IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(LC).No. 3367 of 2011(O) -------------------------- AGAINST THE ORDER DATED 07/07/2010 IN ORDER IN ID.4/2007 of LABOUR COURT, KANNUR .................... PETITIONER -------------------- THE CANNANORE DIST;CO-OPERATIVE RUBBER & AGRICULTURAL MARKETING SOCIETY LTD, TALIPARAMBA 670 141, KANNUR DISTRICT REPRESENTED BY ITS SECRETARY. BY ADV. SRI.M.SASINDRAN SRI.BIJU GEORGE (VADASSERY) RESPONDENT(S): --------------- 1. T.V.PRABHAKARAN,THIKKAL VEEDU, AISWARYA, PALKULANGARA P.O, TALIPARAMBA, KANNUR DISTRICT PIN 670 141. 2. THE LABOUR COURT, KANNUR 670 001. THIS OP (LABOUR COURT) HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(LC) NO.3367/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1. A TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER. EXHIBIT P2. A TRUE COPY OF THE ORDER ON PRELIMINARY POINT DATED 7.7.2010 IN I.D NO.4 OF 2007. EXHIBIT P3. A TRUE COPY OF THE AWARD IN I.D. NO. 4 OF 2007. RESPONDENTS' EXHIBITS NIL /True Copy/ vps PA to Judge P.N.RAVINDRAN, J. --------------------------- O.P.(LC) No. 3367 OF 2011 -------------------------- Dated this the 19th day of October, 2011 J U D G M E N T Ext.P2 preliminary order passed by the Labour Court, Kannur setting aside the enquiry report and Ext.P3 award passed by the Labour Court, Kannur directing reinstatement of the first respondent workman are under challenge in this original petition. The brief facts of the case are as follows:- 2. The first respondent was employed as Assistant Secretary in the petitioner co-operative society. When the Secretary of the society proceeded on medical leave, the President of the society directed the first respondent to take charge of the post of Secretary. On grounds of health, the first respondent declined to take charge. On the very same day, the Accountant was given charge of the post of Secretary. This led to disciplinary action being initiated against the first respondent and he was dismissed from service by order dated 5.3.2004. An appeal to the appellate committee was dismissed by order dated 30.5.2004. The first respondent thereupon raised a dispute which was referred for adjudication to the Labour Court, Kannur. By Ext.P2 preliminary order, the Labour Court held that the enquiry was not properly held and the findings are not justified. The relevant portion of the finding of the Labour Court in Ext.P2 OP(LC) No.3367/2011 2 preliminary order is extracted below. “On the above reasons, I come to the conclusion that the finding rendered by the Enquiry Officer on the evidence available that there was misconduct on the part of the worker is without applying the law on the subject in the right perspective and therefore the finding is perverse. The Enquiry Officer did not even refer to the relevant statutory right available to the worker. So the conclusion arrived at by the Enquiry Officer that thee was misconduct on the side of the worker is baseless and perverse. So the enquiry report that the charge of misconduct is proved can never be accepted and I hold that the report of enquiry holding that the worker is guilty of misconduct is liable to be rejected and I hold so. In the result, the preliminary issues are answered holding that there was a valid enquiry against the worker, but the finding of the Enquiry Officer is perverse and therefore the enquiry report is set aside.” 3. The Labour Court held that the allegations levelled against the workman are baseless. The Labour Court also considered the question whether refusal to take charge of a promotion post amounts to disobedience of a lawful direction given by the superior authority and held that the said charge is without any merit. The Labour Court accordingly held that the finding of the Enquiry Officer that the first respondent is guilty of the charges cannot be sustained. The Labour Court thereafter permitted the management to lead evidence to prove the charges. On behalf of the petitioner, the Secretary of the petitioner society was examined as MW1 and Exts.M1 to M13 were marked. The Labour Court on an analysis of the evidence oral and OP(LC) No.3367/2011 3 documentary held that the business of the petitioner society did not come to a stand still on account of the refusal of the workman to accept the post of Secretary and that on the available evidence no finding of guilt can be entered. The Labour Court also held that the petitioner society did not sustain any loss on account of the failure of the employee to take charge of the post of Secretary and that the workman had the right to decline promotion. The Labour Court thereafter proceeded to consider the question whether the workman is entitled to back wages. After referring to the decisions of the Apex Court on the point, the Labour Court held that as the workman did not render any service to the society, he is entitled only to 50% of the back wages which he would have been entitled to. 4. I have considered the submissions made at the Bar by Sri.M.Sasindran, the learned counsel appearing for the petitioner. In my opinion, the challenge to the preliminary order and the award passed by the Labour Court is misconceived and without any merit. It is evident from the pleadings and the materials on record that the workman was proceeded against on a flimsy charge that he failed to take charge of the post of Secretary. As held by the Labour Court, on the day the petitioner declined to take charge on grounds of ill health, the Accountant was given charge of the Secretary. In the light of the OP(LC) No.3367/2011 4 finding of the Labour Court that the petitioner was justified on medical grounds for not taking charge of the post of Secretary, I am of the opinion that the treatment meted out to the workman by the employer was to say the least grossly unjust. In such circumstances as the workman was dismissed from service on a flimsy and fanciful charge, I am of the opinion that the discretion exercised by the Labour Court to award 50% of the back wages with all attendant benefits does not merit interference. I accordingly hold that there is no merit in the original petition. The original petition fails and is accordingly dismissed. P.N.RAVINDRAN, (JUDGE) vps