IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.18372 of 2009 The Management, Murali Women Milk Producers Cooperative Society Ltd., Rep. By its Special Officer, U.Kandasamy, Murali, Bhavani Taluk, Erode District. ...Petitioner Vs. 1.C.Shanmugasundaram 2.The Presiding Officer, Labour Court, Salem, Salem District. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records relating to the Award dated 24.11.2008 made in I.D.No.545 of 2000 passed by the second respondent, quash the same. For Petitioner : Mr.N.Manokaran For Respondents : Mr.R.Md.Nazrullah for Mr.K.V.Shanmuganathan for R1 O R D E R The petitioner is the Management of Cooperative Society, represented by its Special Officer. In this writ petition, the petitioner challenges an Award passed by the second respondent Labour Court in I.D.No.545 of 2000 dated 24.11.2008. By the impugned Award, the Labour Court set aside the dismissal order passed against the first respondent dated 22.03.2000 and directed reinstatement with continuity of service, backwages and other attendant benefits. 2. Though notice of motion was ordered on 10.09.2009, subsequently, the writ petition was admitted on 12.03.2010. An interim stay was granted on 10.09.2009 at the time of ordering notice of motion. Subsequently, it was modified at the instance of the first respondent filing a vacate stay application and also an application for direction to make payment under Section 17-B of the https://hcservices.ecourts.gov.in/hcservices/ Industrial Disputes Act, 1947. By an order dated 12.03.2010, this Court directed the petitioner to pay wages under Section 17-B of the I.D.Act till the disposal of the writ petition and also to pay the arrears. The interim stay granted was made absolute. It was stated that the petitioner during the pendency of the writ petition had reached the age of superannuation on 14.06.2011. 3. It is seen from the records that the first respondent who was working as Secretary of the petitioner Society since 16.05.1991 was suspended from service on 01.11.1999. Subsequently, he filed a suit before the Principal District Munsif Court at Bhavani, challenging the order of suspension. A charge memo was issued to him on 24.11.1999 containing as many as six charges. The first respondent was allowed to peruse the records. Thereafter, he requested time for submitting his explanation. Since the charges relate to misappropriation of huge amounts of the Society, an enquiry was held on 25.01.2000. The first respondent objected to the appointment of the Enquiry Officer. A new Enquiry Officer was appointed on 04.02.2000. The Enquiry Officer directed the first respondent to appear for the enquiry but despite notice and opportunity, he did not appear for the enquiry. Therefore, the first respondent was set ex parte and an ex parte enquiry report was filed on 02.03.2000. On the basis of the enquiry report dated 02.03.2000, a show cause notice dated 08.03.2000 was issued to the first respondent. Thereafter, the matter was placed before the Board of Directors and as per the decision of the Board, by an order dated 22.03.2000, he was dismissed from service. 4. The first respondent raised an industrial dispute under section 2-A(2) of the Industrial Disputes Act, 1947 before the Government Labour Officer at Erode. The Conciliation Officer as he could not bring about mediation gave his failure report dated 11.08.2000. On the strength of the failure report, the first respondent filed a claim statement before the second respondent Labour Court on 28.08.2000. The said claim statement was taken on file as I.D.No.545 of 2000 and notice was ordered to the petitioner Society. 5. The petitioner Society filed a counter statement dated 10.08.2001. In the counter statement, they raised a preliminary objection with reference to the maintainability of the dispute. This was on the ground that the first respondent being a Secretary of the Society and was responsible for maintaining the administration of the Society, he is not a workman within the meaning of Section 2(s) of the I.D.Act. After defending the action taken by them in Paragraph 17, they reserved their right to lead fresh evidence in the event of the Labour court coming to the conclusion that the enquiry conducted by them was not fair and proper. 6. The Labour court by a preliminary order dated 08.12.2006 held that the enquiry conducted against the first respondent was https://hcservices.ecourts.gov.in/hcservices/ not legal and proper. Thereafter, since the Management reserved its right to lead fresh evidence, the parties were directed to lead fresh evidence. On the side of the petitioner Management one B.Kumar was examined as R.W.1 and on their side 15 documents were filed and marked as Exs.R1 to R15. On the side of the first respondent, he had examined himself as P.W.2 and 4 documents were filed and marked as Exs.P1 to P4. 7(1). On the first charge that the first respondent had written a false account, R.W.1 during his cross examination had stated that except Ex.R3 (Series), it is not written by the first respondent and it was written by R.W.1 himself. This portion of the evidence clearly gives a go by to the stand of the petitioner Society. Therefore, the Labour Court found that it was written by R.W.1 and signed by the Secretary and the Special Officer. Therefore, if at all any amount was excessively paid, then all of them are equally responsible but action was taken against the first respondent alone. 7(2). With reference to the second charge, regarding temporary misappropriation of selling the fodder and entering in the day book, R.W.1 in his cross examination stated that during inspection of the accounts, audit report was submitted and these amounts were not pointed out. But R.W.1 had stated that they had raised bills but in respect of 5 bills alone there were no entry in the day book. But he could not find out which are those 5 to 6 receipts. R.W.1 had not alleged that those amounts were not brought into account and remitted by the first respondent. Unless there was a specific allegation in respect of 5 receipts, the Labour Court held that the second charge cannot be said to be proved. 7(3) With reference to the third charge that the first respondent had certain lesser quantity of milk to the Union, the petitioner Management did not establish that what was the quantity of milk sent to the Union as per the records to show that there was actual shortage of milk. The delivery Register of the Union was not produced. R.W.1 in his cross examination had fairly admitted that the records relating to despatch of milk in shortage was not filed and without any basis, the said charge had been framed against the first respondent. 7(4) The fourth charge against the first respondent was that though he had excess of amount in hand, in the register a lesser amount was recorded. Once again, R.W.1 admitted that for the left out amount, even the president of the Society had countersigned and subsequently the left out amount had been brought on record and the President of the Society once again countersigned the same. This shows that it was only an omission done by the President of the Society and not by the first respondent. The Labour Court held that this does not establish any misappropriation on the part of the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 7(5) The 5th charge against the petitioner was that there was omission to bring local sale into account for the milk sold. R.W.1 could not prove the said charge. In cross examination, R.W.1 had stated that the specific amount was not mentioned. Even in the audit report in Ex.R13 the dates of the omission was not specifically mentioned. Further, the petitioner Management had not produced the register for local sale. In this regard, the Audit Report in Ex.R13 served no useful purpose. Hence, 5th charge was also not proved. 7(6) The 6th charge was that the first respondent had not handed over the charge, but R.W.1 admitted in cross examination that after suspension of the first respondent, no complaint was prepared against the first respondent regarding the refusal to handover the charge and hence, the 6th charge was also not proved. 8. In the light these documentary evidence, the Labour Court refused to accept that there was any legal evidence that the first respondent was guilty of the charges. With reference to the contention that the first respondent was not a workman within the meaning of Section 2(s) of the I.D Act, the Labour Court held that the term officer under Section 2(19) of the Tamil Nadu Co-operative Societies Act includes President, Vice President, Managing Director, Assistant Secretary and Member of Board in regard to the business of a registered Society. Though the petitioner Management relied on a judgment of this Court in the case of Management 2869, Ramarajapuram Milk Producers Cooperative Society, Ramarajapuram v. The Presiding Officer, Additional Labour Court, Madurai reported in 1993 WLR 313, wherein it was held that a Secretary is not a workman under Section 2(s) of the I.D.At, The Labour Court held that assuming that the first respondent being the Secretary was engaged in a supervisory capacity but as he was drawing Rs.1200/- as monthly salary, he was not excluded from the definition 'workman'. Therefore, the objection raised by the petitioner Management was overruled. 9. In this context, reliance was placed upon the judgment of the Supreme Court in Hussan Mithu Mhasvadkar v. Bombay Iron and Steel Labour Board and another reported in AIR 2001 SC 3290 for contending that it is not the designation which is material, but the nature of the duties and power conferred must be gone into. 10. Mr.R.Md.Nazrullah, learned counsel representing Mr.K.V.Shanmuganathan, appearing for the first respondent also relied upon the judgment of the Kerala High Court in Travancore - Cochin Chemicals Co-operative Society Ltd., v. Labour Court, Ernakulam reported in 1989 I LLN 67 to contend that in that case a Secretary of a Cooperative Society was held to be a workman within the meaning of Section 2(s) of the I.D.Act. But however, it is unnecessary to go into the said issue. https://hcservices.ecourts.gov.in/hcservices/ 11. In the present case, even assuming that the first respondent who was working as Secretary under the control of the Board of Directors was held to be exercising supervisory powers, since at the relevant time, he was drawing Rs.1200/- it comes within the exception provided to Section 2(s) of the I.D.Act. Therefore the Labour Court had rightly came to the conclusion that the first respondent was a workman for the purpose of the ID Act and the Labour Court cannot throw out the dispute on the ground of non-maintainability. 12. On the merits of the issue, it must be noted that in this case, it is not the Management's departmental enquiry which was consider by the Labour Court, but by a preliminary Award dated 08.12.2006, the domestic enquiry conducted by the Management was set aside and there is no challenge to the said order in this writ petition. Therefore, when fresh evidence was let in before the Labour Court for first time, then the satisfaction of the materials placed before the Labour Court is that of the Labour Court and this Court in the exercise of power under Article 226 of the Constitution cannot interfere with such findings of fact. 13. In the present case, the Labour Court had categorically found that there was no admissible evidence against the first respondent and therefore, directed his reinstatement with backwages and other attendant benefits as noted above. Further, the workman himself has reached the age of superannuation on 14.06.2011 and cannot be reinstated. It is also brought to the notice of this Court that the petitioner Society had paid him the gratuity and the PF accumulations and a cheque for a sum of Rs.21,600/- dated 21.03.2011 was also issued. 14. In the light of these subsequent developments, the question of reinstatement is no longer permissible. While upholding the Award impugned in the writ petition, this Court directed the petitioner Society to pay the first respondent the arrears of salary and other dues to which the first respondent is entitled to. This exercise shall be carried out within a period of 12 weeks from the date of receipt of a copy of this order. The writ petition is dismissed with the above directions. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Labour Court, Salem, Salem District. +1 CC to Mr.N.Manokaran, Advocate, S.R.No.51158 ORDER IN W.P.No.18372 of 2009 SV(CO) SRA(30/8/2011) https://hcservices.ecourts.gov.in/hcservices/