IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 22-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.3355 of 2001 MD.SPL.21, Gudalur Co-operative Stores Ltd., rep. by its President Mookan Uthamapalayam Taluk, Theni District. .. Petitioner. Versus 1.The Deputy Commissioner of Labour, Under the Tamil Nadu Shops and Establishments Act, Madurai. 2.R.Rajendran .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records of the respondents particularly that of the 1st respondent in T.N.S.E. Appeal No. 29 of 1999, dated 11.10.2000 and quash the same as illegal and unlawful. For Petitioner : Mr.T.S.Rajamohan For Respondents : Mr.T.Seenivasan Additional Government Pleader (R1) Mr.S.Silambanan (R2) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents. 2. It has been stated that the second respondent was working as a salesman in one of the Public Distribution Scheme Shops, under the control of the petitioner Stores. By proceedings, dated 3.2.99, the second respondent was given additional charge of supervising and running shop No.3, under the control of the petitioner Stores. While so, the second respondent had committed various irregularities amounting to misconduct. Therefore, a show cause notice had been issued to him, on 28.8.99. Since the explanation submitted by the https://hcservices.ecourts.gov.in/hcservices/ second respondent was unsatisfactory, an enquiry officer had been appointed to conduct an enquiry, under the provisions of the Tamilnadu Cooperative Societies Act, 1983. The second respondent had fully participated in the enquiry. After the enquiry had been completed, the enquiry officer, had submitted a report finding that all the charges against the second respondent were proved. Based on the findings of the enquiry officer, the final orders, dated 1.12.99, was passed removing the second respondent from service. Challenging the said order, the second respondent had filed an appeal in T.N.S.E Appeal No.29 of 1999, before the first respondent. The first respondent had passed an order, dated 11.10.2000, setting aside the order of dismissal, dated 1.12.99, passed against the second respondent. In such circumstances, the petitioner Stores has preferred the present writ petition, under Article 226 of the Constitution of India. 3. The learned counsel appearing on behalf of the petitioner Stores had submitted that the order of the first respondent, dated 11.10.2000, setting aside the order, dated 1.12.99, dismissing the second respondent from service, is against the weight of evidence and the probabilities of the case. He had submitted that the first respondent ought to have seen that the second respondent had committed serious dereliction of duty by committing misconduct. The second respondent had absented himself without proper reasons and without the permission of the management of the petitioner Stores. He had delegated his powers and duties to a third person, with regard to the running of the shop, without the authorisation of the management of the petitioner Stores. The second respondent had given a false certificate with regard to his educational qualifications at the time of his joining in service. He had canvassed for a candidate contesting the parliamentary elections at Periyakulam, which is a clear misconduct committed by the second respondent. In spite of the enquiry officer finding the second respondent guilty of the alleged misconduct, the first respondent had set aside the order of dismissal passed against the second respondent, without properly analysing the evidence available on record. Therefore, the order of the first respondent, dated 11.10.2000, made in T.N.S.E Appeal No.29 of 1999, is to be set aside. 4. Per contra the learned counsel appearing on behalf of the second respondent had submitted that the second respondent was not given sufficient opportunity to put forth his case during the enquiry. Even though the second respondent had requested for copies of the documents relied on by the management of the petitioner Stores during the enquiry, the second respondent was not given the copies of the said documents nor was he allowed to peruse the same. The domestic enquiry had been conducted without following the principles of natural justice. The second respondent was not permitted to cross https://hcservices.ecourts.gov.in/hcservices/ examine the management witnesses. The request of the second respondent to reopen the enquiry for cross examination of the management witnesses was refused by the management of the petitioner Stores. However, a second show cause notice was sent to the second respondent, on 25.10.1999, without providing a copy of the findings of the enquiry officer. The second respondent had sent a letter, on 30.10.99, requesting for a copy of the enquiry officer's report. However, without considering the said request, the President of the petitioner Stores had issued an order, dated 1.12.99, dismissing the second respondent from service. 5. The learned counsel for the second respondent had also submitted that sufficient evidence was not available for the enquiry officer to come to the conclusion that the second respondent had committed the misconduct alleged against him. Even though the second respondent had denied the charges levelled against him, including his participation in the elections, the enquiry officer had given a finding as though the second respondent had admitted the said charge. It has also been stated that the enquiry officer is a lawyer who has been appearing on behalf of the petitioner society in various cases. Therefore, he was biased in favour of the petitioner Stores. 6. The learned counsel had also submitted that a charge has been levelled against the second respondent that he had not produced the relevant documents to show his educational qualification, after nearly 30 years after his joining in service. The petitioner Stores has not shown any document, regulation or rules with regard to the educational qualification required at the time of the second respondent joining the service of the petitioner Stores. The first respondent had rightly come to the conclusion that the order, dated 1.12.99, removing the second respondent from service, is ill- motivated and illegal. The first respondent had also held that the charges framed against the second respondent are flimsy in nature and the punishment of dismissal from service imposed on the second respondent is disproportionate to the alleged misconduct. The first respondent had also found that sufficient opportunity was not given to the second respondent to defend his case and the enquiry had been conducted hastily, without following the principles of natural justice. Therefore, the first respondent had set aside the order, dated 1.12.99, passed by the management of the petitioner Stores removing the second respondent from service. 7. The learned counsel for the second respondent had relied on the decision of the Supreme Court in Management of Madurantakam Coop. Sugar Mills Ltd., Vs. S.Viswanathan (2005)3 SCC 193), in support of his contentions that, normally, the findings of the lower Courts or Tribunals are not interfered with by the High Court exercising its https://hcservices.ecourts.gov.in/hcservices/ jurisdiction, under Article 226 of the Constitution of India, unless, the findings relating to the facts, by such courts or Tribunals are perverse and not based on legal evidence. When the findings are neither perverse, nor based on extraneous evidence, not available on record, the writ petition is liable to be dismissed as being without merits. 8. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent, and on a perusal of the records available, this Court is of the considered view that there is no sufficient cause or reason shown on behalf of the petitioner for this Court to interfere with the findings rendered by the first respondent in the impugned order, dated 11.10.2000, made in T.N.S.E Appeal No.29 of 1999. The first respondent had rightly come to the conclusion that the charges levelled against the second respondent were not serious in nature warranting the punishment of dismissal from service. It is also evident that sufficient opportunity was not given to the second respondent to put forth his case and to defend himself during the enquiry proceedings. The first respondent has come to the conclusion that some of the charges levelled against the second respondent have not been clearly established. It has also been found that the petitioner management has acted in a malafide manner by levelling flimsy charges against the second respondent with the wrongful intention of removing him from service. Nothing has been shown on behalf of the petitioner Stores to substantiate its claim that the second respondent deserves the punishment of removal from service. The charge that the second respondent had joined in service without proper educational qualification cannot be put against him after nearly 30 years of his joining in service. Even though the second respondent had denied that he had taken part in the election process, the enquiry officer, has held as though the second respondent had admitted the said charge. Even with regard to the other charges, the first respondent has come to the conclusion that they are flimsy in nature and that sufficient opportunity was not given to the second respondent to defend himself. 9. In such circumstances, this Court is not inclined to set aside the impugned order of the first respondent, dated 11.10.2000, made in T.N.S.E.Appeal No.29 of 1999. Hence, the writ petition stands dismissed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Deputy Commissioner of Labour, Under the Tamil Nadu Shops and Establishments Act, Madurai. +1cc to the Govt. Pleader SR.No.58862 Writ Petition No.3355 of 2001 GG(CO) BK(31/10/2008) https://hcservices.ecourts.gov.in/hcservices/