IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WA.No. 2361 of 2007() --------------------- AGAINST THE JUDGEMENT IN OP.4417/2001 Dated 06/08/2007 .................... APPELLANT(S): PETITIONERS: -------------------------- 1. THE THIRUVALLA SERVICE CO-OPERATIVE BANK LTD. NO.1307, KAVUMBHAGOM P.O., THIRUVALLA, REPRESENTED BY ITS SECRETARY. 2. P.S. MANOHARAN, PRESIDENT, THE THIRUVALLA SERVICE CO-OPERATIVE BANK LTD. NO.1307, KAVUMBHAGOM P.O., THIRUVALLA. BY ADV. SRI.SANTHAN V.NAIR SRI.C.S.GOPALAKRISHNAN NAIR RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE DEPUTY LABOUR COMMISSIONER AND SECRETARY, STATE ADVISORY CONTRACT LABOUR BOARD, THIRUVANANTHAPURAM (APPELLATE AUTHORITY). 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), THIRUVALLA. 3. P. SANTHAKUMARI, LEKSHMI SADANAM, KIZHAKKUM MURI, KAVUMBHAGOM P.O., THIRUVALLA-02. ADV. SRI.PHILIP M.VARUGHESE FOR R3 GOVT. PLEADER SMT.A.G.ANITHA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 2361 OF 2007 ----------------------------------------- Dated 6th February, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. They filed O.P.No.4417/2007, challenging Ext.P10 order of the appellate authority under Section 18 of the Kerala Shops and Commercial Establishments Act (hereinafter referred to as “the Act”), ordering to reinstate the 3rd respondent in the service of the 1st appellant Bank or to pay certain compensation in lieu of reinstatement. Initially, only the consequential action to recover the amount payable under Ext.P10 was challenged. Later, the Original Petition was amended, incorporating the challenge against Ext.P10 also. 2. The brief facts of the case are the following. The 3rd respondent was a Sales Assistant, employed by the 1st appellant Bank in its Manure Depot. Shortage of manure was detected once and she was let off with a warning, on her pleading guilty and praying for indulgence. According to the appellants, again, shortage was found. Based on that finding, the 3rd respondent was charge-sheeted and a domestic enquiry was held, in which the Enquiry Officer found her guilty of the charges. Ext.P6 is the enquiry WA 2361/2007 2 report. Based on the findings in the enquiry report, she was terminated from service. The 3rd respondent, aggrieved by the same, moved the appellate authority under the Act. The appellate authority, as mentioned earlier, allowed the appeal and ordered her reinstatement, by Ext.P10 order. The Bank was directed to pay Rs.1,20,000/- as compensation for loss of future employment and also to pay 50% of the back wages for the period she was out of service. The appellants challenged the above order of the appellate authority on various grounds. The learned Single Judge, after hearing both sides, found that the order of the appellate authority is just and proper and its findings cannot be disturbed under Article 226 of the Constitution of India. The appellants, feeling aggrieved by the judgment of the learned Single Judge, have preferred this Writ Appeal. 3. The learned counsel for the appellants submitted that since the delinquent employee admitted her guilt even before the Enquiry Officer, there was no justification for ordering her reinstatement. Secondly, it is submitted that the award of back wages, apart from the compensation for loss of employment, is not warranted under Section 18(4A) of the Act. 4. We heard the learned counsel appearing for the 3rd respondent and the learned Government Pleader appearing for the official respondents. We agree with the reasoning of the learned Single Judge that the finding of fact WA 2361/2007 3 entered by the appellate authority cannot be disturbed in a proceeding under Article 226 of the Constitution of India. The said authority, after analysing the evidence on record, held that there was no evidence to sustain the charge, except the alleged admission of the delinquent employee. The same was also taken as an admission induced at the instance of the management of the Society. In this appeal under Section 5 of the High Court Act, we are not justified in again re-appreciating the evidence on record, to find out whether the findings of the appellate authority are correct. 5. Before dealing with the second point, we will extract the relevant portion of Section 18 of the Act. “18. Notice of Dismissal:--(1) .................................... (4) In directing the reinstatement of an employee the appellate authority shall also direct the payment of such amount of compensation as may be specified by him in case the employer fails to reinstate the employee in accordance with the directions. (4A) In directing the payment of compensation under sub-section (3) or sub-section (4), the appellate authority may include as part of the compensation the wages of the employee for the period he was kept out of employment.” Sub-section (4) enables the appellate authority to direct payment of compensation in lieu of reinstatement in service. Sub-section (4A) enables the appellate authority to direct payment of back wages also as part of the compensation payable to the employee in lieu of reinstatement. In this case, WA 2361/2007 4 the appellate authority directed that as compensation for loss of employment, an amount of Rs.1,20,000/- should be paid. It was further directed that apart from the said amount, 50% of the back wages also should be paid. We find that the said direction does not run counter to the mandate of sub-section (4) or sub-section (4A) of Section 18 of the Act. The total compensation awarded is Rs.1,20,000/- plus 50% of the back wages. Thus, the appellate authority has rightly ordered to pay a portion of the back wages as part of the compensation. Therefore, the second contention raised by the learned counsel for the appellants also cannot be accepted. In the result, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/ WA 2361/2007 5