## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE SMT. JUSTICE P.V.ASHA**
## **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938**
## **WP(C).No. 17702 of 2007 (G)**
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## **PETITIONER :**
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**ABDUL SHUKKUR, VATTAPARAKKAL HOUSE, CHERAYA P.O., VIA. KONGAD, PALAKKAD DISTRICT.**
## **BY ADVS.SRI.K.C.ELDHO SRI.C.S.AJITH PRAKASH**
**RESPONDENT(S):**
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**1. THE GENERAL MANAGER, M/S ARYA VAIDYA PHARMACY (COIMBATOR) LTD., H.P.PERUMAL KOVIL STREET,RAMANATHAPURAM, COIMBATORE-641 045.**
**2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.**
**R1 BY ADVS. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH**
**R2 BY GOVERNMENT PLEADER SRI.JIBU P. THOMAS**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sts**
## **WP(C).NO.17702/2007**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**P1 COPY OF THE PRELIMINARY AWARD IN ID.NO.14/2000 AND CONNECTED CASES. P2 COPY OF THE COMMON AWARD DATED 1/6/2006 IN ID.NO.14/2000, 4/2001, 5/2001 AND 12/2001 OF THE LABOUR COURT, KANNUR.**
## **RESPONDENT'S EXHIBITS: NIL**
**/TRUE COPY/**
**P.S.TO JUDGE**
**sts**
## **P.V.ASHA, J.**
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## W.P(C) No.17702 of 2007-G
---------------------------------------------------Dated this the 20[th] day of July, 2016
## **JUDGMENT**
This Writ Petition is filed challenging Exts.P1 order and Ext.P2 award passed by the Labour Court, Kannur in I.D. 14 of 2000, upholding the findings in a domestic enquiry conducted against 4 employees under the 1[st] respondent, but modifying the punishment of dismissal as discharge from service.
2. Heard the learned Counsel for the petitioner and the learned counsel for the respondents.
3. The dispute was with respect to the dismissal of all the 4 employees in the Tellicherry branch of the 1[st] respondent Arya Vaidya Pharmacy (Coimbatore), by the General Manager, after a common domestic enquiry based on a common memo of charges. Petitioner herein was employed as a workman in the Tellicherry branch of the 1[st] respondent. In a common memo of charges issued to all the 4 employees in that branch i.e the Manager in charge, compounder, attender and the petitioner who was a workman, it was alleged that there
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occurred shortage of medicines worth Rs.93,652.50, in their branch and that this shortage could be on account of theft or miscarriage and negligence of all the 4 persons. All of them denied the charges submitting separate reply. An inquiry was conducted by appointing an Advocate as Inquiry Officer. Inquiry Officer found all the four guilty of the charges. Based on that all of them were dismissed.
4. The legality of the dismissal was challenged and was referred for adjudication. The Labour Court, Kannur tried all the cases together and modified the punishment as discharge from service. Out of the 4 employees thus discharged, petitioner alone has challenged the award of the Labour Court.
5. According to the petitioner, the orders Exts.P1 and P2 are liable to be set aside and no punishment was liable to be awarded to him in the absence of any specific charge against him. The management themselves was not clear as to how the shortage occurred. There was no charge that the petitioner had committed theft. There was no allegation as to the nature of his involvement in the alleged shortage of medicines. The allegation was that shortage in medicines was found when the stock of the Tellicherry branch of the 1[st] respondent was verified on
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28.2.1997 and the allegation was that this shortage could be on account of theft or miscarriage due to the negligence of all the 4 persons.
6. The Manager in charge had raised a contention that the shortage occurred when the medicines were entrusted with C&F agency. But the inquiry officer found that the shortage had occurred even before the entrustment to that agency. On the basis of the findings in the enquiry the 1[st] respondent dismissed all the 4 employees.
7. The justifiability of the dismissal of all the 4 employees was referred for adjudication in separate proceedings and all the 4 cases were jointly tried and disposed of by the Labour Court, Kannur by Ext.P2 common award dated 1.6.2006 in I.D. No. Nos.14/2000, 4/2001, 5/2001 and 12/2001. The petitioner was the workman in I.D No.14/2000.
8. In Ext.P1 order the Labour Court approved the inquiry after considering the preliminary points: (i) whether the domestic enquiry was conducted consistent with the principles of natural justice; (2) whether the findings of inquiry officer were perverse; and (3) whether the inquiry held was valid and proper.
9. Ext.P1 common order was passed after examining the
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entire proceedings of inquiry starting with the memo of charges, the written statement of the workmen, the proceedings before the enquiry officer and the evidence adduced in the inquiry as well as the inquiry report. In the written statement filed by the respondent, it was stated that all the 4 persons were working in the branch when the shortage was detected. The Labour Court, after perusing the inquiry files M1 to M4, found that the domestic enquiry was conducted through an advocate, consistent with the principles of natural justice and without any opposition from the workmen, either during the course of enquiry or thereafter. The objection raised against examination of the presenting officer was held unsustainable. On the question of findings arrived at by the inquiry officer, Labour Court found that even though suspicious circumstances and occasions were pointed out by the 4 delinquent employees, it was an admitted fact that there occurred shortage of medicines, which was proved also, on the basis of the evidence on record. Therefore they were held answerable for the loss sustained by the company. In these circumstances, relying on the judgment of the Apex Court in **High Court of Judicature through its Registrar v. Udaysingh, S/O.Ganpatrao Naik Nimbalkar &**
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**Ors.** [AIR 1997 SC 2286], the Labour Court held that the findings arrived at by the enquiry officer were not perverse.
10. In Ext.P2 award the Tribunal considered the quantum of the punishment of dismissal. In paragraph 35 of the award, the Labour Court observed that the counsel for the management was unable to substantiate the punishment of dismissal awarded to the 4 employees, for shortage found in stock of medicine worth Rs.93,652.20. That too when the real reason for shortage was never found out and the charge itself was that the shortage occurred either by theft or misappropriation by any of the employees and due to negligent acts, without pinpointing the particular employee who was actually responsible for the shortage. It was also found that there was no case that all the employees committed the misconduct with a common intention, which actually caused the shortage. Even though the finding arrived at is that all the employees are responsible for the shortage, the Labour Court found that the capital punishment for dismissal from service was not appropriate and converted the dismissal as discharge from the date of award, ie. 1.6.2006.
11. As against the common award Ext.P2 as well as Ext.P1 common order, the petitioner has filed this Writ Petition alleging
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that the management failed to prove the misconduct committed by the petitioner who was only a worker. It was argued that as long as the management did not prove the involvement of the petitioner for shortage of the medicines, the petitioner could not have been punished on the ground that he did not disprove his involvement or for not proving that he was not the person responsible for the shortage; there was not even a specific charge against the petitioner and when the Labour Court itself found that the memo of charge was not specific and the reason for shortage alleged was also not against any of the employees, the petitioner contended that he being a workman, should not have been subjected to any punishment. According to the learned counsel for the petitioner, the Labour Court ought to have considered the question of sufficiency of evidence in the preliminary order itself and in the absence of any evidence ought to have dropped the proceedings. According to the learned Counsel, the observations of the Labour Court in para. 35 of the award itself show that the charges alleged were vague and even after the inquiry, the management failed to establish how the shortage occurred in medicine and the manner in which each of the employees got involved.
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12. According to the petitioner, he was a workman who did not have any control over the stocks of medicine and he could not have been made responsible for the shortage. It is also his case that the opportunity to effectively defend his part was taken away by not issuing a memo of charge explaining his role which resulted in the shortage of medicine. Therefore any finding based on an inquiry into the vague charges, cannot be sustained and he cannot be punished on the basis of findings in such an inquiry. Therefore, the punishment awarded by the management as reduced by the Labour Court is also illegal.
13. The learned counsel vehemently argued that the Labour Court did not exercise its discretion under Section 11A even after finding that there was no specific charge against the petitioner and there was no evidence as to the role of each of the employees.
14. The punishment is awarded on the ground that there occurred a shortage of medicines from the branch where all the 4 employees were working. It is true that the management has no idea as to the date on which the medicines were lost or how the shortage occurred. However the fact remains that medicines in the branch were accessible to all the 4 employees and the
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shortage occurred when all these 4 persons were working. The petitioner participated in the inquiry through his representative, after fully realising the charge against him.
15. Moreover it is seen that the petitioner is the only person who challenged the common order and common award passed on the basis of the common memo of charge. From Ext.P1 order, it is seen that the petitioner was in Saudi Arabia when the proceedings of inquiry were going on and on that ground, he had requested to allow him to be represented by the union representative.
16. It is seen that the domestic enquiry was conducted, after affording an opportunity to the delinquent employees, consistent with the principles of natural justice. The fact that all the 4 employees were working in the branch when the shortage occurred is also not disputed. On the question of punishment, the Labour Court has exercised its power under Section 11A of the I.D Act while reducing the punishment of dismissal to discharge. It is pointed out by the learned counsel for the management that since the management has lost confidence over these 4 persons, to entrust the medicines to them, their reinstatement had to be avoided, since all the branches under the
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1[st] respondent are dealing with medicines.
In the above circumstances, the finding of the Labour Court in Ext.P1 that the inquiry was held in accordance with law and the findings of inquiry officer were not perverse, cannot be held illegal. On the question of punishment also, it cannot be said that the exercise of powers by the Labour Court under Section 11A is in any manner vitiated, warranting interference of this Court either on Ext.P1 order or Ext.P2 award.
Accordingly the Writ Petition is dismissed.
Sd/-
**(P.V.ASHA, JUDGE)**
rtr/
