IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 OP.No. 29108 of 2001(M) ---------------------------------- PETITIONER: ------------------- A. GOPALAKRISHNAN, AULIKKAL VEEDU, P.O. MANKADA, MALAPPURAM – 679 324. BY ADV. MR.P.C.SASIDHARAN RESPONDENTS: ------------------------ 1. THE PRESIDENT, VETTIKKATTIRI SERVICE CO-OPERATIVE BANK LTD., P.O., VELLUVANGAD SOUTH, PANDIKKAD. 2. THE SECRETARY, VETTIKKATTIRI SERVICE CO-OPERATIVE BANK LTD., P.O. VELLUVANGAD SOUTH, PANDIKKAD. 3. THE SUB COMMITTEE CHAIRMAN, VETTIKKATTIRI SERVICE CO-OPERATIVE BANK LTD., P.O. VELLUVANGAD SOUTH, PANDIKKAD. 4. THE VETTIKKATTIRI SERVICE CO-OPERATIVE BANK LTD., P.O. VELLUVANGAD SOUTH, PANDIKKAD, REPRESENTED BY ITS SECRETARY. R1 TO R4 BY MR. K.M.SATHYANATHA MENON. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, ALONG WITH O.P .NO.13182 OF 2001,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 29108/2001-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN O.P. NO.2884/98 DTD. 12/02/1998 OF THE HONOURABLE HIGH COURT. EXT.P.2: COPY OF THE NOTIFICATION PUBLISHED BY THE GOVERNMENT G.O.(RT). NO.843/2001/LBR DTD. 13/03/2001. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- O.P.Nos.29108 & 13182/2001 ------------------------ Dated this the 22nd day of July, 2009. JUDGMENT O.P.No.13182/01 has been filed by the President and Secretary of Vettikkattiri Service Co-operative Bank Ltd., challenging the award rendered by the Industrial Tribunal, Palakkad in I.D.No.74/99, ordering reinstatement of the first respondent workman with 50% back wages. The workman has filed O.P.No.29108/01, challenging the said award to the extent 50% back wages is denied to him. Issues raised being common, these writ petitions are heard and disposed of together. For convenience, I shall refer to the exhibits marked in O.P.No.13182/01. 2. The workman was a junior clerk in the Bank referred to above. On the allegation of having committed certain misconducts, including misappropriation and fabrication of records, he was placed under suspension on O.P.Nos.29108/01 & anor. 2 1.11.1995. He was issued Ext.P1 charge sheet and following this, an Enquiry Officer was appointed and an enquiry was conducted. Finally, Ext.P8 report was submitted by the Enquiry Officer finding the workman guilty of six out of seven charges levelled against him. 3. A copy of the enquiry report was furnished to the workman and after considering his representation against the findings of the Enquiry Officer, the report was accepted by the Sub Committee of the Board of Directors and finally the workman was dismissed from service, with effect from 1.11.1995. He filed Ext.P2 appeal to the Board of Directors which was considered by the appellate authority and by Ext.P3 (2) resolution passed on 13.3.1998, the appeal was rejected. That resolution was forwarded to the workman by Ext.P3 communication. 4. The workman thereafter raised an individual dispute as contemplated under Section 2A of the Industrial Disputes Act and by Ext.P4 order the legality of the dismissal O.P.Nos.29108/01 & anor. 3 of the workman was referred for adjudication to the Industrial Tribunal. 5. The Tribunal registered the reference as I.D.No.74/99. Ext.P6 is the claim statement of the workman. Ext.P5 is the written statement and Ext.P7 is the rejoinder filed by the workman. Finally, Ext.P9 award was rendered by the Tribunal directing reinstatement of the workman with 50% back wages which is under challenge in these original petition. 6. Ext.P9 award shows that the validity of the enquiry was considered by the Industrial Tribunal as a preliminary issue and by its proceedings dated 21.12.2000, the Tribunal found the enquiry to be legal and valid. However, detailed order was reserved to be delivered along with the final award. It is stated that thereafter the parties were heard on 25.1.2001 on the proportionality of punishment and thereafter the award in question was rendered. 7. The award shows that the enquiry file was perused by the Tribunal. The Tribunal found the description of the O.P.Nos.29108/01 & anor. 4 documents to be irregular but however, held the same to be insufficient to set aside the enquiry held. Proceeding further, the Tribunal examined the correctness of the findings of the enquiry officer. The Tribunal held that broadly four charges were levelled against the workman and that since the findings of the enquiry officer are based on some evidence, the findings cannot be held to be perverse. It is also held that the enquiry is not vitiated for any procedural irregularity and that it was held in compliance with the principles of natural justice. 8. Thus after upholding the enquiry and the findings of the Enquiry Officer, in paragraph 7 of the award, the Tribunal posed the question whether the charges proved against the workman would amount to grave misconducts warranting the extreme punishment of dismissal from service. This obviously is in exercise of the Tribunal's power under Section 11A of the I.D Act. 9. Accordingly, the gravity of the misconducts for appreciating the proportionality of the punishment imposed O.P.Nos.29108/01 & anor. 5 was examined and the Tribunal concluded that, it cannot be held that the Workman had committed the misconduct of misappropriation or falsification of records, vide paragraph 10 of the award. Again in paragraph 11, the Tribunal held that charge numbers II and IV mentioned in paragraph 5 of the award, would not amount to misconducts and the said allegation has been raised without any bona fides. Proceeding further in paragraph 12 it is held that charge No.III mentioned in paragraph 5 of the award proved against the workman has to be considered as a misconduct warranting disciplinary action. Therefore, of the four charges that are broadly classified in paragraph 5 of the Award, except in relation to charge No.III, the Tribunal has held that the other misconducts are either not misconducts or that, the workman has not committed the same. 10. In my view, the approach adopted by the Tribunal cannot be upheld. As held by the Apex Court in Workmen of Fire stone Tyre & Rubber Co. V. Management & ors.(1973(2) O.P.Nos.29108/01 & anor. 6 LLJ 278), while exercising the power under Section 11A of the Industrial Disputes Act, the Tribunal has first to examine the validity of the enquiry conducted. Once an enquiry has been held to be validly conducted and the findings of the enquiry officer are also upheld, the Tribunal has to consider whether the punishment imposed is proportionate to the gravity of the misconduct. 11. In this case, as mentioned in paragraph 3 of the award, by proceedings dated 21.12.2000, the Tribunal held the enquiry to be legal and valid. In the award itself, while giving its reasons in support of the aforesaid findings, the Tribunal has held that the enquiry was held in accordance with the principles of natural justice, that it was not vitiated for any procedural error and that the findings of the Enquiry Officer are based on some evidence and therefore cannot be held perverse. Once the enquiry has been upheld and the findings of the Enquiry Officer are also held as not perverse, in my view all that remains to be done by the Tribunal is to O.P.Nos.29108/01 & anor. 7 decide on the proportionality of the punishment based on the material on records, as provided in the proviso to Section 11 A of the Industrial Disputes Act. In that process, the Tribunal cannot once again examine the findings of the Enquiry Officer each of the misconducts and decide as to whether those misconducts are proved or whether the acts alleged against the workman are misconducts at all. In this case, while exercising its powers under Section 11-A of the Industrial Disputes Act, the Tribunal clearly committed a grave error and for that reason, the award cannot be up held. 12. Therefore O.P.No.13182/01 is disposed of quashing Ext.P9 award rendered by the Industrial Tribunal in I.D.No.74/99 and the Tribunal is directed to reconsider the matter and decide on the proportionality of punishment imposed on the workman, petitioner in O.P.No.29108/01. This shall be done as expeditiously as possible and at any rate within 2 months from the date of production of a copy of the judgment. O.P.Nos.29108/01 & anor. 8 In so far as O.P.No.29108/01 is concerned, now that I have set aside the award and the matter has been remanded for fresh consideration, there is no question of allowing this Original Petition. Dismissed. (ANTONY DOMINIC) JUDGE vi/ O.P.Nos.29108/01 & anor. 9 BY GOVT. PLEADER SRI. K.C. SANTHOSHKUMAR ANTONY DOMINIC,J. --------------------- O.P.Nos.29108 & 13182/2001 ---------------------- Dated this the 22nd day of July, 2009. JUDGMENT O.P.Nos.29108/01 & anor. 10