IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 36415 of 2005(I) -------------------------- PETITIONER(S): ------------------ THIRUMENI AGRICULTURAL MARKETING CO-OPERATIVE SOCIETY LIMITED NO.C-1392, P.O.THIRUMENI, VIA-CHERUPUZHA, KANNUR DISTRICT- REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ------------------- 1. INDUSTRIAL TRIBUNAL, KOZHIKODE. 2. N.V.JOSEPH, S/O.LATE VARKEY, MADAYIL HOUSE, P.O.THIRUMENI, VIA-CCHERUPUZHA-670 511. TALIPARAMBA, KANNUR DISTRICT. ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36415/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE 2ND RESPONDENT ON 26.2.1998. EXT.P2: TRUE COPY OF REPORT DT 27.2.1998 OF THE SECRETARY OF THE SOCIETY TO THE PRESIDENT OF THE SOCIETY INFORMING 2ND RESPONDENT'S REFUSAL TO ACCEPT EXT.P1 SHOW CAUSE NOTICE. EXT.P3: TRUE COPY OF SUSPENSION ORDER DT 1.4.1998 ISSUED TO THE 2ND RESPONDENT. EXT.P4: TRUE COPY STATEMENT OF IMPUTATIONS DT 23.6.98 ISSUED TO THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF CHARGES LEVELLED AGAINST 2ND RESPONDENT. EXT.P6: TRUE COPY OF EXPLANATION DT 20.7.98 SUBMITTED BY 2ND RESPONDENT TO EXTS.P4 AND P5. EXT.P7: TRUE COPY OF REPORT OF ENQUIRY DT 3.11.98 CONDUCTED BY THE ENQUIRY OFFICER. EXT.P8: TRUE COPY OF ORAL EVIDENCE OF PW1 IN THE ENQUIRY. EXT.P9: TRUE COPY OF ORAL EVIDENCE OF RW1 IN THE ENQUIRY. EXT.P10: TRUE COPY OF ORAL EVIDENCE OF RW2 IN THE ENQUIRY. EXT.P11: TRUE COPY OF SHOW CAUSE NOTICE DT 13.11.98 ISSUED TO THE 2ND RESPONDENT. EXT.P12: TRUE COPY OF 2ND RESPONDENT'S REPLY DT 21.11.98 TO EXT.P11 SHOW CAUSE NOTICE. EXT.P13: TRUE COPY OF ORDER DT 18.2.99 TERMINATING THE SERVICES OF THE 2ND RESPONDENT. EXT.P14: TRUE COPY OF THE AWARD DT 8.6.04 OF THE INDUSTRIAL TRIBUNAL, KOZHIKODE. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 36415 OF 2005 (I) ===================== Dated this the 14th day of August, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P14, an award rendered by the 1st respondent in ID 34/2002. 2. Facts of the case are that the 2nd respondent was working as a salesman under the petitioner. Alleging certain misconducts, Ext.P1 show cause notice was issued. It is stated that when the Secretary attempted to Serve Ext.P1, workmen refused to receive the same and misbehaved with the Secretary. Accordingly, Secretary submitted Ext.P2 report to the Society. Later, he was placed under suspension as per Ext.P3 and was chargesheeted as per Exts.P4 and P5. Explanation submitted by the workmen is Ext.P6. Not satisfied with the explanation submitted, for the six charges enumerated in Exts.P4 and P5, an enquiry was ordered to be conducted. Accordingly, an Advocate was appointed as an Enquiry Officer. 3. The enquiry was held with opportunity to both sides. Evidence was adduced and considering the same, Ext.P7 report was submitted by the enquiry officer. In the report, workmen was WPC 36415/05 :2 : held guilty of charge Nos. 1,2,4 and 6 and was found innocent of charge nos.3 and 5. Enclosing a copy of the enquiry report, workmen was issued Ext.P11 notice calling upon him to show cause why punishment shall not be imposed. He submitted Ext.P12 reply. The disciplinary authority considered the matter, and finally by Ext.P13, the services were terminated w.e.f. 18/2/1999. 4. The workmen raised a dispute under Section 2A of the Industrial Disputes Act and on failure of conciliation, by order dated 6/8/2002, the issue as to whether the dismissal of the workmen is justifiable and if not what relief is he entitled to was referred for adjudication to the 1st respondent Tribunal. The Tribunal registered the dispute as ID 34/02. Before the Tribunal, the validity of the enquiry was contested and therefore, the Tribunal considered the matter as a preliminary issue. The Tribunal by its order dated 8/6/2004 set aside the enquiry. 5. In the counter statement filed by the Management before the Tribunal, the Management did not make a prayer that in the event the enquiry is found to be vitiated for any reason, it should be given an opportunity to justify its action before the Tribunal. In view of the above, following the Apex Court WPC 36415/05 :3 : judgment in Karnataka State Road Transport Corporation v. Lakshmidevamma (2001(2) LLJ 199), the Tribunal declined to give opportunity to the management to justify its action. Proceeding further, Ext.P14 award was passed setting aside the termination of the workmen and it was ordered that he shall be reinstated in service with continuity of service and backwages and other attendant benefits. It is challenging this award, the writ petition is filed. 6. Since the management did not make a prayer that it should be given a second opportunity to justify its action before the Tribunal, the Tribunal cannot be faulted for ordering reinstatement of the workman. Since the order of reinstatement was passed only on the basis of the preliminary order that was rendered by the Tribunal on 8/6/2004, in this writ petition, all that arises for consideration is the correctness of the said order. 7. Referring to the findings in Ext.P14 award passed by the Tribunal where the preliminary order dated 8/6/2004 has been extracted in extenso, counsel for the petitioner submitted that the Tribunal had exceeded its jurisdiction in reappreciating the evidence and coming to its own conclusions. However, this contention of the learned counsel for the petitioner is only to be WPC 36415/05 :4 : rejected since under Section 11A of the Industrial Disputes Act, Tribunal is clothed with the power to reappreciate the evidence to be satisfied about the action that has been taken by the Management. This conclusion of mine is fully supported by the law as laid down by the Apex Court in Workmen of F.T.& R.Co v. The Management (AIR 1973 SC 1227), where in Para 32, it has been held as follows; The words “in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified” clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron and Steel Co. Ltd. 1958 SCR 667 = AIR 1958 SC 130. case can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter. 8. Now what remains is whether the findings of the Tribunal as reflected in Ext.P14 order is perverse warranting interference in this proceedings. WPC 36415/05 :5 : 9. In so far as charge Nos. 1 and 2 are concerned, the Tribunal has made extensive reference to the evidence tendered by the Secretary of the Society where the Secretary has accepted that he himself was responsible for the stock of the materials kept in the godown. The Secretary has confessed that there was nothing to show that the workmen had any responsibility in this behalf. It was on account of the evidence to that effect that the Tribunal disagreed with the findings of the enquiry officer in so far as charge Nos. 1 and 2 are concerned. Reference to the PW1's evidence, which is produced in this writ petition as Ext.P8, also persuades me to fully endorse the findings of the Tribunal. 10. In so far as charge No.4 is concerned, the allegation is that the workmen had given wrong information to the Assistant Labour Officer. A reading of Ext.P7 report of the enquiry officer itself show that the workmen has been found guilty only for the reason that when the Assistant Labour Officer visited the Society, the Secretary was absent and the workmen was present. On this only circumstance, the enquiry officer has inferred that the contents of the report of the Assistant Labour Officer are based on the information given by the workmen. In my view, this is totally erroneous and the conclusion of the Tribunal is fully justified. WPC 36415/05 :6 : 11. Similar is the case with Charge No.6 where the workmen is held guilty in not remitting Rs.1,000/- as cash security and executing a bond as provided by resolution dated 28/2/96. It was the case of the workmen that he had complied with this requirement by entrusting cash and the security bond with the President. The testimony of the Secretary has been referred to by the Tribunal and the Secretary did not contradict the case pleaded by the workmen. The President did not enter the box and dispute the version of the workmen. In such circumstances, the Tribunal rightly disagreed with the findings of the enquiry officer on this misconduct also. 12. In my view, the findings of the Tribunal as reflected in Ext.P14 award are fully justified in the light of the evidence that are available. Necessarily, the enquiry officer's findings are perverse. In such circumstances, I see nothing perverse in the view taken by the Tribunal. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp