I. Bindhu vs Thiruvananthapuram Service Co-Operative Bank Limited & Anr.

“6.

It is submitted that, upon pronouncement of the Award, the management on 06/10/2023 itself has filed application for the certified copy of the award. Later, the management served with the copy on 19/12/2023. But, unfortunately due to administrative reasons, especially due to the fact that the newly elected Managing Committee assumed office only on 20/05/2023 coupled with the fact that the Managing Committee decided to seek fresh legal opinion from our lawyer at Ernakulam, in the light of the fact that the dictum laid down in the Kodancherry Bank's case has been overruled by that time and as such the Bank probed possibility for challenging the Award itself, before the Hon’ble High Court of Kerala. But unfortunately, the certified copy of the afore mentioned Award got misplaced during transit and in spite of earnest effort the same was unable to be retrieved. Further, the President of the management bank was exposed to serious illness, which factors clubbed together resulted in non-initiation as well as completion of disciplinary action against the worker within the time stipulated in the Award. Thereafter, a fresh application was filed on 03/02/2024 and certified copy of Award was received on 08/02/2024.

7.

Immediately, the Managing Committee held on 20/02/2024, decision was taken to initiate disciplinary proceedings by availing the afore mentioned opportunity extended by this Hon’ble Labour Court and as such charge memo dated 24/02/2024, supported by statement of allegations, was issued to the worker and she was called upon to submit her written statement of defense within 7 days from the receipt of the same.

8.

The worker, even though provided with a total time frame of 14 days have not cared to submit her statement of defense and on the contrary opted to submit an undated letter alleging that the action of the management in issuing charge sheet after more than 5 months is irregular, illegal and unsustainable and sought for reinstatement.

9.

As such, the management bank in its Managing Committee meeting held on 15/03/2024, constituted a three member Disciplinary Action Sub Committee under the Chairmanship of Sri.K.R. Vijayakumar, as per Rule 198 (2A) of the Kerala Co-operative Societies Rules, 1969. Thereafter, on 16/03/2024, the said Committee appointed Advocate R. Harikumar as Enquiry Officer as per Rule 198 (2B) so as to enquire into the charges leveled against the worker. On even date, the said fact has been duly informed to the worker by the Disciplinary Action Sub Committee.

10.

It is humbly submitted that, if the period of three months is reckoned from the date of Award, the certified copy, at the first instance against application dated 06/10/2023, was issued to the management only on 19/12/2023, i.e., after a lapse of 2 months and 20 days. At the same time, if the time frame is calculated from the date of issuance of Award, the management has initiated disciplinay proceedings by issuing charge memo to the worker followed by constitution of Disciplinary Action Sub Committee and appointment of Advocate Commissioner by the Sub Committee.”

“6.

The averments and allegations in Para 6 of the affidavit filed in support of the petition is false and hence denied. It is submitted that the award was pronounced on 29/9/2023. It is submitted that the certified copy of the award used to be disbursed at the earliest. The workman received the copy of the award on 17/10/2023. It is submitted that the management intentionally refrained from receiving the award. The callous attitude of the management is evident from this pleading itself. On knowing that there is a time limit, the management intentionally refrained from collecting the order. It is submitted that all other pleadings in the para 6 of the affidavit is to be proved by the management. The management is trying to create a story for covering up the latches on their part. It is submitted that if the pleading ought have been correct, the management ought have filed this petition much earlier.

7.

The averments and allegation in Para 7 to 9 of the affidavit filed in support of the petition are false and hence denied. The management have no right to issue charge memo on 24/2/2024 as the same ought to have issued before 29/12/2023. The management has no right to initiate disciplinary action on the basis of the award issued by this court. The workman have rightly submitted a letter intimating the management that the charge sheet is not legally sustainable. The workman have requested for reinstatement as well. The management has now issued a charge sheet dated 24/2/2024 and constituted a subcommittee and the same are done only for creating an image that management intends to take disciplinary action against the workman.

8.

The averments and allegations in Para 10 to 12 of the affidavit filed in support of the petition are false and hence denied. The management also is aware that the time limit starts from the date of order and not from the date of receipt of the award. Hence the averment that if the time limit period was considered from the date of receipt of the order i.e. 19/12/2023, the management had initiated disciplinary action within time is not legally sustainable. It is very much specific in the award that the time limit for completing the disciplinary action, if any, shall be three months from the date of order. It is submitted that mere initiation of disciplinary action is not enough for denying reinstatement. It is submitted that the management will not be put to any irreparable loss, injury and damages. The management refrained from taking steps as per the award and hence have no right to file this petition. If this petition is allowed, workman will be put to loss, injury and damages. The workman remains unemployed from 2012 as a part of victimization.”

“Now the rival contentions raised by both sides are to be scrutinized in the light of the materials on records. In this case the worker filed an application under Section 2A (2) of the Industrial Disputes Act and an award passed by this court dated 29/9/2023. The workman filed the application mainly for the reinstatement and also challenged the dismissal. As per the award this court remanded the matter for initiating fresh disciplinary proceedings including the charge memo. The enquiry report also set aside. Again this court make time limit and directing the management to initiate the disciplinary proceedings and conclude the same within the period of three months. Now the point to be considered is whether the court can enlarge the time as stipulated as per the award dated 29/9/2023. Section 17 (A) of Industrial Disputes Act is applicable with respect to the publication under Section 17 of the said Act. If there is any time limit as per the award stipulated by the court, in such circumstances the court can enlarge the time in the interest of justice and also considering the new circumstances arose. In this case as per the averments in the petition the management clearly averred that new management committee assumed charge only on 20/5/2023. Again the certified copy of the award got misplaced during transit. So the management ought to have applied a fresh application and a certified copy was received on 8/2/2024. Anyway the managing committee take a decision on 20/2/2024 to initiate disciplinary proceedings and thereby issued a charge memo dated 24/2/2024. It is true that it is not within the stipulated time as per the award. But any how the changed circumstances can be taken in to account. The newly elected committee assumed the charge on 20/5/2023 is also not disputed by the worker/respondent. So considering the entire aspects I am of the view that in the interest of justice time can be enlarged for a further period of one and half (1 ½ ) months for completion of already initiated disciplinary proceedings against the worker. With the above observation, this petition can be allowed. The point is found accordingly.”

“3.

We have very serious reservations whether the Division Bench in an intra-court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra-court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the learned Single Judge.”

“As a result of the aforesaid discussion, the answers to the questions referred to us may be stated as follows:-

“(i)

That there is an inherent power in the Division Bench hearing writ appeal against an order of a learned single Judge, to remand the case to be decided afresh by a learned single Judge;

(ii)

That a remand order may be passed in cases where a Writ Petition has been dismissed for non-prosecution or in limine or on the ground of delay or maintainability or on some question of law without going into merits, etc. However, it is best in these matters to be neither dogmatic nor exhaustive, yet the aforesaid categories are the ones in which the Appellate Bench may exercise its power of remand; and

(iii)

That where a Writ Petition has been disposed of on merits by an order made by a learned single Judge, a Division Bench on Appeal would have no jurisdiction to remand such a case to a learned single Judge for fresh decision on merits and the appeal has to be disposed of on merits by the Division Bench itself.”

APPENDIX OF WP(C) NO. 25229 OF 2024

PETITIONER’S EXHIBITS

RESPONDENT’S EXHIBITS