Kerala High CourtKerala State Co-Operative Consumers vs The Labour Court on 31 March, 2009Author:Harun-Ul-RashidBench:Harun-Ul-RashidIN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 22235 of 2005(V)


1. KERALA STATE CO-OPERATIVE CONSUMERS
                      ...  Petitioner

                        Vs



1. THE LABOUR COURT, KOLLAM.
                       ...       Respondent

2. SMT.P.SUSEELA,

3. GOVERNMENT OF KERALA,

                For Petitioner  :SRI.M.PATHROSE MATTHAI (SR.)

                For Respondent  :SRI.V.G.ARUN

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :31/03/2009

 O R D E R
                  HARUN-UL-RASHID, J.
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                 W.P.(C) No.22235 OF 2005
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            Dated this the 31st day of March, 2009


                           JUDGMENTThe petitioner is an apex society registered under theKerala Co-operative Societies Act. The second respondent and

one Smt.P.L.Ambika were employed as Sales Assistants at

their Triveni Department Store at Thiruvananthapuram.

According to the petitioner, the above named Sales Assistants

committed several acts of misconduct of misappropriation of

money, manipulation of accounts and the cash register and

that the said employees misappropriated the Federation's

money jointly for making false entries in the accounts,

cancelling actual bills, cash received and reducing the total

amount of actual receipts of the day at the end of the day or on

the next day.2. It is submitted by the counsel for the petitioner that

the Sales Assistant Smt.P.L.Ambika admitted that she along

with   the    second      respondent            are      responsible for

misappropriation of money, manipulation of accounts and the

cash register and Smt.Ambika offered to pay her share ofW.P.(C) No.22235 of 20052misappropriated amount, tendered apology and assured that

no such misconduct would be committed in future and further

requested not to take any disciplinary action against her.

Ext.P1 is the letter.3. The disciplinary proceedings were initiated against

the aforesaid Sales Assistants. Ext.P2 is the true copy of the

charge sheet. The second respondent denied the allegations

levelled against her. The explanation submitted by the second

respondent was found to be unsatisfactory. Therefore, a

domestic enquiry was ordered and enquiry officer was

appointed. The enquiry officer conducted the enquiry. During

the course of enquiry, 6 witnesses were examined and 62

documents were marked on the side of the management. The

second respondent examined herself and also the other Sales

Assistant as witness and marked two documents. The enquiry

officer found that the charges against the second respondent

were not proved while the charges against Smt.P.L.Ambika

were proved.4. The disciplinary authority considered the report and

findings of the enquiry officer. The disciplinary authorityW.P.(C) No.22235 of 20053disagreed with the findings and according to them, the

findings are contrary to the evidence adduced during enquiry.

The disciplinary authority proceeded against the delinquents

and issued show cause notice. The disciplinary authority

entered its own finding and came to the conclusion that the

second respondent committed misconduct of misappropriation

and therefore, decided to impose a punishment on her. It is

relevant to note that the disciplinary authority before entering

into the finding about the misconduct committed by the second

respondent, no notice was issued to her calling upon her to

explain as to why no punishment shall be imposed on her.

Instead of doing so, the disciplinary authority entered the

finding and concluded that the second respondent has

committed misconduct of misappropriation and after arriving

at such findings, the disciplinary authority issued Ext.P3 notice

pointing out that the enquiry officers' findings are baseless

and erroneous and therefore, they had to disagree with those

findings and that the authority on examination of the

documents and other evidence is of the view that the second

respondent has committed misconduct of misappropriation.W.P.(C) No.22235 of 20054Therefore, in Ext.P3, the second respondent is called upon to

explain as to show cause why her service shall not be

terminated       with   effect from 02.10.1989.   The   second

respondent furnished explanation to the show cause notice.

She was called for hearing. After giving her an opportunity of

being heard, the Disciplinary Action Committee found that the

charges of misconduct numbers 1 to 3 and 6 to 8 were proved

and that the second respondent is guilty of the said acts of

misconduct. Instead of ordering punishment, the proceedings

were submitted to the Board of Directors, who are in fact the

appellate authority under Rule 198(4) of the Co-operative

Societies Rules. The Board of Directors passed orders

dismissing her from service and accordingly, she was

dismissed from service.5. In the industrial dispute raised, the labour court

considered the question. The labour court by Ext.P4 order held

that the first respondent acted in violation of the provision of

Section 11A, placing reliance on the decisions of the Apex

Court held that the entire proceedings and the award passed

by the first respondent is without jurisdiction, illegal andW.P.(C) No.22235 of 20055invalid. The labour court relied on the decisions reported inState Bank of India and others Vs. K.P.Narayanan Kutty(2003) 2 SCC 449 and Rajendra Kurup Vs. Union of India(1999 (3) KLT 480) and held that when the disciplinary

authority differs with the view of the enquiry officer and

proposes to come to a different conclusion, there is no reason

as to why an opportunity of hearing should not be granted. It

will be most unfair and iniquitous that where the charged

officer succeeds before the enquiry officer, he is deprived of

representing to the disciplinary authority before that authority

differs with the enquiry officer's report and, while recording a

finding of guilt, imposes punishment on the officer. The labour

court based onthe said decisionrightly held that there is need

for giving opportunity to the worker before the disciplinary

authority alters, varies or reverses the findings of the enquiry

officer. The labour court held that in the present proceedings,

the enquiry officer exonerated the second respondent from all

the charges but the disciplinary committee take a contrary

view proposing a punishment of dismissal from service without

giving an opportunity to the delinquent officer to explain herW.P.(C) No.22235 of 20056position. The counsel for the management also admitted that

before the decision so taken by the disciplinary committee

finding that the delinquent officer had committed misconduct

an opportunity was not given to the worker to represent, or

she was heard before reversing the findings of the enquiry

officer. The labour court further held that since the order of

punishment was passed by the Board of Directors instead of

disciplinary committee, the right of appeal to the Board of

Directors as enjoyed under Rule 198(4) of the Co-operative

Societies Rules is also denied to her. Based on the said

decisions and other decisions, the labour court straight away

held that the dismissal of the worker is illegal and therefore,

issued directions to re-instate her forthwith with 75% of the

back wages.6.     Learned counsel for the petitioner seriously

challenged the findings of the labour court. At the same time,

the learned counsel admitted that no opportunity was given to

the worker to put her objection against the findings recorded

by the disciplinary committee. The learned counsel submitted

that it is true that the findings are recorded by the disciplinaryW.P.(C) No.22235 of 20057authority on appreciation of evidence that the enquiry officers'

findings are without basis and therefore, took a contrary view.

It is not disputed before me that the disciplinary committee

has the authority either to accept the enquiry report or differ

with the view of the enquiry officer and proposes to come to a

different conclusion. But such decision shall be taken only

after giving an opportunity of hearing to the delinquent

worker. If not done, it will be most unfair and iniquitous act

done to the worker who had succeeded before the enquiry

officer. The labour court followed the principleslaid down bythe Supreme Court.But the labour court failed to take note of

the fact that inRajendra Kurup's case (supra), the apex court

remanded the matter to the disciplinary authority with a

further direction to commence the proceedings from the stage

of granting opportunity to the charged officer of being heard

in the matter regarding the different view expressed by the

disciplinary authority. If the proceedings was commenced from

the stage of granting opportunity to the charged officer, the

charged officer will get a reasonable opportunity to present

her case before the disciplinary authority and she can alsoW.P.(C) No.22235 of 20058avail the appellate remedy available to her before the Board of

Directors.7. In the circumstances, Ext.P4 award is set aside. The

matter is remitted to the disciplinary authority for passing

appropriate orders as indicated above. The disciplinary

authority shall pass orders within a period of four months from

today.The writ petition is disposed of as above.HARUN-UL-RASHID
                                              JUDGE
pac