IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 18672 of 2003(W) ------------------------------------- PETITIONER(S): ----------------------- 1. MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.2433, MUNDELA P.O., VELLANAD, THIRUVANANTHAPURAM DISTRICT, REPRESENETD BY ITS SECRETARY. 2. THE SECRETARY, MUNDELA SERVICE CO-OPERATIVE BANK LTD.NO.2433, MUNDELA P.O., VELLANAD, THIRUVANANTHAPURAM DIST. BY ADV. SRI.MURALI PURUSHOTHAMAN SRI.P.M.BENZIR RESPONDENT(S): ------------------------ 1. M. THARANATHAN NAIR, PRASANTHAM, MUNDELA P.O., VELLANAD, THIRUVANANTHAPURAM DIST. 2. THE LABOUR COURT, KOLLAM. ADV. SRI.K.RAMAKUMAR (SR.) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2009, ALONG WITH WPC NO. 20216 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18672 of 2003(W) I.A. NO. 4572 OF 2003 IN W.P.(C) NO. 18672 OF 2003 DISMISSED SD/- S.SIRI JAGAN, JUDGE 8.1.2009 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - THE PHOTOCOPY OF THE ORDER OF DISMISSAL OF 1ST RESPONDENT FROM SERVICE NO. 45/93-94 DATED 26.09.1995 PASSED BY THE SUB COMMITTEE OF THE 1ST PETITIONER BANK. EXT.P2 - THE PHOTOCOPY OF THE ORDER IN APPEAL NO. 45/93-94 DATED 04.01.1996 PASSED BY THE BOARD OF MANAGEMENT OF THE 1ST PETITIONER BANK. EXT.P3 - THE PHOTOCOPY OF THE AWARD DATED DATED 29.11.2002 IN I.D. NO. 19/97 OF THE LABOUR COURT ALONG WITH PRELIMINARY ORDER DATED 18.11.2002. // TRUE COPY // PA TO JUDGE rhs S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C)Nos. 18672 & 20216 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2009 J U D G M E N T By these two writ petitions, both the Management and Workman have come up challenging the award of the Labour Court, Kollam in I.D. No. 19/97. The workman challenges the award in so far as the Labour Court has upheld the validity of the enquiry in which the petitioner was found guilty which led to the imposition of punishment on him. The management challenges the award to the extent the punishment of compulsory retirement imposed on the workman by the management was reduced to one of reduction in rank as the junior-most senior clerk from that of Chief Accountant. The issue referred for adjudication was : “1. Whether the punishment of Compulsory retirement awarded to Sri. M.Tharanathan Nair, Accountant of Mundela Service Co-operative Bank is justifiable? 2. If so, what relief the workman is entitled to?” 2. Since the punishment was imposed on the workman after conducting a domestic enquiry, the Labour Court first considered the validity of the enquiry as a preliminary point. After finding that, the enquiry was held validly and properly and findings were supported by evidence on record, the Labour Court went on to consider the question W.P(C)Nos. 18672 & 20216 of 2003 - 2 - of proportionality of punishment. On a finding that the punishment of compulsory retirement is too harsh, the Labour Court, in exercise of powers conferred under Section 11A of the Industrial Disputes Act, directed the management to reinstate the workman in service in the rank of junior most senior clerk, but without any backwages or increments for the period during which he was kept out of service. However, for the purpose of retirement benefits the workman was directed to be deemed to have been in continuous service without any pay. The preliminary order and award are under challenge before me at the instance of the workman. The contention of the workman is that the enquiry itself was conducted in violation of principles of natural justice. He raises three points in the original petition. The first is that the decision to impose punishment was taken by the sub committee of the management society, members of whom also sat in the managing committee to consider his appeal, which is clearly violation of the provision of the Kerala Co-Operative Societies Act and Rules. Secondly he would raise a contention that his request for assistance by a lawyer was illegally turned down by the enquiry officer. According to the petitioner, the presenting officer of the management was a retired Deputy Registrar of the Co-operative Societies, who was well versed with such proceedings and therefore his request for assistance by a W.P(C)Nos. 18672 & 20216 of 2003 - 3 - lawyer could not have been validly turned down. The third is that the Labour Court did not advert to relevant considerations in deciding quantum of punishment. 3. On the other hand, the management would contend that before the Labour Court although violation of principles of natural justice were taken as a ground in the written statement, the workman himself admitted that he is not seriously challenging the enquiry on the ground of violation of principles of natural justice but he is only challenging validity of findings by the enquiry officer. He pointed out that this has been so specifically recorded in the preliminary order appended to Ext.P6 award. He further submits that the workman is not entitled to assistance by lawyer as of right. In this case, the charges levelled against the workman were not that complicated so as to require the assistance of a lawyer. In any event, according to him, the petitioner was permitted to have the assistance of a co-employee or any person equally qualified as the presenting officer of the management, to represent the workman's case, which opportunity the workman did not avail of. Therefore, the workman cannot complain that he was wrongly denied the assistance of an advocate. On the question of sustainability of the findings of the enquiry officer he pointed out that the entire evidence have been elaborately discussed by the Labour Court and the W.P(C)Nos. 18672 & 20216 of 2003 - 4 - Labour Court did not find anything perverse in the findings of the enquiry officer. According to him, this court cannot, in exercise of jurisdiction under Article 226 of the Constitution of India, interfere with the findings of either the enquiry officer or the Labour Court unless the findings are demonstrably perverse. It is pointed out that there is absolutely nothing on record to warrant the conclusion that the findings entered by the enquiry officer and confirmed by the Labour Court are in any way perverse. 4. The counsel for the management would argue that imposition of punishment on a delinquent workman is a managerial function and the Labour Court or this Court shall not interfere with such functions unless the punishment imposed by the management is shockingly disproportionate to the gravity of the misconduct. According to him a mere reading of the charges, which were proved against the workman, would go to show that the charges are very serious which certainly warranted the punishment of dismissal from service. Originally the subcommittee decided to dismiss the petitioner from service which was reduced as compulsory retirement by the managing committee in appeal. The learned counsel for the management would argue that such punishment did not require any interference in exercise of powers under Section 11A of the Industrial Disputes Act and therefore the W.P(C)Nos. 18672 & 20216 of 2003 - 5 - Labour Court went wrong in interfering with the punishment imposed by the management. 5. I have considered the rival contentions in detail. 6. Although the learned counsel for the workman would vehemently argue that the enquiry itself was conducted in violation of principles of natural justice, in the preliminary order, it is stated thus: “The learned counsel for the workman has stated that the workman is mainly challenging the findings arrived by at the enquiry officer and not seriously attacking the procedure adopted by the enquiry officer nor other aspects relating to non compliance of principles of natural justice and therefore the documents relied on by both sides were marked on consent.” The workman has no case that the said statement in the preliminary order is wrong. That being so, after having admitted before the Labour Court that he is not challenging the enquiry on the ground of violation of principles of natural justice and having submitted that he is confining himself to the challenge against the findings of the enquiry officer, the workman cannot turn around and contend that the enquiry has been conducted violation of principles of natural justice. The first ground raised by the workman loses its relevance at this point of time since a totally independent judicial authority has considered the entire matter and entered independent findings on the basis of the evidence adduced in the enquiry and also decided on the W.P(C)Nos. 18672 & 20216 of 2003 - 6 - proper punishment to be imposed on the workman. Therefore, it would be a futile exercise to remand the matter to the appellate authority for re-consideration excluding the members of the sub committee who decided on the punishment even if the allegation raised by the workman is true. Further no such contention whatsoever was taken before the Labour Court. In fact no evidence was adduced by the workman before the Labour Court to prove such a contention. That being so, I do not find any merit in that contention of the workman. 8. The second contention is regarding the refusal of the enquiry officer assistance of a lawyer to the workman. It is settled law that the workman is not entitled to assistance of a lawyer as of right, unless of course the presenting officer of the management is a legally trained person. The presenting officer of the management in this case was a retired Deputy Registrar of the Co-operative Societies who cannot be held to be a legally trained person, although he may have some experience in law relating to Co-operative societies. Even apart from that, as recorded in the preliminary order, the enquiry officer allowed the workman to engage a co-employee or any person equally qualified as the presenting officer of the management to represent this case. The petitioner did not chose to avail of that opportunity. I also note that in the enquiry, through out the workman participated, fully cross- W.P(C)Nos. 18672 & 20216 of 2003 - 7 - examining the witnesses of the management which is not denied before me. That being so, I am not satisfied that the workman was not in anyway prejudiced because of refusal of assistance by a lawyer. 9. The workman further challenges the findings as perverse. I find that in the preliminary order, the Labour Court had elaborately considered the evidence adduced in the enquiry. The Labour Court has given elaborate reasons for agreeing with the findings of the enquiry officer. I could not find anything perverse in the said reasoning. The first charge against the workman was that during the period from 14.3.1992 to 29.5.1993, when the workman was put in charge of the recovery section, he committed dereliction of duty by not attending to his work and as a result the functions of the bank has been adversely affected. The contention of the counsel for the workman is that admittedly at the time when the workman took charge of the section the arrears was 70% and on account of his best efforts it was reduced to 40%. But the evidence available shows that it was not because of the efforts of the workman that the arrears had been reduced. In fact the findings is that all the employees of the bank had made a concerted effort for reduction of the arrears which resulted in the arrears. It has been proved that during the said period the workman worked only for 89 days, during a period of 14 months. It has been proved by evidence that W.P(C)Nos. 18672 & 20216 of 2003 - 8 - the workman was a person engaged in political activities and social work. In the wake of such evidence the findings that the workman committed dereliction of duty by not attending his work cannot by any stretch of imagination be turned as perverse. 10. The second charge against the workman was that when one Sri.Sukumaran was doing the work assigned to him using the loan registers and other records for calculating interest on the defaulted loans, the workman forcibly snatched the ledgers and records from Sri. Sukumaran and locked the same in the Alamirah. The enquiry officer as well as the Labour Court found that the petitioner did not snatch the records from Sri. Sukumaran but admittedly he took the records from Sri. Sukumaran and locked the same in the Alamirah. That being so, it is clear that he did not allow Sri. Sukumaran to do the work using the ledgers and records. 11. The third charge is that after the workman was removed from the recovery section and put in charge of the cash section, he refused to do any work during the period from 29.5.1993 till 30.10.1993. The counsel for the workman argued that the workman was the Chief Accountant and he was asked to do the work of a cashier, which he was not expected to do. According to him, the workman only refused to do the work which was not part of his duty. But from the preliminary W.P(C)Nos. 18672 & 20216 of 2003 - 9 - order I find that against the orders of the management directing the workman to do the work of Cashier, the workman had approached the Joint Registrar of Co-operative Societies who although initially granted a stay, vacated the same and rejected the petition filed by the workman having not chosen to take the same to its logical conclusion by filing appeal etc. The workman cannot now contend that he was not expected to do the work of cashier. Even otherwise, the finding is that for the period from 29.5.1993 till 30.10.1993, he did not do any work at all, although he was present in the bank on every day. That being so, there is nothing on record to find any perversity in that finding also. Therefore I am no satisfied that the findings of the enquiry officer and the Labour Court are in any way perverse so as to warrant interference in exercise of powers under Article 226 of the Constitution of India. 12. Next comes the challenge of the management against the award to the extent the Labour Court interfered with the punishment imposed by the management on the workman. The counsel for the management would contend that the imposition of punishment being a managerial function the Labour Court ought not to have interfered with the same, in the absence of a finding that the punishment of compulsory retirement is shockingly disproportionate to the gravity of the misconduct. The counsel also relies on the decision of this court in W.P(C)Nos. 18672 & 20216 of 2003 - 10 - Regional Management K.F.D.C. v. K. Appu and Others [1991 (1) KLJ 27] and Balakrishnan Kamath v. State of Kerala [ILR 1990(2) Kerala 614], as also the decision of the Supreme Court in U.P. State of Road Transport Corporation v. Mohan Lal Gupta and others [2000 (9) SCC 521]. Even apart from those decisions in very many other recent Supreme Court decisions the legal position is settled that imposition of punishment on a workman in disciplinary proceedings is a managerial function and the Labour Court or this court shall not interfere with the same unless there is a finding to the effect that the punishment imposed is shockingly disproportionate to the gravity of the misconduct. Here in this case, there is no allegation of misappropriation or any such serious misconducts against the workman. A general reading of the award itself would give the impression that there was some bad blood between the management on the one hand and the workman, probably due to political considerations which also has been referred to by the Labour Court in the award. Regarding the dereliction of duty the finding is not that the workman did not do any work at all in the recovery section. There is also an admission that at the time when the workman was put in charge of the recovery section arrears was 70% which was reduced to 40%. W.P(C)Nos. 18672 & 20216 of 2003 - 11 - Of course in re-examination the chief executive officer of the society tried to explain the same by saying that it was on account of the effort put in by other employees of the society that the arrears were reduced. Of course the same was supported by other witnesses. It is also a fact that the workman was a Chief Accountant and he was asked to do the work of the cashier which may have given him some cause for resentment. In the above circumstances, I am not satisfied that the Labour Court went wrong in interfering with the punishment as done in the award. As such I am not inclined to interfere with the award on any count, either at the instance of the workman or the management. Accordingly, both the writ petitions are dismissed. S.SIRI JAGAN, JUDGE rhs