IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.37228 of 2003 K.6636-Paruvai Primary Agricultural Co-operative Bank, rep. by its Special Officer, Paruvai, Karadivavai(via), Palladam Taluk. ... Petitioner Vs. 1.The Deputy Registrar of Co-operative Societies, Pollachi. 2.M.Lourthuswamy. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorari or any other order or directive in the nature of the Writ calling for the records pertaining to the orders passed by the Presiding Officer, Labour Court, Coimbatore in I.D.No.258 of 1998 dated 17.07.2002 and quash the same. For Petitioner : Mr.S.D.Ramalingam For Respondents : Mr.S.Saravanakumar Government Advocate for R1 Mr.N.Manoharan for R2 O R D E R Challenge in this Writ Petition is the Award of the Labour Court, Coimbatore in I.D.No.258 of 1998 dated 17.7.2002 whereby the Labour Court directed the Petitioner to reinstate the 2nd Respondent-Workman as Writer with service benefits without any back wages. 2. Brief facts are that 2nd Respondent-Lourthuswamy was primarily working as Secretary of Petitioner-Paruvai Primary Agricultural Co-operative Bank, Paruvai, Karadivavai, Palladam Taluk. For the alleged acts of manipulation of accounts and for non-performance of his duties by causing heavy monetary loss to the Petitioner Bank, 2nd Respondent was temporarily suspended on 10.05.1994. A charge sheet was issued to the 2nd Respondent. Since the explanation submitted by the 2nd Respondent is not satisfactory, enquiry was ordered to be conducted on 10.09.1994. Enquiry Officer found the 2nd Respondent guilty of the charges and order of dismissal was issued to the 2nd Respondent on 15.7.1995. Subsequently, the 2nd Respondent has made a representation on https://hcservices.ecourts.gov.in/hcservices/ 05.10.1995 to the then Special Officer to consider his appointment. On humanitarian basis, the then Special Officer of Petitioner Bank appointed the 2nd Respondent as Writer on 12.10.1995. 3. Again 2nd Respondent is alleged to have misappropriated the funds of the Writ Petitioner Bank and also alleged to have manipulated the records. On 05.7.1997, 2nd Respondent was again placed under suspension. Charge memo dated 09.07.1997 was issued to the 2nd Respondent relating to the allegation of non-recovery of the loan disbursed in the year 1993-94 when the 2nd Respondent earlier worked as the Secretary. 2nd Respondent had given his explanation on 06.8.1997. Mr.P.Muroogesan, Advocate, Coimbatore was appointed as Enquiry Officer and in the enquiry, 2nd Respondent has admitted the charges. Enquiry Officer has filed his report on 02.9.1997. By the proceedings dated 06.9.1997, stoppage of increment for one year was imposed and suspension was revoked and 2nd Respondent was ordered to join duty on 08.9.1997. 4. By the proceedings dated 01.10.1997, it was informed to the 2nd Respondent that the charges levelled against the 2nd Respondent are grave in nature and that the punishment imposed viz., stoppage of increment for one year was cancelled and further proceeding was ordered. Second show cause notice dated 08.10.1997 was issued to the 2nd Respondent and 2nd Respondent has also submitted his explanation to the second show cause notice on 22.10.1997. By the impugned proceedings dated 15.12.1997, punishment of dismissal from service was imposed upon the 2nd Respondent. 5. Challenging the punishment of dismissal from service, 2nd Respondent had filed I.D.No.258 of 1997 before the Labour Court, Coimbatore. In the Labour Court, 2nd Respondent examined himself as WW1. One Palanisamy was examined as WW2. Exs.W1 to W15 were marked. On the side of Management, one Aruchamy, the then Secretary of Petitioner Bank was examined as MW1. One Krishnasamy, Manickam and Shanmugasundaram respectively were examined as MWs.2 to 4. Exs.M1 to M20 were marked. Upon consideration of materials and evidence on record, by the order dated 17.7.2002, Labour Court has directed the Petitioner Bank to reinstate the 2nd Respondent as Writer with service benefits without back wages which is challenged in this Writ Petition. 6. Resisting the Writ Petition, 2nd Respondent has filed counter contending that since the alleged misappropriation was not supported by any material document, Labour Court has rightly set aside the order dated 15.12.1997 dismissing the 2nd Respondent from service. According to 2nd Respondent, despite the order of this Court dated 31.1.2005, Petitioner Bank has not paid Sec.17(B) amount and prayed for dismissal of the Writ Petition. 7. Mr.S.D.Ramalingam, learned counsel for Petitioner Bank contended that Labour Court has failed to appreciate the fact that the charges levelled against the 2nd Respondent are grave in nature and that 2nd Respondent was frequent offender and that he was https://hcservices.ecourts.gov.in/hcservices/ dismissed from service for the second time for the same offence of misappropriation. Learned counsel for Petitioner would further contend that Labour Court has failed to keep in view that the 2nd Respondent himself has pleaded guilty and while so, Labour Court ought not to have shown leniency to the 2nd Respondent in ordering reinstatement. 8. Mr.N.Manoharan, learned counsel for 2nd Respondent submitted that the charges levelled against the 2nd Respondent that he had not taken steps to recover Gobar Gas loan from three loanees and that he has not attended the duty for three days and also not taken care the interest of Petitioner Bank are vague charges. Before the Enquiry Officer, no legal evidence has been adduced to prove the charges and while so, Labour Court has rightly ordered reinstatement. It was further contended that Writ Petitioner Bank was directed to pay the wages under Sec.17(B) of I.D. Act and that the said order has been disobeyed and not complied with and the party violating such order cannot claim any audience or hearing on merits. In support of his contention reliance was placed upon 2001 (5) SCC 169 [Dena Bank v. Ghanshyam]. Learned counsel would further contend that MW1 the then Secretary of Petitioner Bank has stated that he has no objection for reinstating the 2nd Respondent and while so, Petitioner Bank has no right to file the Writ Petition. 9. After the 2nd Respondent was taken back to the Bank as Writer in 1995, 2nd Respondent is again alleged to have committed the act of misappropriation. Four charges were levelled against the 2nd Respondent:- (i) Sanction of loans to three members viz., Shanmugasundaram [Member No.1540]; Sundaramoorthy [Member No.154] and Kumarasamy [Member No.1571] for installation of Gobar Gas Plant in 1993-1994 when the 2nd Respondent was Secretary and Gobar Gas Plant neither installed nor taken steps to recover the loan amount and caused loss to the Bank; (ii) 2nd Respondent has not attended the duty for three days on 11.11.1996; 07.3.1997 and 04.7.1997; (iii) act of insubordination in not receiving the suspension order directly from the President of the Petitioner Bank; and (iv) not taking care of the interest of the Petitioner Bank and disclosing banks information to Board of Directors. 10. In so far as first charge – During 1993-1994 when the 2nd Respondent was functioning as Secretary of Petitioner Bank, loan was sanctioned to three members viz., Shanmugasundaram [Member No.1540]; Sundaramoorthy [Member No.154] and Kumarasamy [Member No.1571]. Charge against the 2nd Respondent is that Gobar Gas Plant was not installed nor steps were taken for recovery of the amount. Even though 2nd Respondent is said to have assured that he would bring the contractor and assured installation of Gobar Gas Plant, no steps were taken for completion of Gobar Gas Plant. In his written explanation, 2nd Respondent has pointed out various circumstances under which the work could not be carried out. In his written explanation, 2nd Respondent has clearly stated that the materials were not supplied to the contractor and the materials supplied already got damaged and the installation work of Gobar Gas https://hcservices.ecourts.gov.in/hcservices/ Plant could not be completed. In his written explanation dated 28.08.1997, 2nd Respondent has further stated that since the said loans were issued during the period he was working as Secretary, to put an end to the complaints, the provident fund amount may be sanctioned to him and from the said provident fund amount, loan amount may be deducted. In his written explanation even though 2nd respondent made a statement to the effect that the amount could be deducted from his provident fund amount, he appears to have made the said statement to avoid further complaints in this regard. 11. In so far as second charge – Not attending the office on 11.11.1996; 07.3.1997 and 04.7.1997, in his written explanation, 2nd Respondent has stated that he was acting as per the direction of the Special Officer and he was also attending the outdoor duties doing the collection work and while in the office, he was attending to the work of Writer and there was no deliberate absence on his part. 12. In so far as third charge – Act of insubordination in not receiving the suspension order directly from the President, 2nd Respondent has stated that there was slight delay in getting the suspension order and that he had no intention of being insubordinate. 13. In so far as fourth charge – Disclosing bank's information and contents of loan documents to others and that he informed the same to Balasubramaniam, one of the Directors of the Board, 2nd Respondent has clearly stated that he is not incharge of any documents and that he always acted infurtherence of the interest of the Petitioner bank. 14. Enquiry was conducted on 26.8.1997 which was then adjourned to 01.9.1997. In the enquiry on 01.9.1997, 2nd Respondent has admitted the charges and stated that he would avoid such lapses in future and prayed for leniency. Since the 2nd Respondent has admitted the charges, the Management has not adduced any evidence before the Enquiry Officer and the Enquiry Officer has submitted his report holding that the charges against the 2nd Respondent are proved. 15. According to 2nd Respondent, he has admitted the charges on the assurance that he would be taken back to employment. Explanation given by the 2nd Respondent appears to be quite reasonable. In fact after the report of Enquiry Officer, by the proceedings dated 6.9.1997 order of suspension was revoked and ordered to rejoin the duty on 8.9.1997. In pursuance to the said proceedings dated 6.9.1997, 2nd Respondent has also joined the duty on 8.9.1997. There is no reason for doubting the version of the 2nd Respondent that he admitted the charges on the assurance given by the Petitioner Bank for revoking the suspension and taking him back. Labour Court also pointed out that 2nd Respondent has admitted the charges on the assurance that he would be reinstated. As pointed out earlier, 2nd Respondent also tried to explain the charges and the circumstances under which installation of Gobar Gas https://hcservices.ecourts.gov.in/hcservices/ plant could not be completed in respect of three loanees. 2nd Respondent has been working with the Petitioner Bank for more than 20 years. As such there was no misappropriation; but only not taking steps to recover the amount. The charges levelled against the 2nd Respondent are only minor charges and punishment of dismissal from service is shockingly disproportionate to the charges levelled against the 2nd Respondent. Since the punishment imposed upon the 2nd Respondent was disproportionate, Labour Court was justified in ordering reinstatement without back wages. Exercising jurisdiction under Article 226 of Constitution of India, High Court cannot sit as a Court of Appeal and examine the sufficiency or otherwise of the matter. The impugned order does not suffer from any error warranting interference. Petitioner Bank has not made out any valid ground for interference and the Writ Petition is liable to be dismissed. 16. So far as the subsequent orders to be passed, 2nd Respondent has already attained the age of superannuation in March 2009. Since no back wages was ordered by the Labour Court, no further orders need be passed. On 31.1.2005, this court passed an order under Sec.17(B) of I.D. Act directing the Petitioner Bank to pay the arrears of wages from the date of filing of Writ Petition and also to continue to pay the salary every month until disposal of the Writ Petition. Thereafter, Petitioner Bank is said to have paid an amount of Rs.7500/- towards arrears of salary. Learned counsel for Petitioner Bank has submitted that 2nd Respondent's salary in his capacity as Writer was around Rs.2500/- per month. Petitioner Bank shall pay the arrears of salary from the date of filing of the Writ Petition i.e. 16.06.2003 till the date of superannuation in March 2009. 17. Regarding the loss caused to the Petitioner Bank, surcharge proceedings was initiated and orders came to be passed against the 2nd Respondent which are challenged by the 2nd Respondent by filing appeals before the Co-operative Tribunal in C.M.A.Nos.70 of 2002 and 28 of 2001 respectively. Petitioner Bank shall pay arrears of salary deducting the amount for which the 2nd Respondent was held responsible in the surcharge proceedings. 18. In the result, the Writ Petition is dismissed. Petitioner Bank is directed to pay the arrears of salary to the 2nd Respondent from the date of filing of Writ Petition i.e. 16.6.2003 till the date of superannuation i.e. March 2009 deducting the amount for which the 2nd Respondent was held responsible for the surcharge proceedings. Surcharge amount so deducted shall be subject to the result in the C.M.A.Nos.70 of 2002 and 28 of 2001. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ bbr To 1.The Deputy Registrar of Co-operative Societies, Pollachi. 1 cc To Mr.N.Manokaran, Advocate, SR.5905. W.P.No.37228/2003 BVN(CO) RVL 03.02.2011 https://hcservices.ecourts.gov.in/hcservices/