IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18-12-2009 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.4675 of 2003 The Management Rasipuram Agricultural Producers Co-operative Marketing Society Ltd., Rep. by its Special Officer, Rasipuram 637 408, Namakkal Dist. ... Petitioner Versus 1.The Presiding Officer, Labour court, Salem. 2.The President, District National General Employees Sangam , No.35B, Kallikadu, Chinna Tirupathi Post, Salem 636 008. ... Respondents PRAYER: Writ petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records of the first respondent made in I.D.No.208/1999 dated 26.07.2002 and quash the same. For Petitioner :Mr.S.P.Yuvaraj For Respondent-2 :Mrs.Girija ORDER The management aggrieved by the award passed by the labour court altering the punishment given by the petitioner has come before this court. 2.The case of the petitioner management is that the employee Mr.Sundaram is a driver in the petitioner's society. As per the rules of the society the employee is prohibited to take part in a public auction conducted by the petitioner marketing committee as the bidder, as per Bye-law of the petitioner's society. It is alleged that the violating the said rule, the driver participated in the auction for selling 4964 coconuts on 23.05.1996 and on 27.05.1996. https://hcservices.ecourts.gov.in/hcservices/ Hence, a charge memo dated 10.06.1996 was issued to driver Mr.Sundaram and he was suspended from duty on 29.06.1996. He replied to the show-cause notice. As the petitioner was not satisfied with the explanation, a domestic enquiry was conducted. The Enquiry Officer concluded that with regard to the first charge namely participation in the auction of coconuts by Mr.Sundaram was proved and however, the second charge regarding getting of the commission was held to be not proved. 3.Accepting the Enquiry Officer's report, an order dated 28.12.1996 was passed by the petitioner/management by which he was censured and the suspension period was treated to be leave on loss of pay. 4.Aggrieved by that, the employee, Mr.Sundaram raised I.D.No.208 of 1999 through the District National General Employees Sangam, the second respondent herein. 5.After considering pleadings and evidences, the labour court found that the charges against the driver were not proved stating that the copies of the complaint which was the basis for the charges was not served upon Mr.Sundaram and that the said complaint was not marked before the labour court and the said complaint was not corroborated by any evidence. Hence, the labour court found the charges against Mr.Sundaram was not proved and held that the punishment awarded against the workman was unjust and unfair and ultimately it passed an award dated 26.07.2002 treating the period of suspension from 03.06.1996 to 28.12.1996 as a period on duty and the period from 29.12.1996 to 09.02.1997 to be treated as Earn Leave. It was further held that the action management in treating the period of suspension as earn leave without payment of subsistence allowance during the period as unfair. 5.Aggrieved by the award dated 26.07.2002, the management is before this court. The learned counsel for the petitioner submitted that when the management accepted the enquiry report and awarded punishment, the same cannot be set aside by a Tribunal. Secondly, the employee has got an alternative remedy under the co-operative society Act. 6.The learned counsel for the petitioner relied upon the judgment of the Honourable Supreme court in Commissioner of Rural development and others Vs. A.S.Jagannadha Rao reported in 1999 2 SCC page 313 wherein it is held that when the disciplinary authority awarded the punishment, it was not proper for the tribunal to interfere with the order on the ground that the disciplinary authority had imposed multiple punishment. 7.On the other hand, the learned counsel for the second respondent submitted that even the Enquiry Officer reported that https://hcservices.ecourts.gov.in/hcservices/ only one charge against the workmen was proved. The other charge in getting the commission was not proved. The labour court, on appreciation of facts and circumstances and the evidence, rightly held that the proved charges against as per the enquiry report is set aside. The complaint copy which is the foundation of the charges against Mr.Sundaram was neither supplied to him nor it was marked before the labour court. When the very basic document for the enquiry is not before the court, it is very difficult to prove the said charge. In the absence of the said document, the labour court came to the conclusion that there is no collateral evidence to prove the participation of Mr.Sundaram in coconut auction. 8. Moreover, the labour court found that the witnesses examined by Mr.Sundaram were not cross-examined by the management and in that event and evidence given by them have to be accepted. The labour court rightly held that the charges against Mr.Sundaram were not proved and the punishment awarded to Mr.Sundaram was found to be unjust and unfair and accordingly it set-aside the punishment and modified. 9.When the punishment was given based on no-evidence, the labour court has got the jurisdiction and power to set-aside the same. As rightly found by the labour court, the complaint was not produced before the court. In the absence of the original complaint, it has to be deemed that charges are unproved . Nodoubt, when the disciplinary authority imposed punishment, the jurisdiction of the labour court is limited. However, it cannot be said the labour court has got no jurisdiction. If the punishment has been given based on no-evidence, definitely, the labour court has got the jurisdiction to interfere with the punishment. In this case, there was no evidence available to prove the charges against the driver. 10.In the matter of Rahimal (Dead) by LRs and another Vs.Deputy director of Consolidated and others reported in (2002) 1 SCC 94, it was held that the finding recorded is the finding of fact and the same cannot be assailed in the appeal. In Ranjeer Singh Vs Ravi Prakash reported in (2004) 3 SCC 682 it has been held by the Honourable Supreme Court that the High Court cannot act as an appellate court and re-appreciate or re-evaluate the evidence while exercising Certiorari or Supervisory jurisdiction. This court cannot act as an appellte forum over the judgement of the lower authority under Article 226 of the Constitution of India. Similar view was also expressed in Shamshad Ahmad and others Vs.Thilak Raj Bajaj (deceased) through LRs reported in (2008) 9 SCC. In D.N.Bonnerji Vs. P.R.Mukherjee reported in AIR 1953 SC 58 the Honourable Supreme Court laid down the principles that unless there is any mescarriage of justice or error apparent in law calling for intervention it would not for the High Court under Article 226 and 227 of the Constitution of India to interfere with. Similarly in this case also there is no https://hcservices.ecourts.gov.in/hcservices/ miscarriage of justice. 11.The Tribunal is the last forum of fact where the finding of fact was given by the tribunal and the same cannot be interfered by this court. It is a settled position of law, that unless and otherwise the findings is based on no-evidence and the findings is perverse, the jurisdiction of this court under Article 226 is very limited. The labour court gave a findings of the fact that the charges against the petitioner were not proved because of lack of the original complaint filed against the workman and therefore the said finding cannot be set aside. 12.In view of that, the writ petition filed by the management fails and the same is dismissed and there is no order as to costs. Sd/- Asst. Registrar /true copy / Sub Asst.Registrar gv To: 1.The Presiding Officer, Labour court, Salem. 2.The President, District National General Employees Sangam , No.35B, Kallikadu, Chinna Tirupathi Post, Salem 636 008. • 1 CC to Mr.M.S.Palanisami,Advocate, Sr.No.69705 • 1 CC to Ms.B.Girija, Advocate, Sr.No. 69753 W.P.No.4675 of 2003 NM (CO) SS (05.02.2010) https://hcservices.ecourts.gov.in/hcservices/