IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 232 of 2005(C) ------------------------------------- PETITIONER(S): ----------------------- KERALA FOREST EVELOPMENT CORPORATION, PAMBA DIVISION, PATHANTHITTA, REP. BY THE DIVISIONAL MANAGER. BY ADV. SRI.V.G.ARUN RESPONDENT(S): --------------------------- 1. LABOUR COURT, KOLLAM. 2. THE GENERAL SECRETARY, HIGHRANGE PLANTAIONS EMPLOYEES UNION, NO.46/68, VANDIPERIYAR P.O., IDUKKI DISTRICT. R2 BY ADV. MR.C.S.MANILAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 232/2005-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SHOW CAUSE NOTICE DATED NIL. EXT.P2: COPY OF THE NOTICE NO.AM-III/E/1/92 DATED 31/05/1994. EXT.P3: COPY OF THE ORDER NO.LW-9-91 DATED 20/10/1994. EXT.P4: COPY OF THE AWARD IN I.D.NO.139 OF 1995 DATED 03/09/2003. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.232 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2010 J U D G M E N T This writ petition is filed by the management in I.D. No.139/95 before the Labour Court, Kollam. Challenging Ext.P4 award passed by the Labour Court in that I.D. the issues referred for adjudication were: 1. Justifiability of the action of management in having suspended Sri. Chacko Kurian w.e.f. 4.7.1994. 2. Reimbursement of Sri. Chacko Kurian in supervision post. 3. Legality of the action of Management in having dismissed Sri. Chacko Kurian during the period of conciliation. 2. It appears that before dismissing the workman no enquiry was conducted. But relying on some other enquiry conducted in respect of some other misconduct the management wanted to sustain the punishment. The Labour Court found that in respect of the particular charge for which the workman was punished there was no enquiry at all, not even a show cause notice. Labour Court further found that at the time of dismissal of the workman involved W.P.(C)No.232 of 2005 -2- an industrial dispute was pending in respect of a claim of the workman for a supervisory post. Therefore the Labour Court found that the dismissal is violative of Section 33 (1) (b) of the I.D. Act, in so far as before imposing the punishment of dismissal, approval of the appropriate authority had not been obtained. On these grounds the Labour Court found that the dismissal was bad and passed the award on the following terms: 1. The dismissal of the workman from service as per order dated 20.10.1994 is set aside. 2. The management is directed to reinstate the workman in the post of watcher/worker in which he was working with 60% of the backwages for the period in which he has been kept out of service. 3. The workman will be entitled to continuity in service for the period in which he was kept out of service. 3. The management is challenging that award in this writ petition. According to the management, the workman was validly dismissed from service for misconduct. The counsel for the 2nd respondent would support the impugned award. 4. I have considered the rival contentions in detail. W.P.(C)No.232 of 2005 -3- 5. From a reading of the award it is abundantly clear that, for imposing the punishment of dismissal from service no enquiry was conducted and the earlier enquiry was concluded by imposing a punishment of imposition of punishment of Rs.280/-. After having imposed such a punishment, the management could not have dismissed the workman on the same set of facts. As far as the allegations on which the workman was dismissed, no enquiry was conducted. The management could have at least adduced evidence before the Labour Court to prove the misconduct of the workman. No attempt is seen made by the management in that direction also. Added to that, the dismissal was effected without obtaining prior approval as contemplated under Section 33 (1) (b). As such I do not find anything wrong with the conclusion of the Labour Court that dismissal of the workman is unsustainable. But I find that, the workman had refused to join duty despite the management giving him an opportunity to do so, in a post other than the supervisory post, which has been specifically W.P.(C)No.232 of 2005 -4- found by the Labour Court also. Taking into account, the entire facts and circumstances of the case, I feel that the award of 50% backwages is too harsh on the management. Accordingly I modify Ext.P4 award by limiting backwages to 25% instead of 50%. In all other respects the award would stand. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/