The Management, v. The Presiding Officer,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07..06..2023 Coram THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN Writ Petition No.11583 of 2013 & M.P.No.1 of 2013 The Management, Tyspl-96, Ayan Rayampuram Primary Agricultural Co-operative Bank, Ayan Rayampuram, Ariyalur District - 621 718.
..... Petitioner -Versus1.The Presiding Officer, Labour Court at Tiruchirappalli.
2.S.Subramanian ..... Respondents Petition filed under Article 226 of The Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to Award dated 12.12.2012 passed in I.D.No.147 of 2005 by the 1st respondent - Presiding Officer, Labour Court, Tiruchirappalli and to quash the same. For Petitioner : Mr.L.P.Shanmugasundaram For Respondents : Mr.G.Purushothaman for R2 R1-Labour Court
ORDER
This writ petition challenges the Award dated 12.12.2012 passed by the 1st respondent in I.D.No.147 of 2005.
2. The 2nd respondent joined the services of the petitioner society as Accountant in the year 1979. While he was working as Secretary of the Society, he was issued with a charge memo and after enquiry, he was dismissed from service. According to the 2nd respondent, a Secretary by name Gandhi had involved in certain malpractices for which the 2nd respondent had lodged a complaint to the Deputy Registrar. The Deputy Registrar directed the President to initiate enquiry against all those involved in the misappropriation. The President had suspended the Secretary, however, thereafter, no action was taken and the secretary was later on reinstated in service. On 14.12.2001, when the 2nd respondent reported for duty, he was denied employment. Immediately, he filed a writ petition before this Court which was dismissed. Thereafter, on 09.02.
2002, he was suspended from service. When the suspension order was challenged by way of Civil Suit in O.S.No.37 of 2002, the Civil Court, granted an order of interim injunction. In spite of that interim injunction, charge memo was given on 18.09.2002. The petitioner society claims that it had conducted an enquiry and passed a final order.
proceeded in ex parte manner. As stated above, on the basis of such enquiry, the 2nd respondent was dismissed from service. Challenging the same, the 2nd respondent had preferred I.D.No.147 of 2005.
3. The learned Labour Court framed the following issues:-
(1) Whether the material evidences placed before the enquiry officer are sufficient to prove the charges levelled against the petitioner?
(2) Whether the punishment imposed by the respondent as against the petitioner is shockingly proportionate?
(3) To what other relief?
4. The labour court came to a conclusion on the basis of the records produced before it that the enquiry was conducted in an ex parte manner even without service of notice. It further came to the conclusion that the domestic enquiry conducted by the petitioner society against the 2nd respondent was not fair and was not in accordance with law. The labour court had also found that "(1) During the suspension period the petitioner was not given subsistence allowance. The claim that during that period the petitioner was not in the head quarters is
not proved.
(2) The charge memo was no served on the petitioner.
(3) No notice of enquiry served for the enquiry hearing to the petitioner.
(4) Appointing the junior counsel appearing for the respondent as enquiry officer created doubt in fairness of enquiry and there is likelihood of bias.
(5) Without service of notice setting the petitioner as ex parte is illegal;
(6) No reason is stated to give a finding of misconduct as proved and the reasons are not acceptable.
(7) The second show cause notice was also not served on the petitioner."
5. The labour court followed the law laid down by the Supreme Court as well as by this Court and gave an opportunity to the petitioner society to substantiate the allegations made against the 2nd respondent. The labour court further came to a conclusion that the charge memo was not served on the 2nd respondent and that the enquiry itself was conducted without notice to the 2nd
respondent. Apart from that, it also took note of the fact that during the period of suspension, the 2nd respondent was not paid any subsistence allowance. The second show cause notice which was sent on the basis of the enquiry report was also returned without service and despite the same, the petitioner society had proceeded to pass an order dismissing the 2nd respondent from service. The labour court had given liberty to the petitioner society to substantiate their case and found that the first charge levelled against the 2nd respondent is contrary to the records available before it. Similarly, with respect to the second charge for not reporting to duty, the labour court found that M.W.1 was responsible for not permitting the 2nd respondent to join duty.
Further, the labour court had given specific findings against the petitioner society and in favour of the 2nd respondent herein which read as under:- "On perusal of M.W.1's evidence to prove the charge, it revealed that the petitioner wanted to report to duty from the beginning, but he was not allowed to join duty by M.W.1 himself. Even though M.W.1 had admitted acknowledgement card marked before this Court alleging that the petitioner's willingness was informed to the society to joint duty, M.W.1 was deliberately telling lie before this Court that he did not know the contents of the documents. Even though M.W.
been sent to the respondent bank, M.W.1 is evading to accept that the petitioner expressed his willingness to join duty.
In the above said such circumstances, the contention of the petitioner that when the petitioner was refused to joint duty, he had reported to conciliation officer by Ex.W.88 and Conciliation Officer also summoned the respondent, Ex.W.89 and after receiving the conciliation proceeding, the respondent had deliberately suspended the petitioner on 09.02.2002." Thus, the labour court had come to the clear and categorical conclusion that the petitioner society had disobeyed not only the orders of the competent authority but also the orders of this Court and deliberately prevented the 2nd respondent from joining duty and further made him suffer without paying him subsistence allowance. The labour court came to the conclusion that there was no material evidence to prove the charges.
Apart from that it also found that the entire material evidence revealed that the proceedings initiated by the petitioner society against the 2nd respondent was only for the purpose of victimizing the 2nd respondent and the entire enquiry is a mock one* to cover the misdeeds of M.W.1 and his associates. Consequently, the labour court allowed I.D.No.
reinstate the 2nd respondent in service immediately with continuity of service and with full back wages.
6. Heard both sides.
7. Mr.L.P.Shanmugasundaram, learned counsel appearing for the petitioner society vehemently contended that though the proceedings were ex parte, charges levelled against the 2nd respondent had been proved. He took me through the charge memo and the other records to substantiate his contentions.
8. Mr.G.Purushothaman, learned counsel appearing for the 2nd respondent, on the other hand, effectively refuted the submission made by the learned counsel for the petitioner society.
9. I have considered the arguments of either side and also gone through the records, more so, in the light of the award passed by the labour court, when there was violation of principles of natural justice commencing from issuance of show cause notice till order of dismissal, the labour court had no other option but to set aside the order of dismissal. The labour court had given an opportunity to the petitioner society to prove the charges before it as required under Section 11-A of the Industrial Disputes Act. The petitioner society had miserably failed to do so and the labour court had correctly come to the conclusion and passed award in favour of the 2nd respondent herein. There is no
perversity or illegality in the award passed by the labour court and therefore, I am not interfering with the order of the labour court insofar as it sets aside the order of dismissal. Insofar as reinstatement is concerned, it does not arise because the petitioner had retired as early as 24.01.2015.
10. Coming to the back wages, Mr.L.P.Shanmugasundarm, learned counsel for the petitioner society submitted that the petitioner society has continuously undergone loss for a period of over 10 years and it is financially not in a position to pay the back wages. Considering the above submission, insofar as the payment of full back wages is concerned, I am inclined to modify the award from full back wages to 50% of back wages. In the result, this writ petition is allowed in part and the award of the 1st respondent except insofar as full back wages stands confirmed. The petitioner society is directed to pay 50% of back wages instead of full back wages to the 2nd respondent bimonthly in 5 Equal Instalments (every two months). The first such instalment shall be made on or before 11.08.2023. No costs. Consequently, connected MP is closed.
07..06..2023 Index : yes / no : yes / no Speaking / Non Speaking Order kmk Note: The Registry is directed to upload this order on or before 12.06.2023.
To 1.The Presiding Officer, Labour Court at Tiruchirappalli.
V.LAKSHMINARAYANAN, J.
kmk 07..06..2023