Mezhuveli Service Co-operative Bank Ltd. v. K. Harichandran and others

**W.A. No.1691/2014** **-1-** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 WA NO. 1691 OF 2014 AGAINST THE JUDGMENTWPC 11479/2005 OF THE HIGH COURT OF KERALA APPELLANT/S: MEZHUVELI SERVICE CO-OPERATIVE BANK LTD.NO.2570 REPRESENTED BY ITS PRESIDENT, ULLANNOOR P.O.PATHANAMTHITTA DISTRICT. BY ADVS. SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR RESPONDENT/S: - 1 K.HARICHANDRAN, CHANDRIYIL HOUSE, ULLANNOOR P.O., PATHANAMTHITTA DISTRICT - 680 191. (DECEASED) - 2 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LABOUR AND REHABILITATION (A) DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 3 LABOUR COURT, KOLLAM - 691 001. - 4 ADDL.R4 THANKAMMA V.A, CHANDRAYIL HOUSE, ULLANNOOR P.O, KULANADA VIA, PATHANAMTHITTA DISTRICT-689503. (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 10/01/2019 IN IA.NO.01/2019) BY ADV ADV.V.PHILIP MATHEW (BY ORDER) **W.A. No.1691/2014** **==> picture [16 x 10] intentionally omitted <==** ## OTHER PRESENT: ADV ASHISH JOHN MATHEW., GP BEJOY CHANDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.A. No.1691/2014** **-3-** **==> picture [102 x 14] intentionally omitted <==** S.V. Bhatti, J. Heard Adv T P Pradeep, Adv Ashish Mathew John and Adv Bejoy Chandran, Government Pleader, for the parties. 2. The 2[nd] respondent in W.P.(C) No.11479/2005 is the appellant. The 1[st] respondent herein was the writ petitioner, and the 4[th] respondent represents the 1[st] respondent since the 1[st] respondent died during the pendency of the writ petition. The Reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short, the Act), by G.O.(Rt) No.1569/92/LBR dated 19.06.1992, was initiated by the Government. The Reference reads as follows: “Dismissal of Sri K Harichandran is valid or not.” **W.A. No.1691/2014** **-4-** 2.1 The Labour Court, as a preliminary issue, has taken up the validity of the enquiry into the misconduct alleged against the 1[st] respondent and found that the enquiry is valid and the challenge to the enquiry proceedings be discarded. The matter stood posted for adducing evidence on the proportionality of punishment, namely dismissal from service, whether warranted or not. From the Award of the Labour Court, it is evident that the parties before the Labour Court did not place evidence or material on the quantum of punishment, namely dismissal from service. The Labour Court by Award dated 10.01.2005 held that the dismissal of the 1[st] respondent is valid, and the 1[st] respondent is not entitled to any relief against the appellant. The 1[st] respondent hence filed W.P.(C) No.11479/2005. 2.2 The circumstances preceding the Award need not be stated for the grounds raised in the writ appeal on the findings **W.A. No.1691/2014** **-5-** recorded by the learned Single Judge in the judgment under appeal. The 1[st] respondent raised ground on the non-supply of the Enquiry Officer’s report before inflicting the punishment of dismissal from service. The 1[st] respondent relied on the judgment reported in _Managing Director ECIL, Hyderabad v. B Karunakar_[1] . The operative portion of the judgment under appeal reads as follows: “… The Apex Court in **Managing Director ECIL, Hyderabad v. B Karunakar and others** (1993 (4) SCC 727) held as follows: “…….. Hence. In all cases where the Inquiry Officer's report is delinquent employee not furnished to the in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made to ultimate difference to the findings and the punishment 1 (1993) 4 SCC 727 **W.A. No.1691/2014** **-6-** given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the CourtTribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to **W.A. No.1691/2014** **-7-** decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." 4. In the light of the above decision Ext.P4 order issued by the disciplinary petitioner authority dismissing the is hereby set aside. The matter is remitted back to the disciplinary authority to issue a show cause to the delinquent employee and furnish copy of enquiry officer's report with regard to imposing of penalty and after getting reply from the petitioner the disciplinary authority can take action against the petitioner. The disciplinary authority shall dispose of the matter within three months from the date of receipt of a copy of this judgment.” The matter is remitted to the Disciplinary Authority to continue from the stage where the judgment under appeal interdicts it. **W.A. No.1691/2014** **-8-** 3. Adv Pradeep contends that the circumstances are not fully appreciated in the judgment under appeal, and reproduced in his words, the principle in _B Karunakar_ case is applied without examining whether the 1[st] respondent has a case at any stage that the appellant herein did not furnish a copy of the Enquiry Officer’s report before inflicting the punishment of dismissal. The converse of the situation is that the appellant furnished a copy of the Enquiry Officer’s report to the 1[st] respondent. The 1[st] respondent submitted an explanation, and a decision was taken thereafter. To bring home the allegation, additional material is produced evidencing the service of the Enquiry Officer’s report. 3.1 In the above consideration, a short question arises: Is the assumption in the judgment under appeal that the Enquiry Officer’s report is not furnished to the 1[st] respondent correct? Paragraph 7 and Ground E of the Memorandum of Writ Appeal **W.A. No.1691/2014** **-9-** ## read thus: “7. It is submitted that the Director board of the Appellant was convened on 09.12.1990 and decided to send a copy of the enquiry report and a show cause notice by registered post to the petitioner. As per the decision dated 09.12.1990 a copy of the enquiry report and a show cause notice was served on the petitioner and the petitioner submitted an explanation. The explanation submitted by the petitioner was considered by the Director board of the appellant on 22.12.1990 and took a decision to dismiss the petitioner from the service. True copy of the minutes of the director board meetings convened on 09.12.1990 and 22.12.1990 is produced herewith and marked as Annexure A. *** *** *** E. The learned single Judge ought to have noticed that the petitioner was served a copy of the Enquiry report and he had presented Ext P5 argument note before the Labour court based on the Enquiry report.” From the above, it is established by the appellant that the omission noted in the judgment under appeal is incorrect. Once a finding in this behalf is erased, necessarily the principle laid down in _B Karunakar_ case is not attracted to set aside the Award **W.A. No.1691/2014** **-10-** dated 10.01.2002 in Industrial Dispute No.96/1992. For the above reasons, the judgment under appeal is set aside. Writ Appeal is allowed accordingly. Sd/S.V.BHATTI JUDGE Sd/BASANT BALAJI JUDGE jjj