C. P. Rajan v. Ashtamichira Service Co-Operative Bank Ltd No. 325 (and related matter with Industrial Tribunal, Thrissur)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 WP(C) NO. 6753 OF 2021 ``` ## **`PETITIONER:`** ``` C.P.RAJAN, AGED 58 YEARS, S/O POULOSE, VODAMA, CHAKKALACKAL VEEDU, MALA, KOONAMPARAMB POST, THRISSUR DISTRICT 680 732. ``` ``` BY ADVS. MANU GOVIND SRI.A.JAYASANKAR ``` ## **`RESPONDENT:`** ``` THE ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD NO 325, ASHTAMICHIRA P.O., THRISSUR DISTRICT-680 731, REPRESENTED BY ITS PRESIDENT.P.R.JAYAKUMAR. ``` ## **`OTHER PRESENT:`** ``` GP SRI JIMMY GEORGE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2022, ALONG WITH WP(C).5060/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -2- ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 WP(C) NO. 5060 OF 2021 ``` ## **`PETITIONER:`** ``` ASHTAMICHIRA SERVICE CO-OPERATIVE BANK LTD.NO.325, ASHTAMICHIRA P.O, THRISSUR-680731, REPRESENTED BY ITS SECRETARY. ``` ``` BY ADV P.C.SASIDHARAN ``` ## **`RESPONDENTS:`** ``` 1C.P.RAJAN, CHAKKALACKAL VEEDU, MALA, MALA POST, PIN-680 732. 2INDUSTRIAL TRIBUNAL, THRISSUR. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2022, ALONG WITH WP(C).6753/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -3- ``` ## **`JUDGMENT`** This order of mine shall dispose of two writ petitions. W.P.(C) No.5060 of 2021 titled as Ashtamichira Service Co-operative Bank Ltd.No.325 preferred by the Management against the common award of the Industrial Tribunal and W.P.(C) No.6753 of 2021 preferred by the workmen for granting back wages. Since the common questions of fact are involved both are decided together. 2. C.P. Rajan, hereinafter called a workman, was working as an Attender in the Management Bank and on the basis of some misappropriation and dereliction of duty was suspended on 25.06.2004 and dismissed on 14.10.2005 after detailed enquiry i.e., the service of charge sheet, receipt of explanation etc. The petitioner raised the dispute by seeking a reference from the Government and as per the Government order dated 17.09.2007 Industrial dispute was referred to the Labour Court for adjudication. Labour Court on the basis of the ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -4- ``` evidence found that the charges levelled against the workman were not proved and domestic enquiry should have been confined to the charges levelled against the workman. As Enquiry Officer had exceeded the jurisdiction and noticing that workmen had made certain falls entries which was never put to charge. He was ordered to be re-instated with continuity of service within two months from the date of pronouncement of the award, payment of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses but without any backwages on the ground that workman did not plead, prove and place on record any proof of the fact that he was not gainfully employed. 3. The Management in the other writ petition has challenged the award of reinstatement on account that during the pendency of the dispute, workman had already superannuated on 31.01.2020 whereas the award is of 22.12.2020. The enquiry was totally in accordance with the law. No opportunity was given to ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -5- ``` the Management to lead evidence in order to prove the domestic enquiry. Workman had in the knowledge of entries made in the day book and the ledgers in the name of the employee, which were proved by documentary evidence. Counsel for the workman has relied upon the judgment of Supreme Court in **Deepali Gundu Surwase V. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others 2013 (10) SCC 324** to submit that the Management had failed to lead and prove any evidence on record to belie/controvert whether the employee during all this period was gainfully employed or not. If a workman had rendered number of years and it is found that the enquiry resulting into dismissal was vitiated, reinstatement along with the backwages is absolute. The caveat imposed in the directions contained in paragraph No.33 of the judgment would also not help the management. Atleast a compensation in terms of money ought to have been awarded on account of the fact that the workmen had superannuated. ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -6- ``` 4. I have heard learned counsel for the parties and appraised the paper books. 5. Employment of the workman since 1995 and dismissal only in 2005 after having suspended in 2004 would reveal that the workman had been in long and continuous employment under the Management. The management cannot terminate the services of the workman without complying with the procedure as envisaged under Section 25F of the Industrial Dispute Act. In order to prove the suspension on the allegations made therein, charges were though served upon the workman but the onus was not discharged. In fact the Enquiry Officer exceeded jurisdiction particularly regarding the false entries in the ledger book which was never charged upon. However while ordering the reinstatement, overlooked the fact that workmen had retired/superannuated on 31.01.2020 and the compensation in terms of money ought to have been granted. ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -7- ``` 6. As regards the contention of the workman regarding backwages, the same cannot be considered for the reason that workman had superannuated. Paragraph No.33 of the aforecited judgment reads as under: "33. The propositions which can be culled out from the aforementioned judgments are: i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed was employed on lesser wages. If the employer wants to avoid payment of full back the wages, then it has to plead and also ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -8- ``` lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -9- ``` v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of act natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -10- ``` disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 7. As per clause (iii) of the aforementioned paragraph, the employee has to plead and prove; ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -11- ``` concededly there is no such pleadings. Therefore the onus never shifted on the employer to controvert such pleadings or had to lead any evidence. There is a force in the contention of the management that once the employee had superannuated, Industrial Tribunal ought not to have ordered for reinstatement. 8. In my view, the equity would have been struck had the Tribunal noticed all the facts and instead of ordering reinstatement, ought to have granted some reasonable compensation, keeping in view the long and uninterrupted service till 2004. The award of the Industrial Tribunal is modified and considering the fact that the workman had rendered long service and he was reinstated as a package-I order, a compensation of Rs.2,00,000/- (Rupees two lakhs only) is directed to be paid to the workman by the Management within a period of one month from the date of receipt of a certified copy of the judgment, failing which, it shall entail interest at the rate of 6%. ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -12- ``` Writ petition is disposed off with the aforementioned observations. Sd/- ``` AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -13- ``` ## **`APPENDIX OF WP(C) 5060/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE MEMO OF CHARGES DATED 09.10.2004. EXHIBIT P2TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER DATED 22.08.2005. EXHIBIT P3TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 22.12.2020. ``` ``` WP(C) Nos.6753/2021 & 5060/2021 ``` ``` -14- ``` ## **`APPENDIX OF WP(C) 6753/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 ``` ``` A TRUE COPY OF THE PETITION DATED 30.9.2020 PREFERRED BY THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION ``` - `EXHIBIT P2 A TRUE COPY OF THE PETITION DATED 22.10.2020 PREFERRED BY THE PETITIONER ALONG WITH ITS ENGLISH TRANSLATION` ``` EXHIBIT P3TRUE COPY OF JUDGMENT DATED 15.2.2018 IN WPC 37221/2017 ``` ``` EXHIBIT P4TRUE COPY OF THE AWARD DATED 22.12.2020 IN ID NO 1 OF 2016 ```