India Coffee Board Workers ... vs State Of Kerala
2022 Latest Caselaw 9463 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                       WP(C) NO. 14173 OF 2013
   AGAINST THE ORDER IN RP 148/2010 OF KERALA CO-OP.TRIBUNAL,
                         THIRUVANANTHAPURAM.
PETITIONER:

          INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD.
          NO.4227, THRISSUR, P.B.NO.184, PIN-680 001,
          REP.BY ITS SECRETARY, VARGHESE, S/O. THOMAS.
          BY ADVS.
          SRI.V.RAJENDRAN (PERUMBAVOOR)
          SRI.GEORGE POONTHOTTAM
          SRI.GEORGE VARGHESE KIZHAKKAMBALAM
          SMT.ANN MARIYA FRANCIS


RESPONDENTS:

    1     STATE OF KERALA
          REP.BY PRINCIPAL SECRETARY, DEPARTMENT OF
          CO-OPERATION, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.
    2     C.R.RAJESHKUMAR
          AGED 43 YEARS
          S/O. RAVEENDRAN PILLAI, CHOORAKKAVIL HOUSE,
          VALAMANGALAM SOUTH P.O., THURAVOOR, ALAPPUZHA
          DISTRICT-688 532.
    3     KERALA CO-OPERATIVE TRIBUNAL
          THIRUVANANTHAPURAM-695 001, REP.BY SECRETARY.
          BY ADVS.
          SRI.DILEEP VARGHESE
          SMT.TESMY VARGHEESE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14173 OF 2013                 2

                                  JUDGMENT

The India Coffee Board Workers Co-operative Society Ltd.,

Thrissur, ('Society' for short), has filed this writ petition impugning

Ext.P4 Award of the Co-operative Arbitration Court,

Thiruvananthapuram ('Arbitration Court' for short) and Ext.P5

Appellate Order of the Kerala Co-operative Tribunal,

Thiruvananthapuram ('Tribunal' for short), through which, the 2nd

respondent herein has been directed to be reinstated in service and

paid back wages until a particular date.

2. Sri.George Poonthottam - learned Senior Counsel, instructed

by Smt.Ann Mariya Francis - learned counsel for the petitioner,

argued that both Exts.P4 and P5 are egregiously improper because

the 2nd respondent had been working elsewhere, after being absent

from the services of his client, which has not been taken into account

at all. He argued that even if the finding, that the disciplinary action

against the 2nd respondent was improper - without conceding it in

any manner, is taken to be valid, back wages could not have been

ordered to be paid to the 2 nd respondent automatically, without an

enquiry as to whether he was gainfully employed during the period

between 21.3.2007 - when he is alleged to have begun absconding

from duty, until 30.01.2012 - when he admittedly took up

employment with the Kerala State Electricity Board (KSEB) as a

Mazdoor.

3. Sri.George Poonthottam - learned Senior Counsel further

submitted that, even though Ext.P4 Award directed his client to

reinstate the 2nd respondent in service, he has chosen not to accept

it, but to continue in the services of the KSEB, thus demonstrating

that he had been gainfully employed even prior to the date on which

he says he secured such employment. The learned Senior Counsel

fortified his submissions saying that, in any event, the findings in

Ext.P4, that the 2nd respondent is entitled to 100% back wages, was

egregiously improper, because such an opinion was entered into

without any enquiry as to whether he was gainfully employed and

merely based on a bad assertion made by him that he was not. He

then pointed out that, in Ext.P5, the Tribunal continued with the

same presumption, but limiting the benefit of back wages to

30.01.2012, when the 2nd respondent himself admitted that he had

joined the KSEB as a Mazdoor on that date. The learned Senior

Counsel concluded asserting that, since the 2nd respondent has

refused to abide by the Award and has not joined back the services of

his client, Exts.P4 and P5 are both without legs to stand on.

4. In response, Sri.Dileep Varghese - learned counsel for the 2 nd

respondent, submitted that the facts are not as stated by the learned

Senior Counsel afore. He explained that his client was unfairly

alleged to have absconded from duty with effect from 21.3.2007 and

terminated from service, without any enquiry and without even

issuing him a proper notice. He pointed out that both the Arbitration

Court and the Tribunal have found concurrently in his favour, thus

finding him entitled to back wages.

5. However, to a pointed question from this Court, Sri.Dileep

Vargehese conceded that, in Ext.P4, the Arbitration Court has not

entered into any enquiry as to whether his client was gainfully

employed prior to the date of the said Award; but argued that this

was unnecessary because the Society had no case against his

assertion that he had not been so. He then added that Ext.P5 order

of the Tribunal is also irreproachable because, while confirming

Ext.P4 Award, it has limited to the payment of back wages until

30.01.2012, when, admittedly, his client took up employment with

the KSEB as a Mazdoor. He, therefore, prayed that this writ petition

be dismissed.

6. When I evaluate and analyze the afore submissions, it is

evident that, on one hand, the Arbitration Court and the Tribunal

have concurrently found that the enquiry against the 2nd respondent

was improper and unfair; while, on the other, the former granted him

full back wages, but the latter limited it to 30.01.2012, being the

date on which concedely he joined KSEB as Mazdoor.

7. In the afore perspective, I am certain that this Court will not

be justified in disturbing the findings entered into by the Arbitration

Court or the Tribunal on the allegations against the 2nd respondent,

because it would be of no consequence now, he having not rejoined

them, but continuing in the services of the KSEB.

8. Therefore, the only relevant issue remaining for the

consideration of this Court is whether the 2nd respondent should be

granted the benefit of back wages.

9. As rightly argued by Sri.Geroge Poonthottam - learned

Senior Counsel for the petitioner and conceded by Sri.Dileep

Varghese - learned counsel for the 2nd respondent, the Arbitration

Court did not even conduct an enquiry as to whether the 2nd

respondent was gainfully employed, but nevertheless proceeded to

grant him 100% back wages.

10. The law has now been well settled, without requirement of

restatement, that this approach was not right and that the

Arbitration Court ought to have caused an inquiry whether the 2 nd

respondent was entitled to back wages, because it is indubitable that

the forensic position is that merely because an disciplinary action is

set aside, the employee does not obtain an automatic right to back

wages.

11. That said, going by Ext.P5 order of the Tribunal, it has

limited the back wages to 30.01.2012, on the basis of the admission

of the 2nd respondent that he took up employment as a Mazdoor in

the KSEB with effect from that date. This is more reason why the

Tribunal should have verified whether the 2nd respondent was

gainfully employed prior to that date.

12. The afore having not been done by either the Arbitration

Court or the Tribunal, I am certain that Exts.P4 and P5, to that

extent, cannot be sustained by this Court.

13. In the afore circumstances, I set aside Exts.P4 and P5 to the

extent to which it has ordered back wages in favour of the 2 nd

respondent; consequentially, remitting the matter for such purpose

to the Arbitration Court, which shall hear the parties and cause an

enquiry on this issue, resulting in an appropriate fresh order without

any avoidable delay, but not later than three months from the date of

receipt of a copy of this judgment.

14. I make it clear that while the Arbitration Court acts as

above, it shall not enter into the merits of any of the findings or

conclusions as regards the allegations against the 2 nd respondent,

but will confine itself solely to the question of back wages and

nothing else.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/26.8

APPENDIX OF WP(C) 14173/2013

PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE RESOLUTION OF THE PETITIONER SOCIETY BEARING NO.263 DTD.19.8.06.

EXHIBIT P2 COPY OF THE NOTIFICATION PUBLISHED IN DESABHIMANI DAILY DTD.21.2.2008.

EXHIBIT P3 COPY OF THE SUIT AS ARC 64/2008 FILED BY THE PETITIONER BEFORE THE ARBIOTRATION COURT, THIRUVANANTHAPURAM ON 2.6.08.

EXHIBIT P4 COPY OF AWARD PASSED BY ARBITRATION COURT DTD.28.4.2010.

EXHIBIT P5 COPY OF THE JUDGMENT OF THE 3RD RESPONDENT IN REVISION PETITION NO.148/10DTD.30.5.2012.

EXHIBIT P6 TRUE COPY OF FRONT PAGE AND PAGE NO.9 OF THE SERVICE REGULATIONS.

EXHIBIT P7 TRUE COPY OF NOTICE ISSUED TO THE 2ND RESPONDENT BY THE PETITIONER ON 26.5.05. EXHIBIT P8 TRUE COPY OF LETTER SENT BY THE 2ND RESPONDENT TO THE PRESIDENT OF THE SOCIETY ON 26.4.05.

EXHIBIT P9 TRUE COPY OF LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 26.5.05.

EXHIBIT P10 TRUE COPY OF APPLICATION DATED 2.2.07 FILED BY 2ND RESPONDENT BEFORE THE PETITIONER.

EXHIBIT P11 TRUE COPY OF LETTER SENT TO THE 2ND RESPONDENT ON 23.2.07 EXHIBIT P12 TRUE COPY OF LETTER ISSUED BY M.G.KAVU BRANCH MANAGER TO THE PETITIONER.

EXHIBIT P13 TRUE COPY OF PETITION FILED BY 2ND RESPONDENT BEFORE PETITIONER ON 1.6.07 EXHIBIT P14 TRUE COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER IN THE ARBITRATION CASE ON 11.10.08 EXHIBIT P15 TRUE COPY OF PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT ON 11.2.09 BEFORE THE ARBITRATION COURT.

EXHIBIT P16 TRUE COPY OF FRONT PAGE AND PAGE NOS.24-

27 OF THE BALANCE SHEET OF PETITIONER FOR THE YEAR 2011-12.

EXHIBIT P17 TRUE COPY OF FRONT PAGE AND PAGE NOS.24-

27 OF THE BALANCE SHEET OF PETITIONER FOR THE YEAR 2012-13

EXHIBIT P18 TRUE COPY OF FRONT PAGE AND PAGE NOS.23-

27 OF THE BALANCE SHEET OF THE PETITIONER FOR THE YEAR 2013 - 14 EXHIBIT P19 TRUE COPY OF NOTICE ISSUED BY MUNSIFFS COURT THRISSUR TO THE PETITIONER ON 12.2.14.