IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 OP.No. 3730 of 2003(R) -------------------------------------- PETITIONER(S): ------------------------- S. AJAYAKUMAR, PARAMBUVATHUKKAL, VAZHAYILA, KUDAPPANAKUNNU, THIRUVANANTHAPURAM. BY ADVS. MR.GOPAKUMAR R.THALIYAL MR.JUBY RAJ.A.P. RESPONDENT(S): -------------------------- 1. THE PRESIDENT, PEROORKADA SERVICE CO-OPERATIVE BANK LTD., PEROORKADA, THIRUVANANTHAPURAM. 2. THE SECRETARY, PEROORKADA SERVICE CO-OPERATIVE BANK LTD., PEROORKADA, THIRUVANANTHAPURAM. 3. THE INDUSTRIAL TRIBUNAL, KOLLAM. ADV. MR.N.UNNIKRISHNAN FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.6630/2003 IN OP. NO.3730/2003 DISMISSED 11/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REFERENCE ORDER DT. 16.10.97 PASSED BY GOVERNMENT OF KERALA. P2:- COPY OF THE AWARD PASSED BY THE 3RD RESPONDENT IN I,.D. 38/97 DT. 4.6.02 PUBLISHED IN GAZETTE DT. 8.7.02. P3:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DT. 2.9.02. P4:- COPY OF THE COMMUNICATION ISSUED TO THE PETITIONR BY THE 2ND RESPONDENT NO.226/HO/02 DT. 17.10.02. P5:- COPY OF THE JUDGMENT IN CC. 34/01 PASSED BY THE JUDICIAL IST CLASS MAGISTRATE COURT V, THIRUVANANTHAPURAM DT. 22.5.08. R1A:- COPY OF THE RECEIPT DT. 16.11.89 GIVEN BY THE PETITIONER TOWARDS FULL SETTLEMENT OF CLAIMS IN SA. NO.41/88 BEFORE THE DEPUTY LABOUR COMMISSIONER QUILON. R1B:- COPY OF THE LETTER DT. 20.9.95 SUBMITTED BY THE PETITIONER TO THE BOARD OF DIRECTORS, PEROORKADA SERVICE CO-OPERATIVE BANK LTD. NO.1412. R1C:- COPY OF THE LETTER DT. 16.6.01 SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- O.P. No.3730 OF 2003 ---------------------------------------- Dated, 11th Day of June, 2009 JUDGMENT The petitioner, who is a workman, prefers this writ petition challenging Ext.P2 award of the Industrial Tribunal, to the extent the Tribunal ordered retrenchment of the workman with effect from the date on which he was dismissed from service, as an appropriate relief, in spite of the fact that the Tribunal has found that management failed to prove the charge. Thus the Tribunal directed the management to treat the workman as retrenched with effect from 5.1.89 and further directed to pay all service monetary benefits. In this writ petition, the main prayer is for the issuance of a writ of mandamus or any other appropriate writ, direction or order directing the respondents to reinstate the petitioner in service forthwith with backwages and all other service benefits, and for a declaration to that effect. O.P.No.3730/03 -:2:- 2. The case of the petitioner is that while he was working as U.D.Clerk in the second respondent bank, he was suspended from the service of the bank with effect from 10.4.1984 and, subsequently, the bank issued the charge memo dated 28.7.86 alleging unauthorised absence, dereliction of duty and misappropriation of money. As the management was not satisfied with his explanation, a domestic enquiry was ordered which culminated in a report dated 30.10.1988. Accepting the said report, the management awarded punishment of dismissal and, accordingly, he was dismissed from service by order dated 5.1.89. 3. By resorting the statutory remedy as provided under section 198(4) of the Kerala Cooperative Societies Act, 1969, he had preferred appeal before the Board of Directors of the 2nd respondent bank. Though he had preferred the appeal during the year 1989, the same was pending for a long period and, finally, the petitioner workman was informed by letter dated 2.12.1994 of the O.P.No.3730/03 -:3:- 2nd respondent that the appeal was rejected. Thus, against the order of dismissal of the appeal, the petitioner had raised an industrial dispute before the conciliation officer on 3.4.1995, which ultimately resulted in Ext.P1 by which the Government referred the dispute for adjudication of the Tribunal. Thus finally, the Tribunal passed the award and the Tribunal is of the opinion that the enquiry conducted was not in compliance with the principles of natural justice and the findings of the enquiry officer was perverse and not supported by legal evidence. On the basis of such finding, the Tribunal quashed the enquiry report and findings but permitted the management to lead evidence with reference to the charge levelled against the workman. Thus after considering the evidence on record, the Tribunal further held that “in the absence of cash book, ledger, vouchers and other connected documents and on the basis of the audit report and the awards in ARC cases, it is not possible to hold that the management has O.P.No.3730/03 -:4:- conclusively proved that the workman is guilty of different items of misappropriation as mentioned in the charge sheet”. Accordingly, the Tribunal held that the management has not succeeded in proving the different items of misappropriation alleged against the workman. But at the same time the Tribunal by the impugned award has held that in view of the circumstances mentioned therein , if reinstatement of the workman in service is ordered, the same will affect confidence and goodwill of the members and customers of the management bank and thereby adversely affect the business of the management bank. Hence, the management is directed to treat the workman as retrenched with effect from 5.1.89, the date on which he was dismissed from service. The management is also directed to pay wages for the period when he was under suspension after deducting subsistence allowance. It is the above award challenged in this writ petition. 4. Along with the writ petition, the petitioner has O.P.No.3730/03 -:5:- produced Ext.P1 order of the government by which the dispute was referred. Reference was to the effect as to “whether dismissal of Sri S.Ajayakumar, U.D.Clerk from the services of the Peroorkada Service Co-operative bank from 10.4.1984 is justifiable, and, if not, what relief he is entitled to ? ” 5. The petitioner, while filing the reply affidavit to the counter affidavit filed by the respondent, produced Ext.P3, by which he requested the first respondent to pay the monetary benefit which is legally due to him in terms of the award and also for reinstatement in service as UDC. It is specifically stated in Ext.P3 that the above request was made without prejudice to his right to challenge the award in the appropriate forum for getting order of reinstatement and backwages, continuity of service and all other benefits. He had also produced Ext.P4 communication received from the respondent/bank by which he was informed that the bank has decided to implement the award as per its decision. According to the O.P.No.3730/03 -:6:- petitioner Ext.P4 was issued on 17.10.2002 as a reply to Ext.P3 request. 6. Denying all the averments and contentions raised in the writ petition, the respondents have filed counter affidavit dated 8.4.2003. Besides the above, the respondents have also filed a statement dated 18.4.2003 and additional statement dated 16.10.2003. The sum and substance of the contentions raised by the respondents is to the effect that considering the allegations and charges levelled against the workman, the Tribunal has come into a conclusion that such a workman cannot be ordered to be reinstated in service and therefore, appropriate relief in favour of the workman was granted which was accepted by the workman and hence, no interference is warranted. It is also the specific contention of the respondents that on the basis of the materials available on record, the Tribunal has already come into specific findings on fact which shall not be disturbed by this court under Article 226 of the constitution of India since it will amount to exercise of appellate jurisdiction, over the Tribunal, which O.P.No.3730/03 -:7:- is impermissible. 7. I have heard the learned counsel appearing for the petitioner/workman and also the learned counsel for the respondents management and also the learned Government Pleader. 8. The learned counsel for the petitioner strenuously argued that, in Ext.P2 award, the Tribunal has already found against the management, in answer to the question referred to the Tribunal for its decision as to whether the dismissal of the workman/petitioner is justifiable or not. If that be so, the Tribunal ought to have ordered reinstatement of the petitioner in the service of the bank. But by way of relief, punishment was imposed against the workman at the instance of the Tribunal and directed the management to treat the petitioner workman as a retrenched employee. According to the learned counsel, the Tribunal has no jurisdiction to issue such direction, especially, when the finding on the question referred is in favour of the workman. Thus according to the petitioner, the workman is entitled to get reinstated in the service of O.P.No.3730/03 -:8:- respondent bank with backwages and all other monetary benefits. 9. On the other hand, Sri Unnikrishnan, the learned counsel appearing for the respondents vehemently argued that in view of Section 11A of the Industrial Disputes Act, the direction issued by the Tribunal is within its jurisdiction. According to the learned counsel, the conduct on the part of the workman is highly condemnable and he cannot be reinstated in service because the business undertaken by the respondent employer mainly deals with general public involving cash transaction. According to the learned counsel, the Tribunal has issued such a direction considering the fact that the management has lost confidence on the workman petitioner and hence, the Tribunal ordered to pay compensation treating him as a retrenched workman. The learned counsel submitted that the management wants to put an end to the dispute and that is why they accepted the award and, accordingly, they were prepared to pay the monetary benefits as ordered by the Tribunal. O.P.No.3730/03 -:9:- 10. I have carefully considered the contentions advanced by the learned counsel appearing for the petitioner as well as the respondents and also perused the materials on record. 11. It is true that the allegation raised against the petitioner/workman is very serious and quite unbecoming on the part of a workman in an establishment, especially, in a cooperative institution like the respondent bank. At the instance of the petitioner, a labour dispute had arisen which ultimately referred as Ext.P1 for the decision of the Industrial Tribunal. I have also perused Ext.P1 wherein the question referred is `whether the dismissal of the petitioner from the service of the respondent bank is justifiable'(emphasis supplied). As indicated earlier, the Tribunal has already found that the domestic enquiry was not in accordance with the procedure and not in compliance with the provisions of natural justice and the findings of the enquiry officer are perverse and not supported by legal evidence. After such finding, the management was O.P.No.3730/03 -:10:- given opportunity to adduce evidence to substantiate the allegations as well as the findings of the domestic enquiry. Accordingly, from the side of the management, MW1 to MW3 were examined and documents such as M1 to M14 were produced as documentary evidence from the side of the management. After examining those evidence, including oral evidence of the witnesses and the documentary evidence of the management, the Tribunal has held that the management has failed to prove conclusively the guilt of the workman in accordance with the charges against him. From the above, it is crystal clear that the finding of the Tribunal on the basis of the reference is against the management and in favour of the workman. 12. The learned counsel for the respondents submitted that in view of section 11A of the Industrial Dispute Act, the Tribunal has ample power to give such other reliefs to the workman, instead of reinstatement, including awarding any lesser punishment. I am unable O.P.No.3730/03 -:11:- to accept the above contention. For convenience, Section 11A of the Industrial Disputes Act, can be quoted which reads as follows: “11A: Powers of Labour Court, Tribunal, and National Tribunal to give appropriate relief in case of discharge or dismissal of workmen: Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the courts of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require; PROVIDED, that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter”. O.P.No.3730/03 -:12:- Section 11A of the Act captioned in such a way. From the above, it appears that the Labour Court, Tribunal and National Tribunal have powers to give appropriate relief in case of discharge or dismissal of workmen. In terms of the caption and section as indicated above, the section clearly worded, from which, it can be seen that when a reference is made regarding the discharge or dismissal of workman, and, if the Tribunal is of the opinion that the said punishment is not justifiable, the Tribunal by way of award can set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit. The next part of the section start with, “or” , and further states that , “give such relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require”. It is on the basis of the above part of the above section, the learned counsel tried to justify the direction issued by the Tribunal. If once the Tribunal finds that the dismissal or discharge is not justifiable, the only relief that can be given is reinstatement of workman O.P.No.3730/03 -:13:- on such terms and conditions according to the facts and circumstances involved in the case. Thus, if the Tribunal is of the opinion that though the dismissal or termination is justifiable, instead of confirming such punishment, a lesser punishment can be awarded in lieu of discharge or dismissal as the circumstances of the case may require. It is beyond dispute that a punishment presupposes proved charge or to award a punishment or finding of guilt is a condition precedent. Therefore, the question of award of lesser punishment will arise only if the guilt is proved. On a close reading of Section 11A, it can be seen that the enquiry to be undertaken by the Tribunal or Labour Court is two folded. First point to be considered as to whether the charge against the workman is proved or not. If the answer is negative, there is no question of inflicting any punishment and in that case, the punishment of dismissal or termination has to be set aside. On the other hand, if the finding is against the workman, the next enquiry must be about the nature and quantum of punishment and the correctness of the O.P.No.3730/03 -:14:- punishment awarded. At this stage, even if the charge is proved, a lesser punishment in lieu of termination or dismissal can be awarded, as appropriate relief in favour of the workman, considering the legislative object behind the provisions of Sections 11A as specifically incorporated in an Act - a welfare Act- relating to Industrial dispute. In the present case, in answer to the reference, the Tribunal has already found that the management has failed to establish the charge against the workman. If that be so, I am of the firm opinion that the Tribunal has exceeded its jurisdiction in giving direction to the management to treat the petitioner workman as retrenched workman when the finding to the issue referred to is against the management and in favour of the workman. Therefore, that part of the award is liable to be set aside. 13. It is beyond dispute that the workman was placed under suspension with effect from 10.4.1984 and thereafter dismissed from service with effect from 5.1.89. Thus the petitioner workman is out of service for more than 25 years. In such circumstances, I am of the view that there is no O.P.No.3730/03 -:15:- meaning in remanding the matter to the Tribunal for making a fresh award. As per Ext.P2 award, the Tribunal has already directed the management to pay wages for the period when the workman was under suspension, after deducting subsistence allowance if any paid, and also to pay retrenchment compensation, gratuity and wages during the period of suspension after deducting subsistence allowance if any paid to the workman. The learned counsel for the respondents emphatically submitted that while exercising jurisdiction under article 226, this Court is not expected to sit in appeal over the Tribunal and therefore, there is no scope for interference with the orders of award passed by the Tribunal. The above submission of the learned counsel is on the basis of the decisions of the Supreme Court in M/s.Tulsidas Paul v. The Second Labour Court. (1972 (4) SCC 205) ; P.G.I. of Medical Education Research, &, Chandigar v. Raj Kumar (2001(2) SCC 54). In the above decisions, the Apex Court has held that “ in exercise of its O.P.No.3730/03 -:16:- jurisdiction under Article 226, the High Court cannot sit in appeal over the orders of industrial tribunal. Its jurisdiction is supervisory, and therefore, it interferes if the jurisdiction conferred on such tribunals is improperly, or in non-compliance of well established principles, exercised or for any such other reasons”. From the foregone discussion, and the facts referred above in this proceedings, what considered is the jurisdiction of the Tribunal Court under section 11A of the Industrial Disputes Act and whether the Tribunal has exceeded the jurisdiction conferred on it when the award was passed. Regarding the facts, now there is no controversy since the same is settled by the finding of the Tribunal, which I am not proposed to reopen and to come into any finding. 14. The learned counsel for the petitioner also argued that the petitioner had preferred Ext.P3 petition for reinstatement and there is vacancy available to accommodate him. In the light of the finding arrived by me, and the relief O.P.No.3730/03 -:17:- proposed to grant, the above point need not be considered . 15. In the light of the above facts and circumstances, this writ petition is allowed upholding the finding of the Tribunal with respect to the question referred to it, but setting aside the direction for treating the petitioner as a retrenched workman. The respondents are directed to reinstate the petitioner in service within one month from the date of producing a copy of this judgment and the petitioner is directed to produce the same before the 2nd respondent, and also, there will be a direction to give his backwages and all monetary benefits for the entire period, after deducting the amount, if any, paid towards the subsistence allowance, and to regularize his service in accordance with law. The Writ Petition is allowed. V.K.MOHANAN, JUDGE kvm/- O.P.No.3730/03 -:18:- V.K.MOHANAN, J. O.P.No.3730 of 2003 JUDGMENT Dated:.11.6.2009.