Karulai Ksheerolpadaka Sahakara Sangham Limited v. Komalavally Narayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 2ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **WP(C).No.9029 OF 2015(C)** ## **PETITIONERS:** **1 KARULAI KSHEEROLPADAKA SAHAKARANA SANGHAM, LIMITED NO.F 1780, KARULAYI, MALAPPURAM DISTRICT, REP. BY ITS SECRETARY.** **2 THE BOARD OF DIRECTORS OF KARULAYI KSHEEROLPADAKASAHAKARANA SANGHAM LIMITED NO.F 1780, KARULAYI, MALAPPURAM DISTRICT, REP. BY ITS PRESIDENT.** **BY ADVS. SRI.P.C.SASIDHARAN SRI.ARAVINDA KUMAR BABU T.K.** ## **RESPONDENTS:** **1 KOMALAVALLY NARAYANAN, W/O.MOHAN RAJ, CLERK (UNDER DISMISSAL), KARULAYI KSHEEROLPADAKA SAHAKARANA SAGHAM LIMITED NO.F 1780, KARULAYI, MALAPPURAM DISTRICT-679 344.** - **2 THE KERALA CO-OPERATIVE TRIBUNAL THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.P.P.JACOB R2 BY GOVT. PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2020, ALONG WITH WP(C).13181/2018(W), THE COURT ON 02-07-2020 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **THURSDAY, THE 2ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **WP(C).No.13181 OF 2018** ## **PETITIONER:** ## **KOMALAVALLY, CHITHRA NIWAS, NALLATHANNI P.O,NILAMBUR, MALAPPURAM.** **BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** - **1 THE KARULAYI KSHEEROLPADAKA SAHAKARANA SANGHAM LTD. NO.F 1780, KARULAL, MALAPPURAM, REPRESENTED BY ITS SECRETARY 676 505.** - **2 THE BOARD OF DIRECTORS OF KSHEEROLPADAKA SAHAKARANA SANGHAM LTD NO.F 1780, KARULALI, MALAPPURAM, REPRESENTED BY ITS PRESIDENT 676 505.** - **3 THE CO-OPERATIVE ARBITRATION COURT, KOZHIKODE, (NORTH WING), 5TH FLOOR, KERALA STATE CO-OPERATIVE HOUSING FEDERATION BUILDING, NEAR PASSPORT OFFICE,KOZHIKODE-073 006.** - **4 THE KERALA CO-OPERATIVE TRIBUNAL, NANDANAM, T.C 14/2057,VANDROSE JUNCTION, SANSKRIT COLLEGE LANE,UNIVERSITY P.O, THIRUVANANTHAPURAM-695 034.** - **5 THE DEPUTY DIRECTOR, DIARY DEVELOPMENT, MALAPPURAM-676 505.** - **R1 BY ADV. SRI.P.C.SASIDHARAN R3-5 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2020, ALONG WITH WP(C).9029/2015(C), THE COURT ON 02-07-2020 DELIVERED THE FOLLOWING:** **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = W.P.(C) Nos.9029 of 2015 & 13181 of 2018** **= = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of July, 2020** ## **JUDGMENT** These writ petitions sprout from a disciplinary proceeding. W.P.(C) No.9029 of 2015 is filed by the employer-Society and W.P.(C) No.13181 of 2018 is filed by the employee. For the sake of convenience, the parties are referred to as 'employer' and 'employee'. 2. The employee was working as a Clerk in the employer Society. Pursuant to a charge memo dated 22.05.2007 (Ext.A16 before the Arbitration Court) and enquiry report dated 27.09.2007 (Ext.A19 before the Arbitration Court), the employee was dismissed from service as per order dated 10.01.2008 (Ext.A20 before the Arbitration Court). The order was interfered with by the Co-operative Arbitration Court and directed reinstatement with back wages and all benefits. The challenge against the said order by the employer, in appeal before the Co- W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 2 :- operative Tribunal, was dismissed with compensatory costs. In W.P.(C) No.9029 of 2015, the employer Society challenges the said judgment, whereas in W.P.(C) No.13181 of 2018 the employee seeks implementation of the same. 3. Heard Sri.P.C.Sasidharan, learned counsel for the employer-Society and Sri.P.P.Jacob, learned counsel for the employee. 4. Before I proceed to consider the sustainability of the impugned judgment, I deem it appropriate to advert to certain incidents that transpired prior to the issuance of the charge memo dated 22.05.2007. 5. The employee joined the services of the employer on 02.03.1981. She availed leave from 18.02.2006 to 31.03.2006 on medical grounds. She sought to rejoin duty on 01.04.2006 producing a Medical Certificate dated 31.03.2006 indicating her fitness to join duty. However, the employer did not permit the employee to join duty. The employee was required to produce a medical certificate, W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 3 :- certifying the mental soundness of the employee, as a condition to re-join duty. A resolution dated 04.04.2006 in the said regard was served on the employee. Ext.A6 letter dated 05.04.2006 on the same lines was sent to the husband of the employee. The employee gave reply that she does not suffer from any mental illness or unsoundness, and sought permission to rejoin duty. 6. The employee filed a complaint before the Deputy Director of Dairy Development who ordered an enquiry by the Dairy Extension Officer. The enquiry culminated in favour of the employee holding the allegations to be baseless. Thereupon the Deputy Director passed an order on 22.07.2006 directing the employer to permit the employee to join duty. Challenging the said order, the employer filed an appeal before the Government. As per order dated 20.10.2006, the appeal was dismissed affirming the direction to permit the employee to rejoin duty. 7. Challenging the said order, the employer filed W.P.(C) 15241 of 2007. The employee had filed W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 4 :- W.P.(C) 33535/2006 seeking implementation of the order since according to the employee, the order was not being implemented. The writ petition filed by the employee was allowed and the writ petition filed by the employer was dismissed. The employer challenged the same in W.A. 899/2007. In the meanwhile, the employee was permitted to re-join duty on 24.03.2007. 8. Two days later i.e. on 26.03.2007, the employee was suspended from service and was served with a memo of charges. Thereafter, recording the initiation of disciplinary proceedings, the writ appeal-W.A.899/2007 was disposed of. 9. On the failure of the employee to appear in the enquiry, the same was conducted exparte, and resulted in finding of guilt. As per order dated 10.01.2008, the employee was dismissed from service. 10. Challenging the disciplinary proceedings and the consequential dismissal from service, the employee approached the Arbitration Court. As per W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 5 :- order dated 16.07.2013, the order of dismissal was held against, and the employee was directed to be reinstated with all benefits including back wages. The appeal by the employer before the Tribunal was dismissed on 28.01.2015, imposing compensatory costs. 11. A reading of the enquiry report dated 27.09.2007 indicates that the failure on the part of the employee to prove that she was not suffering from any mental illness appear to have weighed with the enquiry officer. As noticed, the allegation regarding the mental incapacity and the insistence for production of a mental health certificate was looked down by all the authorities and by this Court. In W.P.(c) 33535/2006, this Court had frowned upon the demand of the employer for a mental health certificate. It would be appropriate to refer to the relevant portion of the said judgment which reads thus:- _“7. It is demeaning to a normal person to direct her to produce a medical certificate to the effect that she is not_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 6 :- _mentally ill. Therefore the Society had no business to issue such a direction to the said Komalavally. No law provides that if the employer suspects the mental illness on the part of the employee, he or she is bound to produce a medical certificate, certifying the mental health of the employee. Therefore I have no doubt in mind that the procedure adopted by the Society is certainly illegal. If the Society had a case that the said Komalavally had committed any misconduct, it was for the Society to initiate disciplinary proceedings against the petitioner. That being so, I do not find any merit in the challenge against the orders of the Deputy Director of Diary Development and the Government directing the Society to permit the said Komalavally to join duty.”_ 12. Now coming to the charges levelled against the employee, Charge No.1 relates to unauthorised absence. The Arbitration Court as well as the Tribunal proceeded as if the unauthorised absence alleged is for the period from 18.02.2006 to 31.03.2006. However, it is not so. The allegation W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 7 :- is of unauthorised absence thereafter. As mentioned above, from 01.04.2006 onwards the employee was not permitted by the employer to rejoin duty and all efforts were being taken by her to join duty. Under such circumstances, the allegation of unauthorised absence of the employee is devoid of any substance. In the backdrop as noticed above, the allegation lacks bona fides. 13. The second charge levelled against the employee is act of insubordination to the Secretary on 17.02.2006 and alleged attempt to destroy the furniture and records of the Society. Pertinently though such an incident is alleged to have occurred on 17.02.2006, no proceedings in the said regard are seen initiated till 22.05.2007 viz. the issuance of the charge memo. A reading of the enquiry report reveals that there is no positive finding regarding the incident that is alleged to have taken place on 17.02.2006. The discussions therein is more or less to find mental illness with the employee. W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 8 :- 14. Charge No.3 regarding abstinence from duty after marking attendance in the register, was held against by the enquiry officer. 15. Charge No.4 levelled against the employee is that the records of the Society were destroyed/ defaced by the employee by drawing lines/scrawling thereon. However, in the enquiry report what is discussed is regarding corrections or interpolation of figures. The finding is not with respect to the charge alleged. 16. Charge No.5 is the alleged misbehaviour of the employee against the members and customers of the Society and Charge No.6 relates to failure on the part of the employee to perform her duties. Noticeably, both the charges are on the face of it totally vague. No dates, incidents or the persons allegedly involved have been mentioned. The charges should be specific, definite and include details of the incident which form the basis for the charge. When the charge framed is totally vague and indefinite, the enquiry is vitiated. _**(See Surath**_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 9 :- _**Chandra Chakrabarty v. State of W. B. [1970 (3) SCC 548], Sawai singh v. State of Rajasthan (1986) (3) SCC 454, Union of India v. Gyan Chand Chattar [2009 (12) SCC 78], Anil Gilurker v. Bilaspur Raipur Kshetriya Gramin Bank 2011 (14) SCC 379)**_ . 17. The Arbitration Court as well as the Tribunal, on appreciation of the entire facts and circumstances, held that the evidence on record does not substantiate the charges levelled. The findings are based on materials. It could not be substantiated before me that any material evidence has been eschewed from consideration by the authorities. The judgment of the Tribunal, in so far as it relates to the findings on the charges, suffers from no infirmity. 18. Challenging the order of suspension, the employee had filed ARC 99/2007 and challenging the enquiry report and punishment she filed ARC 70/2010. ARC 70/2010 was renumbered as ARC 146/2011. ARC 99/2007 challenging the suspension was subsequently withdrawn. Though in paragraph 3 of the award of the Arbitration Court it is stated W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 10 :- that ARC 99/2007 was renumbered as ARC 146/2011, the same is evidently a mistake. The award of the Arbitration Court and judgment of the Tribunal is on ARC 70/2010 which was renumbered as ARC 146/2011 challenging the enquiry and the punishment imposed. The arguments sought to be advanced relying upon the wrong mentioning of the ARC number, has no merit. 19. Now coming to the relief to be granted, pending the proceedings, the employee crossed the age of superannuation on 04.03.2014. Learned counsel for the employee relying on the judgment of the Apex Court in _**Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.E.D.) and others [2013 (10) SCC 324]**_ and of a Division Bench of this Court in _**Perinthalmanna Taluk Co-operative Educational Society v. Satheeratnam [2018 (2) KLT 99])**_ claimed that the employee is entitled to full back wages. The learned counsel for the employer on the other hand, relying on the judgment of the Apex Court in _**United India Insurance Co. Ltd. v. Siraj Uddin Khan [(2019)**_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 11 :- _**7 SCC 564]**_ , and of this Court in _**Smitha K. v. Kerala Cooperative Tribunal, Thiruvananthapuram and Ors. [2020 (3) KHC 356]**_ submits that grant of 50% of the back wages is the proper course. 20. I am afraid that the decisions relied on by the employer are founded on an entirely different factual scenario. In those cases the question considered was, determining the quantum of compensation payable in lieu of reinstatement. The employees therein had further years of service left to attain the age of retirement. The courts considered the question as to whether the entire salary payable for the remaining period would be a just compensation in lieu of reinstatement. It is while addressing the said issue that the Apex Court observed that payment of full wages for the remaining period of service as compensation in lieu of reinstatement would be, conferring a “bonanza” on the employee. Those decisions does not apply to the facts of the present case. W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 12 :- 21. No doubt, grant of full back wages, on interfering with an order of termination of service, is not a rule of thumb. Whether the employee is entitled to full back wages or not for the period he was out of service, is a matter to be determined on the facts of each case. The principles to be followed have been delineated by the Apex Court in Deepali Gundu Surwase's case (supra). Paragraph 38 of the said judgment is extracted hereunder:- _“38. The propositions which can be culled out from the aforementioned judgments are:_ _38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule._ _38.2. 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._ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 13 :- _38.3. 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 or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also 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._ _38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 14 :- _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._ _38.5. 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 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 Articles 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 15 :- _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._ _38.6. 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 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_ W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 16 :- _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 (1979) 2 SCC 80._ _38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433) 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.”_ 22. As is evident from the facts of the present case, there appears to have been a conscious attempt on the part of the employer to keep the W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 17 :- employee away from service. The attempt of the employee to rejoin duty after leave was sought to be thwarted in one manner or the other. The charges levelled, as noticed supra, are either vague or baseless. The employee has alleged that she had no other means of income. The employer did not have a case nor could they point out that, the employee was gainfully employed elsewhere during the period in question. Applying the principles laid in Deepali Gundu Surwase's case, I do not find any reason to interfere with the award for payment of full back wages. Needless to say that employee shall be entitled for all the service and pensionary benefits. 23. It is noticed that the Tribunal has awarded compensatory costs of `1 lakh, even without any such claim or an appeal by the employee. There is also a direction to pay the costs in the appeal. There is a further direction to take legal steps against the members of the Board responsible for defending the case. The Tribunal has proceeded as W.P.(C) Nos.9029 of 2015 & 13181 of 2018 :- 18 :- if the disciplinary proceeding is on the same ground which was turned down in the earlier round of litigation, which does not appear to be fully correct. Initiation of the disciplinary proceeding was taken note of by this Court even in the earlier round of litigation. In the said circumstances, I am of the opinion that the grant of costs, compensatory costs and the direction to initiate action, were not proper. The said directions are accordingly set aside. The back wages shall be paid within a period of one month from the date of receipt of a copy of this judgment failing which the same shall bear interest at the rate of 9% per annum from the date of this judgment. Writ petitions are disposed of accordingly. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 9029/2015** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXT P1 : TRUE COPY OF THE AWARD IN ARC 146/2011 DATED 16-07-2013.** **EXHIBIT P2 EXT P2 : TRUE COPY OF THE PLAINT IN ARC NO. 99/2007.** - **EXHIBIT P3 EXT P3 : TRUE COPY OF THE ARC 70/2010** **EXHIBIT P4 EXT P4 : TRUE COPY OF THE APPEAL MEMORANDUM APPEAL NO.86/2013.** **EXHIBIT P5 EXT P5 : TRUE COPY OF THE JUDGMENT IN APPEAL 86/2013.** **EXHIBIT P6 EXT P6 : TRUE COPY OF THE ENQUIRY REPORT.** ## **APPENDIX OF WP(C) 13181/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE COMMON JUDGMENT IN W.P(C) 3906/07 DATED 28-02-2007** **EXHIBIT P2 TRUE PHOTOCOPY OF THE AWARD IN A.R.C 146/2011 DATED 16-07-2013.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT IN A.P 86/2013 DATED 28-1-2015** -------