IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 30967 of 2005(J) --------------------------------------- IA.NO.78/1996 OF LABOUR COURT, KOLLAM. .................... PETITIONER: ------------------- THE KAMUKINKODE HANDLOOM WEAVERS' INDUSTRIAL CO-OPERATIVE SOCIETY LIMITED NO.3433, KAMUKINKODE, KODANGAVILA.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRESIDENT, G.THANKAPPAN. BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, MR.P.GOPAL. RESPONDENTS: ------------------------ 1. T.PUSHPAVALLY, SIMI BHAVAN, KAMUKINKODE, KODANGAVILA.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 2. THE LABOUR COURT, KOLLAM. R1 BY ADV. MR.GOPAKUMAR R.THALIYAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30967/2005-J: APPENDIX PETITIONERS' EXHIBITS & ANNEXURE: EXT.P.1: COPY OF THE LETTER DTD 29/10/1992 SENT BY THE R.1. TO THE ENQUIRY OFFICER. EXT.P.2: COPY OF THE NOTICE DTD. 05/11/1992 SERVED ON THE R.1. BY THE ENQUIRY OFFICER. EXT.P.3: COPY OF THE ENQUIRY REPORT OF THE ENQUIRY OFFICER DTD. 25/06/1993. EXT.P.3.A: COPY OF THE PROCEEDINGS OF THE ENQUIRY. EXT.P.4: COPY OF THE ORDER DT.D 07/04/1994. EXT.P.5: COPY OF THE CLAIM STATEMENT OF THE R.1. DTD. 25/05/1994. EXT.P.6: COPY OF THE WRITTEN STATEMENT FILED BY THE SOCIETY DTD. 15/04/2005. EXT.P.7: COPY OF THE AWARD PASSED BY THE LABOUR COURT, KOLLAM DTD. 17/05/2005. EXT.P.8: COPY OF THE LETTER DTD. 03/03/2006 ISSUED BY THE PRINCIPAL, ST. THERESE'S CONVENT G.H.S.S., NEYYATTINKARA. EXT.P.9: COPY OF THE ADMISSION FORM DTD. 12/06/1961. EXT.P.10: COPY OF THE S.S.L.C. DUPLICATE REGISTER OF THE R.1. ISSUED BY THE PRINCIPAL, ST. THERESE'S G.H.S.S., NEYYATTINKARA. EXT.P.11: COPY OF THE VOUCHER GIVEN BY THE R.1. TO THE PETITIONER SOCIETY. EXT.P.12: COPY OF THE CERTIFICATE NO. A1-838/06 DTD. 06/11/2006 ISSUED BY THE ATHIYANNUR GRAMA PANCHAYATH TO THE PETITIONER – SOCIETY. ANNEXURE -A: COPY OF THE VOUCHER GIVEN BY THE APPLICANT TO THE SOCIETY. RESPONDENTS' ANNEXURE: ANNEXURE-I: TRUE INCOME EXPENDITURE STATEMENT OF THE MANAGEMENT BANK AS ON 30/04/1992. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- W.P.C. No.30967 OF 2005 ---------------------------------------- Dated, 24th August, 2009 JUDGMENT The management in an industrial dispute is the petitioner who preferred this writ petition challenging the award in I.D.No.78 of 1996 of the Labour Court, Kollam. 2. By the impugned award, the Labour Court found that the punishment awarded against the Ist respondent/workman is illegal. According to the labour court, domestic enquiry was conducted in violation of the principles of natural justice and at the time of awarding the punishment, the disciplinary authority was led by the finding of the Sub-committee of the petitioner bank and not by the report of the enquiry officer. It is the above award challenged in this writ petition. 3. In the petitioners society, an Administrator was appointed superseding the Board of Directors of the society as per order dated 9.4.92. According to the WPC30967/05 -:2:- allegation, the workman/Ist respondent who was working as the Secretary of the society did not permit the administrator to take charge, and by issuing an antedated notice, she convened the meeting of the Board of Directors. On the basis of the permission obtained from the Registrar, the Administrator by order dated 13.5.92 placed the Ist respondent under suspension with effect from 13.5.92. By order dated 18.6.1992, an enquiry officer was also appointed. The enquiry officer issued a notice directing the workman to appear for the enquiry against which the workman filed Ext.P1 reply stating that the Administrative Officer has no authority to place her under suspension. Subsequently, the Enquiry officer issued Ext.P2 notice dated 5.11.1992 asking the workman to appear for the enquiry which was scheduled on 13.11.1992. Ext.P2 is the charge against the workman/Ist respondent indicated above. According to the management, in spite of several opportunities given to the workman, she did not avail the opportunity. Finally WPC30967/05 -:3:- on 30.11.1992, during the equiry, Exts.P1 to P16 were marked through the enquiry officer. The enquiry was then adjourned to 31.3.1993 on which date also, the workman did not appear. Hence, the enquiry was again adjourned and posted to 15.6.1993. According to the management, on that day also the workman was absent. But the enquiry officer decided to proceed with the enquiry and thus, on 15.6.1993, 4 witnesses were examined as PWs 1 to 4. Thereafter the enquiry was closed and Ext.P3 report dated 25.6.93 was filed. Ext.P3(a) is the proceedings of the enquiry officer. 4. In the meanwhile, the first respondent/workman approached this Court by filing O.P.No.11956 of 1992 against the suspension order and the workman got order in her favour. Against the judgment in the above writ petition, the petitioner society filed writ appeal No.1142 of 1993 and the Division Bench, by interim order dated 27.8.1993 in C.M.P. No.2953 of 1993 in the above writ appeal, the society was directed to reinstate the WPC30967/05 -:4:- workman in any post other than the post of Secretary. Thus, according to the society, the first respondent workman was reinstated in the post of Appraiser-cum- Sales Assistant on 2.9.93. According to the management, the Board of Directors of the Society has constituted a Sub-Committee for examining the enquiry report furnished by the enquiry officer. Accordingly, the Sub Committee prepared a report and, thus, copy of Ext.P3 and report of the Sub Committee were forwarded to the workman on 10/7/1993. But she did not acted upon it. According to the management, under the above background, they published the enquiry report in the newspaper on 11.8.1993 thereafter, the workman responded to the said report and received the same on 16.8.93 and she preferred her explanation on 6.9.93. After considering the explanation offered by the respondent workman, a notice dated 16.9.93 was issued to her seeking her explanation for not imposing punishment of removal. Accordingly, the workman offered her WPC30967/05 -:5:- explanation on 8.12.1993. After considering the said explanation offered by the workman, and dissatisfied with the same, the management issued Ext.P4 order dated 7.4.1994 imposing the punishment of removal. 5. Against Ext.P4 order of punishment, the workman raised dispute which received in the labour court as I.D.No.78/96. The workman filed Ext.P5 claim statement dated 25.5.94. The labour court passed Ext.P7 preliminary order on 23.2.2005. Thereafter, on 15.4.2005, the management preferred Ext.P6 objection. The issue referred for adjudication was as to “whether dismissal of Smt.T. Pushpavally from service is justifiable ? If not, the reliefs which she is entitled to.” During the enquiry in the Tribunal, one witness was examined from the side of the management and produced Exts. M1 and M2 documents. From the side of the workman, no witness was examined, but marked Exts.W1 to W3. On the basis of the materials on record, and on the basis of the rival pleadings, the WPC30967/05 -:6:- Tribunal considered the point that, whether the domestic enquiry conducted against the worker is valid or is it liable to be set aside on any of the grounds alleged by the worker. Thus paragraph 7 of the preliminary order passed on 23.2.2005 and later, a final award was passed wherein the preliminary finding was made as part of the final award. Thus, in the final award, the reference was answered as dismissal of the worker Smt. T. Pushpavally, from the service of the management society is unjustifiable, and, further directed to reinstate her with full backwages and attendant benefits in one month. Thus, it is the said award challenged in this writ petition. 6. I have heard Sri P.G.Parameswara Panicker, the learned senior counsel appearing for the petitioner and also Sri Gopakumar R.Thaliyal, the counsel appearing for the respondent workman. 7. The learned counsel for the petitioner submitted that the enquiry was conducted strictly in accordance with the principles of natural justice, but all the opportunities WPC30967/05 -:7:- offered to the workman was not availed by her. After placing the workman under suspension, the enquiry officer was appointed and domestic enquiry was conducted during which the evidence of witnesses were recorded and documents were marked. But in spite of the fact that notices were issued to the respondent/workman on all occasions of the enquiry, she did not appear and the witnesses were not cross examined and no opportunity was sought for the cross examination of the witnesses even on any subsequent date. Thus, according to the learned counsel, the finding of the labour court that the enquiry was condutced in violation of the principles of natural justice is not factually and legally correct. It is also contended by the learned counsel, on the strength of the decisions of the Apex Court reported in U.P.SRTC LTD. V. SARADA PRASAD MISRA {(2006) 4 SCC 733}; J.K. Synthetics Ltd. v. K.P.Agrawal {(2007) 2 SCC 433}; Madhyamik Shiksha Parishad v. Anil Kumar Mishra {(2005) 5 SCC 124) and P.V.K.Distillery Ltd. v. WPC30967/05 -:8:- Mahendra Ram {(2009) 5 SCC 705}, that the direction of the labour court to reinstate the petitioner with backwages is highly arbitrary and illegal and such a direction is not warranted , especially, under the particular facts and circumstances involved in the case. The learned counsel pointed out that as directed by the Division Bench of this Court, the workman was reinstated in service as Appraiser-cum-Salesman with effect from 2.9.93 to 7.4.94 and though there was a direction from this Court to pay a sum of Rs.750/- under section 17(B) of the Industrial Disputes Act, this court by order dated 13.3.2006 vacated the said order. It is also pointed out that the workman did not raise any claim or pleadings in her Ext.P5 claim statement or in the counter affidavit filed before this Court that she had not gainfully engaged during the relevant period. Today, at the time of the argument, I.A.No.10717/2008 filed in which Exts.P11 and P12 are produced and submitted that the respondent/workman was elected as member of the Athiyannur Grama WPC30967/05 -:9:- Panchayat for the period from 2000-01 to 2004-2005 and she received a sum of Rs.1000/- as monthly remuneration for the period from 10/2000 to 08/2004 and Rs.1200/- per month for the period from 9/2004 to 9/2005 as honorarium. So according to the learned counsel, the workman has got income during the relevant period and therefore the direction of the labour court to pay backwages, is improper and illegal. 8. On the other hand, the learned counsel appearing for the first respondent workman submitted that the enquiry officer miserably failed to afford opportunity to the workman and the entire evidence was recorded on her absence. It is pointed out that the punishment was awarded not only on the basis of the recommendation or finding of the enquiry officer but also on the basis of the finding of the Sub committee constituted by the society and no opportunity was given to the delinquent employee by the Sub Committee. It is also pointed out that though opportunities were given by the labour court to adduce WPC30967/05 -:10:- evidence to justify the punishment awarded against the workman, the petitioner miserably failed to produce evidence and therefore, the challenge against the award fails. According to the learned counsel, the labour court found that the punishment awarded against the respondent is illegal and consequently, the workman is entitled to get backwages. 9. I have carefully considered the arguments advanced by both the parties. The additional documents and also the materials on record are perused. At the outset, it has to be noted that the respondent/workman superannuated on 24.5.2005 and accordingly, she was retired on 31.5.2005. 10. From the facts and circumstances involved in this case, it appears to me that no proper charge was issued against the petitioner by the disciplinary authority calling for her explanation. On the other hand, in the present case, the enquiry officer issued Ext.P2 notice in which some charges were indicated. Normally, the WPC30967/05 -:11:- question of appointment of enquiry officer as a part of further proceedings of disciplinary action arose when the disciplinary authority dissatisfied with the explanation offered by the delinquent in pursuance of a memo of charge served on him. In the present case, such a course was not adopted. However, according to the disciplinary authority, after issuing Ext.P2 notice, the enquiry proceedings proceeded further but the respondent workman did not appear. When the matter was referred for adjudication and when the matter was taken for consideration, though ample opportunities were given to the management, the management did not avail the opportunities to substantiate the allegation against the workman. On the basis of the decision of the Apex Court in Karnataka State Road Transport Corpn. v. Lakshmi Devamma {(2001) 5 SCC 433), the labour court found that the right of the employer to lead fresh evidence on the charges before the Labour Court must be availed by making a proper request at the earlier WPC30967/05 -:12:- opportunity in their written statement. Though the workman filed claim statement, as evidenced by Ext.P5 on 25.5.1994, the management did not approach the labour court in time. On the basis of the claim statement filed by the workman, the Labour Court has passed Ext.P7 preliminary order dated 23.2.2005 in which it is found that the enquiry was conducted in violation of the principles of natural justice. It is only thereafter the management filed written statement, i.e. Ext.P6. But no prayer was made to adduce evidence to substantiate the allegations. It is also relevant to note that Ext.P7 order was not challenged at that time. Ext.P6 objection was filed after a period of 9 years. Therefore, all the contentions raised in support of the domestic enquiry deserves no consideration in this proceedings. 11. In this juncture, it is also relevant to note that in the award, the Tribunal has found that in the argument note filed by the management before it, it is stated that the management relying on 8 charges against the workman WPC30967/05 -:13:- which alleged to have been issued by the Administrator on 13.5.92. According to the petitioner, the Tribunal, on perusal of Ext.M1, i.e. the enquiry report shows that these are not the charges narrated in Ext.M1. So, there is glaring difference regarding the charges that produced by the Administrator and also in Ext.P2 notice issued by the enquiry officer. In Ext.P7 preliminary order, the Tribunal has observed that in the argument notes submitted on behalf of the management, according to the management, though the enquiry report from the domestic enquiry officer was received and found the charges proved, the management did not solely acted upon the views of the Enquiry officer. According to them, a fact finding sub committee was constituted and on the basis of their findings, specific charges were communicated calling upon her to explain the charges. She did not gave any reply in spite of the fact that an opportunity for personal hearing was given and accordingly, she was therefore dismissed with effect from WPC30967/05 -:14:- 7.4.94 as per order No.33/94 dated 7.4.94 With the above, it has to be noted that the management did not adduce any evidence before the Labour Court, other than the oral evidence adduced through MW1. The enquiry officer was not having any records to substantiate the proceedings that taken by by the Sub-committee. It is on the basis of such facts and materials, the Labour Court found that the disciplinary proceedings was culminated or finalised in total violation of the principles of natural justice. Therefore this Court has also to endorse the said finding. 12. Regarding the backwages, the learned counsel pointed out that there is no claim in the claim statement filed by the workman before the Labour court or in the counter affidavit filed before this court for the entire backwages. In paragraph 13, in the decision of the Apex Court in UPSRTC Ltd. v. Sarada Prasad Misra {(2006) (4) SCC 733}, it is held that it is for the employee to prove that he had not been gainfully employed and the WPC30967/05 -:15:- initial burden is on the employee to show that he remained without any employment. After referring certain decisions, the the Apex Court also held that, payment of back wages therefore, would not be automatic on entitlement of the relief of reinstatement. In the decision in J.K.Synthetics Ltd. K.P.Agrawal { (2007) 2 SCC 433}, the Apex Court has held that “there is also a misconception that whenever reinstatement is directed, “continuity of service” and “consequential benefits” should follow, as a matter of course. It is further held in the same decision that, coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor be be taken note of while awarding back wages. The same WPC30967/05 -:16:- principle was followed in P.V.K. Distillery Limited v. Mahendra Ram (2009 5 SCC 705). Thus according to the learned counsel the petitioner, the direction issued by the Labour Court to pay full back wages for the entire period is against the dictum laid down by the Apex Court and also against the factual position involved in the present case. It is also pointed out that the petitioner was again fully engaged/employed as evidenced by Exts.P11 and P12, therefore, the respondent workman is not entitled to get full backwages. 13. This Court while exercising the jurisdiction under Article 226 of the constitution of India not sitting in appeal and examine the correctness of the finding arrived on by the Labour Court on the facts involved in the case. At the same time, this Court cannot ignore the fact that the petitioner did not discharge any duty except for a few period during the time of the disciplinary proceedings. Initially, the petitioner was placed under suspension with effect from 13.5.92 to 2.9.93 and WPC30967/05 -:17:- thereafter from 2.9.93 to 7.4.94, the petitioner was reinstated in service as Appraiser-cum-salesman during which period she had received wages. Thereafter the petitioner was terminated from the service with effect from 7.4.94 and finally she was superannuated on 31.5.2005. Since the termination is found illegal, I am of the view that the petitioner would have been entitled to get reinstated in service with back wages but subject to the percentage to be fixed by this Court as held by the Apex Court in the decision reported in 2007 2 SCC 433 in para 18 (cited supra). Though the petitioner has produced Exts.P11 and 12, along with IA 10717/99, the same cannot be treated as income from employment or as wages for the work done by the workman. Even in the decision of the Supreme Court referred reported in {(2007) 2 SCC 433) in paragraph 18 it is stated that any income received by the employee during the relevant period on account of alternative employment or business. (emphasis supplied). Ext.P12 is not sufficient WPC30967/05 -:18:- to prove that it was an income on account of alternative employment or business. On the other hand it is only an honorarium given to her being a member of Grama Panchauyath. But in this case it has to be noted that the workman was reinstated in service as directed by this Court as Appraiser -cum-salesman and she had continued in that post for the period from 2.9.93 to 7.4.94 and she had been paid salary but only in a lower scale. So the period, during which she had been paid salary, for the said period has to be excluded from the period while fixing backwages. It is also relevant to note that the matter was prolonged in the Labour Court because of the laches on the part of the management and as evidenced by Ext.P7 order, though the workman filed Ext.P5 claim statement on 28.5.94 Ext.P6 objection was filed only after 9 years. So considering the above facts and circumstances, I am not proposed to interfere with the order or direction issued by the Labour Court with respect to the backwages except for the period 2.9.93 to WPC30967/05 -:19:- 7.4.94. In the light of the above facts and circumstances and the discussion, no interference is warranted with the finding of the Labour Court as per Ext.P7 award agaisnt the punishment awarded against the first respondent/workman. But as far as the direction for payment of back wages concerned, slight modification is effected and the petitioner society is directed to pay back wages to the Ist respondent/workman except for the period from 2.9.93 to 7.4.94 and the worker is entitled to get full back wages for the entire remaining period. The Writ petition is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- WPC30967/05 -:20:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..