M.Paul Anthony v. Bharat Gold Mines Ltd. reported in AIR

WP(MD). No.18481 of 2019the order of dismissal passed by the 2nd respondent dated 23.10.2009, dismissing the petitioner from service, direct the 2nd respondent to pay salary for the period of non-employment until the date of his attaining the age of superannuation, i.e., between 28.01.2008 and 12.03.2017, the cash value of all other attendant benefits that are applicable to the petitioner if he was in service continuously, grant such other relief(s) as expedient to the facts and circumstances of the matter. For Petitioner : Mr.M.GanesanFor R1 : Mr.C.Venkatesh Kumar, Special Government PleaderFor R2: Mr.Jerin Mathew Legal Aid CounselORDERThe petitioner, the Secretary of TN.SPL.144 Sankarankoil Co-operative Housing Society Ltd., was suspended from service, on 28.01.2008, contemplating grave charges against him and a charge memo was also issued on 01.03.2008 framing sixteen charges against him. One Alwarsamy, an Advocate, was appointed as an Enquiry Officer to conduct the enquiry on the charges levelled against the petitioner and an 2/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019enquiry notice dated 27.06.2008 was issued to the petitioner, by fixing the date of enquiry on 01.07.2008. However, the petitioner did not attend the enquiry on 01.07.2008. Therefore, a further enquiry notice dated 18.08.2008 was issued to the petitioner, by fixing the date of enquiry on 29.08.2008. Again, he failed to appear for enquiry on 29.08.2008. While so, the petitioner has made a request to change the Enquiry Officer. His request was considered and another Enquiry Officer was appointed. The newly appointed Enquiry Officer has issued 3rd enquiry notice on 08.04.2009 by fixing the date of enquiry on 24.04.2009, but the petitioner failed to appear for enquiry. Therefore, the 4th enquiry notice was issued and also published in the daily newspaper on 05.05.2009. Since the petitioner did not co-operate for the enquiry, the Enquiry Officer, with the available materials, submitted his enquiry report on 22.09.2009. Based on that enquiry report, a show cause notice was issued, calling upon the petitioner to offer his explanation and the petitioner has also submitted his explanation on 03.10.2009. Not being satisfied with the same, a second show-cause notice was issued on 13.10.2009. Thereafter, the petitioner was dismissed from service on 23.10.2009. Aggrieved over the same, the petitioner has approached the 3/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019first respondent/the Authority under the Tamil Nadu Shops and Establishments Act and filed an appeal in TNSE Appeal No.1/2010. The first respondent, by his order dated 11.09.2018, rejected the petitioner's appeal, by confirming the order of dismissal dated 23.10.2009. Challenging the same, the petitioner has filed this writ petition. 2. The learned counsel appearing for the petitioner submitted that the enquiry has not been conducted in a proper manner. Though the petitioner, by way of his representations dated 03.04.2008, 18.04.2008, 19.04.2008 and 21.04.2008, has sought for certain documents during the enquiry, the same were not furnished to him. Therefore, according to him, the petitioner has been deprived from contesting the enquiry in an effective manner. 3. That apart, the learned counsel for the petitioner has also pointed out that the petitioner was not paid with any subsistence allowance during the period of suspension and therefore, he was deprived from defending the case effectively. On this ground, the learned counsel has also relied on a Judgment of the Hon'ble Supreme Court in 4/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019M.Paul Anthony vs. Bharat Gold Mines Ltd. reported in AIR 1999 SC 1416 and also an order of the Division Bench of this Court in the Correspondent, Inter Christian Mission Middle School and another vs. D.Jayakumar Ponnudurai and another [W.A.No.68 of 2007 dated 22.08.2008]. By referring these Judgments, the learned counsel for the petitioner submitted that denial of subsistence allowance amounts to violation of principles of natural justice. Therefore, the entire enquiry proceeding is deemed to be vitiated. 4. According to the learned counsel for the petitioner, certain documents were marked on the side of the Management as Exs.M1 to M16 on 19.09.2009 and for this enquiry, there was no notice issued by the respondent Society. Therefore, according to him, an ex parte enquiry was conducted behind his back and Exs.M1 to M16 were marked through a witness examined on the side of the Management, based on which, he was dismissed from service. According to him, without any reference to the documents and how it is related to the charges, these documents have been marked through one Karuppasamy, the presenting officer. Though the petitioner has requested for certain documents, it was not considered 5/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019by the disciplinary authority and even the documents, namely, Exs.M1 to M16 were not furnished to him. Therefore, the findings of the enquiry officer relying on these documents is totally perverse. Even in the reply to the second show-cause notice, the petitioner, pointing out that the enquiry dated 19.09.2009 was conducted without any notice to him, the required documents, including the documents marked on behalf of the Management, were not furnished to him and he was not paid with the subsistence allowance, has requested to re-open the enquiry and to afford an opportunity to explain the documents relied on by the Management. However, without considering the petitioner's reply, the order of dismissal has been passed. 5. The learned counsel for the petitioner further submitted that as the petitioner was not paid with the subsistence allowance, he was under penury and therefore, he was not in a position to attend the domestic enquiry. Since the documents sought for by the petitioner were not furnished to him, there is no purpose in attending the enquiry. While so, the first respondent, without considering the aspects that the petitioner was denied to pay the subsistence allowance and the enquiry was 6/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019conducted without furnishing any documents and also without giving a proper notice, has dismissed the appeal filed by the petitioner that the enquiry was conducted in a proper manner. 6. Though the Court notice was served on the 2nd respondent Society, there was no representation for the 2nd respondent Society. Therefore, this Court has permitted the petitioner to take a fresh notice on the second respondent. Even after the receipt of notice from the petitioner, the 2nd respondent had not entered appearance. Therefore, this Court, by its earlier order dated 30.10.2025, has appointed the learned counsel Mr.M.Jerin Mathew, who is having rich experience in the Labour side, as a Legal Aid Counsel to defend the case of the 2nd respondent Society. 7. Mr.Jerin Mathew, learned counsel, who has been appointed as Legal Aid Counsel for the 2nd respondent, has drawn the attention of this Court to the charges levelled as against the petitioner and also to the order of the first respondent. The learned counsel also pointed out that the scope of review as against the order of dismissal passed by the first 7/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019respondent, under Article 226 of the Constitution of India, is very limited. He further submitted that there cannot be any blatant error as projected by the petitioner and therefore, he is not entitled for any relief. 8. The learned counsel for the 2nd respondent further submitted that the petitioner was issued with a charge memo on 01.03.2008 and thereafter, the enquiry was commenced only in the month of June 2008. The first enquiry notice dated 27.06.2008 was issued fixing the date of enquiry on 01.07.2008, however, he failed to appear for the enquiry on 01.07.2008. The second enquiry notice dated 18.08.2008 was issued fixing the date of enquiry on 29.08.2008. Again, he failed to appear for the enquiry. The 3rd enquiry notice dated 08.04.2009 was issued by fixing the date of enquiry on 24.04.2009. Even thereafter, he did not turn up for that enquiry. Therefore, the 4th enquiry notice was issued and also published in the daily newspaper on 05.05.2009. Though the petitioner was aware of the publication of the enquiry notice made in the newspaper, he remained absent during the enquiry. Therefore, according to him, the petitioner has deliberately evaded the enquiry proceedings and he cannot claim that the required documents have not been furnished 8/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019to him. 9. The learned counsel for the 2nd respondent has also relied on the evidence of the petitioner before the first respondent and the same is extracted as under:“ehd; gzpahw;wpa fhyk; tiu vjph;kDjhuh; epWtdj;jpy; kidfs; tpw;gid bra;atpy;iy/ v';fSila jdp mYtyh; v';fs; r';fj;jpy; rk;gsk; bgwtpy;iy/ r';fud;nfhtpy; eLth; ePjpkd;wj;jpy; STC vz;/2360. 2361-2007 vd ,U tHf;Ffs; eilbgw;wJ/ mjpy; ehDk; xU vjphp/ jpU/mz;zhkiy xU vjphp/ Vw;fdnt vdJ kPJ xG';F eltof;if vLf;fg;gl;L 04/08/95y; epue;ju gzpePf;fk; bra;ag;gl;oUe;njd; vd;why; rhp jhd;/ vdJ rPuha;t[ kDg;go vdJ gzpePf;f cj;jut[ uj;J bra;ag;gl;L cj;jut[ tH';fg;gl;lJ vd;why; rhp jhd;/ mnj gzpePf;fk; rk;ge;jkhf jpUbey;ntyp. bjhHpyhsh; ePjpkd;wj;jpy; I/o/vz;/41-97 vd jhf;fy; bra;njd; vd;why; rhp jhd;/ ,e;j tHf;F xUjiygl;r cj;jut[ tH';fg;gl;lJ vd;why; rhp jhd;/ mjpy; kPz;Lk; ntiya[k;. ntiyapy;yh fhy';fSf;F gpd; rk;gsk; tH';f 9/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019cj;juthdJ vd;why; rhp jhd;/ mjd;go 09/11/2000y; gzpapy; nrh;e;njd;/ Fw;wr;rhl;L vz;/6 kw;Wk; 7y; kDjhuh; gzpapy; ,y;yhj fhyj;jpw;F U:/34.867/50 ifahly; bra;jJ rk;ge;jg;gl;lJ vd;why; rhp jhd;/ gphpt[ 81 tprhuiz ,J tpc&akhf eilbgw;wJ/ jdp mYtyh; rk;gs epYitj;bjhif U:/6.40.931-? tH';f cj;jut[ gpwg;gpj;jhh;/ mJ gFjp bjhif MFk;/ gazg;goahf U:/867/50-? mJ gzpapy; ,y;yhj fhyj;jpw;fhf gazg;go MFk;/ xg;gspg;g[ Cjpak; U:/8496-? bgw;Wf;bfhz;nld;/ bkhj;j bjhiff;fhf jz;l tNy; gphpt[ 87 eltof;if bjhlug;gl;lJ vd;why; rhp jhd;/ bgw;Wf;bfhz;l bjhif kPz;Lk; tl;oa[ld; vdf;Fk; jdp mYtyh;. jiyth;K:tUf;Fk; cj;jut[ tH';fg;gl;lbjd;why; rhp jhd;/ mjid vjph;j;J jhf;fy; bra;j nky;KiwaPL js;Sgo bra;ag;gl;lJ vd;why; rhp jhd;/ cah;ePjpkd;wj;jpy; nky;KiwaPL epYit vdf; fhl;l Mtzk; jhf;fy; bra;atpy;iy vd;why; rhp jhd;/ r';fud;nfhtpy; efh; fhty;epiyaj;jpy; Fw;wtHf;F Kjy; jfty; mwpf;if 456-2006 vd ,jr gphpt[ 406. 409. 467. 471 kw;Wk; 420 gphpt[fspy; vd; kPJk; jiyth; kw;Wk; jdp mYtyh; kPJk; tHf;F gjpt[ bra;ag;gl;lJ 10/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019vd;why; rhp jhd;/ bghWg;g[ xg;gilj;jw;F Mtzk; jhf;fy; bra;atpy;iybad;Wk;. I/o/41-97d; go tUtha; tN:ypg;g[ go eltof;if vLj;njd; vd;why; rhp jhd;/ gzpePf;f cj;juit ehd; bgw;Wf;bfhs;shky; jpUk;g mDg;gp cs;nsd; vd;why; rhp jhd;/ 7/6/2016y; (v/k/rh/M/1) mjpy; I/o/vz;/41-97 jPh;g;g[k; nfhhpf;if kD vz;/5-2004 jPh;g;g[k; cah;ePjpkd;wj;jhy; uj;J bra;ag;gl;L cs;sbjd;why; rhp jhd; vd xg;g[f;bfhz;Ls;shh;/” Therefore, according to the learned counsel, the petitioner has deliberately evaded the enquiry proceedings. 10. The learned counsel for the 2nd respondent, by referring to the provisions of Section 2(19) of the Tamil Nadu Co-operative Societies Act, 1983, submits that the petitioner, who served as the Secretary in the Society and who was in the managerial cadre, is empowered to issue directions to others on the administration of the Society as per the by-laws and rules. Therefore, the petitioner is not entitled for any subsistence allowance. 11/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 201911. The learned counsel for the 2nd respondent has also pointed out that the petitioner entered into service as a Clerk in the second respondent Society in the year 1978 and he was promoted as Secretary of the Society in the year 1989. During his service, he has involved in serious misconduct. Therefore, he was placed under suspension on 29.10.1994. Subsequently, he was dismissed from service on 08.02.1995. Challenging the same, an Industrial Dispute was raised through the Conciliation Officer under Section 2-A of the Industrial Disputes Act and the same was taken on file in I.D.No.41 of 1997 on the file of the Labour Court, Tirunelveli. Simultaneously, the petitioner has also approached the Registrar (Housing), Chennai, by filing a revision petition under Section 153 of the Tamil Nadu Co-operative Societies Act, by suppressing the Industrial Dispute pending before the Labour Court, Tirunelveli, in I.D.No.41 of 1997. In the revision petition filed by the petitioner, the Registrar, by his order dated 01.11.2000, set aside the order of dismissal and also ordered for reinstatement with backwages. Based on that order, the petitioner resumed the office as the Secretary of the Society on 09.11.2000. As the Secretary of the Society, the petitioner 12/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019only followed up the criminal case as well as the Industrial Dispute, before the Labour Court, Tirunelveli, in I.D.No.41 of 2017. In fact, the Industrial Dispute was decided in his favour as an ex parte order against the Society on 27.06.2001. 12. The learned counsel for the 2nd respondent further submitted that the petitioner was dismissed from service, not only on the charges levelled against him, but also by considering his past conduct. Earlier, the petitioner has involved in misappropriation of funds during the year 1991, for which, he was imposed with the punishment of demotion and subsequently, he was dismissed from service in the year 1994. Thereafter, he was reinstated into service as Secretary of the Society, pursuant to the orders of the Registrar (Housing) in the revision petition. Even thereafter, he has indulged in similar activities and committed various other lapses. Therefore, a charge memo was issued against him on 01.03.2008. Though the enquiry was conducted for four times, he did not appear for enquiry. Therefore, based on the available materials, he was dismissed from service on 23.10.2009. 13/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 201913. This Court considered the rival submissions made and also perused the materials placed on record. 14. This writ petition is arising out of the order passed by the first respondent/the Appellate Authority under the Tamilnadu Shops and Establishments Act, in TNSE Appeal No.1 of 2010 dated 11.09.2018. This appeal has been filed by the petitioner before the first respondent as against the order of dismissal dated 23.10.2009. 15. The main contention of the petitioner is that he has not been paid with any subsistence allowance and the enquiry has not been conducted in a fair manner by furnishing the documents required by him. 16. Section 2(19) of the Tamil Nadu Co-operative Societies Act, defines an Officer of the Co-operative Society and the same is extracted as under:“(19) “officer” includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person empowered under the rules 14/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019or the by-laws to give directions in regard to the business of the registered society”17. Admittedly, the petitioner served as the Secretary of the Co-operative Housing Society. Therefore, he comes under the category of “officer” as provided under Section 2(19) of the Tamil Nadu Co-operative Societies Act. Hence, he is not entitled for the subsistence allowance. 18. The other contention of the petitioner is that he has submitted representations seeking certain documents, however, the same were not furnished to him, which deprived him from conducting the disciplinary proceedings in an effective manner before the Enquiry Officer. 19. It appears that the enquiry proceedings commenced by issuing a charge memo on 01.03.2008. One Alwarsamy was engaged as an Enquiry Officer to conduct the enquiry. Since the petitioner has raised certain objections on the appointment of the said Enquiry Officer, one C.Balaji was appointed as an Enquiry Officer. The Enquiry Officer has 15/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019issued an enquiry notice dated 27.06.2008 by fixing the date of enquiry on 01.07.2008, but, he did not appear for the enquiry. Thereafter, two enquiry notices were issued by the enquiry officer by fixing the date of enquiry on 18.08.2008 and on 08.04.2009, again, he failed to appear for the enquiry. Therefore, the 4th enquiry notice was issued and also published in the Daily Newspaper. Further, as per the evidence recorded by the first respondent, it appears that the petitioner was aware of the enquiry proceedings and received enquiry notices, however, he deliberately evaded the enquiry proceedings.20. The petitioner claims that he has made a request for certain documents, by representations dated 03.04.2008, 18.04.2008, 19.04.2008 and 21.04.2008, but, the same were not furnished to him. In fact, the petitioner sent these representations without appearing for the enquiry. Despite issuance of four enquiry notices, the petitioner did not appear for the enquiry. 21. The scope of the review on the disciplinary proceedings under Article 226 of the Constitution of India is very limited. From the 16/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019materials placed, it appears that a proper enquiry was conducted by issuing a charge memo and also appointing an enquiry officer. The request of the petitioner for changing the enquiry officer was also considered by the Society by replacing another enquiry officer. The enquiry was conducted on 01.07.2008, 29.08.2008 and 24.04.2009, by issuing enquiry notices and the petitioner has also acknowledged the same. Despite the same, he did not appear for the enquiry on that dates. Therefore, the 4th enquiry notice was also published in the daily newspaper. Even then, the petitioner did not turn up to appear in the enquiry proceedings. Thereafter, an ex parte evidence has been recorded on 19.09.2009. Considering the manner in which the petitioner has not co-operated for the enquiry proceedings and without participating in the enquiry proceedings, the petitioner cannot plead that the required documents have not been furnished to him. 22. The petitioner was originally appointed as a Clerk in the 2nd respondent Society in the year 1978 and he was promoted as Secretary in the year 1989. While he was in service, he involved in misappropriation of funds, for which, he was imposed with the punishment of demotion. 17/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019Even thereafter, he has indulged in serious misconduct. Therefore, he was dismissed from service in the 1995. Challenging the same, the petitioner has committed forum shopping by filing a review application before the Registrar (Housing) under Section 153 of the Tamil Nadu Co-operative Societies Act and raising an industrial dispute under Section 2-A of the Industrial Disputes Act, before the Labour Court, Tirunelveli, in I.D.No.41 of 1997. Suppressing the industrial dispute pending before the Labour Court, he obtained an order from the Registrar (Housing) in the revision petition and also joined the service as the Secretary of the Society. Thereafter, he contested his own case before the Labour Court in I.D.No.41 of 1997 as the Secretary of the Society and allowed the case to be an ex parte order and obtained an order for reinstatement of service with backwages. This in fact is one of the charges as against the petitioner. 23. Considering his past conduct and the nature of charges and also considering the manner in which the petitioner has not co-operated for the enquiry proceedings, this Court is not inclined to interfere with the order of the first respondent. Accordingly, this writ petition is dismissed. 18/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019No costs. 24. This Court places its appreciation to the Legal Aid Counsel in defending the case of the 2nd respondent Society effectively. The High Court Legal Services Committee shall pay a sum of Rs.15,000/- (Rupees fifteen thousand only) to the Legal Aid Counsel. 11.11.2025ogy Index : Yes / No.Internet: Yes / No.NCC : Yes / No. To1. The Chairperson, High Court Legal Services Committee, Madurai Bench of Madras High Court, Madurai.2. The Appellate Authority under the Tamilnadu Shop and Establishments Act, [The Joint Commissioner of Labour], Tirunelveli – 627 007.3. The Liquidator, TN.SPL.144 Sankarankoil Co-operative Housing Society Ltd., O/o. The Deputy Registrar (Housing), 71-B, Thiruchendur Road, Palayamkottai, Tirunelveli District.19/20 https://www.mhc.tn.gov.in/judis WP(MD). No.18481 of 2019 B.PUGALENDHI, J. ogy WP(MD) No.18481 of 2019 11.11.202520/20