IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WA.No. 295 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.30316/2004 Dated 03/06/2008 .................... APPELLANT(S): -------------- K.C.SADASIVAN, CODE NO.109, MALABAR CEMENTS LTD., WALAYAR. BY ADV. SRI.P.V.BABY RESPONDENT(S): --------------- MALABAR CEMENTS LTD., REP. BY ITS MANAGING DIRECTOR, WALAYAR-678624. ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.295 of 2009 ---------------------------------------------- Dated 24th February, 2010. J U D G M E N T Balakrishnan Nair, J. The writ petitioner is the appellant. The brief facts of the case are the following :- The appellant is an employee of the respondent Company. In 1990, disciplinary proceedings were initiated against him. Exts.P1 and P2 were the charge memos issued to him. The Enquiry Officer found the appellant guilty of the charges. The management accepted the findings of the Enquiry Officer and imposed on him, the punishment of dismissal from service. An Industrial Dispute was raised by the appellant's Union, concerning his dismissal. The said dispute was finally referred for adjudication to the Industrial Tribunal, Kozhikode. The Tribunal, as a preliminary issue, found that the enquiry was held properly. It was also found that the findings in the enquiry were supported by the evidence on record. When the proportionality of the punishment with reference to the WA NO.295/2009 2 misconduct proved was considered under Section 11A of the Industrial Disputes Act, the Tribunal took the view that the misconduct does not warrant dismissal from service. In the result, an award was passed by the Tribunal, directing reinstatement of the appellant, but without backwages. The management accepted the award and implemented it. But, the appellant challenged the award in the Writ Petition, to the extent the Tribunal denied the backwages to him. The learned Single Judge, after hearing both sides, took the view that the misconduct proved against the appellant/petitioner was sufficient, in the ordinary course, for imposing a punishment of dismissal from service. So, the order of the Labour Court, declining backwages to him was proper, it was held. In that view, the Writ Petition was dismissed. Challenging the said judgment, this Writ Appeal is preferred. 2. The learned counsel for the appellant submitted that the enquiry was held against him, in violation of the principles of natural justice and without his WA NO.295/2009 3 participation. So, the finding of the Labour Court that the enquiry was held properly, was illegal and untenable. 3. We notice that the order of the Tribunal on the preliminary point, whether the enquiry was held properly, has not been produced or challenged by the appellant, in the Writ Petition. Of course, he need not challenge the order, immediately after its pronouncement, in view of the decision of the Apex Court in D.P.Maheswari v. Delhi Administration and others (AIR 1984 SC 153). But, while challenging the final award, he should have challenged that order also. If that be so, the only point remains to be considered is whether the punishment imposed on the appellant was proportionate to the gravity of the offence proved. If the findings of the Enquiry Officer are correct, we think, the Labour Court has taken a very liberal view. If the management had chosen to challenge that view, having regard to the misconduct proved, the likelihood of the Writ Petition being allowed, cannot be ruled out. The learned WA NO.295/2009 4 Single Judge also took this view and upheld the denial of backwages to the appellant. Since there is proven misconduct against the appellant, we find no reason to take a different view. In the result, the Writ Appeal fails and it is, accordingly, dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.295 of 2009 ---------------------------------------------- J U D G M E N T Dated 24th February, 2010.