IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 23645 of 2003(M) -------------------------- PETITIONER(S): --------------- THE PRESIDENT, KANNUR CO-OPERATIVE SPINNING MILLS, EMPLOYEES CO-OPERATIVE SOCIETY LTD. NO.C.287, P.O.CHOVVA, KANNUR - 6. BY ADV. SRI.M.SASINDRAN SRI.T.P.ELDHO RESPONDENT(S): --------------- 1. N.MAHEENDRAN, NELLERI HOUSE, AVERA P.O., KADALAI, KANNUR DISTRICT. 2. INDUSTRIAL TRIBUNAL, KOZHIKODE, REPRESENTED BY ITS SECRETARY. ADV. SRI.K.S.MADHUSOODANAN FOR R1 GOVERNMENT PLEADER SRI.ARAVINDAKUMAR T.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23645/2003 APPENDIX PETITIONE'S EXHIBITS:- EXHIBIT P1 : A TRUE COPY OF THE CHARGE SHEET ON 30.05.1997. EXHIBIT P2 : A TRUE COPY OF THE WRITTEN REQUEST MADE BY THE FIRST RESPONDENT. EXHIBIT P3 : A TRUE COPY OF THE ENQUIRY REPORT DATED 17.03.1999. EXHIBIT P4 : A TRUE COPY OF THE STATEMENT DATED 11.06.2002. EXHIBIT P5 : A TRUE COPY OF THE AWARD DATED 05.02.2003 PASSED BY THE INDUSTRIAL TRIBUNAL, KOZHIKODE. EXHIBIT R1(A) : PHOTOCOPY OF THE PETITION TO THE DISTRICT LABOUR OFFICER, KANNUR DATED 03.01.2000. /TRUE COPY/ P.A. TO JUDGE P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 23645 OF 2003 ----------------------------------- Dated this the 5th day of October, 2009 J U D G M E N T Ext.P5 order passed by the second respondent Industrial Tribunal Kozhikode in I.D. No. 1/2002 has been subjected to challenge from the side of the management, contending that interference with the order of dismissal invoking the power under Section 11 A of the ID Act is not correct or proper. 2. The first respondent worker was an employee of the petitioner. He was working as a sales man-cum-attender, having independent charge of a store, where various consumer items were being stored by the petitioner Society. On 25.03.1997, the Secretary of the Society made a surprise inspection of the store, when serious irregularities were noted; particularly with regard to the collection of higher sales price in respect of various items, than the prescribed amount and also mishandling of the daily cash, leading to tarnishing the image of the Society as well. Since there was no satisfactory explanation from the part of the employee, Ext.P1 charge sheet was issued placing him under suspension, pending enquiry. On conclusion of the domestic enquiry, Ext.P3 enquiry report was WPC NO.23645/2003 2 submitted by the enquiry officer, which was considered by the management in the light of the relevant records and after appreciating the entire facts and figures it was held that the misconduct levelled against the delinquent employee was proved and accordingly, he was dismissed from the service of the Society, which led to reference of the industrial dispute to the second respondent for adjudication. 3. In response to the claim statement preferred from the part of the worker, the petitioner management filed Ext.P4 written statement, seeking to sustain the course pursued by them. Validity of the domestic enquiry was considered as a preliminary issue. After evaluating the materials on record, the Tribunal arrived at a finding that, the domestic enquiry was conducted adhering to the principles of natural justice and that the finding was very much legal and proper. Thereafter, the Tribunal proceeded to consider the proportionality of the punishment imposed, as discussed in paragraph 7 onwards of Ext.P5. It has been observed by the Tribunal that, the first charge narrated in Ext.P1 charge sheet stands proved, as correctly held by the enquiry officer, in so far as the factum of excess collection of the sale price from the members stands vindicated; whereas the second limb regarding the alleged diversion/shortage of stock proportionate to the quantum of excess collection was not at all proved. In other words, the allegation regarding the mis appropriation of the sale proceeds is stated as not proved and WPC NO.23645/2003 3 accordingly, the Tribunal arrived at a finding that no loss was caused to the Society, particularly when the excess price collected was also stated as remitted to the Society. 4. In paragraph 9 of the impugned order, the Tribunal has observed that the second charge regarding the non remittance of the daily cash on the very next day, involving 'temporary mis appropriation' is only of two to three days in each case and hence that, it could not be taken as warranting dismissal. It was after considering the above aspects; particularly as to the 'no loss' caused to the Society and also that the alleged temporary mis appropriation was only in view of the delay of 2 to 3 days in remitting the amounts; that the punishment of dismissal awarded by the management was intercepted, invoking the power under Section 11 A of the I.D. Act. Accordingly, the worker was ordered to be reinstated with 50% back wages, holding that forfeiture of 50% back wages will constitute suitable punishment; which forms the subject matter of challenge before this Court. 5. Learned counsel for the petitioner/Management submits that, the charges proved are of serious consequences and that the Tribunal has extended misplaced sympathy by substituting the punishment of dismissal with reinstatement denying only 50% back wages; which actually is a boon to the worker, resulting in total miscarriage of justice. The learned counsel for the worker submits that, in view of the settled position of law, denial of 50% WPC NO.23645/2003 4 back wages is to be regarded as proper punishment, which is sought to be controverted from the part of the petitioner/Management, stating that the previous instances of misconduct in respect of the very same employee have not been properly weighed by the Tribunal, particularly when a lesser punishment was imposed, taking a lenient view since the worker had pleaded guilty seeking for the indulgence as evident from Ext.P2. But as rightly observed by the Tribunal, this aspect, as dealt with under charge No. 3, was not separately considered by the enquiry officer and no separate finding was arrived at on this point. However, the fact remains that, the said aspect, though does not constitute a separate charge, was a fact brought out by the records in the course of the proceedings and was liable to be looked into by the Tribunal while fixing the quantum of punishment invoking the power under Section 11 A of the ID Act. 6. Yet another important aspect to be noted is that, the Tribunal made interference under section 11 A of the ID Act observing that the 'excess collection' has already been remitted to the Society and hence no 'actual loss' was caused to the Society. But it has to be borne in mind that, the second limb of the charge (as to the mis appropriation of the proportionate stock) was held as not proved, for the reason that no prior stock verification was conducted by the Society. In other words, the worker has been given some 'benefit of doubt' and that is all. The collection of 'excess charge' in respect WPC NO.23645/2003 5 of the sale commodity stands proved and as it stands so, when there is excess collection, there will either be proportionate diversion of the stock or there is an unlawful enrichment to the Society. To put it more clear, the persons who purchased various articles from the Society have suffered a loss, in having parted with more amount than that was actually payable. This vital aspect, as to the loss caused to the members or the consumers who purchased the articles from the store and 'the loss of good will' and reputation to the Society, which forms part of the first charge has not been properly considered by the Tribunal while interfering with the punishment. 7. Yet another aspect is that, even in cases of reinstatement, awarding of back wages is not automatic, in view of the law declared by the Apex Court on the point as reported in Essen Deinki Vs. Rajiv Kumar [2002 (8) SCC 400]. It also cannot be a matter of dispute any further, in view of the dictum in M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. & others [AIR 1979 SC 75] and subsequent verdicts on the point, holding that the burden to plead and prove that the worker was not having any alternative employment and income is cast upon the worker himself. There is absolutely no discussion of evidence in this regard, any where in paragraph 8 or 9 or elsewhere in Ext.P5 so as to sustain granting of 50% back wages to the first respondent/worker. 8. In the above circumstances, this Court finds that the exercise of WPC NO.23645/2003 6 power by the second respondent Tribunal under Section 11 A of the I.D. Act substituting the punishment imposed by the Management is not correct or proper and that the same has to be reconsidered taking note of the observations made above. Accordingly Ext.P5 is set aside to the said extent and the matter is remanded; which shall be reconsidered and finalised as to the proportionality of the punishment, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. Both the parties shall appear before the Tribunal on 10.12.2009. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc