IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 28341 of 2005(Y) -------------------------- PETITIONER: --------------- SMT.SITA DAYANANDAN, PROPRIETRIX, TRAVANCORE, POTTERIES TILES, MYLAKKAD P.O., KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LABOUR GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. QUILON COMMERCIAL AND INDUSTRIAL EMPLOYEES ASSOCSIATION, UTUC CANTONMENT, KOLLAM, REPRESENTED BY ITS SECRETARY. R1 BY GOVERNMENT PLEADER ADV. SMT. DEEPA K.R. R2 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28341 of 2005(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : A TRUE COPY OF THE ORDER DATED 26.09.1998 ISSUED BY THE 1ST RESPONDENT. EXT.P2 : A TRUE COPY OF THE FINAL AWARD DATED 04.072.005 IN I.D.No.98/98 ON THE FILE S OF THE LABOUR COURT, KOLLAM ALONG WITH THE PRELIMINARY ORDER DATED 17.01.2005. EXT.P3 : TRUE COPY OF THE ARGUMENT NOTES FILED BY THE COUNSEL FOR THE PETITIONER DATED 13.06.2005. EXT.P3(a) : TRUE COPY OF THE ARGUMENT NOTES DATED 28.06.2005 FILED AFTER THE ARGUMENTS WERE COMPLETED. /TRUE COPY/ P.S. TO JUDGE. (C.R.) P.R. RAMACHANDRA MENON, J. ................................................................................ W.P.(C) No. 28341 OF 2005 ......................................................................... Dated this the 15th September, 2009 J U D G M E N T Whether the first misconduct in the career is to have some allowance or whether 'Compassionate Ground' is enough to interfere with the punishment imposed in a Disciplinary Proceeding, invoking the power under section 11(A) of the Industrial Disputes Act, is the point involved herein. 2. Ext.P2 Award passed by the Labour Court, Kollam, modifying the punishment of 'dismissal' to that of 'discharge', invoking the power under section 11(A) of the Industrial Disputes Act, is subjected to challenge by the Management. 3. The sequence of events, as narrated, shows that the delinquent employee was working as a Cashier-cum Clerk under the Management right from 1981 till 1998. In the later years, the management of the establishment was taken over by the daughter of the original proprietrix and while so, certain serious misconducts, stated as committed by the delinquent employee, came to light, which led to issuance of a charge sheet, followed W.P.(C) No. 28341 OF 2005 2 by an additional charge sheet, in respect of the various misconducts involving falsification of accounts and also misappropriation of various amounts . The delinquent employee participated in the domestic enquiry and on conclusion of the same, the Enquiry Officer found the worker guilty of all the charges except charge No.6. Pursuant to the finding of the Enquiry Officer, the Management considered the entire materials on record, including the report of the Enquiry Officer, the evidence adduced and accordingly, the disciplinary authority passed an order dismissing the worker from service; which in turn led to the industrial dispute referred to the Labour Court, Kollam for adjudication. 4. The worker, represented by the Union, filed a detailed claim statement , contents of which were rebutted by the Management by filing a written statement. Validity of domestic enquiry was considered as the 'preliminary issue' and a Preliminary Order was passed by the Labour Court, Kollam on 17.01.2005 holding that the domestic enquiry was conducted adhering to all the known principles of natural justice; that the W.P.(C) No. 28341 OF 2005 3 finding was never wrong or perverse and hence that the enquiry was valid and proper in all respects. It was held by the Labour Court that the Enquriy Officer arrived at the conclusion and finding on all the charges correctly and that the delinquent employee was not able to substantiate that the findings were wrong or perverse. It is further stated that, though there were allegations of victimisation and denial of opportunity, there was no material to support the said allegations. 5. After passing the Preliminary Order sustaining the validity of domestic enquiry, the Labour Court proceeded further to examine the proportionality of the punishment of dismissal imposed on the worker. After considering this aspect, it has been observed by the Labour Court in paragraph No.5 of the impugned Award as follows: “ The worker did not adduce any evidence to show any mitigating circumstances in her favour. The charges 10 in number (narrated in detail in the preliminary order) allege misappropriation of money on various occasions, misbehaviour to the proprietrix of the establishment; and in the enquiry she was W.P.(C) No. 28341 OF 2005 4 found guilty of all charges except charge No.6, which related to the remittance of a Provident Fund amount and thereby causing penal action against the management. ” 6. The Labour Court has referred to the submission made from the part of the learned Counsel appearing on behalf of worker, praying for some leniency in the matter of penalty, stating that there was no such instance during the past 17 years of her service and the punishment of 'dismissal' might be modified as of 'discharge' from service, so as to enable her to get the gratuity and other service benefits. Reliance is also seen placed on the decision rendered by the Apex Court in Kailash Nath Gupta vs. Enquiry Officer, Allahabad Bank ( AIR 2003 SC 1379). Accordingly, the Labour Court, observed that the worker had not given any chance to proceed with any disciplinary action against her during the past 17 years of service and further that she was present before the Court with 'weeping eyes'. The Labour Court accordingly thought it fit to invoke the power under Section 11(A) of the Industrial Disputes W.P.(C) No. 28341 OF 2005 5 Act and the punishment of 'dismissal' from the service was modified as 'discharge' from service, making it clear that the worker would be entitled to the monetary benefits on discharge . 7. The learned Counsel for the petitioner/Management submits that absolutely no reason has been stated by the Labour Court to sustain the interference, invoking the power under Section 11(A) of the Industrial Disputes Act. The learned Counsel appearing for the second respondent representing the worker submits that the reasoning given by the Labour Court is very much correct and sustainable, particularly having been rendered placing reliance on the decision rendered by the Apex Court as referred to therein. 8. It is true that the Labour Court /Industrial Tribunal, as the case may be, is very much having the power to interfere with the punishment, if the same is disproportionate to the gravity of the proven misconduct. It has been made clear by the Apex Court on many an occasion, including in the decision in M.P. Electricity Board vs. Jagdish Chandra Sharma [2005 (3) SCC 401], that such power cannot be exercised on any W.P.(C) No. 28341 OF 2005 6 compassionate ground. The only reason given by the Labour Court in the instant case, for interfering with the punishment of dismissal, is that no misconduct had ever been committed by the delinquent employee during the past 17 years of service. Non-committal of misconduct could never be a ground for an employee, to commit any misconduct later, so as to escape from the natural consequence by way of disciplinary proceedings. Similarly, the proper punishment to be imposed is, of course, a prerogative of the management and interference is possible only if it is totally disproportionate , as stated herein before. It has also been made clear by the Apex Court that, misplaced sympathy is an evil. 9. As noted already, in the instant case, obviously, interference has been made by the Labour Court, modifying the punishment of 'dismissal' to that of 'discharge' from service, as requested by the counsel, only for the reason that she was before the Labour Court with 'weeping eyes' (as observed in the penultimate paragraph of the impugned verdict). The Labour Court has observed in paragraph No.5 of the Award that the W.P.(C) No. 28341 OF 2005 7 worker has not adduced any evidence to show any mitigating circumstance in her favour . The finding and reasoning given by the Enquiry Officer (as accepted by the disciplinary authority) having been held as proper and not perverse, the proven misconduct, involving falsification of accounts and misappropriation of various amounts, leading to dismissal of the delinquent employee from the service, ought not to have been interfered by the Labour Court merely on the basis of misplaced sympathy. 10. In the above facts and circumstances, it is held that the impugned Award (Ext.P2) passed by the Labour Court does not stand the test of law . Accordingly, the same is set aside and the punishment of dismissal awarded by the Management is held as correct and sustainable. The Writ Petition is allowed as above. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk