IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.13776 of 2001 V.Paneerselvam .. Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2. The Special Officer, Kizhkodugalur Primary Agricultural Cooperative Bank, Kizhkodungalur. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned award passed by the first respondent in I.D.No.9/95, dated 9.10.2000 and to quash the same and consequently, to direct the second respondent to reinstate the petitioner in service with backwages, continuity of service and other attendant benefits. For Petitioner : Mr.V.Ajay Khose For Respondents : Mr.P.Anbarasan for R2 ORDER The petitioner is a workman. He has filed the present writ petition, seeking to challenge the Award passed by the first respondent Labour Court in I.D.No.9 of 1995, dated 09.10.2000. By the impugned Award, the labour court rejected the dispute without granting any relief. The writ petition was admitted on 31.7.2001. On notice from this court, the second respondent management has filed a counter affidavit, dated 4.10.2001, justifying the Award. Since along with the writ petition, documents which are made available before the labour court were not filed in the form of typed set, this court by an order dated 24.2.2010, directed the Registry to summon the documents relating to the ID. Accordingly, they were summoned and circulated for perusal by this court. https://hcservices.ecourts.gov.in/hcservices/ 2.The case of the petitioner was that he had joined the second respondent society as a sales man on 5.7.1980. He was in-charge of distributing commodities under Public Distribution System. 300 family ration cards were allotted to him. On 22.8.1992, there was a surprise check up from the Flying Squad. The Flying squad noted stock deficit to an extent of Rs.4491/-. The petitioner was placed under suspension. A notice, dated 16.9.1992 was given to the petitioner to remit a sum of Rs.11910/- being double the amount of the actual deficit. The petitioner paid the amount on 27.8.1992. Thereafter, a charge memo, dated 16.9.1992 was given to the petitioner. 3.It was alleged that the petitioner was a root cause for the loss of commodities to the value of Rs.4491/- and that he had sold those articles to the outside market. The petitioner was also guilty of selling kerosene to outside persons, thereby causing stock deficit. The employees were severely warned earlier by the Special Officer for indulging in such misconduct. An enquiry officer was appointed to go into the charges. A domestic enquiry was conducted on 23.12.1992 and 20.3.1993. 4.It is the claim of the petitioner that he was not permitted to cross examine the witnesses and was not allowed to engaged a co- employee to help him in the enquiry. In the enquiry, the statement of the petitioner as well as the Secretary of the society alone were recorded. The copies of documents were also not furnished to him. On the basis of the enquiry report, the petitioner was dismissed from service on 17.5.1993. The petitioner raised an industrial dispute before the Government Labour Officer. On the strength of the failure report, he filed a claim statement before the first respondent Labour Court. It was taken on file as I.D.No.9 of 1995. A notice was issued to the second respondent society. The second respondent society filed a counter statement, dated 27.11.1995. 5.In the counter statement apart from contending that the enquiry was fair and proper, alternatively the second respondent pleaded for giving fresh opportunity to lead evidence. Before the labour court, six documents were filed on the side of the petitioner and they were marked as Exs.W.1 to W.6. On the side of the second respondent, five documents were filed and they were marked as Exs.M.1 to M.5. The labour court framed a preliminary issue, i.e. whether the departmental enquiry conducted against the workman was valid and was done in accordance with the principle of natural justice. The labour court held that the workman did not get into the box before the labour court to appear with flesh and blood to divulge the alleged grievance which are projected in the written brief submitted by him. The labour court also stated that his alleged explanation given before the enquiry was also not marked. It was stated that it was for the workman to prove that deficit occurred due to miscalculation and he cannot blame the management on the niceties of law. The labour https://hcservices.ecourts.gov.in/hcservices/ court also held that the petitioner by silence especially when there was a duty to speak, admitted and consented and that was enough for the management to hold that the workman was guilty and that the domestic enquiry was only an empty formality. It was also stated that the enquiry report filed on the side of the management did not warrant any interference. Thereafter, the labour court went into the question that preponderance of probability was enough to hold the workman guilty of misconduct. Therefore, the workman cannot seek any relief including reinstatement. After holding all these, in paragraphs 13 and 14, the labour court found as follows: "13.For the foregoing reasons it is held that the first Preliminary Issue is to be answered in the negative. The Industrial Dispute raised by the petitioner is rejected. But the parties do bear their own costs. 14.Before parting with and without prejudice to the above finding but being bundled by emotion, it is recommended that an opportunity, be given to the petitioner, to mend his ways, since now-a-days even the criminal courts are lenient with offenders of heinous crimes. The petitioner herein had paid the double the amount of the deficiency of stock. After all every saint has his (blemished) part and every sinner has his (bright) future." 6.Mr.V.Ajay Khose, learned counsel for the petitioner attacked the Award by stating that the labour court after having framed preliminary issue regarding domestic enquiry and having found that the enquiry was fair and proper, ought to have discussed the materials on record and should have rendered findings as to whether the petitioner was guilty or not. On the contrary, immediately after holding that the enquiry was fair and proper, the labour court straight-away dismissed the ID by making some superficial observations. 7.In this context, the learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in State of U.P. and another Vs. T.P.Lal Srivastava reported in 1997 (1) LLJ 831 for the proposition that even if explanation was not forthcoming from the charge sheeted worker, an exparte enquiry must be conducted to find out whether the charge has been proved or not. 8.He also placed reliance upon a division bench judgment of this court in The Divisional Manager, Pandiyar Tea Division Vs. Plantation Labour Association reported in 1998 (1) LLJ 149 for the purpose of contending that admission of guilt by the worker does not dispense with the legal requirement of holding an enquiry and proving the guilt before imposing the punishment of recovery of value of the lost goods. https://hcservices.ecourts.gov.in/hcservices/ 9.He further placed reliance upon the judgment of this court in Special Officer, Salem District Consumer Cooperative Wholesale Stores Ltd., Salem Vs. Presiding Officer, Labour Court, Salem and another reported in 2001 (2) LLN 1109 for contending that if evidence let against the workman did not prove the misconduct conclusively and was based upon the report given by the Inspector of Cooperative Society, then it cannot be held that the items were sold through bogus bills to outside market. 10.The learned counsel also stated that having regard to the fact that the dispute is of the year 1995 and more than 15 years have elapsed, this court if agreed with the submission of the workman, then it need not remit the matter to the department and that it can grant the relief straight-away. In this context, reliance was placed upon the judgment of the Supreme Court in M.V.Bijlani Vs. Union of India and others reported in 2006 (3) LLN 158. 11.However, the second respondent contended that the enquiry was conducted fair and proper and the workman on his own accord and free will, admitted regarding the deficit stock of rationed commodities meant to be distributed under the Public Distribution System to the ration card holders. Since the workman has accepted the second charge that he has sold the items to block market, that charge was proved beyond doubt. There was no illegality or infirmity in the impugned award passed by the first respondent. It was also stated that since deficit stock was admitted and paid by the petitioner, there is no necessity to hold any further enquiry. 12.A perusal of the original records show that the petitioner did not give any explanation to the charge memo marked as Ex.M.1. The petitioner had filed an alleged reply dated 8.5.1995 but it was not marked before the labour court. The workman did not get into the box to mark the document. If the alleged reply sent by the workman was not part of the materials on record, then during the entire proceedings, the workman did not submit any reply either for the original charge memo or to the second show cause notice. During the enquiry he admitted that on 22.8.1992, he had committed a mistake in maintaining the stock deficit and also pleaded for forgiveness. Though the labour court erroneously stated that the workman should have got into the box to prove and must stand for cross examination, which question did not arise as the labour court had found that the enquiry held against him was fair and proper. Once the enquiry is held to be fair and proper, then the labour court will have to proceed only on the basis of the materials on record, i.e. findings which were rendered already in the domestic enquiry. Though this court is not satisfied with the impugned Award passed by the first respondent labour court, yet going through the original records produced clearly showed that the workman was guilty of the misconduct. The decisions relied on by the workman have no https://hcservices.ecourts.gov.in/hcservices/ application to the case on hand. For the proved misconduct, this court is of the opinion that the petitioner do not deserve any leniency. Hence this court is of the view that no relief can be given to the workman. 13.In the light of the above, the writ petition will stand dismissed. No costs Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1. The Presiding Officer, Labour Court, Vellore. 2. The Special Officer, Kizhkodugalur Primary Agricultural Cooperative Bank, Kizhkodungalur. + 1 CC TO Mr.V.Ajay Khose, Advocate Sr 40248 + 1 cc to Mr.P.Anbarasan, Advocate Sr 40219 ORDER IN W.P.NO.13776 OF 2001 GR (CO) RH (16.6.10) https://hcservices.ecourts.gov.in/hcservices/