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2022 Supreme(Online)(KER) 45770
HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
DERLY K.J. – Appellant
Versus
LINTO RAPHAEL – Respondent
Con.Case(C)/2399/2022
JELSON J.EDAMPADAM, T.R.HARIKUMAR, ARJUN RAGHAVAN
Disciplinary actions require stringent adherence to statutory protocols, and back wages are discretionary based on the circumstances surrounding the case.
Headnote:
Review - Disciplinary Proceedings - Various Acts and Sections - The court reviewed the legality of disciplinary proceedings initiated by an unauthorized body. It emphasized the need for adherence to statutory provisions and natural justice when handling employment disputes and determined back wages at the discretion of the Disciplinary Authority.
Fact of the Case:
Disciplinary proceedings against an accountant of a cooperative society led to dismissal, later challenged in court. The enquiry was found invalid due to charge memo issued by an unauthorized committee and required a fresh approach to the proceedings.
Finding of the Court:
The court ruled that due process must be followed in disciplinary actions, emphasizing that the initial enquiry was vitiated by the invalid issuance of the memo of charges. It directed reinstatement and a fresh enquiry.
Issues: Whether the disciplinary proceedings conducted were valid and if back wages are justifiably awarded post-restoration.
Ratio Decidendi: The invalidity of the original disciplinary action necessitated a fresh enquiry and left the determination of back wages to the discretion of the Disciplinary Authority, in line with established precedents.
Final Decision: The review petitions were allowed; the direction for immediate payment of back wages was amended, and a new enquiry was ordered.
O R D E R
K.Vinod Chandran, J.
The review petitions arise from a common judgment in two writ appeals and one writ petition. The subject matter of the writ petitions was the disciplinary enquiry initiated against the 1st respondent herein, who was the Accountant of the Society; the review petitioner herein. Disciplinary proceedings were initiated on charges of misconducts, including calculation of interest on certain specified accounts, which the delinquent employee asserted would not give rise to a charge of misconduct, especially if the other similar accounts are verified. The disciplinary enquiry ended in the dismissal of the delinquent, upon which the delinquent approached the Arbitration Court, which confirmed the order of the Disciplinary Authority.
2. On a challenge before the Co-operative Tribunal, the enquiry report was set aside and there was a direction to the Arbitration Court to verify the correctness of the enquiry proceedings and the enquiry report afresh. The employer filed the writ petition, in which it was directed that the employer will be allowed to adduce evidence before the Arbitration Court, thus ensuring that the allegation raised of a fair opportunity having not been given to the delinquent could be rectified atleast before the Arbitration Court. Both the employer and the employee filed writ appeals, which were disposed of by the common judgment, in which we called for a writ petition filed by the employee challenging the invalidity of the memo of charges;
which was also disposed of by the common judgment.
3. We found that the memo of charges was issued by the Disciplinary Sub-Committee, while the appointing authority was the Managing Committee. Kodanchery Service Co-operative Bank Ltd. v. Joshy Varghese [ 2020 (4) KLT 129 ] found that only an appointing authority can issue a memo of charges. The enquiry, hence, stood vitiated by reason of the subsequent declaration of law by this Court. We held so and directed the enquiry to be commenced from the stage at which the enquiry was found to have been vitiated. Liberty was granted to the employer to consider the objections to the show- cause notice filed by the employee and either accept the objections, dropping the proceedings, or issue a fresh memo of charges. We also directed that the period when the delinquent employee stood terminated shall be considered as spent on service and the entire benefits due to her shall be paid within a period of one month. The review is filed only as against the direction to pay the back wages. As of now, the employee is reinstated in service, a fresh memo of charges issued and the delinquent placed under suspension.
4. Sri.Arjun Raghavan, learned Counsel appearing for the employer Society, would place reliance on the decision in Chairman-cum-M.D., Coal India Ltd. v. Ananta Saha [ (2011) 5 SCC 142 ], wherein it is held that the question of back wages should be determined by the Disciplinary Authority in accordance with law, only on the conclusion of the fresh enquiry, especially when it is the settled law that if the enquiry ends in a termination, the same would relate back to the date of the earlier termination; when de novo proceedings are directed by a judicial forum. It is also argued that if a binding precedent was not noticed, it is a self evident error as has been spoken of in State of Rajasthan v. Surendra Mohnot [ (2014) 14 SCC 77 ].
5. Sri.Jelson P.Edumpadam, the learned Counsel appearing for the respondent employee, however would resist the review petition placing reliance on Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [ (2013) 10 SCC 324 ], wherein it has been declared that when the employer acts in gross violation of the statutory provision or gives short shrift to principles of natural justice or is guilty of having victimized the employee, then the Court or Tribunal would be fully justified in directing payment of full back wages. It is asserted that, termination is a definite consequence in the d
