IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 5619 of 2008(R) ------------------------------------- ID.7/2005 of LABOUR COURT, KOLLAM .................... PETITIONER: ------------------- NIRATHUPARA KSHEEROLPADAKA SAHAKARANA SANGHAM LTD. NO. 111 (D) NIRATHUPARA P.O. PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY, ILLYAS. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: ------------------------ 1. SRI.E.S.SALIM, ETTIMOOTTIL SHAFI VEEDU, THIDI, NIRATHUPARA P.O., PATHANAMTHITTA DISTRICT. 2. THE LABOUR COURT,KOLLAM. ADV. SRI.N.N.SASI FOR R1 R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5619 OF 2008-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE NOTICE DATED 25.4.1997 OF THE PETITIONER EXT.P2 TRUE COPY OF THE ORDER DATED 18.12.2003 OF THE DEPUTY DIRECTOR OF DIARY DEVELOPMENT DEPARTMENT EXT.P3 TRUE COPY OF THE MEMO OF CHARGE ISSUED BY THE PETITIONER DATED 21.5.2004 EXT.P4 TRUE COPY OF THE REPLY LETTER ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 28.5.2004 EXT.P5 TRUE COPY OF THE ORDER NO.`1/2004 DATED 15.7.2004 EXT.P6 TRUE COPY OF THE AWARD IN ID NO.7/05 OF THE 2ND RESPONDENT DATED 28.2.2007 EXT.P7 TRUE COPY OF THE ENQUIRY REPORT DATED 31.5.04 REFERRED AS EXT.M7(A) IN EXT.P6 EXT.P8 TRUE COPY OF THE ORDER IN CLAIM PETITION NO.53/07 OF THE LABOUR COURT, KOLLAM DATED 4.3.08. RESPONDENTS EXHIBITS EXT.R1(A) TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT BEFORE THE 2ND RESPONDENT DT.22.10.05 EXT.R1(B) TRUE COPY OF THE ALLEGED REPLY FILED BY THE FIRST RESPONDENT BEFORE THE PETITIONER DATED 28.5.2004 EXT.R1(C) TRUE COPY OF THE ALLEGED 'SAMMATHA PATHRAM' MADE BY THE PRESIDENT OF THE PETITIONER SOCIETY DATED 31.5.2004 / TRUE COPY / S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 5619 OF 2008 ------------------------------------------------- Dated this the 29th day of May, 2009 JUDGMENT The petitioner is a milk producers' Co-operative Society. They are challenging Ext.P6 award of the Labour Court, Kollam in ID No.7 of 2005 wherein they were the management and the 1st respondent was the workman. The issue referred to adjudication was the justifiability of termination of service of the 1st respondent. The 1st respondent was terminated from service on allegations of certain misconducts. A memo of charges was issued. The workman filed a reply denying the charges. Thereafter, purportedly on the basis of a confession statement recorded by the President of the petitioner society, the 1st respondent's services were terminated. The 1st respondent raised an ID, which was adjudicated as ID No.7/05 by the Labour Court, Kollam and after considering the evidence adduced by both sides, the Labour Court disbelieved the confession statement produced by the Management and since there was no other independent evidence to prove the guilt of the workman, held that termination of service of the workman is illegal. Consequently, the WPC : 5619/08 -:2:- Labour Court by Ext.P6 award directed the petitioner society to reinstate the workman in service with 30% back wages. That award is under challenge before me. 2. It is settled law that this Court cannot interfere with findings of fats entered in an award in an Industrial Dispute, except on the ground that such findings are perverse. The petitioner management would contend that the findings of facts are perverse. Therefore, all what I have to consider in this case is as to whether the findings of facts entered into by the Labour Court are in any way perverse. 3. The termination of service of the workman was not after conducting a domestic enquiry. Of course, for that reason alone the termination from service would not be invalid if the management by adequate evidence proves the guilt of the workman. Here the only evidence relied upon by the management before the Labour Court is a confession statement alleged to have been made by the workman, which is produced as Ext.P7 by the petitioner management and as Ext.R1(c) by the 1st respondent-workman. Even in Ext.P7 the confession said to have been made by the workman is only in respect of the failure on the part of the workman to pay to the society amounts due from him to the society by way of sale price of milk. WPC : 5619/08 -:3:- The periods relating to the same are 1986-87, 95-96 and 96-97. The Labour Court noted that before issue of the charge sheet itself the workman was dismissed from service which he had challenged appropriately. Pursuant to the direction from this Court, the Deputy Director of Dairy Development set aside the termination order since the same was not in accordance with the Kerala Co-operative Societies Act and Rules. The original termination of service was on 25.04.97. The Deputy Director of Dairy Development set aside that order of termination on 18.12.03. It is thereafter on 21.05.04, the present memo of charges was issued. The workman filed a reply to the memo of charges dated 28.05.04 categorically denying the charges. The alleged confession statement is stated to have been recorded on the reverse of the reply filed by the workman on 30.05.04, merely two days after filing of the reply. The workman denied having signed Ext.P7. He even denied that he appeared before the President on 30.05.04. He denied having given such a confession statement at all. Considering the above circumstances, the Labour Court refused to accept Ext.P7 as one signed by the workman, which is the only evidence produced by the management in support of the charges against the 1st respondent. Therefore, if WPC : 5619/08 -:4:- that document is disbelieved, then there is absolutely no evidence on record to prove misconduct against the workman. I am also of opinion that, it is against normal human conduct for a workman who was contesting his termination of service from 1997 onwards to have a change of mind merely 2 days after he filed a reply denying the charges in the memo of charges, especially, when there is absolutely no evidence whatsoever in the hands of the management to prove such a misconduct, that too alleged to have been committed in 1986-87, 1995-96 and 1996-97. Further, if there was such misappropriation, then it can certainly be proved by the records of the society. No such record is forthcoming. In such circumstances the finding of fact that Ext.P7 cannot be relied upon as one given by the workman cannot be termed as perverse. That being so, I am unable to find any perversity whatsoever in the findings entered into by the Labour Court regarding the guilt of the workman. Without finding that the finding of fact is perverse, this Court cannot in exercise of jurisdiction under Article 226 interfere with such finding of fact, even if on the same evidence another person may come to a different finding. 4. The learned counsel for the petitioner thereafter would WPC : 5619/08 -:5:- argue that the Labour Court went wrong in awarding back wages, even though it was only 30%. Learned counsel for the workman would submit that as per the recent decisions of Supreme Court, grant of back wages is not automatic and it would depend on the facts and circumstances of each case. I am of opinion that the petitioner has not put forward any reason whatsoever to deny even the balance 70% back wages. In fact, I am of opinion that, the petitioner was let off lightly by the Labour Court by restricting the back wages only to 30%, when the workman was completely exonerated from the charges. I also find that subsequently by Ext.P8 order the Labour Court had quantified the back wages as only Rs.60,122/-. Therefore I do not find any reason to interfere with the award of 30% back wages also. Therefore, I do not find any merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE ttb