IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 OP.No. 3004 of 2003(G) ----------------------------- PETITIONER: ------------------- 1. K.M.MATHEW, PRESIDENT, THE MUNDAKKAYAM CO-OPERATIVE CONSUMERS STORES LTD. NO.K-303, MUNDAKKAYAM. 2. THE MUNDAKKAYAM CO-OPERATIVE CONSUMERS STORES LTD. NO.K-303, MUNDAKKAYAM, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.M.C.CHERIAN SMT.SARAMMA CHERIAN SMT.ASHA CHERIAN SRI.E.D.GEORGE SRI.SABU.S. SRI.P.M.SAMEER. RESPONDENTS: --------------------- 1. ALEX C.KURIAKOSE, CHALAKADAVIL, VARUKKAM, MUNDAKKAYAM, KOTTAYAM. 2. THE PRESIDING OFFICER, LABOUR COURT, ERNAKULAM. 3. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, LABOUR & REHABILITATION (A) DEPARTMENT, THIRUVANANTHAPURAM. BY ADV. SRI.M.J.THOMAS FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.3004 of 2003 (G) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF MINUTES DATED 27.12.1987 AT PAGES 16 AND 17 OF THE MINUTES BOOK OF 2ND PETITIONER EXHIBIT P2: TRUE COPY OF THE MINUTES DATED 29.12.1989 AT PAGES 65, 66 AND 67 OF -DO- -DO-. EXHIBIT P3: TRUE COPY OF PAGESW 43 TO 45 OF REGISTER OF ISSUE OF SALESMAN (SPECIAL LEDGER) CALLED AS LIABILITY REGISTER. EXHIBIT P4: TRUE COPY OF PAGES 83 TO 90 OF MINUTES BOOK OF 2ND PETITIONER, CONTAINING MINUTES DATED 31.1.1990, 3.2.1990, 16.2.1990 AND 2.3.1990. EXHIBIT P5:TRUE COPY OF LETTER DATED 10.1.1990 OF SECRETARY TO PRESIDENT OF 2ND PETITIONER REGARDING STORAGE OF RS.5611-04. EXHIBIT P6 - TRUE COPY OF LETTER DATED 10.1.1990 OF -DO- -DO-. REGARDING RS. 1272-65. EXHIBIT P7 : TRUE COPY OF LETTER DATED 2.2.1990 OF -DO- -DO-. EXHIBIT P8 : TRUE COPY OF LETTER DATED 3.2.1990 OF -DO- -DO-. EXHIBIT P9 : TRUE COPY OF LETTER DATED 8.2.1990 OF -DO- -DO-. EXHIBIT P9(A): CLEAR LEGIBLE COPY OF EXHIBIT P9 EXHIBIT P10 : TRUE COPY OF LETTER DATED 6.2.1990 OF 1ST PETITIONER TO 1ST RESPONDENT. EXHIBIT P11 : TRUE COPY OF REPLY LETTER DATED 8.2.1990 OF 1ST RESPONDENT TO 1ST PETITIONER. EXHIBIT P12 : TRUE COPY OF LETTER DATED 10.2.1990 OF 1ST PETITIONER TO 1ST RESPONDENT. EXHIBIT P13 : TRUE COPY OF LETTER DATED 5.3.1990 -DO- -DO-. EXHIBIT P14 : TRUE COPY OF REPLY LETTER DATED 11.3.1990 OF 1ST RESPONDENT TO 1ST PETITIONER. EXHIBIT P15 : TRUE COPY OF NOTICE/ LETTER DATED 23.10.1990 OF 1ST PETITIONER TO 1ST RESPONDENT. EXHIBIT P16 : TRUE COPY OF LETTER/ PETITION DATED 28.10.1990 OF 1ST RESPONDENT TO 1ST PETITIONER. EXHIBIT P17 : TRUE COPY OF MEMO OF CHARGES DATED 13.6.1990 ISSUED BY 1ST PETITIONER TO 1ST RESPONDENT. EXHIBIT P18: TRUE COPY OF LETTER/ORDER DATED 2.11.1990 OF 1ST PETITIONER TO 1ST RESPONDENT (DISMISSAL ORDER) EXHIBIT P18(A) CLEAR LEGIBLE COPY OF EXHIBIT P18. EXHIBIT P19 : TRUE COPY OF PETITION DATED 30.11.1990 OF 1ST RESPONDENT, BEFORE DISTRICT LABOUR OFFICER, KOTTAYAM. EXHIBIT P20 : TRUE COPY OF WRITTEN STATEMENT DATED 2.1.1993 OF 2ND PETITIONER BEFORE 2ND RESPONDENT, LABOUR COURT. EXHIBIT P21: TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 27.1.1996 OF -DO- -DO- -DO-. EXHIBIT P22: TRUE COPY OF REPLICATION DATED 18.5.1996 OF 1ST RESPONDENT, FILED BEFORE 2ND RESPONDENT LABOUR COURT. EXHIBIT P23: TRUE COPY OF DEPOSITION OF MW2 BEFORE 2ND RESPONDENT LABOUR COURT. EXHIBIT P24 : TRUE COPY OF DEPOSITION OF MW3 -DO- -DO-. EXHIBIT P25 : TRUE COPY OF DEPOSITIONOF MW4 -DO- -DO-. EXHIBIT P26 : TRUE COPY OF DEPOSITION OF MW5 -DO- -DO-. EXHIBIT P27 : TRUE COPY OF DEPOSITION OF MW6 -DO- -DO-. EXHIBIT P28 : TRUE COPY OF DEPOSITION OF MW7 -DO- -DO-. EXHIBIT P29 : TRUE COPY OF DEPOSITION OF MW8 -DO- -DO-. EXHIBIT P30: TRUE COPY OF DEPOSITION OF MW9 -DO- -DO-. EXHIBIT P31 : TRUE COPY OF DEPOSITION OF WW1 -DO- -DO-. EXHIBIT P36: TRUE COPY OF AWARD DATED 22.12.2001, PUBLISHED IN GAZETTEE DATE / TRUE COPY / PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.3004 of 2003 ================== Dated this the 16th day of June, 2008. J U D G M E N T The petitioner is the Management in I.D.No. 133/1991 before the Labour Court, Ernakulam. They are challenging Exhibit P32 award passed by the Labour Court in that I.D. The issue referred for adjudication was: “Whether the action of the management in having dismissed Sri. Alex C.Kuriakose is justifiable? If not to what relief he is entitled?” 2. Since dismissal of the workman was after a domestic enquiry, the Labour Court first considered the question of validity of the enquiry. The Labour Court, by a preliminary order, found that the enquiry is vitiated. Thereafter the Labour Court gave an opportunity to the petitioner, Management to adduce evidence in support of the charges of misconduct against the workman. After taking evidence, the Labour Court found that the misconducts were not proved against the the workman other than exchange of abusive words between the secretary and the workman, which cannot be taken as a O.P.No.3004 of 2003 - 2 - misconduct warranting punishment. On that finding, the workman was directed to be reinstated in service with full back wages and continuity in service. That award is under challenge before me. 3. The contention of the petitioner - management is that the findings arrived at by the Labour Court is perverse and in fact it is against the evidence adduced in the case. He would submit that at least on the second charge, there was sufficient evidence to find the workman guilty. According to him the workman admittedly did not remit the sale proceeds, on the day of sale and it was paid only on a subsequent date, which would amount to temporary misappropriation, and therefore the finding at least on this question is patently perverse. He would also submit that the finding of the Labour Court that exchange of abusive words between the secretary and workman do not amount to a misconduct, is also perverse. 4. I have considered the rival contentions in detail. 5. The counsel for the petitioner confines his arguments only on the question of perversity of findings O.P.No.3004 of 2003 - 3 - entered into by the Labour Court on the evidence adduced before it. The charges levelled against the workman were: (i). Failure on the part of the workman to sign in the liability register and indent book of the vegetable store in spite of demand that respect by the Secretary (ii) On 6.1.1990 the workman was in charge of the provision store functioning in the CSI building since Sri.T.J.Sebastian, Salesman was on leave. On the closure of the sales on that day when the sale proceeds was surrendered to the secretary with the abstract there was deficiency of an amount of Rs.1272.65. (iii) On 7.1.1990 when the secretary enquired about the balance amounts due as per the sale on 6.1.1990 the workman abused the secretary and caused obstructions to the work of the Secretary. (iv) On 1.2.1990 at 7.30.P.M. When the Secretary enquired about non-signing in the liability register and indent, the workman abused the Secretary and caused obstruction and indent, the workman abused the Secretary and caused obstruction to his duty. (v) On 3.2.1990 evening while the Director Board meeting was going on, Secretary came to the store and demanded the workman was going on, Secretary came to the store and demanded the workman to attend the Board meeting so as to explain about his complaint to attend the Board meeting so as to explain about his compliant. The workman along with his brother and father tried to assault the secretary in the presence of the customers which caused bad reputation to the society (vi) When Sri. M.M.Zachariah, a Board Member enquired about the complaint filed by the workman before the Director Board the workman abused the above said Zachariah. (vii) The workman speaks to the customers degrading the Board members and Secretary of the society so as to adversely affect the proper functioning of the society. O.P.No.3004 of 2003 - 4 - 6. Regarding the first question, the Labour Court found that there was no definite evidence regarding the date of transfer of the workman to the vegetable store. The explanation of the workman, regarding the non-signing of the liability register was that he was required to sign the liability register in respect of a period during which he was not in charge of the vegetable store which was accepted by the Labour Court on the basis of the evidence before him. I do not find anything perverse in the findings arrived at by the Labour Court in respect of the first charge. 7. Elaborate arguments were advanced before me by the learned counsel for the petitioner in respect of the second charge. The findings of the Labour Court in respect of the second charge are as follows: “The second allegation made in Ext.M17 is that on 6.1.1990 the workman was in charge of the provision store functioning in the CSI building since Sri.T.J.Sebastian, Salesman of the provision store was on leave. On the closure of the business on that day when the cash was surrendered by the workman to the secretary with the abstract of accounts there was a deficiency of an amount of Rs.1272.75. The above aspect is admitted by the workman but his explanation is that Dr.Pavithran one of the Board Members, Sri.K.K.Philip, Head Master of the Murphy Memorial High School, Enthayar and Sri. K.M.Varghese, the Head Accountant, State Bank of Travancore, Mundakayam have purchased provisions worth Rs.1272.65 O.P.No.3004 of 2003 - 5 - as per 6 separate bills on the undertaking that the amount will be paid on the same day before closing of the sale. But they did not pay the amount and so the workman intimated the secretary about the details of articles sold to the 3 persons and amount due from them in a separate slip, attached along with the abstract and surrendered to the secretary. On the next day itself the above persons paid the amount and accordingly it was surrendered to the secretary on 7.1.90 evening along with the sale proceeds of that day. According to the workman there was precedent of selling articles on credit basis to respected and bonafide customers. The president of the society as MW has admitted that the workman paid the amount of Rs.1272.65 which was deficit on 6.1.90 on a subsequent date and the actual date of payment is not known to him. The workman as WW1 has deposed that the payment is not known to him. The workman as WW1 has deposed that the payment was entered in the carbon copy of the sale abstract dated 7.1.90. Though the workman required the production of the above document it was not produced. Sri. Umman, a salesman of the society as MW5 has admitted during cross examination that there is precedent of selling articles on credit basis with the connivance of the secretary. It is admitted by MW4 that repayment of the amount of Rs.1272.65 was made before the issuance of Ext.M17 show cause notice and he was fully aware of such payment at that time. As admittedly the deficit amount was paid by the workman and received by the Secretary on the subsequent date the 3rd allegation raised in the charge also is not sustainable.” 8. Of course the counsel would draw my attention to the evidence of Sri. Pavithran who is stated to have purchased of articles on credit, who would say that he did not purchase the articles on credit on that day. However, I find that MW5, another salesman who was examined on behalf of the management, categorically admitted that the O.P.No.3004 of 2003 - 6 - said Pavithran used to purchase articles the previous day and to pay the price thereof the next day. That was exactly the contention of the workman also in the case. Naturally being a member of the Director Board who have initiated the disciplinary action, the said Pavithran would have to support the charge sheet against the workman. Therefore, more than to the evidence of the said Pavithran, credit should be attached to the evidence of MW5, who would say that the said Pavithran used to take articles from the store on credit. In this case, the workman specifically took the contention that the articles were purchased on credit by three persons on 6.1.1990 and they had paid the price, thereof, the next day, that is, on 7.1.1990, which was entered in the carbon copy of the sale abstract dated 7.1.1990. The workman required the management to purchase the sale abstract which the petitioner, management did not produce. MW4 actually admitted that the repayment of the amount was made before the show cause notice was issued to the workman and that MW4 was fully aware of such payment at the time of issue of the show O.P.No.3004 of 2003 - 7 - cause notice. In the above circumstances, I do not find any perversity in the finding on the second charge also. 9. However, in respect of the other charges, the Labour Court does not appear to have taken charges very seriously and just glossed over the evidence regarding the same and ultimately entered a finding that the management had not succeeded in proving any of the charges against the workman, other than exchange of some abusive words between secretary and the workman, which cannot be taken as a misconduct warranting punishment. I cannot agree with the Labour Court that use of abusive words against a Superior Officer does not amount to misconduct warranting punishment. In fact, the Supreme Court in several cases has held that use of abusive words against the Superior Officer would amount to misconduct warranting punishment even of dismissal. In the above circumstances, I am not satisfied that the finding that use of abusive words against the Secretary does not amount to misconduct warranting punishment, is correct. Therefore, I am of opinion that this case should go back to the Labour Court for fresh O.P.No.3004 of 2003 - 8 - consideration on the question as to whether the other charges, namely charges Nos. (iii) to (vii) alleged against the workman have been proved. In the above circumstances, Exhibit P32 award to the extent of finding the workman not guilty in respect of charge Nos.(iii) to (vii) are set aside and the ID is remanded to the Labour Court for fresh consideration in accordance with the observations contained herein. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE rhs