CoramThe Honourable Mr v. The Presiding Officer,Labour Court,Tiruchirapalli.2.P. Renganathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 19-6-2006CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARWrit Petition No.2909 of 1998The Management of M.M.Neythalur PrimaryAgricultural Co-Operative Bank Ltd.,Neythalur South,Tiruchirapalli – 639 110rep.by its President...PetitionerVs.1.The Presiding Officer,Labour Court,Tiruchirapalli.2.P. Renganathan ...Respondents This writ petition has been filed under Article 226 ofConstitution of India, praying this Court to issue a writ ofCertiorari, calling for the records of the first respondent inI.D.No.46 of 1996 dated 6.10.1997 and quash the same.For Petitioner:Mr.R.Parthiban1st Respondent:CourtFor 2nd respondent:Mr.S.ArunachalamO R D E RThis writ petition has been filed by the managementchallenging the award of the Labour Court (first respondent herein)passed in I.D.No.46 of 1996 dated 6.10.1997.2.The brief facts necessary for disposal of the writpetition are that during the period of employment of the secondrespondent as Attender in-charge of stock of fertilizers andpesticides, it was found that there was a deficit of stock to thetune of Rs.29,506.30. According to the management, the secondrespondent misappropriated the said amount and to conceal the same,he made wrong entries in the register. The said allegations beingserious misconduct, the second respondent was placed undersuspension by order dated 17.12.1994, pending enquiry. On the https://hcservices.ecourts.gov.in/hcservices/ basis of the inspection, a memo was issued on 7.9.1994, followedby another memo on 20.9.1994. The second respondent submitted hisexplanations on 29.9.1994 for both the memos. A regular chargememo was issued on 13.2.1995 wherein six charges were framedagainst the second respondent, which are as follows,"(1)You, the delinquent, while in chargeof the stock of fertilizers and pesticides,caused deficiency to the tune of Rs.29,506.30and misappropriated the said amount.(2)You, the delinquent, with a view toattain unlawful personal enrichment, tamperedwith the bank documents by making false entriesand acted in a manner detrimental to theconfidence reposed by the management in you.(3)You, the delinquent have committeddereliction of duties.(4)You, the delinquent have acted againstthe rules and regulations of the management.(5)You, the delinquent haveunauthorisedly absented from duty on 30.8.1994without getting prior permission.(6)You, the delinquent have acted againstthe discipline and dignity of the management."The second respondent did not submit any explanation and thereforethe management resolved to conduct a domestic enquiry, in which thesecond respondent participated fully. 3.The Enquiry Officer submitted his report on 1.8.1995 inwhich the charges except charge No.5 were held to be proved. Theenquiry report was analysed by the management and the managementcame to the conclusion that the proved five charges were grave innature and a provisional conclusion was arrived at to dismiss thesecond respondent from service. A second show cause notice wasissued on 16.9.1995 and the second respondent was also personallyheard. Since the explanation submitted for the second show causenotice as well as during personal hearing were found notacceptable, the proposed penalty was confirmed and an order ofdismissal was passed on 16.12.1995.4.The second respondent thereafter raised the industrialdispute under section 2-A of the Industrial Disputes Act and thesame was taken on file as I.D.No.46 of 1996 on the file of the https://hcservices.ecourts.gov.in/hcservices/ first respondent. The first respondent passed an award on6.10.1997 and held that the charges 1 to 4 and 6 are proved.However, exercising powers under Section 11-A of the IndustrialDisputes Act, 1947, the first respondent ordered reinstatementwithout continuity of service and backwages. Aggrieved by the saidaward of the Labour Court, petitioner-Management has filed thepresent writ petition.5.The learned counsel appearing for the petitioner arguedthat the charges having been found as proved by the firstrespondent and the charges being serious, particularlymisappropriation and making wrong entries to conceal themisappropriation, the first respondent ought not to have invokedpowers under section 11-A of the Industrial Disputes Act.6.The learned counsel appearing for the second respondentsubmitted that there was no misappropriation as alleged and thecharges were only deficit of stock and the amount was also remittedby the second respondent and therefore the discretion exercised bythe Labour Court under Section 11-A of the Industrial Disputes Actordering reinstatement of the second respondent is valid.7.I have considered the rival submissions made by therespective counsels. A perusal of the charge memo dated 13.2.1995reveals that the second respondent is not only responsible for thedeficiency in the stock, but also he has misappropriated a sum ofRs.29,506.30 and he has made wrong entries in the register toconceal the misappropriation. The explanation submitted by thepetitioner on 20.9.1994 prior to the issuance of regular chargememo reveals that the second respondent had accepted the deficiencyand remitted the amount and assured that such instances will not berepeated and he had prayed for pardon.8.The Enquiry Officer found five charges out of six charges,as proved against the petitioner. The Labour Court also gave afinding that the departmental enquiry was conducted in a fair andproper manner and there is no illegality in the conduct ofdepartmental enquiry. The Labour Court also found that fivecharges against the second respondent are proved. It is also foundby the Labour Court that the said amount was temporarilymisappropriated by the second respondent. In the above context ithas to be analysed whether the Labour Court is justified ininterfering with the punishment imposed by the management.9.The charges are very serious in nature and admittedly thesame are proved both before the Enquiry Officer as well as beforethe Labour Court. https://hcservices.ecourts.gov.in/hcservices/

10.(a)In the decision reported in 101 FJR 829 (T.N.CivilSupplies Corporation v. Presiding Officer) this Court quashed themodification of punishment imposed by the Labour Court underSection 11-A by holding that the discretion exercised by the LabourCourt is not in judicious manner and the punishment imposed havingnot been shown as shockingly disproportionate to the delinquency,the discretion exercised is capricious without semblance of reasonand the High Court cannot remain as a mute spectator and allow suchillegal orders to remain. In the said case also the charge wasshortage of articles. Still the dismissal order passed by themanagement was upheld by this Court by setting aside thereinstatement ordered by the Labour Court under section 11-A of theIndustrial Disputes Act.(b)In the decision reported in 2003 (4) LLN 904(N.D.C.C.W.Stores Ltd v. Deputy Commissioner of Labour), this Courtagain held that as the charges are serious one amounting tomisappropriation and the charges having been not only admitted butalso the delinquent paid part of the amount, interference withregard to the punishment of dismissal by the appellate authority isfound uncalled for.(c)The Honourable Supreme Court, in a very recent decisionreported in (2006) 3 SCC 143 (Bharat Petroleum Corporation Ltd. v.T.K.Raju) in paragraph 16 held that the power of judicial review inthe matter of quantum of punishment awarded by the Labour Court isvery limited and the same shall not be done in a routine manner.The relevant portion reads thus,"The power of judicial review in suchmatters is limited. This Court times withoutnumber had laid down that interference with thequantum of punishment should not be done in aroutine manner."(d)In the above said Judgment, the Supreme Court followed itsearlier decision reported in (2005) 7 SCC 338 (V.Ramana v.A.P.SRTC), wherein in paragraph 11 the Honourable Supreme Courtheld as under,"The common thread running through in allthese decisions is that the court should notinterfere with the administrator's decisionunless it was illogical or suffers fromprocedural impropriety or was shocking to theconscience of the court, in the sense that itwas in defiance of logic or moral standards. Inview of what has been stated in Wednesbury case https://hcservices.ecourts.gov.in/hcservices/ ((1948) 1 KB 223) the court would not go intothe correctness of the choice made by theadministrator open to him and the court shouldnot substitute its decision for that of theadministrator. The scope of judicial review islimited to the deficiency in decision-makingprocess and not the decision."(e)The Honourable Supreme Court in the decision reported in(2006) 1 SCC 63 (Karnataka Bank Ltd. v. A.L.Mohan Rao) inparagraphs 4 and 6 held that the High Court committed an error inallowing the writ petition and ordering reinstatement onsympathetic ground, even though it found that the misconduct hadbeen proved. It is further held that it is not for the courts tointerfere in cases of gross misconduct of this nature with thedecision of the disciplinary authority so long as the inquiry hasbeen fair and proper and misconduct proved and that it is for thedisciplinary authority to decide what is the fit punishment.(f)A Division Bench of this Court in the decision reported in(2005) 1 M.L.J. 621 (Jambunathan v. The Management of DheeranChinnamalai Transport Corporation Ltd.) while dealing with the caseof misappropriation, placing reliance on the decision of theHonourable Supreme Court reported in AIR 2000 SC 3129 (JanathaBazar v. Secretary, Sahakari Noukarara Singh), held that once theact of misappropriation is proved, may be for a small or largeamount, there is no question of showing uncalled for sympathy andreinstalling the employee in service. The Division Bench alsoplaced reliance on another decision of the Supreme Court reportedin J.T. (1996) 3 SC 96 (Municipal Committee, Bahadurgarh v.Krishnan Behari and Others), wherein it was held that in cases ofmisappropriation, there cannot be any other punishment other thandismissal. It is further held that any sympathy shown in suchcases is totally uncalled for and opposed to public interest andthat the amount misappropriated may be small or large, but it isthe act of misappropriation that is relevant. (g)In another Division Bench decision of this Court reportedin (2005) 3 M.L.J. 375 (The Management of Hindustan TeleprintersEmployees Co-operative Thrift and Credit Society Limited v. ThePresiding Officer, Principal Labour Court) in paragraph 14 it isheld that in case of misappropriation, whether, of small amount orlarge amount, the only punishment which can be given is dismissal.(h)In a case where there was a demand and acceptance ofRs.10/- as bribe, this Court in W.P.No.27224 of 2005 dated3.3.2006, upheld the order of dismissal following the abovereferred Honourable Supreme Court Judgments. https://hcservices.ecourts.gov.in/hcservices/

11.In view of the above said settled position of law withregard to the interference in the matter of punishment awarded bythe Labour Court, I am of the considered view that the award passedby the first respondent ordering reinstatement by modifying thepunishment of dismissal, is unsustainable, particularly when thepetitioner virtually accepted the guilt and remitted the amount.12.In the result, the award of the Labour Court in I.D.No.46of 1996 is set aside and the writ petition is allowed. No costs.vrSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Presiding Officer, Labour Court, Thiruchirapalli.1 cc to Mr.R.Parthiban, Advocate, SR.25736jrg (co)dv/27.6.06 W.P.No.2909 of 1998