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. 32884 of 2004(M) PETITIONERS : 1. THE PRESIDENT, THE VADAKKENCHERRY KSHEEROLPADAKA SAHAKARANA SANGHAM VADAKKENCHERRY POST, ALATHUR TALUK. 2. THE VADAKKENCHERRY KSHEEROLPADAKA SAHAKARANA SANGHAM NO.P 51(D), VADAKKENCHERRY P.O. PALAKKAD DISTRICT BY ITS PRESIDENT. 3. THE VADAKKENCHERRY KSHEEROLPADAKA SAHAKARANA SANGHAM NO.P 51(D), VADAKKENCHERRY P.O. PALAKKAD DISTRICT BY ITS SECRETARY. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: 1. V.GANGADHARAN S/O. VELAPPAN, CHURAKKOTTUKULAMBU VEEDU, PANNIANKARA POST, PANNIANKARA, ALATHUR TALUK. 2. INDUSTRIAL TRIBUNAL, PALAKKAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008 DELIVERED THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C.NO. 32884/2004. ------------------------------------------------------------------- EXT.P1 TRUE COPY OF COMMUNICATION DT. 24-6-1999. EXT.P2 LETTER DT. 2-7-1999. EXT.P3 NOTICE DT. 14-7-1999. EXT.P4 COMMUNICATION DT. 17-7-1999. EXT.P5 LETTER DT. 29-7-1999. EXT.P6 AWARD DT. 5-10-2004 IN I.D.NO. 58/2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 32884 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11th July, 2008. J U D G M E N T The management in I.D.No.58/2002 before the Industrial Tribunal, Palakkad is the petitioner herein, who challenges Ext. P6 award passed by the Industrial Tribunal in that I.D. The issue referred for adjudication was: “Whether the dismissal of Sri. V. Gangadharan, Secretary of Vadakkencherry Ksheerolpadaka Sahakarana Sangam, Vadakkencherry by its management is justifiable? If not what relief he is entitled to?” The dismissal of the workman was after a domestic enquiry. The domestic enquiry related to charges of misconduct of misappropriation of large amounts of money. In the enquiry, the workman was found guilty of misconduct of misappropriation of an amount of Rs.1,13,040.91. Thereafter, the punishment of dismissal was imposed on the workman. The workman filed an appeal before the appellate authority and after taking into account the entire circumstances of the case, the management decided to give the workman fresh employment as a Clerk on two conditions. The first was that from 10-7-1999 onwards, out of the salary payable to the workman, 50% would be deducted in equal instalment for recovery of the amount of Rs. 35,804.70 remaining to be paid by the workman as balance of the misappropriated amount, after deducting the payments already made by him. The second was that the workman would not be entitled to any monetary benefits for the period of suspension. The management insisted on the workman filing an undertaking to the effect that he agrees to the above two conditions, which the workman refused to do. Therefore, the management did not permit the workman to join duty. Instead, they treated the refusal to join duty as abandonment of employment and issued a memo dated 29-7-1999 informing him that it would not be possible to take the workman back W.P.C. No. 32884/2004. -: 2 :- in service and legal proceedings will be initiated against him for recovery of the balance amount due from him. It was under the above circumstances, the dispute came to be referred to the Tribunal. 2. Since the basis of the action against the workman was the finding of guilt in a domestic enquiry, the Tribunal examined the question of validity of the enquiry as a preliminary issue. The Tribunal found that the enquiry was conducted validly and properly. The Tribunal was also not inclined to interfere with the findings of the enquiry officer. But the Tribunal went on to consider whether the two conditions mentioned above in giving the workman fresh employment is valid or not and came to the conclusion that they are not valid and the petitioner should take separate proceedings for the same in accordance with law. On that finding, the Tribunal directed the management to permit the workman to join duty as a Clerk on 15-11- 2004 subject to payment of amounts awarded in ARC No. 5/2000 payable by the workman to the management. It was also directed that if the workman fails to report for duty on that day, he would not be entitled to claim employment thereafter. This award is under challenge before me. 3. The contention of the petitioner-management is that after having found that the workman was guilty of misappropriation of large sums of money, the Tribunal went wrong in finding fault with the management in incorporating the two conditions in the memo directing him to join duty as a Clerk on 10-7-1999 as conditions for re- employment. According to the management, it was a benevolence on the part of the management to give him fresh appointment as Clerk subject to the two conditions. The management would submit that it was perfectly valid on the part of the management to insist on such conditions, which cannot be considered to be unsustainable by any W.P.C. No. 32884/2004. -: 3 :- stretch of imagination. Admittedly, the workman refused to comply with the said conditions. Therefore, the very permission to join duty as a Clerk loses its relevance and the punishment of dismissal imposed on the workman revives, is the contention raised. 4. I have considered the contentions of the counsel for the petitioner. 5. Although notice has been served on the 1st respondent, there is no appearance on his behalf. 6. The Tribunal found that the misconduct of misappropriation proved against the workman is grave enough to uphold the punishment of dismissal. That finding is not challenged before me by the workman. That being so, it cannot now be disputed that the punishment of dismissal imposed on the workman is perfectly valid and justified. Now the only question is whether the management was justified in imposing the two conditions for the purpose of permitting the workman to join duty as a Clerk. 7. When the punishment of dismissal is found to be commensurate with the misconducts proved, then the workman is left entirely to the mercy of the management on the question as to whether the workman should be given fresh employment as done by them. That being so, by any stretch of imagination, it cannot be held that the two conditions prescribed for permitting the workman to join duty as a Clerk from 10-7-1999 is in any way invalid. The management is perfectly entitled to say that the punishment of dismissal would be set aside and the workman allowed to join duty only on those conditions. It would be perfectly open to the workman to accept or refuse to accept the same with the natural consequence arising therefrom. I am not satisfied that the Tribunal could have validly held that those conditions are unsustainable. In fact, the W.P.C. No. 32884/2004. -: 4 :- validity of those conditions were not an issue referred for adjudication at all. Therefore the award to the extent it holds that the conditions are invalid and it directs the management to permit the workman to join duty as Clerk on 15-11-2004 is perfectly perverse and unsustainable. When a chance was offered to the workman to join duty as a Clerk on 10-7-1999 on two definite conditions, which the workman refused to accept, the punishment of dismissal would revive and thereafter the management cannot be found fault with, for refusing to allow the workman to join duty as per the order issued by them without complying with the two conditions. That being so, that part of Ext. P6 award, whereby the workman has been given reliefs is set aside and it is held that the workman is not entitled to any reliefs in that I.D. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/