S. Rajeswari v. Social Welfare Department Employees Co-operative Thrift and Credit Society Ltd & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 02.07.2009CoramThe Honourable Mrs.Justice PRABHA SRIDEVANandThe Honourable Mr.Justice C.T.SELVAMW.A.No. 1364 of 2006S. Rajeswari...Appellant/2nd Respondent-vs-1. Social Welfare Department Employees Co-operative Thrift and Credit Society Ltd, C-35, rep. By its President 485, Anna Salai, Nandanam Chennai 600 035. ... 1st Respondent/Petitioner2. The Presiding Officer Principal Labour Court Chennai...2nd Respondent/1st RespondentWrit Appeal filed under clause 15 of the Letter Patent againstthe order dated 31.08.2006 passed by this Court in W.P.No.11948 of1997. Petition filed under Article 226 of the Constitution of India,to issue a writ of certiorari calling for the records pertaining tothe I.D.No.577/95 in the file Principal Labour Court,Madrasdated.24.4.97 and quash the same.For Appellant:Mr.NGR. Prasad for M/s.Row & ReddyFor Respondents:Mr. S.M.Subramaniam for R1 JUDGMENT(The order of the Court was made by PRABHA SRIDEVAN,J)The appellant was working in the Social Welfare DepartmentEmployees' Co-operative Society and she was charged with negligencein discharging her duties such as non issue of receipt for remittanceof money and not transacting in books of accounts of the society, bycorrecting the office copy of the cash receipt, and recording shortcollections to original receipts, receipt of conveyance charges byproducing false vouchers, by reducing the cash balance in cash bookby showing false remittance of money in Bank reduction of cashbalance. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner was charge sheeted on 3.4.92. Thereafter,enquiry was conducted by the Society and she was dismissed fromservice by order dated 27.9.93. She filed revision under Section 153of the Tamil Nadu Co-operative Societies Act, 1983. The JointRegistrar of Co-operative Societies Act, by his order dated11.1.1994, set aside the order of dismissal dated 27.9.93 and orderedreinstatement. By the same order, he gave liberty to the society toconduct the enquiry afresh. She was reinstated in service by orderdated 12.1.1994. When she joined duty on 18.1.1994, she was againissued with charge sheet including the same charges in addition tosome other charges by charge sheet dated 15.9.1994 and 26.9.1994. Shegave her explanation on 16.2.94. Domestic enquiry was conducted. On18.5.95, she received an order enclosing the proceedings of theSpecial Officer by which she was dismissed from service with effectfrom 17.5.95. Against this, Industrial Dispute was raised before theLabour Court. The Labour Court found that the domestic enquiryconducted by the respondent society was against the principle ofnatural justice and it was liable to be set aside. Therefore, anaward was passed directing the respondent society to reinstate thepetitioner with continuity of service with full backwages and otherattendant benefits. Against that, the society filed the writpetition. 3. In the writ petition, the learned single Judge, found thatthe Labour Court had not considered the document filed by thepetitioner society and therefore, remitted the matter back to theLabour Court to give an opportuity to both sides and adduce evidenceand to mark documents and complete the enquiry within a period of twomonths. Against the remittal order, the appellant has filed the abovewrit appeal. 4. Learned counsel for the appellant submitted that though theorder challenged is a remittal order and it might be reasonable toexpect an employee to participate in the proceedings as directed bythe learned Single Judge, the appeal has been filed because from19.8.92, the appellant has not been allowed to work. She wasdismissed from service after the plausible enquiry. This was rightlyquashed by the learned single Judge. Merely because the JointRegistrar of the society granted opportunity to initiate proceedingsafresh, another plausible enquiry was conducted for dismissing herfrom service. This enquiry was again set aside by the Labour Court ashaving been conducted in violation of principle of natural justiceand it would neither be fair nor equitable to ask her to undergoordeal once again. Learned counsel submitted that when the societyhas not availed of the opportunity to file their documents, thisCourt cannot give them an opportunity or allow them indulgence tofill up what they had failed to do. https://hcservices.ecourts.gov.in/hcservices/

5. Learned counsel relied on (2001) 5 SCC 433 – KARNATAKA STATEROAD TRANSPORT CORPN. v. LAKSHMIDEVAMMA.6. Learned counsel submitted that the Constitution Bench hadclearly held that if the management does not reserve its right tofile documents in the event of the Labour Court/ Industrial Tribunalholding on the preliminary issue that the enquiry was illegal, thenit cannot thereafter file the document at a later stage. Learnedcounsel submitted that it was only the minority judgment which heldthat no time limit should be fixed for filing documents and in theinterest of justice, permission be granted at any stage of theproceedings before the Labour Court/ Industrial Tribunal.7. Learned counsel submitted that while Hegde, J speaking forhimself and Bharucha, J, held that if in the counter, the right tofile the document is not sought for, it cannot be insisted upon at alater date, but, Y.K.Sabharwal, J, in his minority view, dissentedfrom imposing any such restriction, whereas Shivaraj Patil, Jspeaking for himself and Khare,J, while agreeing with the majorityview observed that this should not be understood as placing fetterson the powers of the Tribunal to call for documents or additionalevidence, if the situation so warrants. Learned counsel submittedthat clearly a majority 4:1 were of the opinion that the managementmust have reserved the right to file documents. Learned counselsubmitted that in the counter filed by the society no such right hasbeen reserved. Even before the Labour Court, they had not raised anysuch plea. In those circumstances, the judgment of the learned singleJudge would be contrary to the above decision. Learned counselsubmitted that even in the minority view it is stated that sincealready 16 years have elapsed, the situation did not require anyinterference. Therefore, in the present case, this Court set asidethe order of remittal. 8. Learned counsel appearing for the respondent submitted thatfrom the Court records as well as from the order of the Labour Court,it would be clear that the respondent had produced the documents andwhile the Labour Court allowed the employee to mark documents byconsent without the employee got into the box, why the sameindulgence was not shown to the respondents and it is this whichstruck the learned single Judge and felt that in the interest ofjustice, the matter should go back to the Labour Court. 9. The only question is whether the respondent society beallowed with an opportunity to let in documentary evidence at thisstage. The other factors are almost undisputed. From para 6 of theaward of the Labour Court, we find the following:-"...................... It should be noted that nooral evidence was let in on either side. Exs. W1 https://hcservices.ecourts.gov.in/hcservices/ to W.18 were marked by consent. It should befurther noted that though the respondent hasproduced some of the documents, the respondenthave not let in any evidence or marked anydocument on their side. ....................."".................... It should be noted thatinspite of the petitioner's contention in theclaim statement on the above said aspect, therespondent has not adduced any evidence to provethat the domestic enquiry was conducted againstthe petitioner for the charges levelled againsther following the principles of natural justice.It should be noted even after the above saidcontention in the claim statement, the respondenthas not adduced any evidence before this court toprove the abovesaid contention. Therefore, asrightly contended by the learned counsel appearingfor the petitioner the domestic enquiry conductedby the respondent establishment is against theprinciples of natural justice and the same isliable to be set aside. Hence, I answer the pointaccordingly in favour of the petitioner. "10. We thought we should call for the records in this case. Wefound that on 25.3.1997, the learned counsel for the petitioner hadwritten 'no oral evidence' and immediately 18 documents had beenmarked on her side. It was posted for the respondent's evidence forseveral hearings, and then, the respondent had written 'no oralevidence'. Even the Labour Court has recorded that the respondent hadproduced some documents, but why the Labour Court had not markedthose documents when the petitioner documents had been marked byconsent is not clear. If the Labour Court was of the opinion that,at that stage, the society shall not be allowed the indulgence of anadducing documentary evidence, it could have recorded reasonings forrejecting the evidence. The counter filed by the respondent is devoidof any reservation of the right to file documents in the event ofenquiry being held to be illegal. When the order shows that therespondent produced some documents, we are unable to understand as towhy the Labour Court observed that the respondent did not adduce anyevidence before the Court. The Labour Court would have been wellwithin its limit, had it rejected the documents marked by themanagement holding that they were belatedly produced. All thedocuments which were allegedly marked by consent are found to bexerox copies. In the affidavit filed in support of the writ petition,the society respondent had taken the plea that they had not given anysuch consent. Therefore, it is clear that the grievance expressed bythe respondent society cannot be rejected outright. https://hcservices.ecourts.gov.in/hcservices/

11. In the decision reported in (2001) 5 Supreme Court Cases 433(cited supra), Justice Santosh Hegde, speaking for the majority hadreferred to SHAMBHU NATH GOYAL v. BANK OF BARODA (1983) 4 SCC 491 andto the following paragraph,16. We think that the application of themanagement to seek the permission of the LabourCourt or Industrial Tribunal for availing theright to adduce further evidence to substantiatethe charge or charges framed against the workmanreferred to in the above passage is theapplication which may be filed by the managementduring the pendency of its application madebefore the Labour Court or Industrial Tribunalseeking its permission under Section 33 of theIndustrial Disputes Act, 1947 to take a certainaction or grant approval of the action taken byit. The management is made aware of the workman'scontention regarding the defect in the domesticenquiry by the written statement of defence filedby him in the application filed by the managementunder Section 33 of the Act. Then, if themanagement chooses to exercise its right it mustmake up its mind at the earliest stage and filethe application for that purpose without anyunreasonable delay. But when the question arisesin a reference under Section 10 of the Act afterthe workman had been punished pursuant to afinding of guilt recorded against him in thedomestic enquiry there is no question of themanagement filing any application for permissionto lead further evidence in support of the chargeor charges framed against the workman, for thedefect in the domestic enquiry is pointed out bythe workman in his written claim statement filedin the Labour Court or Industrial Tribunal afterthe reference had been received and themanagement has the opportunity to look into thatstatement before it files its written statementof defence in the enquiry before the Labour Courtor Industrial Tribunal and could make the requestfor the opportunity in the written statementitself. If it does not choose to do so at thatstage, it cannot be allowed to do it at any laterstage of the proceedings by filing anyapplication for the purpose which may result indelay which may lead to wrecking the morale ofthe workman and compel him to surrender which hemay not otherwise do." https://hcservices.ecourts.gov.in/hcservices/ and was of the opinion that this decision need not be unsettledwithout a strong cause. Justice Shivraj V. Patil in a concurring, butseparate judgment for himself and Khare,J held as follows:-".................... We reiterate that inorder to avoid unnecessary delay and multiplicityof proceedings, the management has to seek leaveof the court/tribunal in the written statementitself to lead additional evidence to support itsaction in the alternative and without prejudiceto its rights and contentions. But this shouldnot be understood as placing fetters on thepowers of the court/tribunal requiring ordirecting the parties to lead additional evidenceincluding production of documents at any stage ofthe proceedings before they are concluded if onfacts and circumstances of the case it is deemedjust and necessary in the interest of justice".Even in the dissenting judgment by Y.K.Sabharwal,J , it was held asfollows:-"Despite the above conclusions, insofar asthe present appeal is concerned, considering thatthe award was made by the Labour Court more than16 years back and also that the employee hasalready retired as we are informed, it would notbe appropriate to interfere in exercise of powerunder Article 136 of the Constitution. In thisview, I would dismiss the appeal leaving theparties to bear their own costs. "12. The appellant has about 13 years more of service. Ifremittal order is sustained, then the matter will not end with theaward of the Labour Court, writ petitions will be filed and theprotraction of the proceedings will be unfair per se, in the sensethat from 1992 for the same cause of action, in spite of twosucesses, the appellant will still have to fight to sustain her rightto be reinstated. The fact remains that she has not worked from 1994to till date. Had the Labour Court given some indulgence to thesociety and considered the documents they had produced before it,neither of the parties would have had to suffer a remittal order.Therefore, we have tried to balance the equities in the hope that theparties will not litigate further since the enquiry has been clearlyheld to be illegal, the appellant must be reinstated and she is alsoentitled to continuity of service. But as regards the backwages, weare of the opinion that she is not entitled to the entire backwages,both because she had not worked during this period and also becausethe Labour Court has not given reasons for ignoring the documentswhich society had produced. So we think 25% of backwages will befair and equitable in the circumstances of the case. https://hcservices.ecourts.gov.in/hcservices/

13. The respondent bank is directed to reinstate the petitionerwith 25% of the backwages along with all attendant benefits. The writappeal is disposed of. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar bgTo1. The President, Social Welfare Department Employees Co-operative Thrift and Credit Society Ltd, C-35, 485, Anna Salai, Nandanam Chennai 600 035. 2. The Presiding Officer Principal Labour Court, Chennai+ 1 cc to Mr.S.M.Subramaniam,Advocate,SR.28139+ 1 cc to M/s.Row & Reddy,Advocate,SR.28375W.A.No.1364 of 2006 SSN(CO)EM/7.8.09