IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Friday, the 27th day of May 2022 / 6th Jyaishta, 1944
WA NO. 634 OF 2022
AGAINST JUDGMENT DATED 24/03/2022 IN WP(C) 10307/2021 OF THIS COURT
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APPELLANT/1ST RESPONDENT IN WP(C):
JAGADEESH C.S., AGED 45 YEARS,S/O. SIDHARTHAN NAIR, CHOORAPILAKKAL,
ELATHUR, KOZHIKODE 673 303.
BYADV.SRI.P.RAMAKRISHNAN
RESPONDENTS/PETITIONER & 2ND RESPONDENT IN WP(C):
1. THE KARANNUR SERVICE CO-OPERATIVE BANK LTD.NO.F 1244, KARANNUR,
KOZHIKODE 673 303. REPRESENTED BY ITS SECRETARY.
2. LABOUR COURT, KOZHIKODE, C BLOCK, CALICUT, CIVIL STATION,
KOZHIKODE,PIN- 673 020.
BY ADV.P.P.JACOB FOR R1
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay operation of the judgment passed by the Learned Single Judge dated
24/03/2022 in W.P.(C) No.10307 of 2021.
This Writ Appeal coming on for admission along with connected case
on 27/05/2022 upon perusing the appeal memorandum, the court on the same
day passed the following:
P.T.O.
EXT.P4 IN WP(C) NO.7781/2021: TRUE COPY OF ORDER DATED 17.02.2021
OF THE LABOUR COURT, KOZHIKODE IN I.A.NO.6/2021 IN ID 41/2018.
EXT.P6 IN WP(C) NO.10307/2021:TRUE PHOTOCOPY OF THE ORDER ISSUED
BY THE SECOND RESPONDENT DATED 17.02.2021.
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
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WA No. 632 of 2022
[arising out of the impugned judgment dated 24.03.2022 in WP(C) No.7781/2021]
&
WA No. 634 of 2022
[arising out of the impugned judgment dated 24.03.2022 in WP(C) No.10307/2021]
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Dated this the 27th day of May, 2022
ORDER
Admit these writ appeals.
2. Sri.P.P.Jacob, learned Advocate, has taken notice for the 1 st respondent Co-operative Society/employer in both the writ appeals. Notice to the 2nd respondent Labour Court in both the writ appeals will stand dispensed with.
3. It is urged by Sri.P.Ramakrishnan, learned Advocate appearing for the appellant workman in both the appeals, that the procedure adopted by the Labour Court in the instant cases, as per Ext.P4 order [produced in WP(C) No.7781/2021] and Ext.P6 order [produced in WP(C) No.10307/2021], giving liberty to the Management to conduct disciplinary proceedings afresh in accordance with the statutory rules, after finding that the enquiry was initiated for the infraction of the statutory mandate, is illegal and ultravires, as it is beyond the powers of the Labour Court. Further that, the Labour Court WA Nos. 632 & 634 of 2022 2 has clearly found that the enquiry proceedings are vitiated, and in such a case, only if the employer has made a specific request in their written statement that in case the preliminary issue regarding the fairness of enquiry is found against them, only then the Labour Court may conduct a de novo enquiry into the charges and this was never requested by the employer and therefore, they cannot make such a request later. That, in such a scenario as in the instant cases, the Labour Court, after having found that the enquiry proceedings are initiated, should have set aside the dismissal order and the order for reinstatement, and the other aspects of the matter should have been left as consequences of law. In that regard, the learned counsel for the appellant workman would place reliance on the decisions of the Apex Court as in Workmen of M/s Firestone Tyre & Rubber Co. of India (P) Ltd. v. Firestone Tyre & Rubber Company [AIR 1976 (SC) 1775] and Sankar Chakravarti v. Britannia Biscuit Co. Ltd. & Another [(1979) 3 SCC 371] to contend that such a request should have been made by the management in their written statement.
4. In the instant case, the following orders have been passed by the Labour Court as per Ext.P4 [produced in WP(C) No.7781/2021];
"(1) Disciplinary proceedings conducted by the disciplinary subcommittee based on Ext.P1 charge memo issued by that WA Nos. 632 & 634 of 2022 3 committee is legally invalid and the enquiry report is set aside with liberty to the management to take action against the petitioner in accordance with law.
(2) It would be open to the management to reinstate the workman in service, or to pay full salary during the period of disciplinary proceedings if they propose to initiate action availing the liberty granted.
(3) If disciplinary proceedings are initiated it shall be concluded within three months. If no disciplinary proceedings are being initiated or no proceedings are concluded within three months, the workman shall be reinstated in service."
5. After hearing both sides, prima facie, we see that a strong case has been made out by the appellant. Sri.P.P.Jacob, learned Advocate for the respondent employer, would submit that in pursuance of the liberty given by the Labour Court, the respondent Management has already initiated fresh disciplinary proceedings by issuing a charge sheet by the competent authority (Managing Committee) and that the enquiry proceedings are going on and that, it is expected to be finalized soon.
6. Per contra, Sri.P.Ramakrishnan, learned Advocate appearing for the appellant workman, would submit that, after having enjoyed the liberty given by the Labour Court to conduct fresh disciplinary proceedings, the respondent management has not even complied with the order of the Labour Court to pay the full salary to the WA Nos. 632 & 634 of 2022 4 appellant workman during the period of disciplinary proceedings.
7. It is to be borne in mind that since the dismissal order was issued long ago, the jural relationship of employer-employee has already been snapped and before taking the de novo disciplinary proceedings, the said snapped jural relationship of the employer-employee would have to be restored. This is so, unless there are provisions for a deemed suspension as in Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Rule 10 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. We are told that, no such corresponding rules are available either in the Kerala Co-operative Societies Rules or in any other rules or norms being followed by the respondent employer.
8. Hence, it is ordered that the respondent management will pass orders reinstating the appellant employee in service w.e.f. 17.02.2021 and will pay him full pay and allowances for the period from the date of Ext.P4 order dated 17.02.2021 [produced in WP(C) No.7781/2021] onwards and then, only may proceed with further steps in enquiry. However, the enquiry officer may duly complete the enquiry proceedings after granting reasonable opportunity of defence to the appellant workman and may also submit the enquiry report, with copy WA Nos. 632 & 634 of 2022 5 to the workman. Further steps, after the submission of the enquiry report, will be kept in abeyance. The respondent employer may produce a copy of the enquiry report before this Court.
9. In the light of these aspects, this Court feels that it is only in the fitness of things that the main matters in these appeals are disposed of, without further delay and in the admission list itself, if feasible.
List these cases in the admission list on 13.06.2022. Hand Over Sd/-
ALEXANDER THOMAS JUDGE Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
27-05-2022 /True Copy/ Assistant Registrar