Kerala High Court
K.P. Pushkaran vs Kerala State Co-Op. Coir on 19 September, 1988
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940
WP(C).No. 34913 of 2005
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PETITIONER:
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K.P. PUSHKARAN, KAITHAKATTU,
KADAKKARAPPALLY (W), VAYALAR (W) P.O.,
CHERTHALA, ALAPPUZHA.
BY ADVS.SRI.K.ANAND
SMT.LATHA KRISHNAN
RESPONDENT(S):
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1. KERALA STATE CO-OP. COIR
MARKETING FEDERATION LTD.,P.B.NO.4616,
ALAPPUZHA-688 012,
REPRESENTED BY ITS MANAGING DIRECTOR.
2. LABOUR COURT, KOLLAM.
R1 BY SRI.P.C.SASIDHARAN, SC
SRI.JOBY CYRIAC SC COIR FED.
R2 BY SENIOR GOVERNMENT PLEADER SRI.B. VINOD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-06-2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 34913 of 2005
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APPENDIX
PETITIONERS' EXHIBITS:
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EXT. P1 : TRUE COPY OF LETTER DATED 19.9.1988 OF THE PETITIONER
TO THE REGIONAL OFFICE.
EXT. P2 : TRUE COPY OF THE LETTER DATED 20.9.1988 OF THE
REGIONAL OFFICER TO THE GENERAL MANAGER.
EXT. P3 : TRUE COPY OF LETTER OF THE PETITIONER DATED 13.1.1989
TO THE 1ST RESPONDENT.
EXT. P4 : TRUE COPY OF LETTER DATED 16.1.1989 SENT BY THE
REGIONAL OFFICER TO THE 1ST RESPONDENT.
EXT. P5 : TRUE COPY OF LETTER TO THE REGIONAL OFFICER
DATED 9.2.1989 SENT TO ALL DEPOT MANAGERS.
EXT. P6 : TRUE COPY OF DETAILS OF GODOWNS SUBMITTED BY THE
PETITIONER UNDER COVER OF LETTER 1 DATED 9.2.1989
TO THE GENERAL MANAGER.
EXT. P7 : TRUE COPY OF THE LETTER OF PETITIONER DATED 27.2.1989
TO THE GENERAL MANAGER.
EXT. P8 : TRUE COPY OF THE LETTER DATED 27.3.1989 OF THE
PETITIONER TO THE 1ST RESPONDENT.
EXT. P9 : TRUE COPY OF LETTER (MINUTES) OF THE REGIONAL OFFICER
DATED 19.4.1989.
EXT. P10: TRUE COPY OF LETTER DATED 23.6.1999 OF THE PETITIONER
TO THE GENERAL MANAGER.
EXT. P11: TRUE COPY OF THE LETTER DATED 29.6.1989 OF THE
PETITIONER TO THE GENERAL MANAGER.
EXT. P12: TRUE COPY OF THE LETTER DATED 14.2.1989 OF THE
PETITIONER TO THE REGIONAL OFFICER.
EXT. P13: TRUE COPY OF LETTER OF THE PETITIONER DATED 19.2.1990
TO 1ST RESPONDENT.
EXT. P14: TRUE COPY OF THE LETTER DATED 20.3.1990 OF THE PETITIONER
TO THE REGIONAL MANAGER.
EXT. P15: TRUE COPY OF MEMO DATED 2.5.1990 ISSUED TO THE
PETITIONER BY THE GENERAL MANAGER OF THE 1ST RESPONDENT.
EXT. P16: TRUE COPY OF EXPLANATION OF THE PETITIONER DATED 10.5.1990.
EXT. P17: TRUE COPY OF POLICE COMPLAINT DATED 1.6.1990 FILED
BY THE 1ST RESPONDENT.
EXT. P18: TRUE COPY OF THE CHARGE SHEET NO.123/1993 DATED 30.4.1992.
EXT. P19: TRUE COPY OF THE JUDGMENT DATED 31.7.1999 IN CC NO.625/93.
EXT. P20: TRUE COPY OF LETTER SENT TO THE REGIONAL OFFICER
ON 22.5.1990 BY THE PETITIONER ASKING FOR STOCK REGISTER
AND GATE-BOOK.
WP(C).No. 34913 of 2005
EXT. P21: TRUE COPY OF THE LETTER SENT TO THE REGIONAL OFFICER
BY THE PETITIONER ON 22.5.1990 INFORMING THE CHARGE
OF SECURITY.
EXT. P22: TRUE COPY OF THE PROCEEDINGS DATED 1.6.1990 OF THE
1ST RESPONDENT PLACING THE PETITIONER UNDER SUSPENSION.
EXT. P23: TRUE COPY OF THE MEMO OF CHARGES DATED 3.7.19990
ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.
EXT. P24: TRUE COPY OF THE EXPLANATION DATED 18.7.1990 SUBMITTED
BY THE PETITIONER.
EXT. P25: TRUE COPY OF 'LIST OF DOCUMENTS' DATED 10.8.1993 FILED
BY THE PETITIONER BEFORE THE ENQUIRY OFFICER.
EXT. P26: TRUE COPY OF THE SCHEDULE OF WITNESSES FILED BY THE
MANAGEMENT ON 2.8.1993.
EXT. P27: TRUE COPY OF LIST OF DOCUMENTS (ALONG WITH COPIES)
SUBMITTED BY THE PETITIONER TO THE ENQUIRY OFFICER
ON 4.11.1994.
EXT. P28: TRUE COPY OF THE REPRESENTATION DATED 10.11.1994 GIVEN TO
THE ENQUIRY OFFICER BY THE PETITIONER.
EXT. P29: TRUE COPY OF THE REPRESENTATION DATED 10.11.1994 SUBMITTED
TO THE 1ST RESPONDENT TO THE PETITIONER.
EXT. P30: TRUE COPY OF THE REPORT OF THE ENQUIRY OFFICER FURNISHED
TO THE PETITIONER.
EXT. P31: TRUE COPY OF THE REPRESENTATION DATED 10.4.1995 SUBMITTED
BY THE PETITIONER TO THE 1ST RESPONDENT.
EXT. P32: TRUE COPY OF THE PROCEEDINGS DATED 2.7.1996 OF THE
1ST RESPONDENT DISMISSING THE PETITIONER FROM SERVICE.
EXT. P33: TRUE COPY OF THE PRELIMINARY ORDER OF THE PASSED BY THE
1ST RESPONDENT ON 13.5.2004.
EXT. P34: TUE COPY OF THE AWARD DATED 10.1.2005 PASSED BY THE
1ST RESPONDENT IN ID 89/99.
EXT. P35: TRUE COPY OF THE NOTICE DATED 28.3.2005 OF THE 1ST RESPONDENT
PRONOUNCING EXT.P36.
EXT. P35: TRUE COPY OF THE PROCEEDINGS OF DOMESTIC ENQIRY.(IA.9504/08)
EXT. P36: TRUE COPY OF THE CHARTER OF DEMANDS FILED BEFORE THE
DISTRICT LABOUR OFFICER, ALAPPUZHA.
EXT. P37: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT
BEFORE THE LABOUR COURT.
RESPONDENTS' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
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22.06.2018.
A.MUHAMED MUSTAQUE, J.
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W.P.(C) No.34913 of 2005
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Dated this the 12th day of June, 2018
JUDGMENT
This writ petition is filed by a workman challenging an award of the Labour Court, Kollam in an industrial dispute. The dispute that was referred for adjudication was relating to the justifiability of dismissal of the petitioner from the service of the Kerala State Co- operative Coir Marketing Federation Limited (for short, the 'COIRFED'). The petitioner was dismissed from the service after conducting a domestic enquiry.
2. By the preliminary order, the Industrial Tribunal found that the enquiry conducted in respect of the charge against the workman was proper and valid. Thereafter, in the final award, it was also found that the punishment was proportionate to the gravity of the charges proved against him.
W.P.(C) No.34913 of 2005 2
3. The brief facts leading to the impugned award were as follows:
The workman was the Depot Assistant in charge of the Darraigh Small Yarn Depot under the control of the regional office of the COIRFED (Management). The workman was proceeded by the disciplinary action on an allegations of misappropriation and theft. It is set out in the statement of allegation that during the stock verification for the year 1989-1990, it was found that there was a deficit of coir yarn to the value of Rs.6,35,288.90. The stock verification was conducted on 31.3.1990. It was further alleged in the statement of allegation that certain purchases made were not entered in the stock register kept in the Depot. In regard to the second limb of allegation, the enquiry officer had found that there was no material to hold that the purchases were not entered in the stock register. Therefore, the present W.P.(C) No.34913 of 2005 3 dispute is only concerned on the allegations in regard to the deficit of stock. The workman put a formidable defence by stating that there was no enough security during night. He also placed reliance on certain communication made in this regard to the Managing Director, much prior to the inspection was conducted. In that communication, he pointed out the state of affairs of the godown building. In fact, in that communication, he had requested the Management to carry out the necessary repairs to the godown. In another communication he had insisted the management to safeguard the stock and reported that there was theft during holidays. However, he had not adduced any evidence during the enquiry. Therefore, the enquiry officer had no occasion to consider his defence. He had no explanation for not adducing the evidence. Based on the materials placed before the enquiry officer, the enquiry officer concluded that the W.P.(C) No.34913 of 2005 4 workman was responsible to the deficit of coir yarn for the value of Rs Rs.6,35,288.90. This conclusion was based on the premise that the petitioner was the sole custodian of the properties and therefore, he is liable for such deficit. There is no finding by the enquiry officer with respect to the commission of misappropriation or theft by the workman.
4. On the same set of allegations, a complaint was also filed before the police. The criminal court acquitted the petitioner for want of evidence to prove misappropriation or theft. Therefore, the facts as disclosed by the pleadings and evidence clearly established that there was no evidence to prove that the workman was guilty of misconduct as charged. Neither in the domestic enquiry nor in the criminal court, the workman was found guilty of misappropriation or theft.
W.P.(C) No.34913 of 2005 5
5. This Court is in agreement with the preliminary order passed by the Labour Court in as much as that the petitioner was afforded an adequate opportunity to defend himself during the enquiry proceedings. In fact, the petitioner was represented by a lawyer. No doubt, the petitioner had put forward a formidable defence in the enquiry, nevertheless, he had failed to prove the same, despite availing opportunity in the proceedings. In such circumstances, the finding of the Labour Court is perfectly justifiable in regard to the conduct of enquiry by following the principles of natural justice.
6. However, the crucial aspect in the matter is centered around the proportionality of the punishment. It is to be noted that the Labour Court justified the punishment on a premise that the workman has been found guilty of misappropriation of cash and property worth of W.P.(C) No.34913 of 2005 6 Rs.6,69,500/- without referring to any of such finding in the enquiry report. The enquiry officer concluded the enquiry holding that misconduct alleged against the workman has been proved on the premise, he was responsible as a custodian of the Depot. In the absence of any categorical finding regarding misappropriation or theft, this Court is of the view that the extreme punishment of dismissal could not have been imposed on him. Lapses and laches resulting into monetary loss can be recouped through appropriate proceedings without imposing punishment of dismissal. The punishment of dismissal would arise in a case where the charges are having the overtone of a criminal offence and also in the circumstances, such workman cannot be permitted to continue in the service as he would be a threat to the general behaviour of organization. In the scenario where the workman was found guilty only because he was W.P.(C) No.34913 of 2005 7 the custodian of Depot, the maximum punishment of dismissal is totally unwarranted. Therefore, this Court is of the view that the Labour Court failed to exercise its power under Section 11A of the Industrial Disputes Act, 1947 warranting interference under Article 226 of the Constitution of India. Accordingly, the impugned award to the extent of affirming the penalty is set aside. The Labour Court is directed to reconsider the matter afresh in regard to the penalty after taking note of the fact that the misappropriation and theft were not proved against the petitioner. The parties are directed to appear before the Labour Court on 16.7.2018.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln