The President, Aluva State Transport Staff Co-operative Society Ltd. v. I.N. Paul and Employees Union (CITU) and Labour Court, Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945`** ## **`WP(C) NO. 8107 OF 2009`** ## **`PETITIONER:`** ``` THE PRESIDENT, ALUVA STATE TRANSPORT STAFF CO-OPERATIVE SOCIETY LTD.,NO.E-158, KSRTC, BUS STATION, ALUVA-686101. ``` ``` BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.ANIL D. NAIR SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI ``` ## **`RESPONDENTS:`** ``` 1N.I.PAUL EMPLOYEES UNION (CITU), C/O.ANGAMALY CO-OPERATIVE, CONSUMER STORE NO.E.240,ANGAMALY.P.O. ``` ``` 2THE LABOUR COURT, ERNAKULAM. ``` ``` BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SMT.B.MEERA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 8107 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** Present writ petition on behalf of the management is directed against the award of the Labour Court dated 29.07.2008 Ext.P17 rendered in I.D.No.65/1997. 2. 1[st] respondent – workman, on 11.01.1992, was employed as LD Clerk. On account of misconduct, usage of abusive and physical assault, being late comer and absent, was placed under suspension. Was, on 01.10.1994, served with a charge sheet consisting of twelve charges. Reply was sought which was found not satisfactory. Enquiry officer was appointed. Before enquiry officer, management examined four(4) witnesses and brought on record thirty one (31) documents. Workman examined one witness and brought on record fourteen (14) documents. Enquiry officer found that only two charges were proved against the workman ie., physical abuse on 30.07.1994 against the President with regard to tampering of the loan files. Disciplinary authority on the basis of the aforementioned enquiry report, without ``` WP(C) NO. 8107 OF 2009 ``` ``` 3 ``` supplying the copy of the report, imposed the punishment of dismissal. 3. Workman applied for a leave on 25.05.1994 on account of some court hearing on 26.05.1994. Management rejected the said application on the ground that next date ie., 26.05.1994 was a loan disbursement date and his presence was required. However, despite rejection of leave workman remained absent. Explanation was sought and when reply memo to the explanation was served, requested to supply document with regard to the court hearing. Workman did not supply, which resulted into imposition of minor punishment of barring of two increments. 4. Workman challenged the aforementioned punishment by raising the industrial dispute as noticed above. Labour Court in the preliminary round found that the management failed to place on record the enquiry report and thus asked for the parties to lead evidence. 5. On the basis of the evidence found that two charges allegedly proved by the enquiry officer was not ``` WP(C) NO. 8107 OF 2009 ``` ``` 4 ``` supported by direct and cogent evidence as there were stark differences in the statement and ordered for reinstatement with continuity of service with back wages. 6. Mrs.Pooja Menon, learned counsel appearing on behalf of the petitioner submitted that the award of the Labour Court is not sustainable in the eyes of law as the Labour Court examined the matter from a criminal angle. It was not a case of picking up the beads and making a necklace. There cannot be any consistency in the testimonies of the witnesses pertaining to usage of abusive language and physical abuse to the President. Management lost faith in the workman regarding his conduct, there was every likelihood of commission of repetitive acts and misconduct, thus entailed into the punishment of dismissal. At the time of suspension, was drawing a salary of Rs.1,752/-. One of the other reasons for ordering reinstatement was non-supply of the enquiry report but that cannot be attributed for the reason it had been lost. It is in that background fresh evidence was lead before the Labour Court. ``` WP(C) NO. 8107 OF 2009 ``` ``` 5 ``` 7. On the other hand, learned counsel appearing on behalf of the workman opposed the aforementioned prayer and submitted that management failed to prove on record the two charges allegedly proved during the enquiry, for, it was consistently found that the President of the society had made the correction in the loan applications and workman cannot be isolated on such allegations. Witnesses to the incident, occurred on 30.07.1994, were not coherent rather disoriented and urged this Court for upholding the order. 8. In rebuttal, Mrs.Pooja Menon submitted that no useful purpose would be served in ordering reinstatement though the award of the Labour Court was interdicted but by now workman crossed the age of superannuation. 9. I have heard the learned counsel for the parties and appraised the paper book. 10. No doubt the workman, not only on account of incident took place on 30.07.1994, but was also imputed with other charges of remaining absent, marking his presence on the next date as well as interpolation in the loan applications. ``` WP(C) NO. 8107 OF 2009 ``` ``` 6 ``` Enquiry officer, as noticed above, found only two charges against the workman. Since the enquiry report was not placed on record fresh evidence was lead. President examined himself as MW1 whereas the two witnesses allegedly witnessed the incident were M2 and M4. Labour Court on noticing the evidence found that President MW1 did not utter a word with regard to conduct of the workman regarding throwing of the register at him as other witnesses had given different version. As far as the loan applications are concerned, in the testimony of the management witnesses it surfaced that about fifty six (56) loan applications were rectified by the President in the same fashion as attributed to the workman who had made only changes in two loan files. All these factors when cumulatively examined, Labour Court found that the imputation of punishment of dismissal was too harsh, accordingly set aside. 11. I am of the view, there is no fallacy or discrepancy in the findings of the Labour Court. Keeping in view the fact that the workman has now crossed the age of superannuation, I ``` WP(C) NO. 8107 OF 2009 ``` ``` 7 ``` deem it appropriate to modify the award, instead of ordering for reinstatement and back wages, deem it appropriate to order compensation of Rs.6 lakhs which would take into consideration of back wages and other benefits accrued while in employment. The said compensation has been awarded in terms of the findings rendered by Supreme Court in _**Bharat Sanchar Nigam Limited**_ v. _**Bhurumal**_ [(2014) 7 Supreme Court Cases 177]. Respondents are directed to make payment within a period of two months, failing which, it shall entail into interest at the rate of 6% per annum. Writ petition with aforementioned modification stands disposed. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 8107 OF 2009 ``` ``` 8 ``` ## **`APPENDIX OF WP(c) No.8107/2009`** ``` PETITIONER’S EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE ORDER OF THE JOINT REGISTRAR OF CO-0PERATIVE SOCIETIES DATED 2.2.1995 WAS MARKED AS EXT M26 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 25.5.1994 WAS MARKED AS EXT M4 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P3 TRUE COPY OF THE LEAVE APPLICATION DATED 25.5.1994 WAS MARKED AS EXT M5 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P4 TRUE COPY OF THE CHARGE SHEET DATED 28.5.1994 ISSUED TO THE WORKMAN WAS MARKED AS EXT M6 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P5 TRUE COPY OF THE EXPLANATION DATED 12.6.1994 SUBMITTED BY THE WORKMAN WAS MARKED AS EXT M7 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P6 TRUE COPY OF THE MEMO DATED 16.6.1994 WAS MARKED AS EXT M8 PRODUCED BEFORE TEH 2ND RESPONDENT` - `EXHIBIT P7 TRUE COPY OF THE REPLY DATED 21.6.1994 WAS MARKED AS EXT M9 PRODUCED BEFORE THE 2ND RESPONDENT` - `EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25.7.1994 BARRING INCREMENTS WAS MARKED AS EXT M10 PRODUCED BEFORE THE 2ND RESPONDENT` ``` WP(C) NO. 8107 OF 2009 ``` ``` 9 ``` - `EXHIBIT P9` ``` TRUE COPY OF THE LOAN APPLICATION SUBMITTED BY T.K. SUGATHAN WAS MARKED AS EXT M12(A) BEFORE THE 2ND RESPONDENT DATED 5.5.1994 ``` - `EXHIBIT P10` - `TRUE COPY OF THE LOAN APPLICATION SUBMITTED BY SRI.B.S ALI DATED 25.5.1994 WAS MARKED AS EXT M12(B) BEFORE THE 2ND RESPONDENT` - `EXHIBIT P11 TRUE COPY OF THE CHARGE MEMO DATED 30.5.94 ISSUED TO THE WORKMAN WAS MARKED AS EXT M11 BEFORE THE 2ND RESPONDENT` - `EXHIBIT P712 TRUE COPY OF THE REPLY DATED 15.6.1994 WAS MARKED AS EXT M11 BEFORE THE 2ND RESPONDENT` - `EXHIBIT P13 TRUE COPY OF THE CHARGE SHEET DATED 1.10.1994 WAS MARKED AS EXT M28 BEFORE THE 2ND RESPONDENT` - `EXHIHBIT P14 TRUE COPY OF THE DISMISSAL ORDER DATED 28.1.2005 WAS MARKED AS M29 BEFORE THE 2ND RESPONDENT` - `EXHIBIT P15 TRUE COPY OF THE CLAIM STATEMENT DATED 18.5.98 FILED BY THE 1T RESPONDENT BEFORE HE 2ND RESPONDENT IN ID NO.65/97` - `EXHIBIT P16 TRUE COPY OF THE WRITTEN STATEMENT DATED 7.10.99 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN I.D.NO.65/97` - `EXHIBIT P17 TRUE COPY OF THE AWARD OF THE 2ND RESPONDENT DATED 29.7.08 IN I.D.NO.65/97`