IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2009 CORAM: THE HON’BLE MR.JUSTICE M.SATHYANARAYANAN W.P.No.3792 of 2000 Neyveli Township Milk Consumers Co-operative Society, TND 406, 24,Murugan Kovil Street, 25,Block No.27, Neyveli-3. ..Petitioner Versus 1.Ayyappan 2.The Presiding Officer, Labour Court, Cuddalore. ..Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of Certiorari to call for the records of the second respondent relating to the order passed in I.D.No.60 of 1993 dated 29.7.98 on the file of the Labour Court, Cuddalore and quash the same. For Petitioner : Mrs.Vijayakumari Natarajan For Respondents : Mr.G.Jeremiah for R1. O R D E R The writ petitioner is the management of Neyveli Township Milk Consumers Co-operative Society and aggrieved by the award dated 29.7.1998 passed in I.D.No.60 of 1993 by the Labour Court, Cuddalore in ordering reinstatement of the first respondent with continuity of service and back-wages, has filed this writ petition. 2. The facts which are necessary for the disposal of this writ petition are as follows:- The first respondent was working as a supervisor in the services of the petitioner. A charge memo dated 10.6.1991 was issued by the petitioner, framing four charges. Charge No.1 is pertaining to the alleged misappropriation of a sum of Rs.50/-. Charge No.2 pertaining to the abuse of the Assistant namely R.Parthasarathy and the Sales Assistant namely S.Natarajan by the first respondent. Charge Nos.3, https://hcservices.ecourts.gov.in/hcservices/ 4 and 5 pertaining to certain irregularities committed by the first respondent while distributing the Milk Cards. 3. The first respondent, in response to the said charge memo, has submitted his explanation dated 26.6.1991 denying the charges and it has been specifically stated in the said reply that the tenor of the charge memo would disclose that the management has already reached the conclusion of guilty against the first respondent. 4. One R.P.Pandian was appointed as Enquiry Officer. The first respondent has participated in the enquiry proceedings and during the course of enquiry, he has repeatedly pointed out certain lapses on the part of the petitioner/management in not supplying the required documents and also non payment of subsistence allowance. The Enquiry Officer, after conclusion of the enquiry, has given his enquiry report dated 12.11.1991, holding that all the five charges framed against the first respondent have been proved. Thereafter, the enquiry report was sent to the first respondent and he was called upon to submit his explanation to the contents of the enquiry report. However, the first respondent has not chosen to submit his explanation to the enquiry report and thereafter the first respondent was removed from service. The first respondent aggrieved by the order of removal passed by the petitioner, has invoked the jurisdiction of the Labour Court under Section 2A(2) of the Industrial Disputes Act and it was numbered as I.D.No.60 of 1993. The petitioner/management has filed its counter in I.D.No.60 of 1993. 5. In the enquiry, on behalf of the first respondent, Exs.WME-1 to WME-31 were marked. On behalf of the petitioner/management, Exs.ME-1 to ME-32 were marked. The first respondent examined himself as WW1 and one Kamalakkannan was examined as WW2. On behalf of the petitioner/management five witnesses were examined. 6. The Labour Court, Cuddalore on taking into consideration the entire materials available on record, found that the enquiry officer has not properly followed the procedure and in spite of the first respondent/workman asking for certain documents, that was not given to him and even the request made by the first respondent for payment of subsistence allowance was also denied. Therefore, the Labour Court found that the enquiry officer has not followed procedural aspects while holding the enquiry. On merits of the case, the Labour Court has analyzed the evidence of the management witnesses and also exhibits filed on behalf of the management. The Labour Court on a careful scrutiny of the exhibits filed by the management and the testimonies examined on behalf of the management, found that witnesses have not supported the case of the management. Therefore, the Labour Court on a careful consideration and appreciation of entire materials available on record, found that the order of removal passed against the first respondent is unsustainable and ultimately ordered reinstatement of the first respondent with continuity of https://hcservices.ecourts.gov.in/hcservices/ service and back-wages. The present writ petition is filed by the management, challenging the vires of the said order. 7. Heard the submissions of Mrs.Vijayakumari Natarajan, learned counsel appearing for the petitioner and Mr.G.Jeremiah, learned counsel appearing for the first respondent. 8. The learned counsel appearing for the petitioner would submit that the first respondent ought not to have invoked the jurisdiction of the Labour Court under the Industrial Disputes Act without exhausting the remedy of appeal provided under the Co-operative Societies Act and Rules. The first respondent ought to have invoked the jurisdiction of the Co-operative Tribunal or Revisional jurisdiction of the Registrar under Section 153 of the Co-operative Societies Act 1983. sub-section (1) of Section 90 reads as follows:- "90. Disputes:-(1) If any dispute touching the constitution of the board or the management or the business of a registered society (other than a dispute regarding disciplinary action taken by the competent authority constituted under sub-section (3) of Section 75 or the Registrar or the society or its board against a paid servant of the society) arises." As per the said provision, except the case of dispute regarding the disciplinary action taken by the competent authority constituted under sub-section (3) of Section 75, dispute under Section 90 can be adjudicated by the competent authority. Section 152(1) reads as follows:- "152. Appeals-(1) Any person aggrieved by - (a) any decision or award passed or order made or proceedings taken under sub-section (1) of Section 87, sub- section (2), sub-section (3) or sub-section (4) of Section 90, Section 118, Section 119, Section 143, Section 144 or Section 167; or" In terms of Section 152(1), disciplinary proceedings taken by the competent authority constituted under sub-section (3) of Section 75 cannot be adjudicated by the Co-operative Tribunal. 9. Section 75 of the Co-operative Societies Act, 1983 speaks about the constitution of common cadre of service. It is not made clear by the petitioner/management that the service of the first respondent comes under common cadre service. As regards the submissions of the learned counsel appearing for the petitioner that the first respondent ought to have invoked the jurisdiction under Section 153 of the Co-operative Societies Act, 1983, the said provision reads that the Registrar or Government may of his own https://hcservices.ecourts.gov.in/hcservices/ motion or on application, call for and examine the record of any officer subordinate to him ..... of the competent authority constituted under sub-section (3) of Section 75 and so also the Government may call for and examine the record of the Registrar in respect of any proceedings under this Act in respect of which an appeal to the Tribunal is provided under sub-section (1) of Section 152. Therefore, the learned counsel appearing for the petitioner would submit that in terms of the above said provisions, invocation of jurisdiction by the first respondent under Industrial Disputes Act is clearly a bar. 10. The bar of jurisdiction pleaded by the learned counsel appearing for the petitioner in the considered opinion of the Court, lacks merit. In 1997 (1) CTC 4 – Soma Sundaram -vs- Liyakat Ali and Another, the question arose was that as to whether the suit for declaration based on inter se seniority of the employees employed in Pandamangalam Primary Co-operative Bank Ltd., is maintainable, this Court held that such a question cannot be decided under Co-operative Societies Act and bar of jurisdiction of civil Court under Section 156 is not attracted in matters relating to determination of inter se seniority of employees of Co-operative Society. The Court further held that individual grievance against the employer regarding seniority of employee, cannot become Industrial Dispute unless a community of interest is established or cause is exposed by the union or other employees. Therefore, it was held in that decision that the civil suit is maintainable. 11. In the case on hand, the first respondent has invoked the jurisdiction of the Labour Court under Section 2A. The said provision relates to the dismissal, discharge, retrenchment or otherwise termination of an individual employee. In the case on hand it is the question of an individual dispute which becomes an Industrial Dispute. Therefore, in the considered opinion of the Court, the Industrial Dispute raised by the first respondent is maintainable and neither Section 153 nor Section 156 operate as a bar. 12. Now, coming to the merits of the case, the learned counsel appearing for the petitioner would submit that in respect of charge No.2, the petitioner was facing criminal prosecution in STC No.730 of 1991, wherein he pleaded guilty of offence under Section 75 of the Madras City Police Act and thereafter, he was warned and released under Section 3 of the Probation of offenders Act. By virtue of the Co-operative Societies Act, once the first respondent namely an individual employee was dismissed from service, it is the question of an individual dispute which becomes an Industrial Dispute. Admittedly, the petitioner/management has not invoked Section 75 of the Co-operative Societies Act, as observed above and it is also not made clear on the part of the petitioner whether the first respondent is coming under the common cadre of service. Therefore, invocation of https://hcservices.ecourts.gov.in/hcservices/ jurisdiction under Section 75 of the Co-operative Societies Act does not arise in the case on hand. 13. As regards the findings regarding the charge Nos. 3,4, and 5, the Labour Court has extensively dealt with all the materials available on record in the form of oral and documentary evidences. The Labour Court categorically found reasonable opportunity to defend the charges has not been afforded to the petitioner even at the threshold. The first respondent in his reply to the charge memo specifically pointed out the tenor of the charges reveal that the management has already reached the conclusion of the guilty. That apart, the Labour Court found in spite of the first respondent repeatedly asking for copies of the documents, the same had not been furnished to him and the communication sent by him to the enquiry officer has been returned as refused. 14. The Labour Court also found on consideration of the oral and documentary evidences let in on behalf of the management, none of the witnesses examined on behalf of the management has supported the version of the management and ultimately found the order of dismissal passed by the Labour Court is unsustainable and accordingly, the Labour Court has quashed the order of dismissal passed by the petitioner/management and ordered reinstatement of the first respondent in to service with continuity of service and back-wages. 15. This Court in exercise of jurisdiction under Article 226 of the Constitution of India, cannot sit as appellate authority and reappraise the evidence of the Labour Court. Of course, exception can be that if it is established that the findings of the Labour Court is perverse, based on no evidence and not having independently applied its mind to the original records pertaining to the I.D.No.60 of 1993. This Court on a perusal of the findings of the Labour Court, is of the view that there is no perversity or based on no evidence. Therefore, the award passed by the Labour Court is sustainable and it is hereby confirmed. 16. It is contended by the learned counsel appearing for the petitioner that the first respondent was not in service for more than 6 years after dismissal from service and therefore, the award of the labour Court is per se unsustainable in so far as the back-wages is concerned. This Court finds some force in the submissions made by the learned counsel appearing for the petitioner. While sustaining the findings of the Labour Court in so far as reinstatement and continuity of service, this Court is of the view that the matter can be remitted back to the Labour Court to find out the actual quantum of back-wages payable to be petitioner, as it require some evidence. 17. In the result, this writ petition is partly allowed and the award passed by the Labour Court dated 29.7.1998 in I.D.No.60 of 1993 in so far as the reinstatement and continuity of service is confirmed https://hcservices.ecourts.gov.in/hcservices/ and the matter is remanded to the Labour Court to arrive at the eligibility quantum of back-wages payable to the first respondent. But in the circumstances, there will be no order as to costs. The petitioner shall do that exercise within 8 weeks from the date of receipt of copy of this order. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gr. To The Presiding Officer, Labour Court, Cuddalore. + 1 c.c. to Mrs. Vijayakumari Natarajan, Advocate. S.R.No.18504. + 1 c.c. to Mr. G. Jeremiah, Advocate. S.R.No.19374. W.P.NO.3792 of 2000 GU (CO) GSK 14.05.2009. https://hcservices.ecourts.gov.in/hcservices/