IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 32467 of 2004(M) -------------------------- PETITIONER: ------------ K.M.KRISHNANUNNI, PUTHENPURA, THAMARAKUZHI, MALAPPURAM. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: ------------- 1. THE MALAPPURAM CO-OPERATIVE SPINNING MILLS LTD., PATTARKADAVU, MALAPPURAM RESPRESENTED BY ITS MANAGING DIRECTOR. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. BY ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008 DELIVERED THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 32467/2004. -------------------------------------------------------------------- EXT.P1 SHOW CAUSE NOTICE DT. 11-8-1999. EXT.P2 REPLY DT. 13-8-1999. EXT.P3 WRITTEN SUBMISSION DT. 22-12-99. EXT.P4 REPORT OF ENQUIRY DT. 17-1-2000. EXT.P5 REPLY DT. 2-5-2000. EXT.P6 DISMISSAL ORDER DT. 24-6-2000. EXT.P7 WRITTEN STATEMENT DT. 29-10-2002. EXT.P8 REJOINDER DT. 23-12-2002. EXT.P9 DEPOSITION OF ENQUIRY OFFICER. EXT.P10 DEPOSITION OF PETITIONER. EXT.P11 EXT. M2 SETTLEMENT. EXT.P12 EXT.M3 MEMORANDUM OF SETTLEMENT. EXT.P13 AWARD DT. 4-2-2004 IN I.D.NO. 20/2002. EXT.P14 INVOICE DT. 10-4-2003. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 32467 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th July, 2008. J U D G M E N T The workman involved in I.D.No. 20/2002 before the Industrial Tribunal, Palakkad is challenging Ext. P13 award passed by the Tribunal in that I.D. The issue referred for adjudication was: “Whether the dismissal of Sri. K. Krishnanunni, worker of Malappuram Co-operative Spining Mill, Pattarkadavu, Malappuram by the management since 24.6.2000 is justifiable or not what remedy he is entitled to?” The Tribunal, by a preliminary order, found that the enquiry conducted against the petitioner pursuant to which he was dismissed from service was conducted properly and validly and the conclusions arrived at by the enquiry officer were also sustainable on the basis of the evidence on record. Thereafter, the Tribunal considered the question of proportionality of punishment. The Tribunal found that the workman was earlier punished for similar misconducts and therefore it may not be appropriate to interfere with the punishment of dismissal invoking the provisions of Section 11A of the Industrial Disputes Act. However, since the management itself had, by Ext. M3 settlement, agreed to take the workman back in service as gate casual and to promote him as a badaly worker on completion of 240 days attendance in an year, the Tribunal directed the workman to report for duty as a gate casual in accordance with Ext. M3 settlement. This award is under challenge before me. 2. The contention of the workman is that the only finding against him is that he was unauthorisedly absent for 94½ days between February, 1999 and July, 1999. Counsel would strenuously argue that such a misconduct does not qualify for imposition of punishment of dismissal from service. He therefore submits that the workman is entitled to be reinstated with, at the most, a minor punishment. W.P.C. No. 32467/2004 -: 2 :- 3. On the other hand, learned counsel for the management would vehemently oppose the same. According to him, the workman was, several times earlier, punished for the very same misconduct of unauthorised absence. The recalcitrant attitude of the workman itself is sufficient to confirm the punishment of dismissal, he would argue. However, still the management is willing to extend to the workman the benefit of M3 settlement, if he is willing to join duty pursuant to the settlement. 4. I have considered the rival contentions in detail. 5. Admittedly, during the period from February, 1999 to July, 1999, the workman was absent for 94 ½ days. It has been proved in the enquiry that such absence was unauthorised. The management has also proved with acceptable evidence that the workman was punished for the identical misconduct several times earlier also. That being so, the management has clearly proved that the petitioner- workman is habitually absent without leave. In spite of the same, the management extended to the petitioner the relief of taking him back in service and promoting him as a badaly worker on completion of 240 days' attendance in an year. In the above circumstances, I cannot, by any stretch of imagination, hold that Ext. P13 award is in any way unreasonable. That being so, I do not find any merit in the challenge against Ext. P3. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/