IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.9.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.11275 of 2009 The Management of Chithode Farmers Service Co-operative Society Limited rep. by its Special Officer Chithode – 638 102 Erode District. .. Petitioner Vs. 1. The Labour Court Salem. 2. K.Subramaniam .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records dated 12.1.2009 made in I.D.No.406 of 2004 on the file of the first respondent herein and quash the same. For Petitioner : Mr.T.Murugamanickam For Respondents : Mr.K.V.Shanmuganathan for 2nd respondent ORDER The petitioner is the management of a co-operative society. In this writ petition, they have challenged the award of the first respondent/ Labour Court, Salem in I.D.No.406 of 2004, dated 12.1.2009. By the impugned award, the Labour Court directed reinstatement of the second respondent/workman with continuity of service, but without back-wages. 2. The writ petition was admitted on 24.6.2009. Pending the writ petition, this Court granted an interim stay. Subsequently, the second respondent/workman filed M.P.No.1 of 2010 seeking for a direction to pay wages in terms of Section 17-B of the Industrial Disputes Act (for short, "the ID Act"), including arrears of amount in terms of Section 17-B of the ID Act, together with supporting counter affidavit dated 24.1.2010. This Court, by order dated 29.3.2010, directed the payment of last drawn wages. With reference https://hcservices.ecourts.gov.in/hcservices/ to the wages for the period from 12.1.2009, namely the date of the award, till 21.6.2009, the right of the second respondent to receive the same was postponed to await the outcome of the main writ petition. 3.1. It is seen from the records that the second respondent was employed as a Packer in the petitioner/society with effect from 7.3.1975. Subsequently, he was promoted as a Clerk and thereafter as an Accountant and once again he was reverted to the post of Junior Assistant. The second respondent was issued with a charge memo by the then President of the society and subsequently, an enquiry was conducted against the second respondent on the charges framed. The Enquiry Officer gave his findings on 1.2.2000. On the basis of the said enquiry, he was dismissed from service on 28.2.2001. 3.2. Aggrieved by the said dismissal, the second respondent filed a revision petition under Section 153 of the Tamil Nadu Co- operative Societies Act, 1983. The Revisional Authority, by his order dated 18.6.2002, allowed the revision and stated that since major penalty was given, it must be consistent with the principles of natural justice and as no personal hearing was given to the second respondent, the order of dismissal was set aside and the petitioner/society was directed to proceed from the stage in which the defect had crept in. 3.3. By that time the petitioner/society was entrusted to be administered by a Special Officer. The Special Officer, by order dated 19.8.2002, dismissed the petitioner after giving personal hearing on 24.7.2002. The second respondent, being aggrieved by the said order, once again filed revision before the Revisional Authority. The Revisional Authority after notice to the petitioner/society, by an order dated 24.5.2003, set aside the order of dismissal and directed the petitioner/ Special Officer to adhere to the principles of natural justice and rule of law before passing any order and till such time status-quo was directed to be maintained. In the very same order, the Revisional Authority held that since in respect of the first two charges the then Secretary and the Assistant Secretary had failed to discharge their duties, the very same charge cannot be made into a third charge and separate enquiry should not have been conducted and the petitioner should not have been dismissed and the said punishment was excessive. He also noted that for the loss caused at the time when the second respondent was employed as a Cashier, he has admitted his mistake and made good the loss to the society by paying the amount to the credit of the society and he was also imposed with several punishments for different misconducts. He also observed that while others were let off with minor penalty, the petitioner alone has been given major penalty, which factor also will have to be considered by the Special Officer. https://hcservices.ecourts.gov.in/hcservices/ 3.4. On such remand, the Special Officer once again by order dated 24.6.2003 dismissed the petitioner. He had stated that for the misconduct the second respondent himself has admitted the mistakes and he has also paid the amount and therefore, in the light of these factors, the dismissal alone is the punishment. 3.5. The second respondent, aggrieved by the dismissal, raised an industrial dispute before the Conciliation Officer under Section 2-A(2) of the ID Act. As the Conciliation Officer could not bring about any mediation, he gave a failure report. On the strength of the failure report, the second respondent filed a claim statement dated 21.4.2004 before the first respondent/Labour Court. The said dispute was taken on file as I.D.No.406 of 2004 and notice was issued to the petitioner/Society. The petitioner/Society filed a counter statement dated 25.8.2004 and resisted the claim made by the second respondent. But, in the counter statement, there was no alternative plea made by them to the effect that in case the Labour Court was of the view that the enquiry held was not fair and proper, they should be given a fresh opportunity to substantiate the charges before the Labour Court. 3.6. Before the Labour Court, no oral evidence was let in by both sides. On the side of the management, 16 documents were filed and marked as Exx.R1 to R16. The Labour Court, on the basis of these materials, came to the conclusion that the enquiry held against the second respondent was vitiated, inasmuch as the charges were given by the then President – R.Duraisamy and he himself was a witness in the enquiry and issued show cause notice and also removed the second respondent from service. Though the enquiry was conducted by a different person, since the then President himself has framed charges and given evidence and issued show cause notice as well as the dismissal order, it was a stage-managed act of the then President and therefore, the enquiry was liable to be set aside. The Labour Court also held that the dismissal of the second respondent for the alleged malpractice was clearly disproportionate. It is in that view of the matter while setting aside the dismissal dated 28.2.2001, the Labour Court directed his reinstatement with continuity of service, but without back-wages, as noted already. 4. Assailing the said award, Mr.T.Murugamanickam, learned counsel for the petitioner contended that the finding of the Labour Court was erroneous. The issue whether the enquiry conducted against the second respondent was vitiated or not is no longer available to the Labour Court in view of the fact that there was two rounds of revision petitions filed by the second respondent and therefore, that issue is concluded. He also stated that the Revisional Authority did https://hcservices.ecourts.gov.in/hcservices/ not deal with the enquiry as such and remitted the matter only for a limited purpose of deciding the quantum of punishment against the second respondent and in that view of the matter, the award is liable to be set aside. 5. However, this Court is unable to accept the said submission. In the first revision petition, the Revisional Authority found that the dismissal was passed without affording personal hearing. That does not mean that the Revisional Authority had gone into the very nature of the enquiry conducted against the workman. In the second round of litigation, once again the Revisional Authority did not go into the larger aspect of whether the enquiry held against the workman was consistent with the principles of natural justice or not. Therefore, when an industrial dispute was raised and taken up for consideration by the first respondent/Labour Court, it is incumbent upon the Labour Court to go into the validity of the enquiry and try the same as a preliminary issue. Therefore, the Labour Court has not done any erroneous act by going into the validity of the enquiry, which it is otherwise obliged to do under Section 11A of the ID Act. 6. In the absence of the petitioner/society making an alternative plea for conducting a fresh enquiry before the Labour Court in case of the enquiry being held vitiated, there is no further obligation on the part of the Labour Court to give a fresh opportunity to the management. In that view of the matter, the impugned award does not suffer from any infirmity. 7. Assuming for the sake of argument, the Labour Court cannot go beyond the order of remand made by the Revisional Authority, who is a statutory Revisional Authority under Section 153 of the Tamil Nadu Co-operative Societies Act, 1983, the same logic will also apply to the petitioner management. The Revisional Authority while ordering remand, clearly rendered a finding that the dismissal was disproportionate and the Special Officer must consider the case from the point of view that the other similarly placed persons were let off with minor penalty and in the case of the second respondent alone a major penalty was issued. If it is looked into in this angle, the Labour Court's conclusion that the punishment was disproportionate is in accordance with the records. The petitioner management cannot approbate and reprobate in relying upon the orders of the Revisional Authority. Even if the orders of the Revisional Authority stand, then the petitioner/Management is bound by the order of reference, where only the limited reference was given to consider the quantum of punishment and that was not taken into account. Therefore, even if the finding of the Labour Court cannot be supported by the materials on record, as per proviso to Section 11A of the ID Act, the conclusion reached by the first respondent/Labour Court can be really supported by other materials. https://hcservices.ecourts.gov.in/hcservices/ In that view of the matter, this Court does not want to stand on any technicalities and finds there is no irregularity or infirmity in the award passed by the first respondent. The writ petition stands dismissed. No costs. Consequently, M.P.No.1 of 2009 is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sasi To: The Labour Court,Salem. 1 cc To Mr.T.Murugamanickam, Advocate, SR.56876 W.P.No.11275 of 2009 BS(CO) RH (26.9.11) https://hcservices.ecourts.gov.in/hcservices/