IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 33523 of 2003(N) -------------------------- PETITIONER: -------------- K.V.JOHNY, S/O. VARGHESE, RESIDING AT K.S.E.B. COLONY, VAZHATHOPPU, IDUKKI DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS: ----------------- 1. IDUKKI DISTRICT CO-OPERATIVE BANK, IDUKKI, REPRESENTED BY ITS GENERAL MANAGER. 2. THE LABOUR COURT, ERNAKULAM. BY ADV. SRI.P.C.SASIDHARAN,SC,IDUKKI DIST.CO.OP. BANK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.33523/2003 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF EXPLANATION DATED 28.4.1989 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P2: COPY OF REFERENCE APPLICATION DATED 4.3.1992 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P3: COPY OF CLAIM STATEMENT FILED BY THE PETITIONER IN I.D.No.12/95 BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF WRITTEN STATEMENT DATED 20.12.1998 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT IN I.D.No.12/95. EXT.P5: COPY OF AWARD IN I.D.No.12/1995 DATED 30.10.2002 PASSED BY THE 2ND RESPONDENT. TRUE COPY P.A.TO JUDGE S.SIRI JAGAN, J ================== W.P(C)No.33523 of 2003 ================== Dated this the 29th day of August, 2008. J U D G M E N T The petitioner is a workman in I.D. No. 12/1995 of Labour Court, Ernakulam. He challenges Ext.P5 award of the Labour Court, in that I.D. The issue referred for adjudication was: “Whether the dismissal of Sri. K.V.Johny, Driver, Idukki District Co-operative Bank Limited is justifiable. If not the relief entitled to him.” 2. Since the dismissal of the petitioner was after conducting a domestic enquiry, the Labour Court considered the validity of the enquiry as a preliminary point and found that the enquiry was conducted validly and properly. Thereafter the Labour Court proceeded to consider whether the punishment of dismissal was proportionate to the gravity of the misconduct committed. Ultimately the Labour Court directed reinstatement of the workman with backwages. The petitioner is challenging that part of the award whereby backwages were denied to the petitioner. 3. The petitioner would contend that the preliminary order itself is unsustainable. His contention is that he was not given sufficient opportunities to adduce evidence, by the W.P(C)No.33523 of 2003 - 2 - enquiry officer. The contention is that the petitioner was not given sufficient notice regarding the posting of the enquiry on the date when MW6 and MW7 were cross examined. I have considered that contention. 3. From the award itself, it is clear that the petitioner was allowed the assistance of a lawyer in the enquiry. Both the petitioner as well as his lawyer were present for most of the enquiry. On 28.2.1989, MW6 and MW7 were present for examination. MW6 was examined and was cross examined in part. MW7 was also examined in Chief. At that time, the petitioner and his counsel requested that the matter may be adjourned of completing the cross examination of MW6 and MW7 together. So the enquiry was adjourned to 3.3.1989 at 3 P.M. The proceedings of the enquiry was recorded by the Enquiry Officer which was signed by the petitioner as well as his advocate. But on 3.3.1989 when the case was taken up the management the witnesses of the management were present, but the workman and his counsel were not present. No application for adjournment was also not filed. Therefore evidence was closed and thereafter, notice was issued to the petitioner asking him to file argument notes if needed. The notice was returned with the following endorsement: “addressee gone out. Intimated wife. So deposit 5 days” “addressee continuously absent. So returned to sender”. W.P(C)No.33523 of 2003 - 3 - 4. Neither in the claim statement or in his deposition before the Labour Court, the petitioner had any explanation for his non-appearance of himself and his counsel on 3.3.1989. The Enquiry Officer further gave evidence to the effect that he had personally met the petitioner in the cool bar being run the petitioner's wife which was 25 feet away from the advocates office and served notice of the enquiry on him. 5. In the above circumstances, I do not find any perversity in the findings of the Labour Court to the effect that there was no denial of any principles of natural justice to the petitioner. That being so, the contention of the petitioner against the preliminary order has no substance. The only other question that arises for consideration which was argued before me is as to whether for the misconduct proved in the enquiry, whether it was just and proper to deny full backwages to the petitioner. The charge against the workman was that he was borrowing money from his colleagues in contravention of clause 21(8) of Bye Laws and that he was accused in certain criminal cases. The contention of the petitioner is that only if habitual borrowing of money from his collegues can he be found guilty of clause 21(8). But I find that, both the enquiry officer as well as the Labour Court found that the petitioner was guilty of the misconduct. In W.P(C)No.33523 of 2003 - 4 - addition it has also been found that the petitioner was punished for other misconducts earlier. Apart from that, there is another difficulty for me to consider the claim of the petitioner for backwages at this point of time since this court had occasion to consider such claim in W.P.(C) No. 33446/2004 arising out of claim petition No.4/04 filed by the petitioner in respect of revision of wages. In that writ petition the question as to whether the petitioner is entitled to benefits of the period during which he was kept out of employment, for the purpose of granting higher grade also arose. This court directed the management to grant the petitioner notional benefits during his broken period of service. That would essentially mean that this court also did not find it necessary to grant the petitioner monetary benefits for the period during which the petitioner was kept out of service. That being so, the petitioner cannot now as of right claim backwages also. However, in the particular facts and circumstances of the case, I direct the 1st respondent management to pay to the petitioner ex-gratia amount of Rs.15,000/-. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE rhs