JUDGMENT

Award of the labour court, Ext.P7 dated 30.9.2021 in favour of the respondent No.2 workman has been assailed by the petitioner, Payyannur Urban Co-operative Society registered under the Kerala Co-operative Societies Act, 1969.

2. Respondent No.2, workman was appointed as Salesman/Supervisor in the Neethi Medical Store established by the petitioner society from September 2009. His main duty according to the averment was to check the items purchased by the customers and to prepare the bills. While so, misappropriation to the tune of Rs.48,69,870/- was detected. During the annual stock verification conducted in the establishment on 31.3.2015, the stock of Rs.68,97,000/- was found whereas the workman had signed a statement reflecting the stock of Rs.71,62,146/-. Accordingly, 2 nd respondent was placed under suspension with effect from 5.6.2015 as per the order Ext.P1 issued by the President of the Society. A show cause notice dated 17.7.2015,

Ext.P2 was served upon the petitioner consisting of a charge memo signed by the disciplinary sub committee. The workman duly replied the same. Dissatisfied with the same, the enquiry officer was appointed. During the interregnum respondent No.2 did not file any application for subsistence allowance but management paid a sum of Rs.83,273/- towards the same. The domestic inquiry was conducted by an advocate and found him to be guilty as per his report dated 29.9.2016, Ext.P3. Based upon the report Ext.P3, services of the petitioner was terminated as per the order dated 5.12.2016. Against the order of the dismissal, 2 nd respondent preferred an appeal before the Managing Committee. Respondent failed to appear despite having been served, resulted into dismissal of the same on 24.2.2018, Ext.P6. Respondent No.2 sought the reference whereas the other employees approached the Arbitration Court.

3. Learned counsel for the petitioner submitted that a Crime No.161/2018 of Payyannur Police Station has been registered against the 2 nd respondent. The award of the labour court is not sustainable as it has set aside the memo of charges simply on the ground that the disciplinary sub committee of a Co- operative Society has no power/authority to charge memo with an objection that the management is at liberty to initiate fresh proceedings against the 2 nd respondent by serving a charge memo by competent authority with a further direction to the 2 nd respondent to reinstate in the service or full salary should be paid during the pendency of the fresh proceedings initiated against him and the said disciplinary proceedings be completed within a period of three months. In fact, respondent No.2 does not fall within the definition of workman and the industrial dispute could not have been raised. Impugned award has been passed taking into consideration the judgment of this Court in Kodenchery Service Co-operative Bank Ltd. v. Joshy Varghese (2020 (4) KLT 129). It was a serious case of misappropriation and the order of reinstatement could not have been passed. Even respondent No.2 was gainfully employed as a priest in the temple and had been working at different pharmacies. Labour court ought to have granted opportunity to read the management and evidence in support of the respective claim and should not have treated the prayer of claimant/respondent No.2 in I.A No.42 of 2021 for initiation of the disciplinary proceedings as a preliminary issue.

I have heard the learned counsel for the parties and appraised the paper book. The tenor and mode of the award would reveal that both the parties had agreed to address submissions on the preliminary issue as the entire service of memo of charges and the order of dismissal was violative of the Rule 198(6) of the Kerala Co-oper