IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 OP.No. 27379 of 2002(H) ----------------------- PETITIONER(S): --------------- SAHITHYA PRAVARTHAKA CO-OPERATIVE SOCIETY, LTD.NO.2458, KOTTAYAM, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.V.SURENDRANATH SRI.P.P.SUDHEER RESPONDENT(S): --------------- 1. LABOUR COURT, KOZHIKODE. 2. K.HARIDAS, KANALVARAMPIL VEETTIL, POST KUNNATHURMEDU, PALAKKAD. 3. RADHAKRISHNAN NAIR, ERANGODATH VEETTIL, SEKHARAPURAM, PALAKKAD. ADV. SRI.K.R.RAGHUNATH FOR R3 SRI.T.K.CHINNAN FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/01/2009, ALONG WITH OP NOS. 27381/2002 , 37539/2002 & OP NO. 35659/2002, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 27379/2002. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF AWARD IN I.D.42/1996. EXT.P2 ENQUIRY REPORT DT. 3.11.1994. EXT.P3 STATEMENT FILED BY PETITIONER. EXT.P4 REJOINDER FILED BY RESPONDENTS 2 & 3. EXT.P5 STOCK VERIFICATION REPORT. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 27379, 27381, 35659 & 37539 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th January, 2009. J U D G M E N T These four original petitions are filed by the management and workmen involved in I.D.Nos. 42/1996 and 51/1996 before the Labour Court, Kozhikode challenging the common award passed by the Labour Court in both the Industrial Disputes. Since the issues involved are common to all these original petitions, they are heard and disposed of together. 2. The issues referred for adjudication in the two I.Ds are as follows: “Whether the dismissal of S/Sri. Haridas, Helper and Radhakrishnan Nair, Attender, with effect from 1.10.1993 from the service of Sahithya Pravarthaka Sahakarana Sangham, Palghat Branch is justifiable? If not, relief entitled to the workmen. Whether dismissal of Sri. P. Aravindakshan Nair, Manager in charge of National Book Stall, Palakkad with effect from 1.10.1993 is justifiable. If not, the relief entitled to the employee.” Since the dismissal of the three workmen were after conducting a common domestic enquiry, the Labour Court considered the validity of the enquiry as a preliminary point and by a preliminary order, found that the enquiry was conducted validly and properly. Thereafter, the Labour Court considered the question of proportionality of punishment and interfered with the punishment of dismissal imposed by the management, in exercise of powers under Section 11A of the Industrial Disputes Act and directed reinstatement of the workmen without backwages, but with continuity of service. The management is challenging that part of the award whereby the Labour Court interfered with the punishment imposed by the management. The workmen are challenging that part of the award O.P. No. 27379/2002 etc. -: 2 :- wherein backwages were denied to them. 3. The contention of the management is that the misconducts proved against the workmen involve misappropriation of money belonging to the management and therefore the same is serious enough to warrant a punishment of dismissal. It is further submitted that the Labour Court has no jurisdiction to interfere with the punishment imposed by the management unless there is a finding that the punishment imposed is shockingly disproportionate to the gravity of the misconduct proved against the workmen. The argument is that there is nothing on record to show that the punishment imposed by the management is shockingly disproportionate to the gravity of misconduct proved against the workman. 4. The contention of the workmen is that the only finding against them in the enquiry was that they were guilty of some dereliction of duty and the misappropriation was not found proved at all. They would therefore contend that for such minor misconduct proved against them, the denial of backwages is totally unjust and disproportionate. 5. I have considered the rival contentions in detail. 6. The allegation against the workmen were that in the particular branch of the management-co-operative society where on stock verification, books worth Rs. 3,49,670/- was found missing, which was misappropriated by the workmen, who were jointly in charge of the stock, for which they were accountable. In the enquiry, as revealed from Ext. P2 enquiry report produced in O.P.No. 27379/2002, the findings against the workmen were as follows: “ . . . . . . . It is an admitted fact that the stock was seen deficit to the tune of Rs. 3,49,670/35 p.s The question to be decided is whether the delinquents are responsible for the same. It is also an admitted fact that the delinquents 1 to 3 were in charge of the Palakkad Branch of the N.B.S. when the stock was verified and O.P. No. 27379/2002 etc. -: 3 :- Ext. M1 was prepared. Another allegation against the delinquents is that they have misappropriated the amount by selling the books without issuing bills and without entering the sales in the books of account. No evidence is produced from the side of the Management regarding this aspect. It is an admitted fact that the stock was deficit when it was verified on 25-9-1993. There is no clear evidence available whether the deficit is accumulated or it was occurred after the taking over the charge by the Delinquent No.1, Sri. Aravindakshan Nair as the Branch Manager. It is also pertinent to note that the burden is on the delinquents to show that how the deficit in stock occurred since they also admit that stock was in deficit. The delinquents are also silent regarding this aspect. In any case, the delinquents cannot absolve from their liability. It is the responsibility of the Branch Manager to verify stock at the time of taking over the charge of a branch from another person. Since the Management did not produce any evidence, to show that the delinquents had sold books without issuing bills or without accounting the sales and misappropriated such amount, I am not entering any finding regarding the said aspect. In any case the delinquents cannot absolve from their responsibilities. Hence I find that the delinquents 1 to 3 have committed serious dereliction of duty of having caused deficit in stock to the tune of Rs. 3,49,670/35 p.s” From the same, there cannot be any doubt that there was no finding that the workmen were guilty of misappropriation. The only finding was that they had committed serious dereliction of duty of having caused deficit in stock. 7. Admittedly, at the time of the workmen taking over charge, no stock verification was conducted. The management had not adduced any evidence to show that the missing of the books was on account of any action or inaction on the part of the workmen. But, they were jointly put in charge of the stock. But, admittedly, there was deficit in stock. That being so, the only finding that can be arrived at is that the delinquents did not discharge their duties properly. For that, I am of opinion that dismissal from service would be a punishment shockingly disproportionate to the gravity of the misconduct proved against the workmen. That being so, I do not think that the Labour Court went wrong in interfering with the O.P. No. 27379/2002 etc. -: 4 :- punishment imposed on the workmen by the management, by ordering reinstatement. 8. As far as denial of backwages to the workmen is concerned, I am of opinion that in so far as because of the dereliction of duty on the part of the workmen, the management suffered heavy loss of Rs. 3,49,670/-, the Labour Court was certainly justified in denying backwages. Therefore, I do not find any merit in any of the contentions in the original petitions of either party and accordingly the same are dismissed. If for any period wages under Section 17B of the Industrial Disputes Act as ordered by this Court had not been paid to the workmen, it would be open to the workmen to prosecute the remedies available to them for recovery of that amount from the management as per the order of this Court . Sd/- S. Siri Jagan, Judge. Tds/