Neyveli Township Milk Consumers Co-operative Society v. Ayyappan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.04.2009 CORAM:THE HON’BLE MR.JUSTICE M.SATHYANARAYANANW.P.No.3792 of 2000Neyveli Township Milk Consumers Co-operative Society, TND 406, 24,Murugan Kovil Street,25,Block No.27, Neyveli-3. ..PetitionerVersus1.Ayyappan2.The Presiding Officer, Labour Court, Cuddalore. ..RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for the issuance of writ of Certiorari to call for therecords of the second respondent relating to the order passed inI.D.No.60 of 1993 dated 29.7.98 on the file of the Labour Court,Cuddalore and quash the same.For Petitioner : Mrs.Vijayakumari NatarajanFor Respondents : Mr.G.Jeremiah for R1. O R D E RThe writ petitioner is the management of Neyveli Township MilkConsumers Co-operative Society and aggrieved by the award dated29.7.1998 passed in I.D.No.60 of 1993 by the Labour Court, Cuddalorein ordering reinstatement of the first respondent with continuity ofservice and back-wages, has filed this writ petition. 2. The facts which are necessary for the disposal of this writpetition are as follows:- The first respondent was working as a supervisor in the servicesof the petitioner. A charge memo dated 10.6.1991 was issued by thepetitioner, framing four charges. Charge No.1 is pertaining to thealleged misappropriation of a sum of Rs.50/-. Charge No.2 pertainingto the abuse of the Assistant namely R.Parthasarathy and the SalesAssistant namely S.Natarajan by the first respondent. Charge Nos.3, https://hcservices.ecourts.gov.in/hcservices/ 4 and 5 pertaining to certain irregularities committed by the firstrespondent while distributing the Milk Cards. 3. The first respondent, in response to the said charge memo,has submitted his explanation dated 26.6.1991 denying the charges andit has been specifically stated in the said reply that the tenor ofthe charge memo would disclose that the management has alreadyreached the conclusion of guilty against the first respondent. 4. One R.P.Pandian was appointed as Enquiry Officer. The firstrespondent has participated in the enquiry proceedings and during thecourse of enquiry, he has repeatedly pointed out certain lapses onthe part of the petitioner/management in not supplying the requireddocuments and also non payment of subsistence allowance. The EnquiryOfficer, after conclusion of the enquiry, has given his enquiryreport dated 12.11.1991, holding that all the five charges framedagainst the first respondent have been proved. Thereafter, theenquiry report was sent to the first respondent and he was calledupon to submit his explanation to the contents of the enquiry report.However, the first respondent has not chosen to submit hisexplanation to the enquiry report and thereafter the first respondentwas removed from service. The first respondent aggrieved by theorder of removal passed by the petitioner, has invoked thejurisdiction of the Labour Court under Section 2A(2) of theIndustrial Disputes Act and it was numbered as I.D.No.60 of 1993.The petitioner/management has filed its counter in I.D.No.60 of 1993. 5. In the enquiry, on behalf of the first respondent, Exs.WME-1to WME-31 were marked. On behalf of the petitioner/management,Exs.ME-1 to ME-32 were marked. The first respondent examinedhimself as WW1 and one Kamalakkannan was examined as WW2. On behalfof the petitioner/management five witnesses were examined. 6. The Labour Court, Cuddalore on taking into consideration theentire materials available on record, found that the enquiry officerhas not properly followed the procedure and in spite of the firstrespondent/workman asking for certain documents, that was not givento him and even the request made by the first respondent for paymentof subsistence allowance was also denied. Therefore, the LabourCourt found that the enquiry officer has not followed proceduralaspects while holding the enquiry. On merits of the case, the LabourCourt has analyzed the evidence of the management witnesses and alsoexhibits filed on behalf of the management. The Labour Court on acareful scrutiny of the exhibits filed by the management and thetestimonies examined on behalf of the management, found thatwitnesses have not supported the case of the management. Therefore,the Labour Court on a careful consideration and appreciation ofentire materials available on record, found that the order of removalpassed against the first respondent is unsustainable and ultimatelyordered reinstatement of the first respondent with continuity of https://hcservices.ecourts.gov.in/hcservices/ service and back-wages. The present writ petition is filed by themanagement, challenging the vires of the said order. 7. Heard the submissions of Mrs.Vijayakumari Natarajan, learnedcounsel appearing for the petitioner and Mr.G.Jeremiah, learnedcounsel appearing for the first respondent. 8. The learned counsel appearing for the petitioner would submitthat the first respondent ought not to have invoked the jurisdictionof the Labour Court under the Industrial Disputes Act withoutexhausting the remedy of appeal provided under the Co-operativeSocieties Act and Rules. The first respondent ought to have invokedthe jurisdiction of the Co-operative Tribunal or Revisionaljurisdiction of the Registrar under Section 153 of the Co-operativeSocieties Act 1983. sub-section (1) of Section 90 reads as follows:-"90. Disputes:-(1) If any dispute touching the constitutionof the board or the management or the business of aregistered society (other than a dispute regardingdisciplinary action taken by the competent authorityconstituted under sub-section (3) of Section 75 or theRegistrar or the society or its board against a paidservant of the society) arises."As per the said provision, except the case of dispute regarding thedisciplinary action taken by the competent authority constitutedunder sub-section (3) of Section 75, dispute under Section 90 can beadjudicated by the competent authority. Section 152(1) reads asfollows:-"152. Appeals-(1) Any person aggrieved by -(a) any decision or award passed or order made orproceedings taken under sub-section (1) of Section 87, sub-section (2), sub-section (3) or sub-section (4) of Section90, Section 118, Section 119, Section 143, Section 144 orSection 167; or"In terms of Section 152(1), disciplinary proceedings taken by thecompetent authority constituted under sub-section (3) of Section 75cannot be adjudicated by the Co-operative Tribunal.9. Section 75 of the Co-operative Societies Act, 1983 speaksabout the constitution of common cadre of service. It is not madeclear by the petitioner/management that the service of the firstrespondent comes under common cadre service. As regards thesubmissions of the learned counsel appearing for the petitioner thatthe first respondent ought to have invoked the jurisdiction underSection 153 of the Co-operative Societies Act, 1983, the saidprovision reads that the Registrar or Government may of his own https://hcservices.ecourts.gov.in/hcservices/ motion or on application, call for and examine the record of anyofficer subordinate to him ..... of the competent authorityconstituted under sub-section (3) of Section 75 and so also theGovernment may call for and examine the record of the Registrar inrespect of any proceedings under this Act in respect of which anappeal to the Tribunal is provided under sub-section (1) of Section152. Therefore, the learned counsel appearing for the petitionerwould submit that in terms of the above said provisions, invocationof jurisdiction by the first respondent under Industrial Disputes Actis clearly a bar. 10. The bar of jurisdiction pleaded by the learned counselappearing for the petitioner in the considered opinion of the Court,lacks merit. In 1997 (1) CTC 4 – Soma Sundaram -vs- Liyakat Ali andAnother, the question arose was that as to whether the suit fordeclaration based on inter se seniority of the employees employed inPandamangalam Primary Co-operative Bank Ltd., is maintainable, thisCourt held that such a question cannot be decided under Co-operativeSocieties Act and bar of jurisdiction of civil Court under Section156 is not attracted in matters relating to determination of inter seseniority of employees of Co-operative Society. The Court furtherheld that individual grievance against the employer regardingseniority of employee, cannot become Industrial Dispute unless acommunity of interest is established or cause is exposed by the unionor other employees. Therefore, it was held in that decision that thecivil suit is maintainable. 11. In the case on hand, the first respondent has invoked thejurisdiction of the Labour Court under Section 2A. The saidprovision relates to the dismissal, discharge, retrenchment orotherwise termination of an individual employee. In the case on handit is the question of an individual dispute which becomes anIndustrial Dispute. Therefore, in the considered opinion of theCourt, the Industrial Dispute raised by the first respondent ismaintainable and neither Section 153 nor Section 156 operate as a bar.12. Now, coming to the merits of the case, the learned counselappearing for the petitioner would submit that in respect of chargeNo.2, the petitioner was facing criminal prosecution in STC No.730 of1991, wherein he pleaded guilty of offence under Section 75 of theMadras City Police Act and thereafter, he was warned and releasedunder Section 3 of the Probation of offenders Act. By virtue of theCo-operative Societies Act, once the first respondent namely anindividual employee was dismissed from service, it is the question ofan individual dispute which becomes an Industrial Dispute.Admittedly, the petitioner/management has not invoked Section 75 ofthe Co-operative Societies Act, as observed above and it is also notmade clear on the part of the petitioner whether the first respondentis coming under the common cadre of service. Therefore, invocation of https://hcservices.ecourts.gov.in/hcservices/ jurisdiction under Section 75 of the Co-operative Societies Act doesnot arise in the case on hand.13. As regards the findings regarding the charge Nos. 3,4, and5, the Labour Court has extensively dealt with all the materialsavailable on record in the form of oral and documentary evidences.The Labour Court categorically found reasonable opportunity to defendthe charges has not been afforded to the petitioner even at thethreshold. The first respondent in his reply to the charge memospecifically pointed out the tenor of the charges reveal that themanagement has already reached the conclusion of the guilty. Thatapart, the Labour Court found in spite of the first respondentrepeatedly asking for copies of the documents, the same had not beenfurnished to him and the communication sent by him to the enquiryofficer has been returned as refused.14. The Labour Court also found on consideration of the oraland documentary evidences let in on behalf of the management, none ofthe witnesses examined on behalf of the management has supported theversion of the management and ultimately found the order of dismissalpassed by the Labour Court is unsustainable and accordingly, theLabour Court has quashed the order of dismissal passed by thepetitioner/management and ordered reinstatement of the firstrespondent in to service with continuity of service and back-wages.15. This Court in exercise of jurisdiction under Article 226 ofthe Constitution of India, cannot sit as appellate authority andreappraise the evidence of the Labour Court. Of course, exception canbe that if it is established that the findings of the Labour Court isperverse, based on no evidence and not having independently appliedits mind to the original records pertaining to the I.D.No.60 of 1993.This Court on a perusal of the findings of the Labour Court, is ofthe view that there is no perversity or based on no evidence.Therefore, the award passed by the Labour Court is sustainable and itis hereby confirmed. 16. It is contended by the learned counsel appearing for thepetitioner that the first respondent was not in service for more than6 years after dismissal from service and therefore, the award of thelabour Court is per se unsustainable in so far as the back-wages isconcerned. This Court finds some force in the submissions made bythe learned counsel appearing for the petitioner. While sustainingthe findings of the Labour Court in so far as reinstatement andcontinuity of service, this Court is of the view that the matter canbe remitted back to the Labour Court to find out the actual quantumof back-wages payable to be petitioner, as it require some evidence. 17. In the result, this writ petition is partly allowed and theaward passed by the Labour Court dated 29.7.1998 in I.D.No.60 of 1993in so far as the reinstatement and continuity of service is confirmed https://hcservices.ecourts.gov.in/hcservices/ and the matter is remanded to the Labour Court to arrive at theeligibility quantum of back-wages payable to the first respondent.But in the circumstances, there will be no order as to costs. Thepetitioner shall do that exercise within 8 weeks from the date ofreceipt of copy of this order. sd/-Asst.Registrar/true copy/Sub Asst.Registrargr.To The Presiding Officer, Labour Court, Cuddalore.+ 1 c.c. to Mrs. Vijayakumari Natarajan, Advocate. S.R.No.18504.+ 1 c.c. to Mr. G. Jeremiah, Advocate. S.R.No.19374. W.P.NO.3792 of 2000GU (CO)GSK 14.05.2009.