IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 W.A.No.2235 of 2008 ------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.33523/2003, DATED 29/08/2008 .................... APPELLANT: PETITIONER:- ----------------------------------------- K.V. JOHNY, S/O. VARGHESE, RESIDING AT K.S.E.B COLONY, VAZHATHOPPU, IDUKKI DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS: RESPONDENTS:- --------------------------------------------------- 1. IDUKKI DISTRICT CO-OPERATIVE BANK, IDUKKI, REPRESENTED BY ITS GENERAL MANAGER. 2. LABOUR COURT, ERNAKULAM. R1 BY STANDING COUNSEL SRI.P.C. SASIDHARAN. R2 BY SENIOR GOVERNMENT PLEADER SMT.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- W.A.No.2235 of 2008 -------------------------------------------- Dated, this the 26th November, 2008 JUDGMENT H.L.Dattu,C.J. This Writ Appeal is directed against the orders passed by the learned Single Judge in W.P.(C).No.33523 of 2003 dated 29th August, 2008. By the impugned order, the learned Single Judge has rejected the writ petition; however, has, directed the respondent-management to pay to the petitioner an ex-gratia amount of Rs.15,000/-. (2) The facts are, the appellant before us, is the workman. Respondent is the management. Appellant-petitioner was working as a driver in the respondent-management. He was kept under suspension in contemplation of the departmental enquiry proceedings. A charge-sheet dated 8.6.1988 came to be issued to the workman. In that, it was alleged, that, the workman is in the habit of borrowing money from his colleagues, which is in contravention of Clause 21(8) of the bye-laws of the Society and, secondly, he is accused in certain criminal cases. In the charge-sheet itself, it was also pointed out to the workman, that, minor penalties, like Censure, barring of increments, were also imposed on him previously. The workman had filed his reply to the charge memo. In that, he had practically admitted the charges levelled against him by the respondent-management. However, the employer thought it fit to hold a departmental enquiry against the petitioner for the alleged acts of misconduct, by appointing an Enquiry Officer. W.A.No.2235 of 2008 - 2 - (3) Before the Enquiry Officer, the management had lead in its evidence and also had marked certain documents in support of the allegations made in the charge memo. The workman had participated in the enquiry proceedings. (4) The Enquiry Officer, after holding a detailed enquiry, has come to the conclusion, that, the management has proved the charges alleged against the workman. (5) After receipt of the report of the Enquiry Officer, the disciplinary authority, taking into consideration the seriousness and gravity of the charges alleged and proved, has imposed a penalty of dismissal from service. (6) After failure of the conciliation proceedings, the workman had approached the State Government, to refer the dispute before the Labour Court for adjudication and decision. Pursuant to the request so made, the State Government had referred the following point of dispute for consideration and decision by the Labour Court. The point of dispute is as under: “Whether the dismissal of Sri.K.V.Johny, Driver, Idukki District Co-operative Bank Limited is justifiable. If not the relief entitled to him”. (7) The workman had called in question before the Labour Court, the findings of the Enquiry Officer and the orders passed by the W.A.No.2235 of 2008 - 3 - disciplinary authority by filing his counter claim statement, and in that the primary issue that was raised was that, the enquiry proceedings that was held was not fair and proper. (8) The Labour Court has taken the aforesaid issue as a preliminary issue and has come to the conclusion, that, the enquiry proceedings held by the Enquiry Officer is fair, just and proper and, thereafter, on merits of the case, has come to the conclusion, that, by cogent evidence, the management was able to prove that the workman was in the habit of taking loans from his colleagues, which is contrary to the bye-laws of the Society, and further since the workman has been acquitted honourably by the Criminal Courts, it has come to the conclusion, that, the order of dismissal passed against the workman is unwarranted in the facts and circumstances of the case and, accordingly, in exercise of its powers under Section 11A of the Industrial Disputes Act (“Act” for short), has modified the punishment imposed by the disciplinary authority, by directing the management to reinstate the workman into service without back wages, but with continuity of service. (9) It is the correctness or otherwise of the award passed by the Labour Court, was the subject matter of W.P.(C).No.33523 of 2003. The learned Single Judge has rejected the writ petition; however, has directed the management to pay to the petitioner an ex-gratia amount of Rs.15,000/-. Not being satisfied with the orders passed by the learned Single Judge, the W.A.No.2235 of 2008 - 4 - petitioner in the writ petition has presented this Writ Appeal. (10) In the memorandum of appeal filed, the appellant has raised the following grounds for our consideration and decision. They are - that the learned Single Judge was not justified in rejecting the contention of the appellant that he was set ex parte without giving proper notice to him by the enquiry officer; that the appellant had been acquitted in the criminal cases filed against him; though he had borrowed money from his colleagues, the same had been repaid back; and, lastly, the learned Single Judge was not justified in rejecting the request of the workman for grant of back wages. (11) We will take up the first issue for our consideration. It is the stand of the workman, that, he was not permitted to cross-examine MW-6 and MW-7 and, therefore, the enquiry proceedings are vitiated. The learned Single Judge, after noticing the various dates on which the enquiry proceedings had been held against the workman and also after noticing that the Enquiry Officer had given sufficient opportunity to the appellant to cross-examine MW-6 and MW-7 and since the workman or the lawyer representing him did not choose to cross-examine MW-6 and MW-7, if there is any default, that is only on the part of the workman and, therefore, has held that, it cannot be said, that, the Enquiry Officer, without affording sufficient opportunity to the workman to cross-examine MW-6 and MW-7, has proceeded to give a finding in his report that the workman is guilty of the W.A.No.2235 of 2008 - 5 - charges levelled against him. The conclusion reached by the learned Single Judge is based on the evidence on record and the conclusion so reached cannot be said either as arbitrary or perverse. Therefore, there is no merit in the first contention canvassed by the learned counsel for the appellant. (12) When the charge memo was issued to the workman, there were criminal cases which were pending before the various jurisdictional Magistrate Courts and in those proceedings the workman had been acquitted honourably. This has been taken note of by the Labour Court and therefore has modified the order passed the disciplinary authority. This finding of the Labour Court is sustained by the learned Single Judge. (13) The other allegation that was made in the charge memo was that the workman was in the habit of borrowing money from his colleagues and the same is in contravention of Clause 21(8) of the bye-laws of the Society. This charge is proved against the workman and the Labour Court has also not interfered with the said findings and conclusions reached by the Enquiry Officer on the said charge. The conclusion so reached by the Labour Court is again based on the admission made by the workman and the evidence on record. Therefore, it cannot be said that the said finding is a perverse finding. Therefore, interference with the said finding is not called for in a proceeding under Article 226 and 227 of the Constitution. (14) In conclusion, the charges that were alleged against the appellant, were proved before the Enquiry Officer, by the management by W.A.No.2235 of 2008 - 6 - adducing oral and documentary evidence. In view of the seriousness of the charges the disciplinary authority had imposed major penalty of dismissal from service, but because of the acquittal of the workman in the criminal cases filed before the various jurisdictional Magistrate Courts, the Labour Court, in exercise of its powers under Section 11A of the Act, has come to the conclusion, that, in the facts and circumstances of the case, the order of dismissal passed by the disciplinary authority is excessive and harsh, and therefore, has modified the order of dismissal passed by the disciplinary authority of the respondent-management by directing the management to reinstate the appellant into service. Since the other charges are proved, the Labour Court has thought it fit, that, while directing the respondent-management to reinstate the workman into service, no back wages need be paid to the workman. To deny the back wages, the labour court in its award has observed: “It is true that his acquittal in the criminal case has nothing to do with the misconduct alleged and proved against him which gave rise to the present dispute. But that can also considered in the matter of punishment to be imposed on the workman. Considering all aspects I think it just and proper to interfere with the punishment by invoking the provision of Section 11A and the punishment imposed can be modified and he can be reinstated without backwages but with continuity in service. Thus it has to be found that the dismissal of Sri.K.V.Johny, the workman involved in the W.A.No.2235 of 2008 - 7 - present case, can be found as not justifiable and he can be ordered to be reinstated without backwages but with continuity in service”. (15) In the instant case, the labour court finds that the dismissal of the workman from service was for the proved misconduct. It also notices in its award, that the workman had involved himself in a criminal case though later he was acquitted, and thereby he had disabled himself from rendering any service to the employer and therefore, not entitled to backwages. (16) Normal rule is that backwages must follow reinstatement of the workman into service. However, it is within the discretion of the labour court/tribunal depending on the facts and circumstances of each case to scale down backwages or to deny the full backwages by assigning cogent reasons. In the instant case, the labour court agrees with the report of the enquiry officer and the penalty imposed by the disciplinary authority, but in exercise of its discretion under Section 11A of the Act, finds that the punishment imposed by the disciplinary authority is excessive and harsh, and therefore directs reinstatement of the workman into service, but without backwages. It is not one of those cases where the labour court has found that the dismissal of the workman is illegal and invalid and still denied the backwages, but a case where the action of the employer is held to be legal, but the punishment imposed is harsh, has modified the punishment by directing reinstatement into service, but without backwages. Alternatively it W.A.No.2235 of 2008 - 8 - can be said, that, the workman was kept out of employment not due to the fault attributable to the employer but because of the proved misconduct committed by the workman. Therefore, in our view, in the facts and circumstances of the case, the denial of backwages by the labour court is just and proper. (17) In the above view of the matter, no interference is called for, with the orders passed by the learned Single Judge and, therefore, the Writ Appeal requires to be rejected and it is rejected. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge