fIN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17269 of 2000 The North Arcot District Co-operative Supply and Marketing Society Employees Union, No.37, Thennamaram Street, Vellore, Vellore District. ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.The Management of the North Arcot District Consumers Co-operative Wholesale Stores Limited, No.14, Officers Line, Vellore, Vellore District. ...Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of certiorarified mandamus, to call for the records from the first respondent, quash the award of the first respondent Labour Court in I.D.No.50 of 1993 dated 21.08.2000 and consequently substituting the award by holding that the order of punishment of demotion of C.Sivalingam to the post of salesman for two years, denial of increment in the demoted post for two years and treating the period of suspension as on leave is illegal, arbitrary and in violation of principles of natural justice. For Petitioner : Mr.Balan Haridas For Respondents : Mr.P.S.Sivashanmugasundaram for R2 O R D E R The petitioner is a registered Trade Union functioning under the second respondent at Vellore. The petitioner/Union raised a dispute under Section 2(k) of the Industrial Disputes Act, 1947 (for short ID Act) in respect of the penalty imposed on one of its member by name C.Sivalingam. 2. The said Sivalingam was proceeded by the second respondent/Society by way of disciplinary action. After conducting an enquiry by an outside Advocate, he was given proposed a show cause notice dated 10.09.1986 stating as to why he should not be dismissed from service. The said workman gave his explanation on https://hcservices.ecourts.gov.in/hcservices/ 11.10.1986. Thereafter, the second respondent-Society by an order dated 24.11.1986 did not dismiss him from service; on the contrary had demoted him from the post of Clerk to that of salesman for a period of two years. On account of his demotion, his scale of pay was re-fixed and he was informed that he will draw the same scale for the two years until the penalty will be in operation. By a subsequent order dated 17.04.1989, his period of non-employment was regularised. In the meanwhile, the said Sivalingam was also proceeded under Section 73 of the Tamil Nadu Co-operative Societies Act,1961 and in that surcharge proceedings, the allegations were held proved only in respect of one Selvaraj and the petitioner was given up from the proceedings. It was thereafter, the case of the Sivalingam was taken up by the petitioner/Union and a dispute was raised. Since the conciliation officer did not bring about any mediation, he sent a failure report to the State Government. 3. The State Government by exercise of its power under Section 10(1) of the I.D.Act by G.O.Ms.No.2936 Labour and Employment Department dated 29.12.1988 referred the issue for adjudication. Originally, the petition was presented and filed before the second Additional Labour Court in I.D.No.102/89, which was subsequently transferred to first respondent Labour Court. The Labour Court took up the dispute on its file as I.D.No.50 of 1993 and issued notice to the second respondent. On behalf of the petitioner/Union, a claim statement dated 23.05.1989 was filed. The second respondent/Management had filed counter statement dated 09.05.1990. In the counter statement, the second respondent pleaded that in case the enquiry was held vitiated, they may be given another opportunity to prove the charges. But however, before the Labour Court, the documents were marked by consent as Exs.M1 to Ex.M15. The Labour Court did not decide the validity of the enquiry as a preliminary issue. On the contrary, it proceeded to decide the main dispute. 4. It was rather unfortunate that the Labour Court did not even advert to the materials on record as enjoined under Section 11-A of the I.D.Act . The question of workman getting into the box will arise only when the earlier enquiry conducted by the Management is set aside and a fresh opportunity is given to the second respondent Society. In the absence of such a contingency, the observation made by the Labour Court that the workman did not get into the box as witness, thereby subjecting himself to test of cross-examination will not arise. Secondly, the Labour Court in more than one place had held that it was a case of dismissal/removal from service and in paragraph 7 of the Award, within 10 sentences, the Labour Court had concluded the issue, which clearly shows that the Lbaour Court did not even advert to any of the 15 exhibits which were marked and also the submissions made by the parties. 5. Though the learned counsel for the second respondent attempted to justify the Award by filing a counter affidavit and also making oral submissions, this Court is not inclined to entertain the same at this stage. It is suffice to state that the https://hcservices.ecourts.gov.in/hcservices/ Labour Court being an authority entrusted with the power to decide, both the question of validity of the enquiry, then record a finding with reference to the misconduct against the said Sivalingam and thereafter decide the penalty was warranted under the circumstances of the case. 6. In the light of the above, the impugned Award in I.D.No.50 of 1993 dated 21.08.2000 will stand set side and remitted to the second respondent Labour Court for fresh disposal in accordance with law. In view of the fact that the dispute is of the year 1989 and already 20 years have elapsed, the Labour court shall give preference to dispose of the same, in any event, within a period of three months from the date of receipt of a copy of this Court. The Labour Court shall give notice to both parties and the parties shall give full co-operation for speedy disposal without seeking further adjournment. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To 1.The Presiding Officer, Labour Court, Vellore. (with records if any). 2.The Management of the North Arcot District Consumers Co-operative Wholesale Stores Limited, No.14, Officers Line, Vellore, Vellore District. 3. The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.Balan Haridoss, Advocate, SR.10185. W.P.No.17269 of 2000 GR(CO) RVL 22.02.2010 https://hcservices.ecourts.gov.in/hcservices/