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2022 Supreme(Ker) 651
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J.
THE PRESIDENT, ANICKAD REGIONAL FARMER’S SERVICE COOPERATIVE BANK LIMITED, KOTTAYAM – Petitioner
Versus
BENNY THOMAS – Respondent
W.P. (C) No. 4049 of 2012
Decided On : 30-08-2022
Advocate Appeared:
For the Petitioners: P. RAMAKRISHNAN, LIJI J. VADAKEDOM.
For the Respondents: BINU PAUL, SHAJI THOMAS, T.V. VINU, C.N. PRABHAKARAN, SHINE MATHEWSVADAKKEKARA.
Point of Law: Proviso to Section 11-A casts a duty on the Tribunal to rely only on the materials on record and prohibits it from taking any fresh evidence.
Headnote:
Constitution of India, 1950 - Article 226 - Industrial Disputes Act, 1947 - Section 11-A - Kerala Co-operative Societies Act, 1969 - Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen - Whether the punishment of dismissal or discharge was necessary for the type of misconduct of which the workman is found guilty - Tribunal has wide powers under Section 11-A to set aside order of discharge or dismissal and direct reinstatement of workman, on such terms and conditions, if any, as it thinks fit.
Findings of the Court:
Tested on touchstone of above principles, and provisions of Section 11-A of Act, Ext. P5 award of Industrial Tribunal cannot be said to be vitiated. While passing award, Tribunal has not placed reliance on any materials which are not on record and no fresh evidence in relation to the matter has been taken. The Tribunal, on reappraisal of materials on record, found that punishment is shockingly disproportionate to gravity of misconduct proved. To support its decision, Tribunal has given reasons in award. The decision of Tribunal that punishment of dismissal is highly disproportionate to guilt proved cannot be said to be patently perverse or one which no man in his senses would take. Therefore, award cannot be unsettled, invoking power of this Court under Article 226 of Constitution of India.
Result: Writ Petition dismissed.
JUDGMENT :
MURALI PURUSHOTHAMAN, J.
1. The petitioners are the President and the Secretary respectively of Anickad Regional Farmer’s Service Co-operative Bank Limited (hereinafter referred to as ‘Bank’ for short), a Cooperative Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, doing business of banking. The 1st respondent was appointed as a Peon in the Bank on 12.10.1993 under the dying-in-harness scheme. He was later promoted as Junior Clerk on 27.03.1999.
2. While working so, the 1st respondent was placed under suspension on 23.01.2006 alleging misconduct, pending enquiry. On 15.02.2006, he was served with a show cause notice to which he submitted his explanation denying the allegations. As his explanation was not satisfactory, he was served with a memo of charges on 16.03.2006 containing seven charges and the management decided to conduct a domestic enquiry. In the enquiry, the 1st respondent workman was found guilty of all charges. On the basis of the findings in the enquiry, he was dismissed from service on 15.01.2007 with retrospective effect from the date of suspension viz. 19.11.2006.
3. The 1st respondent raised an industrial dispute against his dismissal and the dispute was referred to the Industrial Tribunal, Idukki (‘Tribunal’ for short) by the Government of Kerala for adjudication.
4. By Ext.P4 preliminary award, the Tribunal found that the charges leveled against the 1st respondent were supported by evidence available on record and there were no grounds to interfere with the domestic enquiry and posted the dispute for consideration of legality of punishment.
5. The Tribunal examined the legality of punishment and by Ext.P5 award found that the charges proved against the 1st respondent constitute only minor misconducts and the punishment imposed is too harsh, discriminatory, unreasonable and highly disproportionate to the degree of guilt proved. The Tribunal observed that the workman did not cause monetary or other loss to the management and there is no allegation of loss of confidence against him. The Tribunal also held that the management has victimized the workman by giving extreme punishment of dismissal for proved minor misconducts and that the employer cannot impose punishment with retrospective effect. The Tribunal found that withholding of one annual increment with cumulative effect would be adequate and sufficient punishment for the 1st respondent. The Tribunal also found that the 1st respondent is entitled to be reinstated in service with 50% back wages from the date of suspension till reinstatement. Accordingly, the Tribunal set aside the order of the management dismissing the 1st respondent from service and remitted the punishment to that of withholding one annual increment with cumulative effect and ordered his reinstatement in service with 50% of the back wages from the date of suspension till reinstatement.
6. Ext.P5 award of the Tribunal is impugned in the writ petition contending that the Tribunal, exercising powers under Section 11-A of the Industrial Disputes Act, 1947 (the ‘Act’ for short), cannot reappraise evidence. It is contended that, the Tribunal, having found in Ext.P4 preliminary award that the enquiry is supported by evidence on record, cannot reappraise evidence when considering the question of legality of punishment. It is also contended that the question of punishment is for the management to decide. It is further contended that the Tribunal did not appreciate the finding of the enquiry officer that the 1st respondent is guilty of indiscipline and acted against the confidence reposed in him by the Bank. According to the petitioners, the punishment of dismissal imposed on the 1st respondent is commensurate with the charges levelled and proved against him and the Tribunal ought not to have interfered with the punishment.
7. The 1st respondent has filed a counter affidavit contending, inter alia, that the entire disciplinary proceedings initiated against h
