W.P.(C) Nos. 25348 of 2011 & 34734 of 2011 (Bechu Kurian Thomas, J.)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943** **WP(C) NO. 25348 OF 2011** **AGAINST THE ORDER IN ID 13/2010 OF INDUSTRIAL TRIBUNAL,** # **PALAKKAD, PALAKKAD** ## **PETITIONERS :** - **1 C.V.BABY, PRESIDENT, KERALA PRIVATE PHARMACISTS ASSOCIATION,CHALISSERY VEEDU, CHELAKKARA, TRICHUR – 680 586** - **2 T.J.CICILY WIFE OF VINCENT, C.D.THANIKKAL KAROKKARAN VEEDU, MANALUR, PALAZHI, TRICHUR.** **BY ADVS. SRI.T.M.RAMAN KARTHA SRI.ARUN BASIL** ## **RESPONDENTS :** - **1 INDUSTRIAL TRIBUNAL, PALAKKAD – 678 001.** - **2 THE MANAGING PARTNER, G.E.M.HOSPITAL BENNET ROAD, TRICHUR – 680 520.** **BY SENIOR GOVT.PLEADER ADV.JUSTIN JACOB** **R2 BY ADV.BENNY P.THOMAS,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH WP(C).34734/2011, THE COURT ON 30.09.2021 DELIVERED THE FOLLOWING:** **-:2:-** W.P.(C) No.25348 & 34734/11 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 WP(C) NO. 34734 OF 2011** ## **PETITIONER :** **THE MANAGING PARTNERS – MR.T.R.RAVI, G.E.M.HOSPITAL, BENNET ROAD, THRISSUR - 20.** **BY ADVS. SRI.P.BENNY THOMAS SRI.D.PREM KAMATH** ## **RESPONDENTS :** - **1 C.V.BABY, PRESIDENT, KEALA PRIVATE PHARMACISTS ASSOCIATION, CHALISSERY VEEDU, CHELAKKARA, THRISSUR - 680 586.** - **2 SMT.T.J.CICILY, W/O.VINCENT C.D, THANIKKAL KAROKKARAN VEEDU, MANALOOR, PALAZHI, THRISSUR - 680 617** **3 INDUSTRIAL TRIBUNAL, PALAKKAD - 678 020 BY SENIOR GOVT.PLEADER ADV.JUSTIN JACOB BY ADVS. SRI.ARUN BASIL SRI.T.M.RAMAN KARTHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.09.2021, ALONG WITH WP(C).25348/2011, THE COURT ON 30.09.2021 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.25348 & 34734/11 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C).No.25348 of 2021** **&** **W.P.(C) No.34734 of 2011** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 30[th] day of September, 2021** ## **JUDGMENT** These two writ petitions challenge an award passed by the Industrial Tribunal, Palakkad in ID.No.13/2010. The union and the worker together preferred W.P.(C) No.25348/2011 while the management preferred W.P.(C). No.34734/2011. Since the issues involved are the same, these writ petitions are disposed of together. For the purpose of easier comprehension, petitioners in the former case are together referred to by the singular term 'worker' while the petitioner in the latter case is hereinafter referred to as the 'management'. 2. The Tribunal considered the question referred to it by the Government as to whether the dismissal of the worker (Smt.T.J.Cicily), a Pharmacist, by the management was unjustifiable or not. Though the dispute was espoused by the union initially, during the course of the proceedings before the W.P.(C) No.25348 & 34734/11 **-:4:-** Tribunal, the worker was permitted to join the proceedings. It was claimed that the worker was a Pharmacist of the management hospital since 1991 and had never caused any cause for concern but the management dismissed her from service on 16.02.2009 on the basis of a domestic enquiry conducted in violation of the principles of natural justice. It was further claimed that the entire issue revolved around an alleged direction by the management to revise the work timings of the pharmacy due to which the worker was directed to report for duty from 8.00 a.m.to 5.30 p.m. everyday instead of the existing 9.00 a.m. to 5.30 p.m. The worker alleged that the change of timings was contrary to the declaration submitted by her to the Drugs Controller based on which the license for the pharmacy was obtained, and the said timings could not have been varied without a fresh declaration. The worker had further alleged that the enquiry proceedings were initiated as part of victimisation since the worker had earlier complained to the Kerala State Women's Commission against the insult and verbal abuse meted out to her by the managing partner of the management and in that instance, though enquiry proceedings were initiated against the worker, it was alleged that on realizing that the pharmacy W.P.(C) No.25348 & 34734/11 **-:5:-** license had expired during that period, management withdrew from that issue and purposely created the present issue. 3. It was the case of the management that instead of adhering to the new timings, the worker disobeyed the direction and continued to attend the pharmacy at the pre-revised time schedule. The management filed a written statement alleging that the domestic enquiry was conducted in due compliance with all principles of natural justice. It was stated that the declaration submitted to the Drugs Controller can be varied and that the only requirement was to submit a fresh declaration. It was also pointed out that management had the discretion to vary the timings of the pharmacy and that the grant of license and the declaration given by the pharmacist had no connection with each other. According to the management, the worker refused to submit a new declaration in spite of demand by the management, and since the variance of timings was the prerogative of the management, the worker ought to have obeyed the direction. 4. In the domestic enquiry conducted, the enquiry officer found the worker as having committed the misconduct and on that basis, the management imposed a punishment of W.P.(C) No.25348 & 34734/11 ## **-:6:-** ## dismissal. 5. After considering the rival contentions, the Tribunal came to the conclusion that the enquiry was conducted in compliance with the principles of natural justice and that there was no room for any complaint as alleged by the worker. However, in respect of the findings, the Tribunal came to the conclusion that there was nothing on record to show that the worker raised any objections regarding the change of duty timings either orally or in writing, as alleged by the management. After an appreciation of the documents produced and the evidence adduced before the enquiry officer and also on a consideration of the enquiry report, the Tribunal came to the conclusion that since the worker had admitted the allegations in the show cause notice, the findings of the enquiry officer that the worker is guilty of the charges levelled against her were only to be upheld. After the aforesaid findings, the Tribunal went on to consider the question whether the management was entitled to change their duty timings. Considering the requirement of a declaration of the pharmacist to be submitted to the Assistant Drug Controller to vary the working hours, the Tribunal concluded that for finding misconduct on the part of the W.P.(C) No.25348 & 34734/11 **-:7:-** delinquent, there must be dis-obeyance of reasonable orders of the employer and that without any request from the management to the worker to submit a fresh declaration in tune with the proposed change of working hours, the dis-obeyance will not amount to a misconduct as contemplated under law. In such a view of the matter, the Tribunal further held that there was nothing on record to show that the management ever made a request to the worker to submit a declaration in conformity with the proposed change of working hours for completing the legal formalities with the Assistant Drug Controller. 6. After the above findings, the Tribunal proceeded to hold that during the course of the final hearing, since the worker expressed her willingness to submit a fresh declaration and abide by the work timings as per the duty time fixed by the management, it would be only just and proper to accept the said offer and prove herself to be a loyal employee. Thereafter, the Tribunal held that if the declaration is submitted within 30 days from the date of pronouncement of the award, the management shall re-employ the worker without any back-wages or service benefits for the period from the date of dismissal to the date of re-employment and further directed that the past service already **-:8:-** W.P.(C) No.25348 & 34734/11 rendered to be tagged on to the future service for the purpose of terminal/ retirement benefits. 7. The worker challenges the award to the extent it denies back-wages and other service benefits to the petitioner for the period during which she was kept out of service and also seeks for a direction for reinstatement, while the management challenges the award to the extent it directs reinstatement with continuity of service. 8. I have heard the arguments of Adv. Benny P. Thomas the learned counsel for the management as well as Adv. Raman P. Kartha, the learned counsel for the worker. 9. The learned counsel for the management submitted that the worker is guilty of wilful insubordination and that as a hospital, the disobedience to lawful directions ought to be viewed seriously. He further submitted that any leniency shown to the worker would only invite indiscipline in the hospital and therefore, the Tribunal erred in granting re-employment. Relying upon the concept of enforcement of discipline as a right of management, the learned counsel relied upon the decisions in **U.B Gadhe & Others v. G.M Gujarat Ambuja Cement Private Ltd** . [(2007) 13 SCC 634] as well as the judgment of ## W.P.(C) No.25348 & 34734/11 ## **-:9:-** the Madras High Court in **V. Sankaranarayanan v. The Presiding Officer** [2015 (1) CLR 454]. 10. The learned counsel for the worker on the other hand contended that the misconduct alleged against the petitioner was not proved and that the Tribunal ought to have directed reinstatement of the worker with full back wages. Referring to the conclusions of the Tribunal, it was pointed out that re-employment and reinstatement are two different facets and that the re-employment ordered by the Tribunal creates a break in service. It was further contended that in any event the punishment meted out by the management was too harsh and disproportionate for the alleged disobedience. The decision in ## **Davalsab Hussainsab Mulla v. North West Karnataka Road** **Transport Corporation** [(2013) 10 SCC 185], was relied on in support of his contentions. 11. In every case of dismissal or termination, the issues to be considered are (i) Whether the misconduct alleged has been proved or not, and (ii) Whether the punishment imposed is proportionate to the proved misconduct. W.P.(C) No.25348 & 34734/11 ## **-:10:-** ## (i) Has the misconduct alleged against the worker been proved? 12. As a finding of fact, the Tribunal has found that “there is nothing on record to show that the worker raised any objection regarding change of duty timings as proposed in notice dated 28.7.2008 either verbally or in writing. She raised the objection for the first time only in her letter dated 13.8.2008, ( _sic 13.10.2008_ ) which is a reply to the show cause notice dated 7.10.2008”. After considering the various aspects of the case, the Tribunal found in paragraph 14 as follows; “ _I am of the view that when the worker herein was served with the notices of change of working hours, fresh declaration ought to have been given to the management. In my view, the failure to give such a declaration as required by the management would definitely constitute a misconduct of disobeyance of reasonable orders of the employer. However, it is noticed that there is nothing on record to show that the management made a request to the worker to submit a declaration in conformity with the proposed change of working hours for completing the legal formalities with the Asst. Drug Controller_ .” (emphasis supplied). 13. Thus according to the Tribunal, misconduct would W.P.(C) No.25348 & 34734/11 **-:11:-** arise only on disobeying reasonable orders of the employer. However, there was no evidence to prove that the management issued any order directing the worker to submit a declaration. Though the wordings used by the Tribunal are not satisfactory, it can be comprehended, on a holistic reading of the award, that the Tribunal ultimately concluded that there was no misconduct on the part of the worker, as alleged. 14. Of course the Tribunal has, in paragraph 11 observed that the “findings of the enquiry officer that the worker is guilty of the charges have to be upheld” and in the subsequent paragraphs the Tribunal hold that there is nothing to prove any act constituting misconduct on the part of the employee. Though the aforesaid two contradictory observations by the Tribunal could have justified relegating the parties to the Tribunal itself for fresh consideration, I am of the view that the said course of action will not serve the interests of justice as already a decade and more have elapsed since the alleged misconduct took place. 15. To ascertain the meaning of the observations of the Tribunal “the findings of the Enquiry Officer are to be upheld”, it is necessary to read the Award as a whole. When so read, it can W.P.(C) No.25348 & 34734/11 **-:12:-** be understood that by the aforesaid observations the Tribunal only meant that the finding about the refusal of the worker to abide by the alleged variance in timings are correct. However, the same is not to be treated as a finding on misconduct, since, in the subsequent paragraphs as extracted earlier, the Tribunal itself had found that there was nothing on record to prove that the management had ever made a request to the worker, to constitute its refusal, a violation and a misconduct. As the Tribunal had ultimately concluded that the misconduct alleged against the employee had not been proved in the absence of any evidence from the management, this Court finds no reason to interfere with such a finding of fact. There is nothing on record to prove that the management had directed the worker to abide by the change in timings. It is thus held that the Management has not been able to prove that the conduct of the worker amounts to misconduct as contemplated under law. (ii) Whether punishment imposed is proportionate to the misconduct proved? 16. The Tribunal directed re-employment of the workman without any backwages or service benefits for the period from the date of dismissal to the date of re-employment W.P.(C) No.25348 & 34734/11 **-:13:-** but directed the past service to be tagged on to the future service for the purpose of retirement benefits. From a reading of the above, it can be understood that the Tribunal has modified the punishment of dismissal, into a break in service from the date of termination till the date of the award and also denied the backwages for the worker. 17. The learned counsel for the worker complains that the Tribunal erred in imposing a punishment though not strictly in the nature of punishment but having the effect of a punishment by denying not only the backwages but also by creating a break in the service of the worker, thereby creating great prejudice which was not warranted in the facts of the case. 18. Imposing a punishment arises only when there is a finding of proved misconduct. If the misconduct is not proved, there is no question of any punishment and the termination of service falls in the category of wrongful termination of service. For wrongful termination of service, the normal rule is reinstatement with continuity of service and backwages. In the decision in **Deepali Gundu Surwase v. Cranti Junior Adhyapak Mahavidyalaya (D.ED) and Others [(2013) 10 SCC 324]** , the Supreme Court laid down the propositions after W.P.(C) No.25348 & 34734/11 ## **-:14:-** scanning all the principles of law laid down in various decisions and held that in cases where there is wrongful termination of service, reinstatement with continuity of service and backwages is the normal rule. It was further held that the aforesaid normal rule is subject to the rider that while deciding the issue of backwages, the court may take into consideration the length of service of the workman, the nature of misconduct, if any found proved against the workman, the financial condition of the employer and similar other factors. It was also laid down that the worker who is desirous of getting the backwages must plead in the court of first instance itself, that he or she was not gainfully employed and if the employer wants to avoid payment of full backwages then it has to plead and lead cogent evidence to prove that the workman was gainfully employed and was therefore not entitled to wages equal to what she was drawing prior to the termination of service. 19. Applying the aforesaid propositions, and on a consideration of the finding that there is no proved misconduct on the part of the employee, it can only be concluded that termination of the worker was wrongful. Though the Tribunal had in fact found that there was no proved misconduct, by W.P.(C) No.25348 & 34734/11 **-:15:-** ordering re-employment, as distinguished from reinstatement, and that too without backwages, a punishment has actually been imposed against the worker. A departure from the normal rule as propounded by the Supreme Court in **Deepali Gundu Surwase** case was resorted to, by the Tribunal, without any reason or basis. 20. It is true that the jurisdiction of the court in judicial review is limited. However, when the Tribunal has acted contrary to the settled propositions of law laid down by the Supreme Court, this Court can interfere to set at right the perversity in the order of the Tribunal within the limited jurisdiction of powers of judicial review. No doubt, the Tribunal has wide discretion in awarding the relief, according to the circumstances of the case and in the writ jurisdiction the said discretion is limited. Still, when this Court finds that the discretion under Section 11(a) of the Industrial Disputes Act has been exercised contrary to the settled principles of law, the powers of judicial review can be exercised to bring the Award in accord with law. 21. The worker in her statement had pleaded that she is not employed anywhere and on the other hand, the Management though had denied the same in its pleadings, were **-:16:-** W.P.(C) No.25348 & 34734/11 unable to prove with any evidence that the worker was gainfully employed. This Court finds no reason to depart from the normal rule to be adopted in the case of wrongful termination of service. Accordingly, the re-employment in the nature directed by the Tribunal is contrary to the propositions of law laid down by the Supreme Court and it is held that the worker is entitled to reinstatement with continuity of service and full backwages. The Management shall reinstate the worker forthwith, along with payment of full backwages and all the service benefits legally due to her. The worker shall submit the declaration to the Management as undertaken and mentioned in the Appeal. In view of the above, the writ petition filed by the management, i.e.W.P.(C) No.34734/2011 shall stand dismissed and the writ petition filed by the worker i.e. W.P.(C) No.25348/2011 shall stand allowed. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM W.P.(C) No.25348 & 34734/11 **-:17:-** ## **APPENDIX OF W.P.(C) NO.25348 OF 2011** ## **PETITIONERS' EXHIBITS :** **EXT.P1 : COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 28.07.2008.** - **EXT.P2 : COPY OF THE REPLY DATED 18.09.2008** **EXT.P3 : COPY OF THE NOTICE DATED 23.09.2008.** - **EXT.P4 : COPY OF THE SHOW CAUSE NOTICE DATED 22.10.2008.** - **EXT.P5 : COPY OF THE ORDER DISMISSING THE PETITIONER FROM SERVICE DATED 12.02.2009.** - **EXT.P6 : COPY OF THE CLAIM STATEMENT FILED IN T.D.13/2010 DATED 01.07.2010.** - **EXT.P7 : COPY OF THE WRITTEN STATEMENT FILED BY THE MANAGEMENT IN T.D.13/2010 DATED 08.10.2020.** - **EXT.P8 : COPY OF THE REPLICATION FILED BY THE 2ND PETITIONER DATED 06.11.2010.** - **EXT.P9 : COPY OF THE AWARD DATED 06.07.2011 IN THE COURT** **OF THE INDUSTRIAL TRIBUNAL, PALAKKAD.** - **EXT.P10 : COPY OF THE LETTER DATED 11.08.2011 ENCLOSING THE** **DECLARATION BY THE PETITIONER.** **EXT.P11 : COPY OF THE REPLY ISSUED TO THE PETITIONER BY THE MANAGEMENT DATED 19.08.2011.** W.P.(C) No.25348 & 34734/11 ## **-:18:-** ## **APPENDIX OF W.P.(C) NO.34734 OF 2011** **PETITIONER'S EXHIBITS :** **P1 : COPY OF CHARGE SHEET DATED 22.10.2008 ISSUED TO THE** **2ND RESPONDENT.** **P2 : COPY OF EXPLANATION DATED 28.10.2008 SUBMITTED BY THE** **2ND RESPONDENT.** **P3 : COPY OF CLAIM STATEMENT DATED 01.07.2010 FILED BY THE 2ND RESPONDENT IN I.D.NO.13/2010 BEFORE THE 3RD RESPONDENT.** - **P4 : COPY OF COUNTER STATEMENT DATED 08.10.2010 FILED BY THE PETITIONER IN I.D.NO.13/2010 BEFORE THE 3RD RESPONDENT.** **P5 : COPY OF AWARD DATED 06.07.2011 PASSED BY THE 3RD RESPONDENT IN I.D.NO.13/2010.** **P6 : COPY OF REPORT SUBMITTED BY THE ENQUIRY OFFICER ON 25.07.2008**