 7. In the circumstances, Ext.P4 award is set aside. The matter is remitted to the disciplinary authority for passing appropriate orders as indicated above. The disciplinary authority shall pass orders within a period of four months from today. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE pac