Kerala High Court
M.K.Gopalan vs The Secretary on 18 February, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
W.A.Nos.1541, 1569 and 1252 of 2024 2025:KER:13354
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WA NO. 1252 OF 2024
AGAINST THE JUDGMENT DATED 04.06.2024 IN WP(C) NO.25628 OF 2023
OF HIGH COURT OF KERALA
APPELLANT/1ST ESPONDENT:
M.K.GOPALAN,AGED 77 YEARS,S/O. LATE VELU, MAYYANKADIYIL
HOUSE, POOLAKODE AMSOM, VELLANNUR DESOM, CHULOOR, P.O
KOZHIKODE, PIN - 673601
BY ADV PRAKASH M.P.
RESPONDENT/PETITIONER/RESPONDENTS 2 AND 3:
1 THE REC MULTI PURPOSE CO-OPERATIVE SOCIETY LTD
(NIT MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.,), NIT POST,
KOZHIKODE REPRESENTED BY ITS SECRETARY, PIN - 673601
2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G)
KOZHIKODE, OFFICE OF THE ASSISTANT REGISTRAR OF CO-
OPERATIVE SOCIETIES (G), PUTHIYARA, KOZHIKODE, PIN - 673004
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G)
OFFICE OF THE JOPINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G), PUTHIYARA, KOZHIKODE, PIN - 673004
BY ADV P.P.JACOB
SMT.NISHA BOSE, SR.G.P
THIS WRIT APPEAL WAS FINALLY HEARD ON 03.02.2025, ALONG WITH
WA.1541/2024 AND CONNECTED CASES, THE COURT ON 18.2.2025 PASSED THE
FOLLOWING:
2
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WA NO. 1541 OF 2024
AGAINST THE JUDGMENT DATED 04.06.2024 IN WP(C) NO.18555 OF 2024
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
M.K.GOPALAN,AGED 77 YEARS,S/O. LATE VELU, MAYYANKANDIYIL
HOUSE, POOLAKODE AMSOM, VELLANNUR DESOM, CHULOOR, P.O
KOZHIKODE, PIN - 673601
BY ADV PRAKASH M.P.
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY, REC MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.,
(NIT MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.,) NIT P.O,
KOZHIKODE, PIN - 673601
2 NIT MULTI PURPOSE CO-OPERATIVE SOCIETY LTD
NIT P.O, KOZHIKODE, REPRESENTED BY ITS SECRETARY, PIN -
673601
3 ASSISTANT REGISTRAR (GENERAL)
KOZHIKODE, PIN - 673004
BY ADV P.P.JACOB
SMT.NISHA BOSE, SR.G.P
THIS WRIT APPEAL WAS FINALLY HEARD ON 03.02.2025, ALONG WITH
WA.Nos.1252/2024 AND 1569/2024, THE COURT ON 18.2.2025 PASSED THE
FOLLOWING:
3
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
WA NO. 1569 OF 2024
AGAINST THE JUDGMENT DATED 04.06.2024 IN WP(C) NO.20797 OF 2023
OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
M.K.GOPALAN,
AGED 77 YEARS,
S/O. LATE VELU,
MAYYANKADIYIL HOUSE,
POOLAKODE AMSOM,
VELLANNUR DESOM,
CHULOOR, P.O KOZHIKODE, PIN - 673601
BY ADV PRAKASH M.P.
RESPONDENTS/PETITIONERS/RESPONDENTS 2 AND 3:
1 NIT MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.,
KOZHIKODE P.O., NIT(REC), REPRESENTED BY ITS SECRETARY, PIN
- 673601
2 THE SECRETARY
REC MUFTI PURPOSE CO-OPERATIVE SOCIETY LTD.NO. N.I.T. MUFTI
PURPOSE CO-OPERATIVE SOCIETY LTD., NIT POST, KOZHIKODE.,
PIN - 673601
3 THE CO-OPREATIVE ARBITRATION COURT
KOZHIKODE (NORTH WING), 5TH FLOOR, KERALA STATE CO-
OPERATIVE HOUSING FEDERATION BUILDING, ERANHIPALAM, NEAR
PASSPORT OFFICE, KOZHIKEDE, REPRESENTED BY THE SECRETARY,
PIN - 673006
4
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4 THE KERALA CO-OPERATIVE TRIBUNAL
JAWAHAR SAHAKARANA BHAVAN, VAZHUTHACAUD, DPI JUNCTION,
THIRUVANANTHAPURAM , REPRESENTED BY THE SECRETARY., PIN -
605036
BY ADV P.P.JACOB
SMT.NISHA BOSE, SR.G.P
THIS WRIT APPEAL WAS FINALLY HEARD ON 03.02.2025, ALONG WITH
WA.Nos.1541/2024 AND CONNECTED CASES, THE COURT ON 18.2.2025 PASSED THE
FOLLOWING:
5
W.A.Nos.1541, 1569 and 1252 of 2024
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"CR"
COMMON JUDGMENT
Muralee Krishna, J
These writ appeals are filed by the 1st respondent in W.P.(C)
No.20797 of 2023 and W.P.(C)No.25628 of 2023 who is the
petitioner in W.P.(C)No.18555 of 2024, invoking the provisions
under Section 5(i) of the Kerala High Court Act, 1958, challenging
the common judgment dated 04.06.2024 of the learned Single
Judge, whereby W.P.(C)Nos.20797 of 2023 and 25628 of 2023
were allowed and W.P.(C) No.18555 of 2024 was dismissed.
2. The 1st respondent is a Consumer Co-operative Society
('Society' for short) started functioning on 11.11.1963. The
membership of the society is confined to the staff of the Regional
Engineering College, Kozhikode (NIT). The Society has been
running a consumer store dealing with provision stores, stationery
and textile items. The appellant was appointed as a Salesman in
the society on 16.08.1976. On 21.11.2000, the Unit Inspector,
Kunnamangalam Unit conducted an inspection in the office of the
store of the Society and noticed misappropriation of funds by
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manipulation of records and vouchers. On getting the report, the
Assistant Registrar of Co-operative Societies issued a show cause
notice to the Society on 29.11.2000. Then, the President and
Board Members of the Society conducted an inspection and found
that misappropriation of the fund of the Society had been
committed by the appellant as well as an Attender by name
Gopinathan. Thereafter, the department officers as well as
auditors also conducted an inspection and found large scale
misappropriation of funds of the Society which according to them
was committed by the appellant and the other employee. A
statutory inspection under Section 66 of the Kerala Cooperative
Societies Act, 1969 ('the Act' for short) was conducted as per
order dated 23.03.2001 by appointing the Unit Inspector,
Kunnamangalm Unit and he submitted Ext.P2 report dated
20.03.2002 to the Joint Registrar. On the basis of the said report,
the Joint Registrar ordered enquiry under Section 68(1) of the Act
as per Ext.P3 order dated 31.01.2003 and appointed the Assistant
Registrar (G), Kozhikode as the Enquiry Officer.
2.1. On the basis of the enquiry conducted, the disciplinary
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sub-committee formed by the society issued Ext.P5 order dated
25.04.2002 terminating the service of the appellant, finding that
he misappropriated the fund of the Society. The Society then filed
A.R.C. No.10 of 2001 before the Joint Registrar of Co-operative
Societies for recovery of the misappropriated amount from the
appellant. Challenging Ext.P5, the appellant filed A.R.C. No.123 of
2011 before the Co-operative Arbitration Court (Northern),
Kozhikode ('Arbitration Court' for short). As per Ext.P6 award
dated 28.05.2018 the Arbitration Court set aside the punishment
of termination of service imposed on the appellant and directed to
pay him all service benefits, including back wages. Challenging
Ext.P6 award, the Society filed A.P No.83 of 2018 before the Kerala
Co-operative Tribunal, Thiruvananthapuram ('Tribunal' for short).
The appellant filed Ext.P7 cross-objection before the Tribunal
claiming 18% interest on the amount awarded.
2.2. As per Ext.P9 judgment dated 24.05.2022, the appeal
filed by the Society was allowed and the cross-objection filed by
the appellant was dismissed by the Tribunal. Challenging Ext.P9
judgment of the Tribunal, the appellant filed W.P.(C)No.24868 of
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2022 before this Court. As per Ext.P10 judgment dated
17.10.2022 this Court set aside Ext.P9 judgment of the Tribunal
and remanded the matter to the Tribunal for fresh consideration.
As per Ext.P11 judgment dated 25.02.2023, the Tribunal partly
allowed the appeal and dismissed the cross-objection with a
direction to pay to the appellant 80% of the back wages from the
date of termination till superannuation, together with 9% interest
from the date of termination till payment.
2.3. Challenging the judgment in the appeal, the Society
filed W.P.(C)No.20797 of 2023 and challenging the judgment in
the cross-objection, the appellant filed W.P.(C)No.18555 of 2024.
Meanwhile, on the basis of an application filed by the Society, the
Joint Registrar of Co-operative Societies issued an order dated
26.02.2001 attaching the landed properties of the appellant. After
Ext.P11 judgment by the Tribunal, the Joint Registrar issued an
order dated 07.07.2020 lifting the attachment. Challenging the
order of the Joint Registrar, the society filed W.P.(C)No.25628 of
2023. All three writ petitions were disposed of by the learned
Single Judge as per the common judgment dated 04.06.2024,
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remanding the matter to the Tribunal for fresh consideration.
Liberty was given to the Tribunal to remand the matter to the
Arbitration Court if found necessary for proper disposal of the case
on merits.
3. Heard the learned counsel for the appellant, the learned
counsel for the respondents and the learned Senior Government
Pleader.
4. The learned counsel for the appellant submitted that the
Arbitration Courts were established after the incorporation of
Section 70A and Section 70B in the Act by way of amendment with
effect from 02.01.2023. It was prior to the incorporation of those
provisions the society filed the complaint before the Registrar of
Co-operative Societies. After the establishment of the Arbitration
Court, A.R.C. No.123 of 2011 was filed by the appellant before
that Court. Considering all the facts and evidence, Ext.P6 award
was passed by the Arbitration Court on 28.05.2018. In Ext.R1(b)
judgment dated 09.08.2007 passed by this Court in
W.P.(C)No.13655 of 2024, it was found that the appellant was not
working in a managerial capacity. In Ext.P6 award, the Arbitration
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Court directed the Society to pay full back wages to the appellant
from the date of termination of service till superannuation. From
Ext.P6 award of the Arbitration Court and Ext.P11 judgment of the
Tribunal, it is clear that the enquiry against the appellant was
conducted violating principles of natural justice. The Arbitration
Court rightly set aside the order of termination of service of the
appellant. It was the duty of the employer to produce the book of
accounts to prove the alleged misappropriation of money by the
appellant which was not done by the Society. The learned counsel
vehemently argued that in the case of reinstatement of an
employee, payment of full back wages is the Rule and the Tribunal
went wrong in properly deciding these aspects. The learned
counsel relied on the decision of the Apex Court in U.P.
Warehousing Corporation v. Vijay Narayan Vajpayee
[(1980) 3 SCC 459] to argue that the domestic enquiry
conducted against the appellant was vitiated by violation of
natural justice. In that judgment the Apex Court held that a
regular departmental enquiry takes place only after the charge
sheet is drawn up and served upon the delinquent and the latter's
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explanation is obtained. In the absence of such an enquiry in that
case, the Court held that the Rules of natural justice was violated
and hence the impugned order of dismissal was held as rightly set
aside by the High Court. The learned counsel relied on the
judgments of the Apex Court in Indian Oil Corporation Ltd. v.
Ashok Kumar Arora [(1997) 3 SCC 72] and the judgment of
this Court in Arpookara Service Co-operative Bank Ltd.
v. T.M George [2025 KHC Online 1519] to argue that the
jurisdiction of this Court in departmental enquiries and findings
are very limited.
5. The learned counsel for respondents 1 and 2 argued that
while passing Ext.P11 judgment in pursuance to the direction of
this Court in Ext.P10 judgment, the Tribunal once again failed to
consider the evidence on record. In Ext.P6 award of the Arbitration
Court there was no direction to pay interest on the back wages
directed to be paid to the appellant. No such request was also
made before the Arbitration Court by the appellant. But
overlooking that aspect, the Tribunal directed the 1 st respondent
to pay 9% interest on the 80% of back wages ordered to be paid
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to the appellant. By relying on the judgment of the Apex Court
in Mahabir Prasad Santosh Kumar v. State of U.P. [(1970)
1 SCC 764] the learned counsel argued that the judgment of the
Tribunal directing to pay interest on back wages is vitiated due to
absence of reasoning. The learned counsel relied on the judgment
of the Apex Court in J.K. Synthetics Ltd. v. K.P Agrawal
[(2007) 2 SCC 433] to argue that Appellant is not entitled for
back wages. By relying on the judgment of the Apex Court in
Cooper Engineering Ltd. v. Shri P.P. Mundhe [(1975) 2 SCC
661] the learned counsel submitted that the Tribunal ought to
have given the Society an opportunity to adduce evidence if it
found the evidence adduced before the Disciplinary authority or
Arbitration Court as insufficient.
6. The issue for consideration in these writ appeals is
whether the impugned judgment passed in writ petitions by the
learned Single Judge is suffering from any illegality, which
warrants interference?
7. The appellant was appointed as an employee in the 1 st
respondent Society on 16.08.1976. Including the appellant, there
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were six permanent and four temporary employees working in the
Society. According to the Society, with effect from 12.06.1982 the
appellant was exercising the duties of the Manager, since he was
the senior most among the staff. According to the appellant after
Ext.R1(1) judgment dated 09.08.2007 in W.P.(C)Nos.13655 of
2004 and 5053 of 2006, the dispute regarding the post of the
appellant is no more res integra since in the said judgment, this
Court held that the appellant is not the Manager.
8. The allegation against the appellant is that on a surprise
inspection initially conducted by the Unit Inspector of
Kunnamangalam Unit on 21.11.2000 some malpractices and
misappropriation of money were detected in the society and it is
the appellant as well as an Attender by name Gopinathan have
committed these malpractices. Subsequently, a statutory
inspection under Section 66 of the Act was also conducted by the
Unit Inspector and a report was filed by the Joint Registrar on
20.03.2002. In the enquiry conducted by the Assistant Registrar
it was found that the appellant and Gopinathan misappropriated
money from the Society and it has to be recovered from them. As
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per Ext.P4, the Joint Registrar issued an order dated 15.07.2010
to recover an amount of Rs.1,23,922/- from the appellant. In
Ext.P5, the sub-committee constituted for disciplinary action
accepted the domestic enquiry report and found that 17 charges
were proved against the appellant. Hence the committee
unanimously decided to dismiss the appellant from service with
effect from 08.01.2001, the date from which the appellant was
kept under suspension.
9. In Ext.P6 award, the Arbitration Court found the domestic
enquiry conducted against the appellant as not valid. The reason
for reaching that conclusion by the Arbitration Court is that none
of the witnesses examined from the side of the Society was cross-
examined by the appellant and in fact the statements of the
witnesses were not taken on oath. The Domestic Enquiry Officer
examined before the Arbitration Court as DW1 deposed that
though so many documents were examined by him at the time of
enquiry, none of them were seen in the file at the time of evidence.
No distinct charges were made against the appellant. The
Arbitration Court further found that though the appellant filed an
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appeal before the Board of Directors of the Society he was not
given a chance for personal hearing which is denial of natural
justice.
10. It is true that as per Ext.P10 judgment, Ext.P9 judgment
of the Tribunal was set aside by this Court for the reason that it
was not passed on merits by considering the evidence on record.
However, in Ext.P11 judgment, the Tribunal once again considered
the matter on merits. Paragraph 13 of the said judgment reads
thus:
"13. Going through the award, it is manifestly clear that the
enquiry report was not proved by adopting methods known
to law. That part, as rightly held by the learned Arbitrator, it
is uncharitable to place the entire blame on the plaintiff who
was only a worker. There is nothing on record to show that
the plaintiff was entrusted with the duties of Manager or
Secretary of the defendant society. The defendant being a
responsible body, they must be able to show documents or
office orders to show that plaintiff was specifically entrusted
with the managerial function since no paid Secretary was
there. In the absence of any office order showing the
entrustment of the work of the Secretary with the plaintiff,
it is idle to contend that the plaintiff being the senior
employee was looking after the day to day affairs of the
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defendant society. I reiterate here that the Board of
Directors cannot wash their hands by putting the entire
blame on the plaintiff, who was only a worker in the absence
of materials. As long as there is no document to show that
the plaintiff had acted as Manager or he was entrusted with
supervisory jurisdiction, it cannot be held that the plaintiff
was responsible for the alleged misappropriation. On going
through the report filed by the enquiry officer, there is
nothing to link the plaintiff for the alleged misappropriation.
If a proper audit was conducted periodically, the real culprit
would have come out of the bag. The attempt of the
management to put the blame on the plaintiff cannot be
approved or appreciated. The enquiry report is far from
satisfactory as there is nothing to connect the plaintiff for
the alleged misappropriation. There is nothing to show that
plaintiff was handling cash and accounts of the society when
there is an able management to perform the managerial
functions, I reiterate here at the risk of repetition that there
is no scrap of paper to show that the plaintiff was assigned
with the work of Secretary as contended by the learned
counsel for the plaintiff. It is a mystery to hold that
irregularities were noticed on a surprise inspection. That
apart, there is no basis to conclude that the plaintiff and one
Mr. Gopinathan alone are responsible for the same when 4
other staff were then working. Without proper evidence, it
is cruel to punish the plaintiff, who has got good length of
service and hence this Tribunal is of the view that the very
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initiation of the disciplinary proceedings against the plaintiff
is wholly vitiated. The report filed by the enquiry officer is
also vitiated for manifold reasons. The assistance of a legally
trained person was denied to the plaintiff. The explanation
filed by the plaintiff was not considered by the management
and the enquiry officer. The findings of the enquiry officer
are not supported with reasons worth acceptance. So this
Tribunal is of the firm view that the enquiry report submitted
by the enquiry officer and the disciplinary proceedings
initiated against the plaintiff are wholly vitiated."
11. In Vijay Narayan Vajpayee [(1980) 3 SCC 459] the
Apex Court held that a regular departmental enquiry takes place
only after the charge sheet is drawn up and served upon the
delinquent and the latter's explanation is obtained. In the absence
of such an enquiry in that case, the Court held that the Rules of
natural justice was violated and hence the impugned order of
dismissal was held as rightly set aside by the High Court.
12. In Ashok Kumar Arora [(1997) 3 SCC 72] the Apex
Court held thus:
"At the outset, it needs to be mentioned that the High Court
in such cases of departmental enquiries and the findings
recorded therein does not exercise the powers of appellate
court/Authority. The jurisdiction of the High Court in such
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cases is very limited for instance where it is found that the
domestic enquiry is vitiated because of non- observance of
principles of natural justice, denial of reasonable
opportunity; findings are based on no evidence, and or the
punishment is totally disproportionate to the proved
misconduct of an employee. There is a catena of judgments
of this Court which had settled the law on this topic and it is
not necessary to refer to all these decisions. Suffice it to refer
to few decisions of this Court on this topic viz., State of
Andhra Pradesh v. S.Sree Rama Rao[(1963) 3 SCR 25], State
of Andhra Pradesh v. Chitra Venkata Rao[(1976) 1 SCR 521],
Corporation of City of Nagpur and Anr. v. Ramachandra
[(1981) 3 SCR 22] and Nelson Motis v. Union of India and
Anr.[AIR 1992 SC 1981]."
(Emphasis supplied)
13. In Mahabir Prasad Santosh Kumar [(1970) 1 SCC
764] the Apex Court held thus:
"Opportunity to a party interested in the dispute to present
his case on questions of law as well as fact, ascertainment
of facts from materials before the Tribunal after disclosing
the materials to the party against whom it is intended to use
them, and adjudication by a reasoned judgment upon a
finding of the facts in controversy and application of the law
to the facts found, are attributes of even a quasi-judicial
determination. It must appear not merely that the authority
entrusted with quasi-judicial authority has reached a
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conclusion on the problem before him : it must appear that
he has reached a conclusion which is according to law and
just, and for ensuring that end he must record the ultimate
mental process leading from the dispute to its solution.
Satisfactory decision of a disputed claim may be reached
only if it be, supported by the most cogent reasons that
appeal to the authority. Recording of reasons in support of
a decision on a disputed claim by a quasi-judicial authority
ensures that the decision is reached according to law and is
not the result of caprice, whim or fancy or reached on
grounds of policy or expediency. A party to the dispute is
ordinarily entitled to know the grounds on which the
authority has rejected his claim. If the order is subject to
appeal, the necessity to record reasons is greater, for
without recorded reasons the appellate authority has no
material on which it may deter-mine whether the facts were
properly ascertained, the relevant law was correctly applied
and the decision was just."
14. In J.K. Synthetics Ltd. [(2007) 2 SCC 433] the Apex
Court held that where reinstatement is a consequence of
imposition of a lesser punishment, neither back wages nor
continuity of service nor consequential benefits, follow as a natural
or necessary consequence of such reinstatement. In cases, where
the misconduct is held to be proved and reinstatement is itself a
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consequential benefit arising from imposition of a lesser
punishment, award of back wages for the period when the
employee has not worked, may amount to rewarding the
delinquent employee and punishing the employer for taking action
for the misconduct committed by the employer. That should be
avoided. Similarly, in such cases, even where continuity of service
is directed, it should only be for the purpose of
pensionary/retirement benefits and not for other benefits like
increment, promotions, etc.
15. In Cooper Engineering Ltd. [(1975) 2 SCC 661] the
Apex Court, after considering the evidence that has to be adduced
by the management before the Labour Court on an issue of
defective domestic enquiry, by relying on the judgment in
Workmen of M/s. Firestone Tyre and Rubber Company of India (P)
Ltd v. Management [AIR 1973 SC 1227] held that even if no
enquiry has been held by an employer or if the enquiry held by
him is found to be defective, the Tribunal in order to satisfy itself,
about the legality and validity of the order, has to give an
opportunity to the employer and employee to adduce evidence
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before it. It is open to the employer to adduce evidence for the
first time justifying his action.
16. In the instant case, it is found by the Arbitration Court
as well as the Tribunal that the domestic enquiry was not properly
conducted and natural justice was violated by not giving an
opportunity to the appellant to adduce evidence or in other words
there was no opportunity for the appellant to challenge the
evidence of the witnesses, since the statements of the witnesses
were not recorded on oath and instead their written statements
were relied by the enquiry officer. The defects in the enquiry were
properly analysed by the Arbitration Court as well as the Tribunal
before reaching a finding that the enquiry was vitiated and
therefore not valid. It is true that the evidence on record has to
be properly appreciated by the Arbitration Court or Tribunal before
reaching a finding regarding the validity of the disciplinary
proceedings. But if no sufficient evidence is available or if the
available evidence itself is tainted due to violation of natural
justice then there is no meaning in saying that the evidence was
not appreciated by the Arbitration Court or the Tribunal. In
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Cooper Engineering Ltd. [(1975) 2 SCC 661] there was no
opportunity for the employer to adduce evidence before the
Tribunal. It was in that circumstance the Apex Court held that the
Labour Court ought to have first decided as a preliminary issue
whether the domestic enquiry violated the principles of natural
justice and ought to have given the management an opportunity
to adduce evidence to justify its decision. But in the instant case,
the facts are different. The Society adduced evidence before the
Arbitration Court. But, that evidence is found as insufficient to
overcome the vitiating factors in the domestic enquiry. The
Tribunal also re-appreciated the evidence adduced before the
Arbitration Court. Hence the judgments of the Apex Court in
Mahabir Prasad Santosh Kumar [(1970) 1 SCC 764] and
Cooper Engineering Ltd. [(1975) 2 SCC 661] are not
applicable to the case in our hand.
17. As noticed above, the Arbitration Court as well as the
Tribunal analysed the materials and evidence on record and rightly
found that the disciplinary proceedings against the appellant as
not valid. No purpose will be served by remanding the matter
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once again to the Tribunal or to the Arbitration Court for
considering the evidence on record, when there is absence of
acceptable evidence adduced before the enquiry officer, especially
when the opportunity to adduce evidence was not exercised
properly by the Society. In such circumstance, we find no sufficient
ground to remand the matter to the Tribunal as directed in the
impugned judgment of the learned Single Judge in
W.P.(C)No.20797 of 2023.
18. In Ext.P11 judgment the Tribunal reduced the back
wages payable to the appellant as 80%. The reason stated by the
Tribunal for reducing the back wages ordered by the Arbitration
Court as 80% is absence of pleading that the appellant did not
work for gain during the period of his absence from duty, due to
suspension and subsequent termination till superannuation. It is
worth to note that the society has no case that the appellant was
employed elsewhere during this period.
19. In Hindustan Tin Works Pvt. Ltd v. Employees of
Hindustan Tin works Pvt. Ltd. [(1979) 2 SCC 80], the Apex
Court held thus:
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
"Ordinarily, therefore, a workman whose service has been
illegally terminated would be entitled to full back wages
except to the extent he was gainfully employed during the
enforced idleness. That is the normal rule. Any other view
would be a premium on the unwarranted litigative activity
of the employer. If the employer terminates the service
illegally and the termination is motivated as in this case,
viz., to resist the workmen's demand for revision of wages,
the termination may well amount to unfair labour practice.
In such circumstances reinstatement being the normal rule,
it should be followed with full back wages".
20. In Deepali Gundu Surwase v. Kranti Junior Adhypak
Mahavidyalaya [(2013) 10 SCC 324], the Apex court held
thus:
"The very idea of restoring an employee to the position
which he held before dismissal or removal or termination of
service implies that the employee will be put in the same
position in which he would have been but for the illegal
action taken by the employer. The injury suffered by a
person, who is dismissed or removed or is otherwise
terminated from service cannot easily be measured in terms
of money. With the passing of an order which has the effect
of severing the employer employee relationship, the latter's
source of income gets dried up. Not only the concerned
employee, but his entire family suffers grave adversities.
They are deprived of the source of sustenance. The children
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
are deprived of nutritious food and all opportunities of
education and advancement in life. At times, the family has
to borrow from relatives and other acquaintances to avoid
starvation. These sufferings continue till the competent
adjudicatory forum decides on the legality of the action
taken by the employer. The reinstatement of such an
employee, which is preceded by a finding of the competent
judicial/quasi judicial body or Court that the action taken by
the employer is ultra vires the relevant statutory provisions
or the principles of natural justice, entitles the employee to
claim full back wages. If the employer wants to deny back
wages to the employee or contest his entitlement to get
consequential benefits, then it is for him/her to specifically
plead and prove that during the intervening period the
employee was gainfully employed and was getting the same
emoluments. Denial of back wages to an employee, who has
suffered due to an illegal act of the employer would amount
to indirectly punishing the concerned employee and
rewarding the employer by relieving him of the obligation to
pay back wages including the emoluments".
(emphasis supplied)
21. The Apex Court in Pradeep v. Manganese Ore
(India) Ltd. [(2022) 3 SCC 683] and this Court in Secretary,
Perinthalmanna Taluk Co-operative Educational Society
and another v. M.Satheeratnam [2018 (2) KLT 99] re-
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
iterated/followed the dictum laid down in Deepali Gundu
Surwase [(2013) 10 SCC 324].
22. This Court in Arpookara Service Co-Operative Bank
Ltd. v. T.M George [2025 KHC OnLine 1519] by relying on the
judgments of the Apex Court on the point held that ordinarily a
workman whose service has been illegally terminated would be
entitled to full back wages except to the extent he was gainfully
employed during the period of absence from duty. It is the
employer who has to plead and prove the same.
23. In Ext.P6 award, the Arbitration Court considered the
rival contentions of the parties on merits and after analysing the
evidence, adduced before it, found that the charges against the
appellant is not sustainable. It is an award passed on merits and
not on technical grounds. Therefore, the decision of the Apex
Court in J.K. Synthetics Ltd. [(2007) 2 SCC 433] is not
applicable to the facts of this case. In the absence of pleadings
from the side of the society that the appellant was gainfully
employed during the period of his absence from duty, there is no
justification for the Tribunal to reduce the back wages payable to
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
him. The judgment of the Tribunal is incorrect to that extent.
While coming to the order of the Registrar of Co-operative
Societies lifting the attachment order against the appellant is
concerned, no interference is needed for the reason that the
disciplinary proceedings against the appellant is found as vitiated
and he is entitled for back wages.
24. The upshot of the above discussion is that the Arbitration
Court has reached a right finding in Ext.P6 award dated
28.05.2018. Ext.P11 judgment of the Tribunal is incorrect to the
extent of reducing the back wages payable to the appellant as
80%. So also, no interference is needed to the order dated
07.07.2020 passed by the Joint Registrar lifting the attachment
over the property of the appellant. The impugned judgment of the
learned single judge remanding the matter to the Tribunal for fresh
consideration was passed without properly appreciating the above
legal and factual aspects and hence is liable to be set aside.
Therefore, we are inclined to allow the Writ appeals.
In the result, all the writ appeals are allowed and the
impugned judgment dated 04.06.2024 passed by the learned
W.A.Nos.1541, 1569 and 1252 of 2024
2025:KER:11142
Single Judge in W.P.(C) Nos.20797, 25628 of 2023 and 18555 of
2024 is set aside holding that the appellant is entitled for full back
wages payable by the 1st respondent Society, from the date of his
termination from service till the date of superannuation. The 1 st
respondent shall pay full back wages with 6% interest and other
service benefits to the appellant within a period of three months
from the date of receipt of a copy of this judgment.
SD/-
ANIL K.NARENDRAN, JUDGE
SD/-
MURALEE KRISHNA S., JUDGE
sks
