CORAMTHE HONOURABLE MR v. The Presiding Officer,Labour Court, Vellore-1.2.R.Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 08-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.28457 of 2004The Management,North Arcot Adi-Dravidar WelfareSchool Teachers' CooperativeThrift and Credit Society,No.53, Bharathiar Salai,Fort Road, Vellore... Petitioner.Versus1.The Presiding Officer,Labour Court, Vellore-1.2.R.Kumar.. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari,calling for the records of the first respondent relating to the award,dated 11.6.2004, in I.D.No.4 of 1997, and quash the same. For Petitioner : Mr.A.S.VijayaragavanFor Respondents : Mr.S.Ramesh Kumar (R2)O R D E RThis writ petition has been filed by the petitioner Society,challenging the award of the first respondent Labour Court, dated11.6.2004, made in I.D.No.4 of 1997.2. It has been stated that the second respondent was working as aClerk in the petitioner society, from 4.4.1990 to 14.10.1993. Whileso, a charge memo, dated 30.8.1993, had been issued to him, allegingthat he had caused certain loss to the petitioner Society by failingto update the accounts maintained by him. An enquiry had been ordered,on 26.12.1993. Thereafter, another charge memo, dated 27.12.1993, hadbeen issued to the second respondent alleging that he hadmisappropriated a sum of Rs.44,491/-. The explanation submitted by thesecond respondent, on 19.10.1993, had not been considered by themanagement of the petitioner Society. Another charge memo, dated7.1.1994, had been issued to the second respondent alleging that he https://hcservices.ecourts.gov.in/hcservices/ had caused the loss of certain articles when the office of thepetitioner Society was shifted. 3. The contention of the second respondent was that he was notguilty of the charges levelled against him. It is only the specialofficer who was responsible for the loss of the articles during theshifting of the office. Without taking any action on the three chargememos issued to the second respondent, he was directed to payRs.3,493.95 for the missing articles. Thus, he had been prevented frominspecting the documents to prepare an explanation for the chargeslevelled against him, in order to protect the then special officertill he had retired from service. Further, on 30.3.1994, the secondrespondent was ordered to pay a sum of Rs.44,491/- to the petitionerSociety to offset the loss said to have been caused to the Society.Principles of natural justice had not been followed during the enquiryconducted against the second respondent, with regard to the chargeslevelled against him. Since the second respondent could notparticipate in the said enquiry he was set ex parte and a report,dated 17.8.1994, had been submitted by the enquiry officer, based onwhich the second respondent was dismissed from service, by an order,dated 12.10.1994.4. The main contentions raised by the learned counsel appearingon behalf of the petitioner Society is that since the secondrespondent had committed grave irregularities he was suspended fromservice. He had failed to submit his explanation to the charge memo,dated 27.12.1993. Though he was furnished with the list of witnessesand documents and in spite of ample opportunities having been given,the second respondent had failed to avail the same. He had notparticipated in the enquiry. Therefore, the enquiry officer hadconducted the enquiry and submitted the enquiry report, based on whichthe second respondent had been dismissed from service. Aggrieved bythe order passed against the second respondent, he had raised anindustrial dispute before the first respondent Labour Court inI.D.No.4 of 1997. The first respondent Labour Court had passed anaward, dated 11.6.2004, ordering the reinstatement of the secondrespondent, along with back wages, continuity of service and otherattendant benefits. Aggrieved by the award of the first respondentLabour Court, dated 11.6.2004, the petitioner Society has preferredthe present writ petition before this Court, under Article 226 of theConstitution of India.5. The learned counsel appearing on behalf of the petitioner hadsubmitted that the first respondent Labour Court had no jurisdictionto pass an award in the industrial dispute raised by the secondrespondent, in view of Section 156 of the Tamilnadu Co-operativeSocieties Act, 1983, wherein, a separate machinery has been providedto adjudicate the disputes arising under the Act. Since the secondrespondent had voluntarily abstained himself from the enquiryconducted against him in respect of the charges levelled against him, https://hcservices.ecourts.gov.in/hcservices/ it cannot be claimed that the enquiry was not conducted in a fair andproper manner and that the principles of natural justice had not beenfollowed. Since the second respondent had not been in a position toshow that he was entitled to a higher amount of subsistence allowancethan the sum of Rs.1210/- that was being paid to him, the Labour Courtought not to have held that the enquiry was vitiated. In spite ofsufficient opportunity having been given to the second respondent toperuse all the records available in the office of the petitionerSociety he had failed to do so. The non-examination of Mr.Kaliappan,the then special officer of the petitioner Society cannot lead to anadverse inference being drawn against the petitioner society.Mr.Kaliappan could not be examined, as his whereabouts were known tothe petitioner Society. The first respondent Labour Court had alsoerred in observing that the evidence of M.W.1 cannot be relied upon inspite of the fact that he was a competent witness, having been inservice of the petitioner Society for a long time. 6. Per contra, the learned counsel appearing on behalf of thesecond respondent had submitted that the first respondent Labour Courthad come to the right conclusion in holding that the domestic enquiryconducted, with regard to the charges levelled against the secondrespondent, was in violation of the principles of natural justice. Thefirst respondent Labour Court had held that the findings of theenquiry officer are erroneous and the conclusions have been arrived atwithout considering the oral and the documentary evidence available onrecord. The enquiry officer had failed to apply his mind beforearriving at his conclusions. The enquiry had been conducted withoutfurnishing the necessary documents required by the second respondentto put forth his case and to effectively defend himself against thecharges levelled against him. Further, the management of thepetitioner Society had not paid the subsistence allowance due to thesecond respondent and thus, he was prevented from effectivelyparticipating in the enquiry conducted against him. In spite of thesecond respondent having submitted his written affidavits, dated18.5.1994, marked as Ex.P-22 and Ex.P-24, pursuant to the letter ofthe enquiry officer, dated 28.6.1994, marked as Ex.P-33, the enquiryhad been concluded without considering the submissions made by thesecond respondent. The Labour Court had rightly held by its award,dated 11.6.2004, that the findings of the enquiry officer cannot besustained in the eye of law, since he had not followed the principlesof natural justice by giving a reasonable opportunity to the secondrespondent, during the enquiry. Further, since the relevant documentsrequired to be furnished to the second respondent had not been givento him, the second respondent had been prevented from effectivelydefending himself against the charges levelled against him by thepetitioner Society. Further, the second respondent could notparticipate in the domestic enquiry due to the non-payment of thesubsistence allowance. https://hcservices.ecourts.gov.in/hcservices/

7. In view of the submissions made by the learned counselappearing for the parties concerned and on a perusal of the recordsavailable for this Court, it is clear that the petitioner has notshown sufficient cause or reason to interfere with the award of theLabour Court, dated 11.6.2004, made in I.D.No.4 of 1997. The LabourCourt had rightly held that the domestic enquiry conducted against thesecond respondent is vitiated due to the failure of the enquiryofficer in following the principles of natural justice. The LabourCourt had further held that the second respondent had not been givensufficient opportunity to defend himself as he was not furnished withthe necessary documents to put forth his case. Further, the non-payment of subsistence allowance during the period of his suspensionhad prevented the second respondent from effectively participating inthe enquiry conducted against him.8. In such circumstances, the first respondent Labour Court hadrightly come to the conclusion that the order of dismissal fromservice, passed against the second respondent, by the management ofthe petitioner Society, is unsustainable in the eye of law. Therefore,the award of the Labour Court, dated 11.6.2004, made in I.D.No.4 of1997, is confirmed. Hence, the writ petition stands dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshToThe Presiding Officer,labour Court,Vellore -1 1 cc To Mr.S.Ramesh Kumar, Advocate, SR.129321 cc To Mr.A.S.Vijayaragavan, Advocate, SR.13344Writ Petition No.28457 of 2004SA(CO)SRA(30/4/2009)