Industrial Tribunal; T. Boby Francis Vs. Lucy Varghese [Kerala High Court, 08-02-2016]

Industrial Disputes Act, 1947 – Section 2(s) – there is no evidence to prove that the 1st respondent granted loan without obtaining sufficient security – thus, the Tribunal is justified in finding that the Management miserably failed to prove the misconduct alleged against the worker – when the 1st respondent was found not guilty of the misconduct, the petitioner could have been directed to reinstate her in the service – but, the Tribunal has not done so, considering the interest of the petitioner also – having regard to the fact that she is retrenched from the service, the compensation to the tune of Rs.1,50,000/- is just and reasonable.

# Industrial Tribunal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. HARILAL, J.

W.P. (C) No.30311 of 2011

Dated this the 8th day of February, 2016

AGAINST THE ORDER/JUDGMENT IN ID 66/2008 OF INDUSTRIAL TRIBUNAL, PALAKKAD DATED 01-01-2011

PETITIONER

T. BOBY FRANCIS, MANAGING DIRECTOR, SHELTER FINANCE AND CHITTIES LIMITED, CHUNDAL P.O., THRISSUR – 680502.

BY ADV. SRI.E.K.NANDAKUMAR

RESPONDENT(S)

1. LUCY VARGHESE AND ANOTHER

2. THE INDUSTRIAL TRIBUNAL, PALAKKAD – 678 020.

R1 BY ADV. SRI.S.JUSTUS BY GOVERNMENT PLEADER, SRI. NOUSHAD THOTTATHIL

J U D G M E N T

The petitioner is the Managing Director of a private limited company, by name Shelter Finance and Chitties Limited, registered under the Companies Act, 1956 and the 1 st respondent was an employee, allegedly working as Branch Manager. According to the petitioner, the 1 st respondent was appointed in the Company, as Clerk in the year 1996 and subsequently, she was promoted as Branch Manager, Chavakkad Branch and as such she was controlling the activities of the branch, including supervision of other workers and the works carried out by them. While so, the petitioner initiated disciplinary action against the 1 st respondent, alleging that she had granted two gold loans, Loan Nos.218/2006 and 219/2006 of Rs.13,500/- to one ‘V.D. Roy’ on 22.04.2006, without any security. The 1 st respondent denied the allegations levelled against her and eventually the matter was culminated in an industrial dispute, before the Industrial Tribunal, Palakkad. On receipt of the reference order, the Tribunal registered the industrial dispute as I.D. No.66 of 2008 and proceeded with trial. During the course of trial, MW1 and MW2 were examined and M1 to M14 were marked for the management and WW1 was examined and W1 to W8 were marked for the worker. After considering the evidence on record, the Tribunal passed an award holding that the dismissal of the worker is not justifiable and she is entitled to receive from the Management a sum of Rs.1,50,000/- towards compensation. The legality and propriety of the reasons, whereby the Tribunal passed an award, are under challenge in this writ petition.

2. Heard the learned counsel for the petitioner and learned counsel appearing for the respondent.

3. The Learned counsel for the petitioner advanced arguments, assailing the finding of the Tribunal to the effect that the 1 st respondent was not a workman as defined under

# Section 2(s) of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘the Act’). According to the petitioner, the 1 st respondent was working as Branch Manager, having supervision over the subordinate employees and works done by them. But, the Tribunal miserably failed to appreciate the evidence on record in the correct perspective.

4. Secondly, it is contended that there are sufficient materials to show that the 1 st respondent had granted two loans, without obtaining sufficient security. But, the Tribunal went wrong in appreciating the evidence in its correct perspective.

5. Per contra, the learned counsel appearing for the respondent advanced arguments to justify the finding of the Tribunal that the 1 st respondent is only a worker coming under the definition of Section 2(s) of the Act. It is also contended that there is no sufficient materials to bring home the misconduct alleged against the 1 st respondent and the Tribunal can be justified in granting compensation, instead of directing the petitioner to reinstate the 1 st respondent in service.

6. The short question that arises for consideration in this writ petition is, whether there is any illegality, impropriety or any kind of perversity in any of the findings, whereby the Tribunal passed the impugned award, directing the petitioner to pay compensation.

7. At the outset, it is to be remembered that this Court under Article 226 of the Constitution of India is not sitting in appeal over the award passed by the Tribunal. The scope and extent of jurisdiction under Article 226 of the Constitution of India, is confined to the legality, impropriety or perversity, in the appreciation of evidence or in the application of law only. Going by the impugned award, it is seen that the Tribunal has rightly framed the issue, whether the dismissal of the respondent being a staff of the petitioner is justifiable? If not, what relief she is entitled to get. Thereafter, the Tribunal has framed two points for consideration, firstly, whether the 1 st respondent is a worker defined under Section 2(s) of the Act and whether the worker is guilty of the charge, as alleged by the management. In the above view, firstly I find that the Tribunal has rightly understood the issues involved in the matter and set the proceedings in motion. Coming to the 1 st issue, it is the specific case of the petitioner that the 1 st respondent was working, as Branch Manager and not as worker, as defined under Section 2(s) of the Act. The Tribunal has mainly relied on the evidence of MW1 and MW2 to arrive at a finding that the 1 st respondent is a worker only though she was designated as Branch Manager. It is pertinent to note that MW1 has admitted in the cross-examination that the 1 st respondent was handling cash and she was writing the day book, gold loan register, pro-note, vouchers, slips, etc. As rightly appreciated by the Tribunal, this admission is in support of the contention of the 1 st respondent that she was mainly employed for clerical work. The evidence of MW1 is further supported by the evidence of MW2. In crossexamination MW2 has given evidence in affirmative to the suggested question that the Managing Director used to give instruction to her, while she was working as Manager-in-Charge of Chavakkad Branch. She has further stated that she had been writing the day book at that time. Ext.M10 memo issued to the worker shows that she had no power even to regulate the office hours of the Branch. On an appreciation of the evidence of MW1 and MW2 coupled with the evidence of the 1 st respondent, as WW1, it can be reasonably held that she was working, as worker, though, she was designated as Branch Manager. I do not find any kind of perversity in the appreciation of evidence in this regard.

8. Coming to the second point, the charge is that she was guilty of the charge of lending loan, without obtaining sufficient security. The allegation is that she had granted two gold loans bearing Nos.218/2006 and 219/2006 for a total amount of Rs.27,000/- to one ‘V.D. Roy’, without obtaining proper application, pro-notes and the gold ornaments. The said allegation rests on M4, cash book, which would simply show that the 1 st respondent granted loan, without obtaining sufficient security. As rightly noted by the Tribunal, it is pertinent to note that there is no mention about the pro-note or loan application under which loans are granted, in the above cash book and the said endorsement was made, without securing the presence of the delinquent worker and her signature was also not obtained under the endorsement. More importantly, though the endorsement was made on 11.05.2006, the Management had not taken any action against her till the issuance of the charge sheet on 03.10.2006 and the inordinate delay was not explained, by assigning any kind of reasons. In short, the delay in verifying the records till 29.09.2006, by the Managing Director has not been explained satisfactorily. Moreover, the disputed loan had been closed on 29.09.2006 and person by name ‘V.D.Roy’, to whom the loan was granted, without obtaining security had signed the acknowledgment admitting that he received back the gold ornaments, which were given, as security.

9. In short, absolutely, there is no evidence to prove that the 1 st respondent granted loan to the said ‘V.D.Roy’, without obtaining sufficient security from him. Thus, the Tribunal is justified in finding that the Management miserably failed to prove the misconduct alleged against the worker.

10. Coming to the compensation, the question to be considered is whether the compensation granted to the worker is just, reasonable and proportionate. It is to be remembered that when the 1 st respondent was found not guilty of the misconduct, the petitioner could have been directed to reinstate her in the service. But, the Tribunal has not done so, considering the interest of the petitioner also. Having regard to the fact that she is retrenched from the service, the compensation to the tune of Rs.1,50,000/- is just and reasonable and this Court does not find any reason to interfere with the quantum of compensation.

Consequently, this writ petition will stand dismissed.

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