IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 OP.No. 13350 of 2003(L) ---------------------------------- PETITIONER(S): ------------------------ K.V.BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKKANNUR, KUTTIPPURAM, MALAPPURAM DISTRICT.(DIED) ADDL. P2 TO P6 IMPLEADED. 2. SAROJINI, W/O. LATE K.V.BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 3. KUSUMALATHA, SD/O. LATE K.V.BHASKARAN, KUNNUMMMAL VALAPPIL HOUSE, PAINKANNUR , KUTTIPPURAM, MALAPPURAM DIST. 4. GIRIJA, D/O. LATE K.V.BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 5. SASIKALA, D/O. LATE K.V.BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR, KUTTIPPURAM, MALAPPURAM DIST. 6. BABURAJ K.V., S/O. LATE K.V.BHASKARAN, KUNNUMMAL VALAPPIL HOUSE, PAINKANNUR KUTTIPPURAM, MALAPPURAM DIST. ADDL. P2 TO P6 ARE IMPLEADED AS PER ORDER DTD. 31.05.2010 IN IA. NO.102/2010. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SMT.N.SANTHA SMT.RESMI G. NAIR OP. NO.13350/2003 RESPONDENT(S): ------------------------ 1. THE LABOUR COURT, KOZHIKODE. 2. THE PRESIDENT, KUTTIPPURAM SERVICE CO-OPERATIVE BANK LTD., VALANCHERRY P.O., MALAPPURAM DISTRICT. R1 BY GOVT. PLEADER SRI.P.M.MANOJ R2 BY ADV. SRI.P.K.SURESH KUMAR R2 BY SRI.K.P.SUDHEER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.22550/2003 IN OP. NO.13350/2003 DISMISSED 31/05/2010 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE WRITTEN SUBMISSION MADE BY THE PETITIONER BEFORE THE ENQUIRY OFFICER. P2:- COPY OF THE DEPOSITION OF THE SOLE WITNESS IN ID. NO.60/93. P3:- COPY OF THE AWARD IN ID. NO.60/93. TRUE COPY P.S.TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.13350 of 2003 ----------------------------------------- Dated this the 31st day of May, 2010 JUDGMENT The petitioner, late K.V.Bhaskaran, entered service as Appraiser in the Kuttippuram Service Co-operative Bank Ltd. on 1-9-1968. After this original petition was filed he passed away on 20-11-2008. By order passed on I.A.No.102 of 2010 his legal heirs have been impleaded as additional petitioners 2 to 6. 2. While Sri.K.V.Bhaskaran was in service a memo of charges dated 28-9-1990 was issued to him. The charges related to fraudulent gold loan transactions resulting in loss to the bank. Sri.K.V.Bhaskaran submitted his written statement of defence. The explanation submitted by him was not acceptable to the management. An Enquiry Officer was appointed and an enquiry conducted. In the enquiry Sri.K.V.Bhaskaran was given the assistance of a counsel also. The Enquiry Officer found him guilty of charges 1 to 3. An order of dismissal was thereupon passed on 5-2-1992. The employee thereupon raised a dispute and the Government by order dated 12-5- 1993 referred the said dispute to the Labour Court, Kozhikode, where it was taken on file and numbered as I.D.No.60 of 1993. 3. Before the Labour Court the employee filed a claim statement O.P.No.13350 of 2003 -:2:- raising various contentions. He also objected to the validity of the enquiry. The Labour Court, after considering the rival contentions, passed a preliminary order on 20-12-2001 finding that the enquiry was validly and properly held. The Labour Court thereafter considered the rival contentions and passed Ext.P3 award upholding the finding that he is guilty of the charges levelled against him. The Labour Court however, interfered with the punishment of dismissal awarded to the employee and converted it into one of discharge simpliciter. Ext.P3 to that extent is under challenge in this writ petition. 4. I heard Sri.Pirappancode V.S.Sudheer, learned counsel appearing for the petitioner and Sri.P.K.Suresh Kumar, learned counsel appearing for the second respondent. I have also gone through the pleadings and the materials on record. The employee has not chosen to challenge the preliminary order passed by the Labour Court on 20.12.2001 holding that the enquiry was validly and properly conducted. Therefore, this Court cannot go into the correctness of the said order in this proceedings. The Labour Court has, relying on Exts.M11 and M21, held that the said documents were accepted by the employee, that the said documents conclusively establish that the employee had admitted having misappropriated money belonging to the bank and had also remitted Rs.32,000/- with the bank on that O.P.No.13350 of 2003 -:3:- count. The Labour Court also found that Exts.M11 and M21 were executed by the employee on his own volition and that the employee is guilty of the charges levelled against him. The said finding arrived at by the Labour Court is a finding of fact based on the evidence and is a plausible view which cannot be interfered with by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. I therefore, find no reason to interfere with the finding of the Labour Court that the employee is guilty of the charges levelled against him. 5. The Labour Court has however, in my opinion, committed an error in converting the punishment of dismissal from service into one of discharge simpliciter. Under rule 198 of the Kerala Co-operative Societies Rules discharge from service is not a punishment. The lesser punishment which the rule contemplates is the punishment of compulsory retirement from service. The employer having not chosen to challenge Ext.P3, I will have to proceed on the basis that the punishment awarded to the employee is disproportionate to the gravity of the charges proved against him. I am therefore, of the view that the ends of justice will be met if, in modification of Ext.P3 award, the punishment awarded to the employee is converted into one of compulsory retirement from service, which is the next less severe punishment, going by the terms of rule 198 of the Kerala Co-operative O.P.No.13350 of 2003 -:4:- Societies Rules. I accordingly dispose of the writ petition with a direction that Ext.P3 award shall stand modified by converting the punishment into one of compulsory retirement from service with effect from 5-2-1992. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.13350 of 2003 ---------------------------- JUDGMENT 31st May, 2010