IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 08-04-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.28457 of 2004 The Management, North Arcot Adi-Dravidar Welfare School Teachers' Cooperative Thrift and Credit Society, No.53, Bharathiar Salai, Fort Road, Vellore. .. Petitioner. Versus 1.The Presiding Officer, Labour Court, Vellore-1. 2.R.Kumar .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records of the first respondent relating to the award, dated 11.6.2004, in I.D.No.4 of 1997, and quash the same. For Petitioner : Mr.A.S.Vijayaragavan For Respondents : Mr.S.Ramesh Kumar (R2) O R D E R This writ petition has been filed by the petitioner Society, challenging the award of the first respondent Labour Court, dated 11.6.2004, made in I.D.No.4 of 1997. 2. It has been stated that the second respondent was working as a Clerk in the petitioner society, from 4.4.1990 to 14.10.1993. While so, a charge memo, dated 30.8.1993, had been issued to him, alleging that he had caused certain loss to the petitioner Society by failing to update the accounts maintained by him. An enquiry had been ordered, on 26.12.1993. Thereafter, another charge memo, dated 27.12.1993, had been issued to the second respondent alleging that he had misappropriated a sum of Rs.44,491/-. The explanation submitted by the second respondent, on 19.10.1993, had not been considered by the management of the petitioner Society. Another charge memo, dated 7.1.1994, had been issued to the second respondent alleging that he https://hcservices.ecourts.gov.in/hcservices/ had caused the loss of certain articles when the office of the petitioner Society was shifted. 3. The contention of the second respondent was that he was not guilty of the charges levelled against him. It is only the special officer who was responsible for the loss of the articles during the shifting of the office. Without taking any action on the three charge memos issued to the second respondent, he was directed to pay Rs.3,493.95 for the missing articles. Thus, he had been prevented from inspecting the documents to prepare an explanation for the charges levelled against him, in order to protect the then special officer till he had retired from service. Further, on 30.3.1994, the second respondent was ordered to pay a sum of Rs.44,491/- to the petitioner Society to offset the loss said to have been caused to the Society. Principles of natural justice had not been followed during the enquiry conducted against the second respondent, with regard to the charges levelled against him. Since the second respondent could not participate in the said enquiry he was set ex parte and a report, dated 17.8.1994, had been submitted by the enquiry officer, based on which the second respondent was dismissed from service, by an order, dated 12.10.1994. 4. The main contentions raised by the learned counsel appearing on behalf of the petitioner Society is that since the second respondent had committed grave irregularities he was suspended from service. He had failed to submit his explanation to the charge memo, dated 27.12.1993. Though he was furnished with the list of witnesses and documents and in spite of ample opportunities having been given, the second respondent had failed to avail the same. He had not participated in the enquiry. Therefore, the enquiry officer had conducted the enquiry and submitted the enquiry report, based on which the second respondent had been dismissed from service. Aggrieved by the order passed against the second respondent, he had raised an industrial dispute before the first respondent Labour Court in I.D.No.4 of 1997. The first respondent Labour Court had passed an award, dated 11.6.2004, ordering the reinstatement of the second respondent, along with back wages, continuity of service and other attendant benefits. Aggrieved by the award of the first respondent Labour Court, dated 11.6.2004, the petitioner Society has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 5. The learned counsel appearing on behalf of the petitioner had submitted that the first respondent Labour Court had no jurisdiction to pass an award in the industrial dispute raised by the second respondent, in view of Section 156 of the Tamilnadu Co-operative Societies Act, 1983, wherein, a separate machinery has been provided to adjudicate the disputes arising under the Act. Since the second respondent had voluntarily abstained himself from the enquiry conducted against him in respect of the charges levelled against him, https://hcservices.ecourts.gov.in/hcservices/ it cannot be claimed that the enquiry was not conducted in a fair and proper manner and that the principles of natural justice had not been followed. Since the second respondent had not been in a position to show that he was entitled to a higher amount of subsistence allowance than the sum of Rs.1210/- that was being paid to him, the Labour Court ought not to have held that the enquiry was vitiated. In spite of sufficient opportunity having been given to the second respondent to peruse all the records available in the office of the petitioner Society he had failed to do so. The non-examination of Mr.Kaliappan, the then special officer of the petitioner Society cannot lead to an adverse inference being drawn against the petitioner society. Mr.Kaliappan could not be examined, as his whereabouts were known to the petitioner Society. The first respondent Labour Court had also erred in observing that the evidence of M.W.1 cannot be relied upon in spite of the fact that he was a competent witness, having been in service of the petitioner Society for a long time. 6. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the first respondent Labour Court had come to the right conclusion in holding that the domestic enquiry conducted, with regard to the charges levelled against the second respondent, was in violation of the principles of natural justice. The first respondent Labour Court had held that the findings of the enquiry officer are erroneous and the conclusions have been arrived at without considering the oral and the documentary evidence available on record. The enquiry officer had failed to apply his mind before arriving at his conclusions. The enquiry had been conducted without furnishing the necessary documents required by the second respondent to put forth his case and to effectively defend himself against the charges levelled against him. Further, the management of the petitioner Society had not paid the subsistence allowance due to the second respondent and thus, he was prevented from effectively participating in the enquiry conducted against him. In spite of the second respondent having submitted his written affidavits, dated 18.5.1994, marked as Ex.P-22 and Ex.P-24, pursuant to the letter of the enquiry officer, dated 28.6.1994, marked as Ex.P-33, the enquiry had been concluded without considering the submissions made by the second respondent. The Labour Court had rightly held by its award, dated 11.6.2004, that the findings of the enquiry officer cannot be sustained in the eye of law, since he had not followed the principles of natural justice by giving a reasonable opportunity to the second respondent, during the enquiry. Further, since the relevant documents required to be furnished to the second respondent had not been given to him, the second respondent had been prevented from effectively defending himself against the charges levelled against him by the petitioner Society. Further, the second respondent could not participate in the domestic enquiry due to the non-payment of the subsistence allowance. https://hcservices.ecourts.gov.in/hcservices/ 7. In view of the submissions made by the learned counsel appearing for the parties concerned and on a perusal of the records available for this Court, it is clear that the petitioner has not shown sufficient cause or reason to interfere with the award of the Labour Court, dated 11.6.2004, made in I.D.No.4 of 1997. The Labour Court had rightly held that the domestic enquiry conducted against the second respondent is vitiated due to the failure of the enquiry officer in following the principles of natural justice. The Labour Court had further held that the second respondent had not been given sufficient opportunity to defend himself as he was not furnished with the necessary documents to put forth his case. Further, the non- payment of subsistence allowance during the period of his suspension had prevented the second respondent from effectively participating in the enquiry conducted against him. 8. In such circumstances, the first respondent Labour Court had rightly come to the conclusion that the order of dismissal from service, passed against the second respondent, by the management of the petitioner Society, is unsustainable in the eye of law. Therefore, the award of the Labour Court, dated 11.6.2004, made in I.D.No.4 of 1997, is confirmed. Hence, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To The Presiding Officer, labour Court, Vellore -1 1 cc To Mr.S.Ramesh Kumar, Advocate, SR.12932 1 cc To Mr.A.S.Vijayaragavan, Advocate, SR.13344 Writ Petition No.28457 of 2004 SA(CO) SRA(30/4/2009) https://hcservices.ecourts.gov.in/hcservices/