Judgment · High Court

S.SIRI JAGAN.J-------------------------------------------WP(C) NO:25361 OF 2006--------------------------------------------Dated this the 2nd day of January, 2012JUDGMENTThe petitioner is a Milk Society registered under the KeralaCo-operative Societies Act. The 2nd respondent was a MilkCollector employed by the petitioner society. She was terminatedfrom service on allegation of unauthorized absence. She filed anappeal under the Kerala Shops and Commercial EstablishmentsAct, before the first respondent who adjudicated the same andfound that the termination of the service of the 2nd respondentwas unjust and illegal. The 1st respondent directed the petitionerto either reinstate the 2nd respondent in service with 50% backwages or to pay compensation of ` 1,20,000/-. Ext.P-1 is theorder passed by the appellate authority. The petitioner ischallenging the same.

The petitioner raises four contentions. First is that sinceSection 69 of the Kerala Co-operative Societies Act provides for aremedy by way of arbitration against the termination of service ofthe petitioner, the appeal under the Shops Act is not WPC.NO. 25361 OF 20062maintainable. The second is that the 2nd respondent wasterminated from service after conducting an enquiry into thespecific allegations of misconduct and therefore the appellateauthority ought to have considered the validity of the said enquirybefore proceeding further, which has not been done in this case. Thirdly it is contended that after the petitioner enteredappearance and filed pleadings, there was a gap of severalmonths before resuming further proceedings in the shop appeal inrespect of which the petitioner was not given a notice. Thereforepractically the order was an ex parte order without reasonableopportunity to the petitioner. The petitioner also challenges thequantum of compensation fixed by the appellate authority.

I have considered the rival contentions in detail.

As far as the question of maintainability of the appeal isconcerned, remedy by way of the arbitration for employees of Co-operative Societies came into force only w.e.f. the date ofamendment made to the Act in 2003. The shop appeal in thiscase was of the year 1999 on which date the 2nd respondent hadno remedy by way of arbitration under the Kerala Co-operative WPC.NO. 25361 OF 20063Societies Act. Therefore there is no merit in the first contention ofthe petitioner.

As far as the 2nd contention is concerned, the question ofconsidering the validity of the enquiry does not arise since theenquiry was conducted after taking a decision to terminate theservice of the 2nd respondent. With regard to the lack of notice tothe petitioner when the proceedings in the shop appeal wascommenced, I am not inclined to remand the matter to theappellate authority on that ground, since elaborate argumentswere advanced by both sides on merits and I have considered thesame on merits. In this case admittedly the 2nd respondent wasgranted leave for going abroad w.e.f. 01.04.1995. The 2ndrespondent was terminated from service on the ground ofunauthorized absence w.e.f. 09.04.1995. The specific case of the2nd respondent is that she could not go abroad although sheavailed of leave and therefore she requested to allow her to rejoinduty w.e.f. 12.06.1995. But she was not permitted to join duty. Once the fact that the 2nd respondent was granted leave w.e.f.01.04.1995 is admitted, there is no question of unauthorizedabsence. Of course, the learned counsel for the petitioner would WPC.NO. 25361 OF 20064point out that after availing of leave for going abroad, she did notgo abroad and therefore she had obtained leave on falsepretenses. I could have considered that contention had thepetitioner initiated proceedings against the 2nd respondent forsuch a misconduct. The petitioner did not choose to do so. Instead the petitioner had chosen to terminate the service of the2nd respondent on the ground of unauthorized absence. It is alsosubmitted that the 2nd respondent had sought permission to rejoinduty to which the petitioner did not permit her to.

It is also seen that the alleged enquiry was conductedafter communicating the decision to the 2nd respondent that shehas been terminated from service. After having taken a decisionto terminate the service of the 2nd respondent there is no point inconducting an enquiry. The appellate authority has specificallyheld so. I do not find anything wrong with such a finding. So, onmerits also, I do not find any substance in the contentions of thepetitioner.

The counsel for the petitioner submits that the petitioneris a Milk Co-operative Society with only one employee and it WPC.NO. 25361 OF 20065cannot afford to pay such large amount as compensation to the2nd respondent. He also disputes the method of calculating thecompensation.