IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WA.No. 2788 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.25354/2005 Dated 18/07/2007 .................... APPELLANT(S): PETITIONER IN W.P ---------------------- M/S.ACCELERATED FREEZE DRYING CO.LTD., EZHUPUNNA P.O., ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.P.BENNY THOMAS RESPONDENT(S): RESPONDENTS IN WP ------------------------- 1. THE GENERAL SECRETARY, AFDC EMPLOYEES UNION, EZHUPUNNA P.O., ALAPPUZHA DISTRICT. 2. LABOUR COURT, KOLLAM. BY ADV. SRI.N.R.CHANDRASEKHARAN FOR R1 SRI.T.H.CHACKO FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, Ag.C.J. & THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------- W.A.No.2788 OF 2007 ------------------------------- Dated this the 17th day of February, 2010 J U D G M E N T Raman, Ag.C.J. As against the dismissal of four workmen for proved misconduct, an Industrial Dispute was exposed through Union, referred to the Tribunal and numbered as I.D.No.123/1995, on the file of the Labour Court, Kollam. After adjudication of the dispute, an award was passed directing reinstatement of all the four workmen with 25% backwages and attendant benefits against which the management and Union have filed writ petitions before this Court, as W.P.(C) Nos.21683 and 25354 of 2005. At the time of admission of the writ petition, reinstatement ordered as per the award was stayed and benefit of Section 17B of the Industrial Disputes Act was granted in respect of three workmen, except in the case of Joy Chacko, against whom there was no order as such under Section 17B, as no claim was made by him. It appears that the main contest was 2 only by the three workmen. Eventually the learned Single Judge by common judgment dated, 18th July, 2007, disposed of the writ petitions, partly upholding the award of the Tribunal. It held that the finding of the Labour Court that the first charge has not been proved is clearly perverse, even though other charges did not constitute any mis-conduct. It was also held that denial of 75% backwages would be sufficient punishment for the workmen. Thus, the finding in Ext.P5 award that the first charge has not been proved was set aside, but did not interfere with the ultimate relief granted. Hence, this appeal. 2. Even in the writ appeal, the contest was by the three workmen, viz., C.A.George, Dileep Kumar and Jiji John. During the pendency of the appeal, an amicable settlement was reached and an amount of Rs.3,25,000/- was paid to each of the workmen by the management in full and final satisfaction of all their claims. Therefore, the award of the Tribunal as confirmed in the writ petitions stand vacated as against three workmen who have accepted the compensation in full settlement 3 of their claim including gratuity against the management. Thus, there is no lis pending for consideration. 3. As regards the other workman, Joy Chacko, there was no serious contest either before the Tribunal or before the learned Single Judge or in the Writ Appeal. As a matter of fact, Section 17B claim was not moved before the learned Single Judge. When the learned Single Judge has found that out of four charges, one charge was proved, necessarily, a question would arise as to what would be the appropriate punishment for the proved charge. It is noticed that when one of the workman has not contested the matter, even by filing an application under Section 17B, there arise a presumption that he is gainfully employed. Further, even the proved charge is serious enough dis-entitling him for reinstatement. Even the back wages could not have been ordered without considering the gainful employment of the workmen during the back period and after considering all aspects. 4 4. In the facts and circumstances of the case, we modify the judgment of the learned Single Judge as follows. The dismissal in respect of the workmen can be converted to that of a discharge. The workmen concerned has only four years of service at the time he was dismissed from service, hence he is not strictly entitled for gratuity. But while moulding the relief, we find it appropriate that a lumpsum compensation of Rs.25,000/- be paid to him, converting the punishment to one of discharge from service on the date of dismissal order. The Award and Judgment of the learned Single Judge stands modified as above. Writ appeal is disposed of accordingly. No costs. P.R.RAMAN, Ag. CHIEF JUSTICE THOTTATHIL B.RADHAKRISHNAN, JUDGE nj.