IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-01-2009 CORAM : THE HONOURABLE MR.JUSTICE A. KULASEKARAN W.P. No. 7726 of 2004 Tamil Nadu State Transport Corporation (Villupuram Dn.III) Ltd Kancheepuram rep. By its Managing Director .. Petitioner Versus 1. The Presiding Officer Labour Court Chennai – 600 006 2. S. Gunasekaran .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari as stated therein. For Petitioners : Mr. T. Chandrasekaran For Respondents : Mr. C. Manohar for R2 R1 : Court ORDER The petitioner has come forward with this writ petition praying for a Writ of Certiorari to call for the records of the first respondent in I.D. No. 406 of 1998 dated 10.11.2003 and quash the same. 2. The facts leading to the filing of this writ petition are as follows:- The second respondent herein was appointed on 22.04.1987 as Clerk in the canteen run by the Pattukottai Alagiri Transport Corporation. Thereafter, he was transferred to the canteen of newly formed petitioner corporation. An audit was conducted in which certain discrepancies were found, for which a charge memo, Ex.M3 dated 26.10.1994 containing 15 charges was issued by the petitioner to the second respondent. The crux of the charges against the second respondent was that he did not maintain the accounts properly, https://hcservices.ecourts.gov.in/hcservices/ purchased the milk at higher rates from changing one society to the other, such societies were not in existence. The second respondent submitted his explanation, Ex.M4 dated 14.11.1994 denying all the charges and contended that he was not the deciding employee to decide where the milk has to be purchased and it is the branch manager who has to decide the same and to maintain proper account. After receipt of the explanation, the petitioner appointed an enquiry officer, who submitted his report, Ex.M7 dated 19.06.1996 holding that all the charges against the second respondent are proved except charge Nos. 5, 7, 12 and 15. On receipt of Ex.M7, the petitioner has issued second show cause notice, Ex.M8 dated 29.06.1996 without enclosing the report of the enquiry officer for which explanation was also submitted by the second respondent. Thereafter, the petitioner has passed the order of dismissal, Ex.M10 dated 26.08.1996. Aggrieved by the said order of dismissal dated 26.08.1996, the petitioner has filed I.D. No. 406 of 1998 before the first respondent/Labour Court. 3. Before the Labour Court, the second respondent examined himself as WW1 and marked Exs. W1 to W19 on his side. On behalf of the petitioner, K. Veeraraghavan, Auditor who conducted audit was examined as MW1, one K.S. Thiagarajan was examined as MW2 and Exs. M1 to M10 were marked. 4. The second respondent contended before the labour court that he has not committed any misconduct, even the Enquiry officer has not granted permission to him to have the assistance of a lawyer, when the person who presented the case on behalf of the other side had legal knowledge. In the bye-laws of the petitioner corporation, the duties and responsibilities of each and every employee is prescribed, in which the maintenance of accounts and purchasing of materials for the canteen comes under the duty of the branch manager, but instead of taking action against the said branch manager, disciplinary proceedings were erroneously and deliberately initiated against him. Further, the petitioner has not furnished the copy of the report of the enquiry officer along with the second show cause notice, which has prejudiced him as he was prevented from giving effective explanation, hence, the subsequent order of dismissal passed by the petitioner is vitiated. 5. The petitioner herein contended that fair opportunity was afforded to the second respondent, who was incharge of the accounts and purchase of items required for running the canteen and because of the act of commission and omission of the second respondent, the corporation sustained loss, hence, considering the evidence, the order of dismissal was rightly passed by the management. 6. The labour court, considering the submission of both sides and the evidence available before it found that the canteen was under the control of the Branch Manager. The labour court took adverse inference against the corporation for not producing the bye law or standing order and came to the conclusion that the second respondent was made as a scape-goat. It was also found by the labour court that the petitioner not taken note of the fact that the second respondent cannot act independently but only carry out the instructions given to him by the branch manager and ultimately directed the petitioner to reinstate the second respondent with back wages and continuity of https://hcservices.ecourts.gov.in/hcservices/ service. Aggrieved by the award passed by the labour court, the present writ petition is filed by the Corporation. 7. The learned counsel appearing for the petitioner submitted that the award passed by the labour court is vitiated by errors of law; that the labour court has not taken into consideration of the charges against the second respondent, which are grave and proved, while so, interfering with the punishment imposed by the management, without any valid reason, is unsustainable in law; that the labour court erroneously found that the enquiry was not conducted in a fair and proper manner; that the findings of the labour court that the canteen was under the control of the branch manager is factually incorrect and prayed for setting aside the award of the labour court. 8. On the above contention, this Court heard the learned counsel appearing for the second respondent, who submitted that non- furnishing of enquiry report along with the second show cause notice has adversely affected the second respondent from giving effective explanation, hence, the order of dismissal is vitiated; that the petitioner has deliberately not produced the bye-laws of the corporation as it is aware that the second respondent was not responsible for the alleged violation; that instead of taking action against the branch manager, the petitioner has deliberately initiated action against the second respondent; that the labour court, considering the above said vital factors has rightly interfered with the punishment and ordered for reinstatement with all consequential benefits and prayed for dismissal of the writ petition. 9. It is not in dispute that while issuing the second show cause notice, the petitioner has not furnished the copy of the report, Ex.M7 dated 19.06.1996. It is submitted by the second respondent that non-furnishing of Ex.M7 has prejudiced him as he could not submit an effective explanation, hence, the finding of the labour court that the order of dismissal is vitiated cannot be said to be incorrect. 10. The second respondent disowned his responsibility of maintaining accounts and effecting purchase of items required for running the canteen. Considering it, the labour court directed the petitioner to produce the bye-laws, but the same was not produced. Even for non-production of the bye-laws, the petitioner has not assigned any valid reasons. In the above circumstances, when considering the specific plea of the second respondent that the Branch Manager alone is responsible for maintenance of the accounts as well as purchase of materials required for running the canteen, this Court is of the view that non-production of bye law assumes importance. Moreover, the petitioner has not proved the charges against the second respondent, hence, the punishment imposed by the petitioner is liable to be set aside, which was rightly done by the labour court. 11. For the reasons mentioned above, this Court is of the view that there is no necessity to interfere with the well considered award passed by the labour court and accordingly the award passed by the labour court is confirmed. The writ petition is dismissed. No costs. https://hcservices.ecourts.gov.in/hcservices/ 12. It is brought to the notice of this Court that as directed by this Court, the petitioner has deposited the entire back wages out of which, the second respondent has withdrawn 25% of the amount. In view of the dismissal of this writ petition, the second respondent is permitted to withdraw the remaining amount deposited by the petitioner. The petitioner is also directed to give all the consequential benefits to the second respondent, which he is entitled to. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Presiding Officer Labour Court Chennai – 600 006 1 CC To Mr. C. Manohar, Advocate, SR NO.2713 1 CC To Mr. T. Chandrasekaran, Advocate, SR NO.3517 WP No. 7726 of 2004 ssn(co) pmk/10.2.2009. https://hcservices.ecourts.gov.in/hcservices/