IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 WP(C).No. 7204 of 2004(G) ------------------------- PETITIONER: ------------ THE PRESIDENT, KSHEEROLPADAKA SAHAKARANA SANGHAM, NANNIYODE, CHITTOOR, PALAKKAD. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENTS: ------------- 1. SASIDHARAN,S/O.SWAMINATHAN, THEKKEKAD VEEDU, NANNIYODE, CHITTOOR, PALAKKAD. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. BY ADV. SRI.RENJITH THAMPAN G.P. SHRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/02/2008, ALONG WITH WPC NO. 19950 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 7204/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE REFERENCE ORDER GOVT.ORDER DTD.30.6.00. P2. COPY OF THE ORDER OF R2 DTD.26.3.02. P3. COPY OF THE AWARD IN ID.NO.64/00 DTD.20.9.02. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos. 7204/2004 and 19950/2006 ================== Dated this the 12th day of February, 2008 J U D G M E N T In W.P(C).No.7204/2004 the management in I.D.No.64/2000 before Industrial Tribunal, Palakkad, is challenging Ext.P2 preliminary order and Ext.P3 final award. In W.P(C).No.19950/2006 the very same management is challenging Ext.P3 order of the Labour Court, Kozhikode, in C.P.NO.20/2003 whereby the Labour Court has directed payment of amounts due to the workman as salary in implementation of the award passed in W.P(C).No.7240/2004 which had directed reinstatement of the workman with back wages. The issue referred for adjudication in I.D.No.64/2000 was: “Whether the dismissal of Sri.Sasidharan by the Management is justifiable, if not what relief he is entitled to.” 2. Since the dismissal of the workman was after conducting a domestic enquiry, the Tribunal considered the validity of the enquiry as a preliminary point and by Ext.P2 preliminary order, found that the enquiry was vitiated for non payment of subsistence allowance to the workman and rejection w.p.c.7204/04 & cc. 2 of the request of the workman for shifting the venue of the enquiry from the office of the enquiry officer to the office of the management. Thereafter, the management was given an opportunity to adduce fresh evidence to prove the misconducts alleged against the workman and after considering the evidence adduced by the management, the Tribunal found that the evidence adduced is not sufficient to find the workman guilty of the charges levelled against him. Accordingly, Ext.P3 award was passed holding that the dismissal of the workman is unjustifiable and that he is entitled to reinstatement with back wages and continuity of service. Exhibits P2 and P3 are challenged in W.P (C).No. 7204/2004. 3. The contention of the petitioner against Ext.P2 preliminary order is that on account of the misconduct committed by the workman, much amounts are due to the petitioner society from the workman and subsistence allowance was set off against the amounts due from the workman. Therefore, according to the petitioner, non-payment of subsistence allowance cannot be a ground for holding that the enquiry is vitiated. Regarding the second contention, the petitioner would contend that non w.p.c.7204/04 & cc. 3 acceptance of the request of the workman to shift the venue of the enquiry, cannot be a ground for holding the enquiry invalid. 4. Admittedly, the petitioner has not paid subsistence allowance to the workman. Under sub Section 2 of section 3 of the Kerala Payment of Subsistence Allowance Act, the employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under the Act. That being so, the petitioner cannot, under law, withhold payment of subsistence allowance to the suspended workman, even if amounts are due from the workman as alleged by the management. Even otherwise whether amounts are due from the workman itself is a matter which had to be proved in the enquiry. It is settled law that non-payment of subsistence allowance is one of the grounds on which an enquiry can be found to be invalid. As far as the second ground is concerned, I am in agreement with the contention of the petitioner that refusal of the request of the workman to shift the venue of the enquiry is not a ground for setting aside the enquiry. The workman's request is to change the venue of the enquiry from the office of the enquiry officer to the office of the management. The workman has not shown any w.p.c.7204/04 & cc. 4 prejudice in conducting the enquiry in the office of the enquiry officer. Therefore, the second ground for holding the enquiry invalid is patently unsustainable. The counsel for the workman would contend that the office of the enquiry officer was 30 kilometers away from the establishment of the management and that is why the workman requested for shifting of the venue of the enquiry. No such contention is seen considered by the Tribunal while passing the preliminary order. Whatever that be, in so far as the first ground itself is sufficient for holding that the enquiry is invalid, I need not ponder much on that question now. Therefore, I am not inclined to interfere with Ext.P2 order by which the enquiry was set aside on the ground of non- payment of substance allowance. 5. Now coming to Ext.P3 award, the counsel for the petitioner would submit that he would confine his contention in respect of the findings of the Tribunal on charges 1 and 2. The only evidence adduced by the management before the Tribunal in support of the charges is the evidence of MW1, the Secretary of the petitioner society. The charges relied on by the petitioner roughly translated read thus: w.p.c.7204/04 & cc. 5 (1). While Sri.S.Sasidharan was working as Milk Tester in the society, he committed serious dereliction of duty by not testing the quality of the milk, as a result of which, in 1995-96, 2026 ltrs. of milk were rendered unfit resulting in financial loss to the society. (2). Of the milk collected during the period from 23.4.1998 to 31.5.1998, 280 kgs. of milk became unfit, which was the result of the Milk Tester, Sri.S.Sasidharan, committing dereliction of duty by not accepting milk without testing the quality of the same. 6. Admittedly, disciplinary proceedings were initiated by the end of 1998. As far as the first charge is concerned, it related to the year 1995-96. The said charge does not specifically state as to on what date or dates milk became unfit. As such, I am of opinion that the first charge itself is vague and after a period of almost 3 years, the workman could not have been subjected to an enquiry on such a vague allegation of misconduct. Even otherwise, no reliable evidence has been adduced by the management to prove that the milk became useless on account of any fault on the part of the workman. Regarding the second charge, although a specific period has been mentioned in the charge, no evidence has been adduced by the w.p.c.7204/04 & cc. 6 management to connect the milk becoming unfit with any fault on the part of the workman. As observed by the Tribunal, the milk collected and transported to Milma Dairy may be rendered unfit for a variety reasons, such as delay in transporting of milk, improper cleaning of cans, climatic condition etc. No evidence has been led to show that the reason for milk becoming useless is attributable to any fault on the part of the workman, without which the workman cannot be connected with the milk becoming unfit. In any event, I do not find any perversity in the findings entered by the Tribunal. Even if on the same evidence, another man would come a different conclusion, in so far as there is no perversity in the findings, the same is no reason to hold that Ext.P3 award is bad, which is the settled law. Therefore, I do not find any infirmity in the findings in Ext.P3 award. Therefore, the challenge against Exts.P2 and P3 are unsustainable. Accordingly, W.P(C).No. 7204/2004 is dismissed. 7. Pursuant to the award challenged in W.P(C). No.7204/2004, the petitioner workman concerned filed C.P.No.20/2003 for computing benefits due to him under the said award. The Labour Court has computed the amounts due to the w.p.c.7204/04 & cc. 7 workman in the C.P. as Rs.95,055/-. The petitioner does not challenge the correctness of the computation of the amount. Ext.P3 order in W.P(C).No.19950/2006 has been challenged only as a consequence of challenging the award itself in W.P(C).No. 7204/2004. Therefore, now that I have declined to interfere with Ext.P3 award in W.P(C).No.7204/2004, the challenge against Ext.P3 order in W.P(C).No.19950/2006 also fails and accordingly the same is also dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge