IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 9601 of 2006(R) ---------------------------------- PETITIONER(S): ----------------------- P.GEETHANJALI, KADAMPUVILA VEEDU, KUMARAMKARIKKOM, KULATHUPUZHA P.O., KOLLAM DISTRICT. BY ADV. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED RESPONDENT(S): ------------------------ 1. THE PRESIDENT, SERVICE CO-OPERATIVE BANK LTD., NO.1867, KULATHUPUZHA P.O., KOLLAM DISTRICT. 2. LABOUR COURT, KOLLAM. R1 BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON R2 BY GOVT. PLEADER SRI.NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 9601 of 2006(R) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE PRELIMINARY ORDER IN ID NO.68/99 OF THE LABOUR COURT, KOLLAM DTD 24/08/2004. P2 : COPY OF THE AWARD IN ID NO. 68/99 OF THE LABOUR COURT, KOLLAM DTD 08/08/2005. RESPONDENT'S EXHIBITS: NIL //TRUE COPY/ P.A TO JUDGE. STU S.SIRI JAGAN, J. ================== W.P.(C).No. 9601 of 2006 ================== Dated this the 31st day of October, 2011 J U D G M E N T The workman in I.D.No.68/09 before the Labour Court, Kollam, challenges Ext.P2 award in that I.D. The issue referred for adjudication was: “Whether the dismissal of Smt.P.Geethanjali, attender from the services of the Service Co-operative Bank Ltd. No.1867, Kulathupuzha is justifiable ? If not, the reliefs for which she is entitled to ?” 2. Since the dismissal of the workman was after conducting a domestic enquiry, the Labour Court considered the validity of the enquiry as a preliminary point and found that the enquiry is not valid and proper. Thereafter, the management was permitted to adduce fresh evidence to prove the misconducts alleged against the workman and after considering the evidence, it was found that the workman was guilty of the first charge and part of the second charge. Since the proved charges involved misappropriation of money, the Labour Court upheld the punishment of dismissal from service imposed on the petitioner holding that the petitioner is not entitled to any relief in the industrial dispute. Ext.P1 is the preliminary order and Ext.P2 is the final award. The petitioner is challenging Ext.P2 award. The petitioner's only contention is that on the same set of charges, which were found against the petitioner, the petitioner was earlier proceeded against, an w.p.c.9601/06 - : 2 :- enquiry was conducted and a punishment was also imposed. According to the petitioner, the punishment imposed was withholding of two increments. The petitioner submits that after having punished the petitioner on the same set of charges earlier, for the purpose of imposing a higher punishment on the petitioner, fresh disciplinary proceedings and enquiry cannot be conducted. The petitioner points out that in the preliminary order, the Labour Court himself had specifically found that there was an earlier enquiry and punishment. But, while passing the final award, the Labour Court took the stand that it is for the petitioner to prove whether there was an earlier punishment imposed on the same charges and since the petitioner has not produced any documents to prove the same, the said contention cannot be accepted. The petitioner's contention is that the findings in Exts.P1 and P2 are directly contradictory and, therefore, after having found in Ext.P1 preliminary order that the petitioner was in fact earlier imposed with a punishment on the same set of allegations, the Labour Court could not have validly upheld the second punishment imposed by the management. 3. With the help of a counter affidavit filed by the 1st respondent, the learned counsel for the 1st respondent opposes the contentions of the petitioner. The learned counsel for the 1st respondent submits that in the decision of this Court in Perur Service w.p.c.9601/06 - : 3 :- Sahakarana Bank Ltd. v. Industrial Tribunal, Palakkad, 2008 (1) KHC 718, this Court has held that insofar as the bank deals with public money, financial irregularities by an employee cannot be treated lightly and, therefore, for such irregularities, severe punishment is called for. It is under the above circumstances, the workman has been imposed with the punishment of dismissal from service, is his contention. 4. I have considered the rival contentions in detail. 5. I am of opinion that after having subjected the petitioner to disciplinary proceedings and a punishment on the same set of charges earlier, imposing on the petitioner of a heavier punishment on the charges of another disciplinary proceedings and enquiry are not sustainable. The petitioner has specifically raised the contention that the petitioner was earlier punished for the same misconducts in the second enquiry itself. The petitioner actually filed a petition before the enquiry officer calling for the records of those disciplinary proceedings. Dealing with the same, in Ext.P1 preliminary order, the Labour Court has held thus: “7..... In the 2nd and 3rd charge the date is not specified, but it appears that they also relate to the same period. The evidence adduced during the enquiry was also to that effect. The first enquiry conducted by Advocate Sri.Sasidharan was in 1994 as is stated in the enquiry report. It is also come out from the evidence that the worker was suspended from service during the period from 4.5.1993 to 31.7.1993 and then from 30.11.1993 to 30.9.1994. So obviously the first enquiry related to these allegations against the worker, in which she was found guilty and a penalty was imposed on her. So the 2nd w.p.c.9601/06 - : 4 :- enquiry on the same allegations and a higher penalty imposed based on the same charges, and the further fact that the request of the worker calling for those records as evidence in the present enquiry was denied, is of considerable significance.” That is a specific finding to the effect that the petitioner was in fact earlier punished for the same set of allegations. But, strangely, while passing the final award, the Labour Court has held as follows; “Now, coming to the charges, the worker has raised two contentions. First that it is vague and confusing, and 2nd that she was imposed penalty on the same charges and so the 2nd enquiry and charges is not sustainable. But both these contentions are devoid of merit. The burden is on the delinquent worker to show that she was imposed penalty on the same charges on a previous occasion. The worker has only produced a suspension order dated 28.6.1996 as Ext.W1 by which the Managing Committee suspended her from service. This does not disclose the actual charges on which the suspension is based. There is no other evidence also, either produced or caused to be produced from the office of the management to show that the same charges were the earlier subject of enquiry and penalty, if any, imposed. In the absence of any such evidence the contention of the worker that she cannot be vexed twice cannot be sustained.” It does not require much racking of the brains to find that these two findings are mutually contradictory. In Ext.P1 the Labour Court has categorically found that the first enquiry related to the very same allegations, in which, the workman was found guilty and penalty was imposed on her. It is also stated therein that in the enquiry itself the petitioner sought production of the records relating to the earlier enquiry, which was not permitted. In fact that was one of the reasons for setting aside the enquiry itself by Ext.P1. Further, there is no serious contention raised by the management against the said finding. In ground “A” of the writ petition, the petitioner has specifically raised w.p.c.9601/06 - : 5 :- this contention, which has not been answered in the counter affidavit As such, I am of opinion that Ext.P2 award is totally perverse and unsustainable. In fact, after having found that there was earlier enquiry and punishment, it was not necessary for the Labour Court to give an opportunity to the management to adduce fresh evidence at all insofar as nobody challenged the earlier disciplinary proceedings and punishment, which have become final. In the above circumstances, Ext.P2 award is quashed. It is held that the petitioner is liable to undergo only the punishment imposed in the first disciplinary proceedings. It would be open to the management to require the petitioner to undergo that punishment, if the petitioner has not yet undergone that punishment. Subject to the same, the 1st respondent shall reinstate the petitioner with 50% backwages within a month. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge