IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.Nos.20103 & 21921 of 2004 & W.P.M.P.Nos.18094 of 2006 & 1439 of 2007 V.Azhagiri ... Petitioner in W.P.No.20103 of 2004 The Superintending Engineer, Mettur Electricity Distribution Circle, Mettur Dam - 636 401. Salem District. ... Petitioner in W.P.No.21921 of 2004 Vs. The Presiding Officer, Labour Court, Salem. ... 1st respondent in both W.P's. The Superintending Engineer, Mettur Electricity Distribution Circle, Mettur Dam - 636 401. Salem District. ... 2nd respondent in W.P.No.20103 of 2004 V.Alagiri ... 2nd respondent in W.P.No.21921 of 2004 Prayer in W.P.No.20103 of 2004:- Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records of the award dated 30.12.2003 passed in I.D.No.48 of 1993 on the file of the 1st respondent viz. The Labour Court, Salem and quash the unallowed portion and modify the award to the effect that the petitioner is entitled to get full backwages and all other attendant benefits from the date of suspension, and to direct the 2nd respondent to pay the same within a reasonable time to be fixed by this Court. Prayer in W.P.No.21921 of 2004:- Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the 1st respondent Labour Court dated 30.12.2003, passed in I.D.No.48 of 1993 and to quash the same as illegal and without jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Rajarajan (in W.P.No.20103 of 2004) for Mr.R.Neelakandan For petitioner : Mr.B.Sekar (in W.P.No.21921of 2004) For R2 : Mr.B.Sekar (in W.P.No.20103 of 2004) For R2 : Mr.R.Rajarajan (in W.P.No.21921of 2004) for Mr.R.Neelakandan R1 Court in both Wps COMMON ORDER The Superintending Engineer, Mettur Electricity Distribution Circle, the petitioner herein, laid the present Writ Petition challenging the correctness of the award dated 30.12.2003, passed by the Labour Court in I.D.No.48 of 1993 and to quash the same as illegal, without jurisdiction on the ground that the 2nd respondent/workman (in W.P.No.21921 of 2004) was directed to be reinstated in the service of the petitioner's Electricity Board with continuity of service but without backwages holding that the order of removal of the 2nd respondent from service was not commensurate with the charges proved against him, while the workman has challenged the portion of the award whereby his claim for backwages has been negatived. 2. The 2nd respondent/workman (in W.P.No.21921 of 2004) joined in the services of the petitioner's Electricity Board as Assessor (Card Billing Staff) in Muthukapatti Section. It was found that during the period January 1982 and June 1983, he was alleged to have committed certain grave irregularities by not properly maintaining the accounts pertaining to collection of current consumption charges which were collected from the electricity consumers and, subsequently, is said to have misappropriated the Board's funds to a sum of Rs.3,901.50/-. On that account, a disciplinary proceedings was initiated against the 2nd respondent/wokman (in W.P.No.21921 of 2004) by framing three charges. A show cause notice was issued calling upon the workman to submit his explanation to the three charges levelled against him. But, after receiving the show cause notice, the 2nd respondent/workman refused to submit his explanation. 3. However, in order to give him a further opportunity, an Enquiry Officer was appointed by the petitioner Electricity Board in Memo dated 28.10.1983 and after giving due opportunity during https://hcservices.ecourts.gov.in/hcservices/ the enquiry, the Enquiry Officer submitted his report together with his findings holding that the charges levelled against the workman were duly proved. After submission of the report, 2nd show cause notice dated 02.08.1986 was also issued asking the workman to show cause as to why he should not be removed from service. 4. The workman, after receipt of the show cause notice, submitted his reply dated 24.09.1986. The disciplinary authority, after carefully considering the entire records, along with explanation submitted by the workman dated 24.09.1986, passed final order in his Memo dated 31.10.1986, ordering removal of the 2nd respondent from the Board's services. 5. Aggrieved by the said order of removal, the 2nd respondent/workman he raised an Industrial Dispute in I.D.No.48 of 1993 before the Labour Court, Salem. Without going to the merits of the case, the Labour Court passed an award dated 14.07.1995 holding that the domestic enquiry conducted by the petitioner Board was in violation of the principles of natural justice since the workman was not given assistance of his co-employee. 6. On this sole ground, the Labour Court set aside the order of removal and directed the petitioner Board to reinstate the workman with 50% of backwages and along with the continuity of service. Aggrieved by the said award of the Labour Court, dated 14.07.1995, W.P.No.13460 of 1996 was filed by the petitioner Board under Article 226 of the Constitution of India before this Court and this Court, by order dated 10.10.2003, remanded the matter back to the 1st respondent/Labour Court with a direction to the Labour Court to give notice to the both parties and to dispose of the dispute as quickly as possible on or before the end of December 2003. Following the remand order dated 10.10.2003 passed in W.P.No.13460 of 1996, the Labour Court has passed the present impugned order in I.D.No.48 of 1993 holding that the order of punishment imposed against the workman is disproportionate to the charges proved against him and on that basis directed reinstatement with continuity of service but, without backwages. While W.P.No.20103 of 2004 has been filed by V.Azhagiri against the portion of the award denying him backwages, W.P.No.21921 of 2004 has been filed by the Electricity Board questioning the portion of the award whereby reinstatement of the workman with continuity of service has been ordered. 7. The learned counsel appearing for the Electricity Board submits that the allegation levelled against the 2nd respondent/workman were all found proved by the Enquiry Officer on the sole ground that the 2nd respondent/workman himself has admitted that the deficit of Rs.3,901.50/- was on account of his negligence thereby admitting a loss of Rs.3,901.50/- and the 2nd respondent had https://hcservices.ecourts.gov.in/hcservices/ also repaid the entire amount to the credit of the petitioner Board. Further, when the 2nd respondent/workman was appointed as Assessor for collecting the electricity consumption charges from electricity consumers, he has not shown any devotion by promptly repaying the entire collection made from the electricity consumers and, therefore, the 2nd respondent/workman has committed dereliction of duty, but, this vital aspect was ignored by the Labour Court. 8. In reply, the learned counsel appearing for the 2nd respondent/workman submits that the 2nd respondent/workman, during the course of collecting the current consumption charges from the consumers failed to account the Board's money as there was a deficit of Rs.3,901.50/-. Later on, when the shortage of Rs.3,901.50/- was found out by the petitioner Electricity Board, the same was also remitted by the 2nd respondent, and therefore, the charges made against 2nd respondent/workman that he had intentionally caused loss to the Electricity Board cannot be pressed into service for the simple reason that there was no bad intention to cause loss to the petitioner Electricity Board. Thus, he pleaded to dismiss the case of the Electricity Board. In his further submission, he has pleaded that the 2nd respondent/workman has also filed W.P.No.20103 of 2004 challenging that part of the award passed by the Labour Court to the extent of refusing to grant backwages and other attendant benefits from the date of suspension. While pleading further, it was argued that the Labour Court, having found that the order or removal of the workman from service was disproportionate to the charges found proved ought to have granted the full relief of backwages and as the same was not granted, the petitioner prayed for setting aside that unallowed portion of the order refusing to grant full backwages and other attendant benefits. 9. Heard the learned counsel on both sides. 10. Though three charges were framed against the 2nd respondent/workman herein alleging that the 2nd respondent/workman has caused financial loss of Rs.3,901.50/- and not properly accounted the collection of electricity charges received from the consumers, the 2nd respondent/workman herein, admittedly refused to give his explanation to the show cause notice issued against him. However, he took part in the domestic enquiry held by the petitioner Board but, the Enquiry Officer, after completing the enquiry, by giving reasonable opportunity to the 2nd respondent/workman herein, submitted his report holding that the charges levelled against the 2nd respondent/workman herein were proved against him. 11. Thereafter, the disciplinary authority, by giving 2nd show cause notice, called upon the 2nd respondent to submit his https://hcservices.ecourts.gov.in/hcservices/ explanation as to why action should not be taken against him. Though the 2nd respondent submitted his explanation, the same was not accepted by the petitioner Board and finally an order of removal from service was passed by the petitioner's Board. However, when the order of removal was passed, the same was challenged by filing the Writ Petition in W.P.No.13460 of 1996 on the ground that the petitioner was not granted reasonable opportunity in defending his case. 12. The grievance of the 2nd respondent/workman herein in the earlier Writ Petition was that when the Board's Standing Order 32 (vii) (e) contemplates providing a co-employee to assist the 2nd respondent/workman in the enquiry, there was a legal obligation on the part of the Board to make arrangement for the co-employee to assist the 2nd respondent/workman. Therefore, on that basis, the award passed by the Labour Court, was set aside and the matter was remanded back to the Labour Court for disposal on merits without reference to the question of violation of principles of natural justice. Following the remand order passed by this Court in the above said Writ Petition, the Labour Court has come to the conclusion that the 2nd respondent himself has admitted that the shortage of Rs.3,901.50/- was due to inadvertent omission in giving proper accounts to the petitioner Board and while admitting the above said omission, as the 2nd respondent has repaid the entire amount of Rs.3,901.50/- to the petitioner Board, the allegation of false entry or misappropriation will not arise. Furthermore, the Labour Court, by considering that the nature of allegations made against the 2nd respondent/workman that he has failed to account a sum of Rs.3,901.50/- cannot warrant dismissal of the petitioner from service, modified the punishment of removal into one of reinstatement with continuity of service, but without backwages on the ground that the order of removal is not commensurate with the gravity of charges levelled against the 2nd respondent/workman. 13. Admittedly, the 2nd respondent/workman being an Assessor, was duty bound to collect the electricity consumption charges from all the electricity consumers and after the collection made from them, he is duty bound to account all those collections every day to the petitioner Board. While discharging the above said duty, when there was an allegation of shortage of Rs.3,901.50/-, the 2nd respondent/workman had himself admitted the deficit of Rs.3,901.50/- and came forward to repay the entire deficit amount and ensured that the petitioner Board does not suffer any financial loss. Therefore, the Labour Court having seen that the 2nd respondent has come forward on his own and paid the amount of Rs.3,901.50/-, came to the conclusion that there was no intention on the part of the 2nd respondent to defraud the Board. The Labour Court further held that there was no financial loss caused to the petitioner Board. On that basis, by exercising its power under https://hcservices.ecourts.gov.in/hcservices/ Section 11(A) of the Industrial Disputes Act, the Labour Court modified the punishment of removal into one of reinstatement with continuity of service, but without backwages. The refusal to order payment of backwages would be suffice to meet the ends of justice. Therefore, this Court is not inclined to interfere with the order passed by the Labour Court in I.D.No.48 of 1993. Accordingly, the Writ Petition in W.P.No.21921 of 2004 is dismissed. In view of the reasons mentioned above, the Writ Petition in W.P.No.20103 of 2004 filed by the workman is also dismissed as unsustainable. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. smn To 1.The Presiding Officer, Labour Court, Salem. 2.The Superintending Engineer, Mettur Electricity Distribution Circle, Mettur Dam - 636 401. Salem District. 1 cc to M/s. B. Sekar, Sr. 26468 1 cc to M/s. B. Sekar, Sr.26469 W.P.Nos.20103 & 21921 of 2004 RV (CO) kk 28/4 https://hcservices.ecourts.gov.in/hcservices/