PANDALAYANI WEAVER'S CO-OPERATIVE SOCIETY KOYILANDY REPRESENTED BY ITS SECRETARY v. LABOUR COURT, KOZHIKODE; AREA SECRETARY, KERALA CO-OPERATIVE EMPLOYEES UNION, KOYILANDY; M.P. BALAKRISHNAN

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`MONDAY, THE 12[TH] DAY OF JUNE 2023 / 22ND JYAISHTA, 1945`** ## **`WP(C) NO. 2376 OF 2011`** ## **`AGAINST THE ORDER/JUDGMENT ID 109/1992 OF LABOUR COURT, KOZHIKODE`** ## **`PETITIONER:`** ``` PANDALAYANI WEAVER'S CO-OPERATIVE SOCIETY KOYILANDY REPRESENTED BY ITS SECRETARY. ``` ``` BY ADVS. SMT.A.K.PREETHA SRI.C.ANIL KUMAR ``` ## **`RESPONDENTS:`** ``` 1LABOUR COURT, KOZHIKODE 673 001 ``` ``` 2THE AREA SECRETARY KERALA CO-OPERATIVE EMPLOYEES UNION,, KOYILANDY. 3M.P.BALAKRISHNAN, S/O.CHANDU, PARUVAYAL HOUSE, P.O.KOLLAM, KOYILANDY, KOZHIKODE – 673 305 ``` ``` BY ADVS. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU ``` ``` SRI.AJAY SHANKAR – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 2376 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** Present writ petition is directed against the award of the Labour Court rendered in I.D.No.109/92 whereby the claim petition preferred by the respondent No.3 claimant for reinstatement into service with full back wages have been allowed. 2. The facts leading to the filing of the writ petition are that the workman along with Accountant K.T.Raghavan were in joint custody of the stocks. On the basis of the audit report, Management found that there was a misappropriation. Accordingly, both workers were charge-sheeted. Sri.K.T.Raghavan admitted his fault and claimed mercy whereas explanation submitted by the respondent No.3 was found not satisfactory and the enquiry officer was appointed. As per the previous award, Labour Court rendered the findings in favour of the workman. Petitioner – bank preferred O.P.No.3605 of 1999 in this Court. This Court vide judgment dated 12.12.2006 set aside the order and remanded the matter by permitting the Management to lead fresh evidence. Management examined ``` WP(C) NO. 2376 OF 2011 ``` ``` 3 ``` four witnesses and brought on record thirty two documents. Labour Court on examination of each and every witness and documents found that it was only the Accountant Sri.K.T.Raghavan who was responsible in custody of the stock as he was in possession of key, not the petitioner who was clerk. It was Sri.Raghavan, who was having the full and final control over the stock and had admitted his mistake. By noticing aforementioned, findings have been rendered against the Management as regards full back wages. 3. Learned counsel appearing on behalf of the petitioner submitted that the order of the Labour Court is the result of misreading and misdirection of the evidence and there was umpteen number of documents to hold respondent No.3 guilty of the misappropriation. For the year 1988-89 misappropriation was of Rs.9,990/-, 1989-90 Rs.8,745/- and 1990-91 Rs.38113/-. Labour Court did not read the evidence of the documents in correct perspective. When the matter was pending before this Court against the previous award of the Labour Court, an application under Section 17B of the Industrial Dispute Act was filed which was opposed by the petitioner – ``` WP(C) NO. 2376 OF 2011 ``` ``` 4 ``` Management alleging that the workman was working in the Durga Oil Mills which was not denied nor pressed. This fact though has been noticed by the Labour Court but no positive and concrete reasoning has been assigned in awarding the back wages and rather burden has been placed upon the Management who has placed on record the material in support of their defence regarding the employment of respondent No.3 in the Durga Oil Mills. In support of the contention he relied upon the judgment of the Supreme Court in **Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others {2013 (9) SCR 1.}** 4. On the other hand, learned counsel appearing on behalf of the respondent No.3 submitted that the finding of the Labour Court on point No.1 with regard to the misappropriation is based upon the preponderance of evidence. Both oral and documentary evidence has been deliberated/pondered in extenso. There is not a single document with the signature of respondent No.3 proving his guilt regarding the misappropriation. This Court cannot sit in appeal to reappreciate the evidence. ``` WP(C) NO. 2376 OF 2011 ``` ``` 5 ``` 4. As regards the grant of the back-wages the entire onus is on the Management. Once the Management did not lead any evidence in support of the case with regard to reinstatement, workman was not required in law to place on record the material as the burden of proof never shifted. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. As regards the allegation of misappropriation, petitioner - Management examined a fresh witness and placed on record the stock register and product classification register and noticed that sale of the items were by writing invoices. All the invoices were signed by Accountant Sri.K.T.Raghavan who admitted the entire liability. Though it was admitted that material was under joint custody, there was not a single document on record of this Court or before the Labour Court which bear the signature of respondent No.3, neither respondent No.3 facilitated any manipulation. There has to be direct evidence to prove the manipulation, fraud and misappropriation. All the vouchers were prepared in the handwriting of the Accountant and there was only additional ``` WP(C) NO. 2376 OF 2011 ``` ``` 6 ``` signature of the Clerk. Management did not contend that in all the items, there was misappropriation. Once Sri.K.T.Rghavan had admitted the liability, there was no question of shifting the liability to the worker to make out a case of collective liability. Finding of the Labour Court in my view are perfectly legal, justified and do not warrant any interference. Award with the aforementioned finding is upheld. 7. Coming to the next question of ordering the back-wages workman no doubt had submitted an application bearing No.289/1999 under Section 17B. Management filed a counter affidavit alleging that he was gainfully employed in the Durga Oil Mills and when the matter came up before this Court in the first round of litigation on 02.08.1999 workman did not file reply to the counter affidavit nor pursued the petition for payment of wages under Section 17B. It was discerned that if the workman succeeds he will be entitled to claim the back wages. In a claim petition preferred before the Labour Court, there is no whisper with regard to the non employment or gainful employment. It is settled law that once the burden has not been discharged it ``` WP(C) NO. 2376 OF 2011 ``` ``` 7 ``` cannot be said to be shifted to the Management to lead evidence. The finding of Labour Court in putting blame on Management in not producing evidence is thus totally contrary to the ratio decidendi culled out in the judgment cited supra, relevant portion reads as follows: “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 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 ``` WP(C) NO. 2376 OF 2011 ``` ``` 8 ``` 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. 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 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 ``` WP(C) NO. 2376 OF 2011 ``` ``` 9 ``` 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.” Thus, I am of the view that the award of the Labour Court on the point of back-wages cannot sustain and warrant interference, said findings are set aside. Award is modified and it will be construed to be reinstatement till 31.01.2005 i.e. the date of retirement. Writ petition stands disposed off. ## **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 2376 OF 2011 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 2376/2011`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE OFFICE ORDER NO.8/88 DATED 25.6.88 ISSUED BY THE PETITIONER SOCIETY TO THE 3RD RESPONDENT. ``` ``` EXHIBIT P2TRUE COPY OF THE RECEIPT DATED 10.9.1991 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT ``` ``` EXHIBIT P3TRUE COPY OF THE JUDGMENT IN O.P.3605/1999 PASSED BY THIS HONOURABLE COURT DATED 12.12.2006 ``` ``` EXHIBIT P4TRUE COPY OF THE AWARD DATED 16.8.2010 PASSED BY THE 1ST RESPONDENT IN I.D.109/92 ```