Sangameeswaran v. United Planters Association of Southern India, rep.by its President, Coonoor-643 101

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.7007 of 1999Sangameeswaran ..Petitioner-vs-1.United Planters Association ofSouthern India, rep.by itsPresident, Coonoor-643 101.2.The Appellate Authority under theTamil Nadu Shops and EstablishmentsAct, (Deputy Commissioner of Labour),Coimbatore-641 018. ..RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to the order dated 08.5.1998 of thesecond respondent in TNSE Case No.6/94, quash the same andconsequently direct the first respondent to reinstate the petitionerwith continuity of service with backwages and other attendantbenefits, award costs. For Petitioner: Mr.Ajoy KhoseFor Respondents: Mr.E.K.Nandakumar for M/s.King and Patridge (R1) Mr.A.Arumugam, Spl.GP (R2)O R D E R Heard both sides. The petitioner who was employed as anAccountant was dismissed from service by the first respondent by anorder dated 05.7.1994. In view of the same, he filed an appeal undersection 41(2) of the Tamil Nadu Shops and Establishments Act, 1947(for short 'TNSE Act') to the appellate authority (second respondentherein). His appeal was allowed by the appellate authority by anorder dated 12.2.1996.2. The first respondent UPASI directly went before the SupremeCourt under Article 136 of the Constitution and challenged the order https://hcservices.ecourts.gov.in/hcservices/ of the second respondent. Civil Appeal No.1786 of 1997 was allowedby the Supreme Court on 06.3.1997 and the matter was remitted forfresh consideration by the second respondent. The judgment of theSupreme Court has been subsequently reported in (1997) 4 SCC 741(United Planters Association of Southern India -vs-K.G.Sangameswaran. The direction given by the Supreme Court as foundin paragraphs 28 and 29 is usefully reproduced below:-''28. In the instant case, the appellant has contendedthat the respondent did not participate in the domesticenquiry in spite of an opportunity of hearing having beenprovided to him. He was also offered the inspection of thedocuments, but he did not avail of that opportunity. Hehimself invoked the jurisdiction of the AppellateAuthority and the order of dismissal passed against himwas set aside on the ground that the appellant did nothold any domestic enquiry. It has already been seen abovethat the Appellate Authority has full jurisdiction torecord evidence to enable it to come to its own conclusionon the guilt of the employee concerned. Since theAppellate Authority has to come to its own conclusion onthe basis of the evidence recorded by it, irrespective ofthe findings recorded in the domestic enquiry, the rulelaid down in Ratna case19 will not strictly apply and theopportunity of hearing which is being provided to therespondent at the appellate stage will sufficiently meethis demands for a just and proper enquiry.29. In view of the above, the appeal is allowed. Thejudgment and order dated 12-2-1996 passed by the AppellateAuthority is set aside and the case is remanded back tothe Appellate Authority to dispose of the appeal filed bythe respondent under Section 41 of the Act afresh inaccordance with law in the light of the observations madeabove. No costs".3. On such remand, the appellate authority allowed the partiesto lead evidence and mark documents. On behalf of the petitioner, hehad examined himself as A.W.1 and on the side of the firstrespondent M/s.Ullas Menon and N.Palani were examined as M.W.1 andM.W.2. The petitioner filed 15 documents and were marked as Exs.A.1to A.15 and on the side of the first respondent, 19 documents werefiled and marked as Exs.B.1 to B.19. The second respondent appellateauthority came to the conclusion that the misconducts levelledagainst the petitioner were proved and since the issue involvesmisappropriation, fabrication of records, he need not be shown anyleniency and the punishment was commensurate with gravity ofcharges. https://hcservices.ecourts.gov.in/hcservices/

4. It is this order of the appellate authority dated 08.5.1998,which is the subject matter of challenge in the present writpetition. The writ petition was admitted on 22.4.1999.5. Mr.Ajoy Khose, learned counsel for the petitioner inattacking the impugned order raised the following grounds:-a)The petitioner was not paid subsistence allowance and,therefore, the enquiry was vitiated.b)Even though the first respondent was given an opportunity tolead fresh evidence, excepting the auditor's report, no otherevidence was produced by them. c)From the materials produced, one cannot say whether the chargeshave been proved or not. d)The authority failed to consider the evidence in respect of eachcharge.e)The findings are based upon surmises and conjectures;f)Since there was no collusion or fraud and at the maximum, hisconduct could be labelled as negligence and, therefore, thepunishment of dismissal was disproportionate.6. In respect of these submissions, the learned counsel placedreliance upon the judgment of the Supreme Court in Union of India-vs- H.C.Goel reported in AIR 1964 SC 364 and relied upon thefollowing passage found in para 27:-''Para 27. ..... .... Though we fully appreciate theanxiety of the appellant to root out corruption frompublic service, we cannot ignore the fact that in carryingout the said purpose, mere suspicion should not be allowedto take the place of proof even in domestic enquiries. Itmay be that the technical rules which govern criminaltrials in courts may not necessarily apply to disciplinaryproceedings, but nevertheless, the principle that inpunishing the guilty scrupulous care must be taken to seethat the innocent are not punished, applies as much toregular criminal trials as to disciplinary enquiries heldunder the statutory rules". 7. On the question of non-examination of the complainant, thelearned counsel placed reliance upon the decision of the SupremeCourt in Hardwari Lal -vs- State of U.P. And others reported in(1999) 8 SCC 582 and the following passage found in paragraphs 2 and3 may be usefully reproduced below :- https://hcservices.ecourts.gov.in/hcservices/ ''Para 2 . .... ... ...Similarly, the contention regardingnon-examination of Virender Singh, who was the complainantin the case, and witness, Jagdish Ram, who was supposed tohave witnessed the incident, was also rejected by theTribunal on the basis that the examination of VirenderSingh was only formal to prove the report dated 17-7-1991and no prejudice has been caused to the defence of theappellant. According to the Tribunal, evidence of JagdishRam also was not important because he had merelyaccompanied him for the purpose of medical examination.The High Court affirmed this finding and ultimatelyconcluded that apart from the evidence of these twowitnesses there was sufficient material on record toestablish the fact that the incident took place and thusthere was no ground to interfere with the order made bythe Tribunal and dismissed the writ petition. Hence thisappeal.Para 3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in notexamining the complainant, Shri Virender Singh, and thewitness, Jagdish Ram. The Tribunal as well as the HighCourt have brushed aside the grievance made by theappellant that the non-examination of those two personshas prejudiced his case. Examination of these twowitnesses would have revealed as to whether the complaintmade by Virender Singh was correct or not and to establishthat he was the best person to speak to its veracity. Soalso, Jagdish Ram, who had accompanied the appellant tothe hospital for medical examination, would have been animportant witness to prove the state or the condition ofthe appellant. We do not think the Tribunal and the HighCourt were justified in thinking that non-examination ofthese two persons could not be material. In thesecircumstances, we are of the view that the High Court andthe Tribunal erred in not attaching importance to thiscontention of the appellant." 8. The learned counsel also submitted that the Auditors werenot examined and the first respondent had withheld the examinationof crucial witnesses. According to him, this will vitiate theenquiry. For this purpose, he relied upon the Division Benchjudgment of this Court in Parry & Co. Ltd. -vs- Deputy Commissionerof Labour and another reported in (1996) I LLJ 169. The followingpassage found in para 8 may be usefully reproduced below:-''Para 8. ...... .... It is already pointed out that theemployer has recorded the finding withholding the materialevidence. This conduct of the employer would lead to aninference that such evidence, if produced, would have gone https://hcservices.ecourts.gov.in/hcservices/ against the employer. Therefore, the finding recorded bythe employer can very well be characterised as the onerecorded without there being material evidence onrecord."9. The argument advanced by the learned counsel regarding theenquiry being vitiated on account of non-payment of subsistenceallowance has no relevance to the present case. The matter has beenremanded by the Supreme Court and parties were allowed to leadevidence afresh before the authority and, therefore, such issuescannot be raised during the second round of litigation. Withreference to the contention that crucial witnesses were withheld,there is no substance in the said contention. It is for the employerto lead evidence to the satisfaction of the authority. Accordingly,the first respondent had let in evidence by examining the FinancialController Mr.Ullas Menon (M.W.1) as well as one Assistant ChemistMr.N.Palani (M.W.2). N.Palani, M.W.2 clearly deposed about thesignature in the cheque presented for T.A.claim was not that of hisand he never received any second payment. The Financial ControllerUllas Menon, M.W.1 has clearly stated in his chief examination,which is as follows:-'' Ex.B7 is the list of double payments made by UPASI. Itcontains 26 different cases, the exact amount is found inthe Auditor's report. To cite an example, travelling billsubmitted by Thiru A.D.Chandrashekar, Ex.Committee memberfor a sum of Rs.10825/- was encashed by the appellantafter signing for Mr.Chandrashekar and for Sangameswaranhimself. Subsequently, another cheque was given for thesame amount which was encashed by Mr.Chandrashekaranhimself. Thereafter similar 25 other cases which are notedin Ex.B6 series. All the supporting documents are seen inEx.B.7 series and the appellant has made some fictitiouspayments for which there is no supporting documents.Ex.B.8 contains 23 such cases. To cite an example, anamount of Rs.6346.50 was given to one Mr.K.Raju by chequeto whom we did not owe any amount and the same wasencashed by the appellant signing as Raju. Thiru ... wasan ex-employee of UPASI. We used to maintain account inSyndicate Bank, Coonoor. We have deposited a large amountwith the Syndicate Bank in connection with the CentenaryFoundation. The appellant pledging deposit which was inthe name of UPASI had taken loans which he was notauthorised. The ex.Committee alone had the power todeposit and withdrawals. The details of unauthorised loanstaken by the appellant is shown in Ex.B.9. As we areexempted establishment under the EPF Act, we were todeposit the amount in a separate account and as perGovernment regulations. No such investments were made andthe appellant used to file false returns and he himself https://hcservices.ecourts.gov.in/hcservices/ signed for the Secretary General. Ex.B.10 is a copy ofsuch return filed by the appellant. On account of P.F.UPASI had to pay an amount of Rs.36 lakhs when the matterwas disclosed. In view of the seriousness of the mattermembers have shared the burden. Appellant permittedM/s.Sivaram to maintain accounts in UPASI which wastotally improper. M/s.Sivaram was the wife of the thenSecretary General. The appellant was responsible for allthe falsification of accounts which came around Rs.80lakhs. The details are found in the Auditor's report. Inview of the serious lapses the appellant was dismissed on05.7.1994."10. Though the petitioner had cross-examined M.W.1 extensively,he could not elicit any favourable admission. 11. Apart from the positive evidence let in against thepetitioner, the petitioner himself had given a confessionalstatement marked as Ex.B.12. In that statement, dated 20.7.1993, hehad listed out the list of commissions and omissions done by him.He also gave an affidavit of undertaking undertaking to pay a sumof Rs.14,88,000/-. The said affidavit of undertaking was signedbefore a notary public. Though he later claimed that the same wasobtained under duress, there was no evidence to establish the same.He had also not explained the circumstances under which he gave acheque for Rs.50,000/- in favour of UPASI towards part payment ofhis liability.12. In the light of all these, it cannot be said that it is acase of no evidence. The authority was satisfied about the nature ofevidence let in before it and considering the gravity of thecharges, he had declined to interfere with the quantum ofpunishment. 13. In view of the above, there is no case made out tointerfere with the order of the appellate authority and accordingly,the writ petition will stand dismissed. However, there will be noorder as to costs. sd/-Asst.Registrar/true copy/Sub Asst.Registrarjs https://hcservices.ecourts.gov.in/hcservices/ To1. The President, United Planters Association of Southern India, Coonoor-643 101.2. The Appellate Authority under the Tamil Nadu Shops and Establishments Act, (Deputy Commissioner of Labour), Coimbatore-641 018.+ 1 c.c. to Mr. D. Hariparanthaman, Advocate. S.R.No.1615.+ 1 c.c. to M/s. King & Partridge, Advocate. S.R.No.1726. order in W.P.No.7007 of 1999SR (CO)GSK 27.01.2009.