IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 4584 of 2006(U) -------------------------------- PETITIONER(S): ------------------- M/S. MUTHOOT BANKERS, MUTHOOT BUILDINGS, SASTHAMANGALAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS PARTNER. BY ADV. SRI.C.M.STEPHEN RESPONDENT(S): -------------------- 1. D. VIJAYALAKSHMI, SHINE NIVAS, BHAGATH SINGH ROAD, PETTAH, THIRUVANANTHAPURAM. 2. THE LABOUR COURT, KOLLAM. R2 BY GOVT.PLEADER SRI.K.S.SIVAKUMAR R1 BY ADV. SRI.GOPAKUMAR R.THALIYAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010, ALONG WITH WPC NO. 25424 OF 2007 THE COURT ON 01/11/2010 DELIVERED THE FOLLOWING: svs/ WP(C).No. 4584/2006(U) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE FIRM REGISTRATION CERTIFICATE. P2: COPY OF THE TERMINATION ORDER OF THE MANAGEMENT. P3: COPY OF THE PROCEEDINGS OF THE DOMESTIC ENQUIRY. P4: COPY OF THE DENOMINATION SLIP DATED 30/04/1993. P5: COPY OF THE CHARGE MEMO DATED 08/05/1993. P6: COPY OF THE EXPLANATION OF THE FIRST RESPONDENT. P7: COPY OF THE DENOMINATION SLIP DATED 17/05/1993. P8: COPY OF THE CHARGE MEMO DATED 25/05/1993. P9: COPY OF THE CHARGE MEMO DATED 29/05/1993. P10: COPY OF THE EXPLANATION OF THE FIRST RESPONDENT DATED 31/05/1993. P11: COPY OF THE ORDER OF THE MANAGEMENT APPOINTING THE ENQUIRY OFFICER. P12: COPY OF THE NOTICE ISSUED BY THE ENQUIRY OFFICER COMMENCED HIS ENQUIRY. P13: COPY OF THE COMMUNICATION FILED BY THE FIRST RESPONDENT BEFORE THE MANAGEMENT FOR REMOVAL OF THE ENQUIRY OFFICER. P14: COPY OF THE TELEGRAM SENT BY THE FIRST RESPONDENT TO THE ENQUIRY OFFICER DEMANDING TO STOP THE ENQUIRY. P15: COPY OF THE TELEGRAM OF THE MANAGEMENT TO THE FIRST RESPONDENT IN REPLY TO EXHIBIT P10. P16. COPY OF THE COMMUNICATION OF THE POST AND TELEGRAM DEPARTMENT EVIDENCING THE EVASION OF SERVICE OF THE EXHIBIT P14 TELEGRAM BY THE FIRST RESPONDENT. ....2/-.. ...2... P17: COPY OF THE ENQUIRY REPORT, FINDINGS OF THE ENQUIRY OFFICER P18: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT ON RECEIPT OF THE ENQUIRY REPORT. P19: COPY OF THE EXPLANATION FILED BY THE FIRST RESPONDENT TO THE EXHIBIT P18 SHOW CASUE NOTICE. P20: COPY OF THE REFERENCE ORDER. P21: CLAIM STATEMENT OF THE FIRST RESPONDENT. P22: WRITTEN STATEMENT FILED BY THE PETITIONER. P23: COPY OF THE ORDER OF THE SECOND RESPONDENT SETTING ASIDE THE DEMESTIC ENQUIRY. P24: COPY OF THE PETITON FILED BY THE FIRST RESPONDENT TO THE ENQUIRY OFFICER FOR A DIRECTION TO THE PETITIONER TO PRODUCE DECUMENTS. P25: COPY OF THE DIRECTION OF THE ENQUIRY OFFICER TO THE MANAGEMENT TO PRODUCE DOCUMENTS. P26: COPY OF THE COVERING LETTER OF THE PETITIONER WITH THE DOCUMENTS PRODUCED. P27: COPY OF THE COVERING LETTER OF THE ENQUIRY OFFICER ISSUED TO THE DELINQUENT WITH THE DOCUMENTS RECEIVED FROM THE MANAGEMENT. P28: AWARD PASSED BY THE LEARNED LABOUR COURT, KOLLAM IN I.D. NUMBER 30/1995. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)Nos.4584 of 2006 & 25424 of 2007 ---------------------------- Dated 1st November, 2010 JUDGMENT The facts of these writ petitions are intertwined and thereby, invite a joint consideration. M/s.Muthoot Bankers which is a firm registered under the Indian Partnership Act, 1932 is the petitioner and Smt.D.Vijayalekshmi who was terminated from its service while working as Cashier-cum-Care taker Manager is the first respondent in both these writ petitions. The Labour Court, Kollam is the second respondent in these writ petitions. The former writ petition is filed challenging Ext.P23 preliminary order and Ext.P28 award passed by the Labour Court, Kollam in I.D.No.30 of 1995 and the latter writ petition is filed challenging Ext.P3 order of the Labour Court passed in Claim Petition No.118 of 2005 in I.D.No.30 of 1995. 2. A brief narration of the facts that led to the aforesaid orders and award, as hereunder, is essential:- The petitioner (establishment) is a private non-banking financial institution. According to the petitioner, the first respondent was the Cashier in the petitioner establishment from 22.7.1991 to 29.5.1993 and during the said short tenure, at times, she was put in additional charge as Care taker Manager as well. While in service, Exts.P5, P8 and WP(C).No.4584/2006 & 25424/2007 2 P9 charge memos were issued to the first respondent. The charge levelled as per Ext.P5 memo dated 8.5.1993 was pertained to cash shortage of Rs.600/- occurred on 30.4.1993 and that levelled as per Ext.P8 memo dated 25.5.1993 was related to the cash shortage of Rs.3,000/- occasioned on 17.5.1993. As per Ext.P9 memo dated 29.5.1993 the first respondent was accused of having committed disobedience and misappropriation of money. The first respondent has submitted Ext.P6 reply to Ext.P5 charge memo and Ext.P10 composite reply to Exts.P8 and P9 charge memos. Dissatisfied with Exts.P6 and P10 replies a domestic enquiry was ordered and conducted. On its culmination Ext.P17 report was submitted by the Enquiry Officer. The Enquiry Officer found the first respondent guilty for having committed temporary misappropriation of money on two occasions. Based on Ext.P17 enquiry report Ext.P18 show cause notice was issued to the first respondent, virtually, proposing the punishment of dismissal from service. The first respondent has shown cause as per Ext.P19. Moreover, the same was found unsatisfactory and consequently, borrowing the expression used by the petitioner, out of generosity `termination of service' from 29.5.1993, was imposed as per Ext.P2. Consequential raising and reference of the dispute led to I.D.No.30 of 1995 and ultimately in Ext.P23 preliminary order and Ext.P28 award. WP(C).No.4584/2006 & 25424/2007 3 Ext.P21 is the claim statement filed therein, by the first respondent and Ext.P22 is the written statement filed therein by the petitioner. 3. The validity of the domestic enquiry was considered as a preliminary issue. Exts.M1 series were marked on the side of the Management viz., the petitioner herein and Exts.W1 to W21 were marked on the side of the worker. Thereafter, Ext.P23 preliminary order was passed. As per the same, it was found that the domestic enquiry was vitiated and that the Enquiry Officer had not adhered to the principles of natural justice. Based on the finding that sufficient opportunity was not given to the worker for setting up her defence the Labour Court discarded the enquiry report, rather, set aside the same and called upon the Management - the petitioner to lead evidence afresh on the charges. I may examine the sustainability of the challenge against Ext.P23 a little later. 4. In the adjudicatory proceedings on the side of the petitioner - Management MW1 was examined and Exts.M1(a) to M1(m) were marked. The first respondent - worker gave evidence as WW1 and on her side Exts.W1 to W23(a) were marked. Ultimately, Ext.P28 award was passed by the Labour Court. It was found that the management had failed in establishing the charges. As per Ext.P28, the termination of the first respondent was found illegal and the management - the petitioner was directed to reinstate the worker with WP(C).No.4584/2006 & 25424/2007 4 backwages and attendant benefits in 30 days. It is challenging the said orders viz., Exts.P23 preliminary order and Ext.P28 award that the former writ petition has been filed. 5. The latter writ petition was filed challenging Ext.P3 order of the Labour Court in Claim Petition No.118 of 2005 in I.D.No.30 of 1995. It was filed under Section 33C(2) of the Industrial Disputes Act, 1947 claiming an amount of Rs.5,05,110/- towards arrears of salary as per Ext.P28 award in the former writ petition. The first respondent herein/the petitioner in the claim petition gave evidence as PW1 and produced documents Exts.P1 to P3 in the claim petition. The petitioner herein - opposite party did not adduce any evidence. Going by the order in Ext.P3 the counter statement filed by the petitioner - opposite party did not contain any denial regarding the salary statement furnished by the petitioner - worker. So also the petitioner - management had not produced any documentary evidence which they must have been maintaining in the ordinary course of their business transaction to show the salary drawn by the first respondent at the relevant point of time. In the aforesaid circumstances, it was directed to pay the amount claimed in the claim petition within two months failing which the said amount made recoverable with 9% interest from the date of claim petition till the date of recovery, as per Ext.P3. WP(C).No.4584/2006 & 25424/2007 5 6. I may now examine the sustainability of Ext.P23 order in the claim petition. Evidently, it was found that the domestic enquiry was defective and vitiated on account of failure to ensure and observe the principles of natural justice and fair play. It was found that sufficient opportunity was not afforded to the worker to set up her defence. According to the petitioner, the domestic enquiry was flawless and all the procedures required for conducting domestic enquiry were complied with and the respondent also was afforded with adequate opportunities to set up her defence. It is contended that the finding of the Labour Court that the enquiry was vitiated for not bringing to the notice of the delinquent the incriminating circumstances against her that were brought out by the prosecution evidence and also for not recording her explanation thereon, is absolutely unsustainable. 7. Before adverting to the other contentions raised by the petitioner I may deal firstly, with this contention. Definitely, such a reasoning, if exists in Ext.P23, would suggest that such a procedure akin to the one under Section 313 of the Code of Criminal Procedure is to be followed mandatorily in domestic as well. In fact, a scanning of Ext.P23 would reveal that there is no such finding therein and what was made in Ext.P23 was only an observation to that effect. In the context of the contention it is relevant to refer to the said observation which reads thus:- WP(C).No.4584/2006 & 25424/2007 6 “ It is also noticed from the enquiry file that after closing the prosecution evidence the enquiry officer has not closen (sic. chosen) to call the delinquent officer to call upon her defence; nor was the incriminating circumstances against her brought to her notice, and no opportunity was given to her to explain the same and her defence evidence was never called for.” A scrutiny of the above observation would certainly suggest that it attributes failure on the part of the enquiry officer to afford an opportunity is akin to the procedure prescribed under the provisions of Section 313 of Cr.P.C. Section 313 prescribes a procedural safeguard for an accused and the provisions under clause (1)(b) therein is mandatory. However, it is to be noted that even in respect of a criminal trial, it is well-settled that every error or omission not in compliance with the provisions of the said section does not necessarily vitiate a trial. Incriminating evidence when not put to the accused in examination under section 313 Cr.P.C has to be eschewed from consideration. In the decision in State of Punjab V. Swaran Singh (2005 Crl. L J 3445) the Hon’ble Apex Court held that when the evidence of witnesses was recorded in the presence of the accused who had the opportunity to cross-examine in respect of the facts deposed by them, omission to put question to the accused regarding the evidence of those witnesses would not cause prejudice to him and cannot be a ground for vitiating WP(C).No.4584/2006 & 25424/2007 7 the trial. What is the basis for the observation in question is not discernible from the order. Certainly, there is no provision under the Industrial Disputes Act which prescribes such a procedure as part of a domestic enquiry. The learned Counsel for the first respondent also could not bring to my attention any such procedure, either mandatory or directory, under the Industrial Disputes Act. In fact, such a procedure is alien to domestic enquiry and what is being followed as a procedure in domestic enquiry is to afford an opportunity to offer explanation after furnishing the enquiry report. Admittedly, such an opportunity was afforded to the petitioner. Therefore, I am of the considered view that there is absolutely no basis or merits for the said observation and, at any rate, such a reasoning cannot be a ground at all for interfering with a domestic enquiry. However, merely because such an observation has been made in Ext.P23 cannot be reason to interfere with Ext.P23. 8. There cannot be any doubt with the respect to the fact that in appropriate cases it will be well within the jurisdiction of the Labour Court to interfere with a defective domestic enquiry such as, an enquiry where the rules of natural justice and fair play were not ensured and observed. I may now, examine whether the finding in Ext.P23 that the domestic enquiry was vitiated for failure to ensure and observe the principles of natural justice. In Ext.P23 it is stated:- WP(C).No.4584/2006 & 25424/2007 8 “ A perusal of the enquiry report and the minutes of the enquiry shows that the workman was declared ex parte. According to the enquiry officer “ On 15.10.1993 the enquiry commenced at 10.a.m. The delinquent employee was not present. Mr. Thomas George representing the management was present. The witnesses who were to be cross examined by the delinquent employee were also present. As the delinquent employee did not turn up, the proceedings had to be continued in her absence. Her absence was not excusable.” In fact, admittedly, the respondent –delinquent employee had started cross-examination of the witnesses and it was adjourned to 15.10.1993 only because it could not be completed. That apart, in the meanwhile, the respondent had requested for changing the enquiry officer and to that effect she had represented to the petitioner as well. I do not propose to go into the said aspect in detail. Evidently, in the said circumstances, the enquiry officer admittedly contacted the management to see whether they had taken any decision to change the enquiry officer and on being told that the management had, through letter and telegram, requested the respondent to be present on 15.10.1993 decided to continue the proceedings on 15.10.1993. Accordingly, the first respondent was set exparte on 15.10.1993 and the management had examined one more witness. Based on the minutes of the enquiry and the enquiry report the Labour Court came to the conclusion that the respondent was set exparte and evidence were WP(C).No.4584/2006 & 25424/2007 9 collected in her absence and the enquiry was closed on 15.10.1993. The case of the first respondent that she had received the communication from the management was received only on 16.10.1993 was accepted by the Labour Court and based on evidence it was held that setting the first respondent exparte on 15.10.1993 itself and further continuing the enquiry by examining the witnesses and receiving the documents and more over, closing the evidence on the same day itself could be for a moment be supported. Thereafter, it was found that the first respondent on coming to know about the order setting her exparte filed petitions on 16.10.1993 itself and then on 11.11.1993 for re-opening the matter and giving her opportunity to lead evidence. Based on the materials it was held :- “ But it appears that the enquiry officer has not even considered any of these documents and why her request was refused is also not born out by the minutes of enquiry. Thus it is seen that there is arbitrarily denial of opportunity to the workman to set up her defence against the charges.” That apart, the fact that documents which were not produced despite demand from the first respondent were produced after 15.10.1993 after setting her exparte and then relied on by the enquiry officer, were all taken in to consideration among various other aspects by the Labour Court. A scanning of Ext.P23 would reveal that each of such situations had been considered by the Labour Court with reference to the enquiry WP(C).No.4584/2006 & 25424/2007 10 file and it was only thereafter it was held that the enquiry was vitiated and that the enquiry officer had not adhered to the principles of natural justice and that sufficient opportunity was not given to the worker in setting up her defence. Such a finding of fact by the Labour Court, in the circumstances, obtained in this case cannot be said to be perverse warranting interference under Article 226 of the Constitution of India. Re-appreciation of the evidence is also not called for in the said circumstances. Above all, admittedly, after holding the domestic enquiry as defective the petitioner management was called upon to lead evidence to support the charges. Thereupon, the petitioner- management had, availing the opportunity, adduced fresh evidence. In the totality of the circumstances, the attack of the petitioner against Ext.P23 has to fail. I find no reason to interfere with Ext.P23. 8. Once Ext.P23 is found sustainable the issue will precipitate into one as to whether Ext.P28 award calls for interference. The said issue has to answered bearing in mind the settled position that a reassessment of evidence cannot be undertaken in exercise of power under Article 226 of the Constitution of India as this court is not sitting in appeal over the findings. The endeavour can only be to find out whether the findings are perverse, illegal or suffer from any patent error of law. After Ext.P23 the petitioner was given opportunity to lead fresh evidence on the charges. Accordingly, on the side of petitioner- WP(C).No.4584/2006 & 25424/2007 11 management MW1 was examined and Exihibits M1(a) to M1(m) were marked. On the side if the first respondent-worker she gave evidence as WW1 and Exihibits W1 to W23(a) were marked. Whether the management has succeeded in proving the charges against the delinquent worker and whether the penalty imposed on the worker is proper, were then formulated as the points for consideration. The fact that the respondent was appointed as Clerk and the charge memos were issued to her during such continuance are admitted. As per the three charge memos four charges were levelled against the first respondent. They read thus:- “(1) On 30.4.1993 while you were on duty as cashier of Muthoot Bankers at Sasthamangalam and at the time of closing of the account, there was a cash shortage of Rs.600/-. (2) On 17.5.1993 you as a cashier of the bank and as a person in charge of the cash box and the cash transactions, a cash short was found to the tune of Rs.3000/- in the cash box, at the time of closing the cash for the day. (3) You have thus on two occasions viz. 30.4.1993 and 17.5.1993 caused loss to the Bank and you have misappropriated the amounts from the bank. (4) While in service you were disobedient and disrespectful to your superiors and your behavious was very improper. As a cashier, you acted irresponsibly, negligently and the performance was highly inefficient.” WP(C).No.4584/2006 & 25424/2007 12 One Sri.Sabu Sacharias was examined as MW1. It was brought out in the cross examination that he was the Secretary of the Managing Partner of the management in 1993 viz., during the relevant point of time. According to MW1 Muthoot Bankers is a subsidiary of Muthoot Pappachan Consultancy and Management Service where MW1 is working. However, a quite contradictory contention has been taken in paragraph 1 of the writ petition wherein it is stated thus:- “The Firm is an independent Establishment with no branch or Head Office, and it had only 05 employees during the relevant period.” In the circumstances, paragraph 8 of P28 assumes relevance and it in so far as relevant reads thus:- “The connection of MW1 with the alleged transactions is seriously disputed by the worker. MW1 has also no case that he has any direct knowledge with regard to the transactions in question. Nobody who had direct involvement and who had dealt with the domestic enquiry is cited and examined by the management. The then manager namely Sri. Kunjippalu who was the most competent witness to swear regarding the transactions is also not examined in the case.” The two instances cash shortage occurred on 7.5.1993 and 17.5.1993, according to the petitioner management are instances of misappropriation of money. It has come out from the evidence of MW1 that Sri.Kunjippalu the then Manager made an enquiry in to the shortage alleged on 20.5.1993 and it revealed certain facts. According to the respondent –worker the said enquiry revealed that it was a case WP(C).No.4584/2006 & 25424/2007 13 of short remittance by one Santhoshkumar when a gold was released and this fact was reported by Sri.Kunjippalu to the management and a copy of the report was also produced by the worker. Though the management disputed the factum of receipt of the same Sri.Kunjippalu was not examined. Rightly, the Labour Court has assessed the situation and held that the non-examination of Sri.Kunjippalu, the then Manager as vital and fatal to the case of the management. The examination of a person totally unconnected with the transactions was rightly dealt with by the Labout Court. Ext.M1(a) is the first memo dated 8.5.1993 issued to the first respondent and it reads thus:- “But immediately before the close of your duty on that day, the management found Rs.600/- (Rupees six hundred only) as missing from the cash box. Your immediate oral explanation to the Manager was found as inadequate and far from satisfactory. The charges which is levelled against you is serious and calls for stern disciplinary action. When watching the incident closely, it seems to be the result of either misappropriation of money or inefficiency and negligence on your part.” (emphasis supplied) After referring to the same it was rightly held by the Labour Court that even after a week since the incident the petitioner-management was not definite as to whether it was a misappropriation committed by the worker. Most importantly, based on the explanation of the worker the management had closed the matter without further action. Ext.M1(a) is Ext.P5 herein. It would definitely, justify the findings of the Labour WP(C).No.4584/2006 & 25424/2007 14 Court. Ext.M1(b) is Ext.P8 in this Writ Petition. Referring to the cash shortage it is stated therein as hereunder:- “Your oral explanation to the Manager about the reasons of the incident was found as inadequate and unbelievable. Your behavious on that day symbolizes the highest degree of irresponsibility, negligence, inefficiency and in short, total failure in performing your duty.” (emphasis supplied) As rightly held by the Labour Court Ext.M1(b) charge memo also did not reveal existence of even a scintilla of suspicion of misappropriation of money on the first respondent. The further fact that the first respondent herself recorded ‘cash shortage’ on the denomination slip produced as Ext.M1(c) and the admitted fact that on the next day itself she had remitted the same was also taken into consideration by the Labour Court to hold that it was also not a case of misappropriation. The difference in the handwriting as regards the entry ‘Voucher’ was also taken note of. With respect to Ext.M1(f) memo viz., Ext.P9 herein, it is admittedly, a charge issued by clubbing the other two charges of cash shortage. The allegation is that the worker had refused to accept the same. Evidently, the same was received by the first respondent. The said memo was signed by a partner Sri.Thomas John and he was not examined as a witness to sustain the charge of disobedience. In fact, the very memo itself would reveal that she had received the same. That WP(C).No.4584/2006 & 25424/2007 15 apart, the petitioner did not have a case that Ext.P10 reply was not received. Ext.P10 was submitted as a reply to Ext.M1(f) memo as well. Most importantly, even in the domestic enquiry the said charge was not proved. In the said circumstances, the Labour Court could not have arrived at any other findings with respect to point No.1. I am of the considered view that the said finding of the Labour Court did not call for any interference at all. The Labour Court based on its finding on point No.1 held that point No.2 did not arise for consideration. According to me, the contention of the petitioner-management that the respondent was a cashier-cum-Manager was also rightly