IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.29713 of 2003 & WPMP No.36227 of 2003 & WVMP No.100 of 2004 Pennalurpet Primary Agricultural Cooperative Bank Ltd., rep. by its Secretary Penalurpet, Thiruvallur District .. Petitioner Vs. 1. The Presiding Officer Principal Labour Court Chennai 2. E.C.Sudarasanam .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the 1st respondent made in I.D.No.198 of 1996 dated 26.6.2003 and quash the same. For Petitioner :: Mr.M.S.Palaniswamy For Respondent-2 :: Mr.P.Anbarasan O R D E R Heard both sides. 2. The petitioner is Primary Agricultural Cooperative Bank. They have come forward to file the present Writ Petition seeking to challenge the Award of the 1st respondent Labour Court in I.D.No.198 of 1996 dated 26.6.2003. 3. By the impugned Award, the 2nd respondent was directed to be reinstated. His non-employment was held to be improper and consequently he was directed to be reinstated in service with full wages and continuity of service. 4. The Writ Petition was admitted on 22.10.2003. Pending the Writ Petition, this Court granted an interim stay of the operation of the Award by order dated 22.10.2003. When the 2nd respondent filed a https://hcservices.ecourts.gov.in/hcservices/ petition in WPMP No.1686 of 2004 seeking for payment of 17-B wages, this Court by an order dated 16.2.2004 directed the petitioner management to pay 50% of the last drawn wages from the date of the Writ Petition with a period of two weeks and continue to pay the same till the disposal of the Writ Petition. It was stated that the last drawn pay was Rs.600/- per month. 5. Under Section 17-B of the Industrial Disputes Act, a workman who has an Award in his favour regarding reinstatement, is entitled to get the last drawn wages from the date of the Writ Petition till the disposal of the Writ Petition. The Supreme Court vide its judgment in Dena Bank vs. Kritikumar T.Patel reported in 1998 (1) LLN 375 has held that such payment is in the form of subsistence allowance and it is non-recoverable. 6. But, however it transpires that the petitioner management did not pay even the 50% of the last drawn wages to the 2nd respondent. This is a serious lapse, which cannot be condoned. Thought at one stage, the workman had expressed his readiness to report for duty and the management was willing to restore him to service, which was also recorded by this Court on 5.11.2008, that situation did not materialise. It is now admitted by both sides that the 2nd respondent is critically ill and almost in a coma stage. But the attempt made by the 2nd respondent to have an early hearing was rejected by this Court. The 2nd respondent's attempt to file once again another application for fixing a date was ordered by this Court on 10.2.2009. Hence, the main case came up for final hearing. 7. Mr.M.S.Palaniswamy, learned counsel appearing for the petitioner stated that the Cooperative Bank was willing to take the worker back in employment as a Salesman, that it was the 2nd respondent, who did not report for work, the said issue is not relevant while deciding the merits of the main Writ Petition. 8. A perusal of the Award passed by the 1st respondent Labour Court shows that the Labour Court decided the validity of the enquiry. Before the Labour Court, the petitioner management examined one V.Srinivasan as M.M.1 and the 2nd respondent himself was examined as W.W.1. On the side of the workman, 10 documents were filed and they were marked as Ex.W.1 to W.10. On the side of the management, 9 documents were filed and they were marked as Ex.M.1 to M.9. The Labour Court held that if it is the case of misappropriation of fund, the petitioner management should have launched criminal prosecution. But, they did not take that course. Even in the enquiry, no opportunity was given to him. https://hcservices.ecourts.gov.in/hcservices/ 9. The said finding of the Labour Court was elaborated in paragraph 9, which is as follows: "I find that there is no fairness in the domestic enquiry. Assuming that the petitioner had done a grave mistake, without giving any opportunity or to receive representation on the enquiry report from the petitioner, the whole disciplinary proceedings is vitiated. In this connection, the learned counsel for the petitioner cited an authority reported in 2003-1-LLJ-page 495 and contended that in a domestic enquiry if the delinquent was not furnished with the enquiry report, the entire domestic enquiry is vitiated. The above said case is highly relevant to the present case, because, the petitioner was not given any opportunity to represent on the enquiry report. Therefore, the non- furnishing of the report to the delinquent is highly vitiated to the entire proceedings. Therefore, on that score also the impugned order is liable to be set aside." 10. After holding the enquiry as not fair and proper, the Labour Court straight away went into the question of proportionality penalty and found that the dismissal order dated 17.7.1995 was disproportionate and therefore he is eligible for the normal relief of reinstatement. 11. Since the petitioner Cooperative Bank did not file all the material papers along with the Writ Petition, this Court directed the registry to call for the original papers to be circulated. But, however, the same was not forthcoming. But, Mr.P.Anbarasan, learned counsel for the 2nd respondent was kind enough to give a set of documents kept in his possession containing the copies of the records submitted before the Labour Court. 12. In the counter statement filed by the petitioner Cooperative Bank, no alternative plea was raised for leading fresh evidence in case the finding on the enquiry went against the petitioner management. On the contrary, the petitioner was satisfied in defending the validity of the enquiry. 13. Even otherwise the question that arises for consideration is whether the finding recorded by the Labour Court that the absence of the second show cause notice and opportunity to submit explanation on the enquiry report, will vitiate the domestic enquiry or not. But, in the present case, the workman himself has filed Ex.W.7, which is the second show cause notice dated 27.6.1995. His own explanation, which was submitted as Ex.W.8. The documents produced by the 2nd respondent also shows that the 2nd respondent was given a copy of the https://hcservices.ecourts.gov.in/hcservices/ enquiry report along with a covering letter, wherein he was found guilty by the domestic enquiry officer. The 2nd respondent acknowledged the said letter and sought for leniency in the matter of punishment. He also stated that he was suffering from illness and he was not in a position even to write any explanation. Therefore, if cumulatively the documents in Exs.W.7 and W.8 are taken into account, the finding recorded by the Labour Court will have to be set aside. 14. The second respondent was given a show cause notice along with the enquiry report and he was also given opportunity to submit his explanation, which he also did. It is only on the basis of that report, the final order of dismissal dated 17.7.1995 came to be passed. Therefore, the attempt by the Labour Court to rely upon the judgment in 2003-1-LLJ-page 495 has no relevance. Once the finding of the Labour Court on the enquiry proceedings is not maintainable, the subsequent finding regarding penalty also cannot be sustained. The matter requires to be remitted back to the Labour Court to decide afresh after the issue on the basis of the enquiry conducted by the management. 15. Accordingly, the Writ Petition stands allowed to the extent indicated above and the Award dated 26.6.2003 made in I.D.No.198 of 1996 stands set aside. The matter is remitted back to the 1st respondent Labour Court for disposal from the stage where the error had crept in. Since the dispute is of the year 1996 and 14 years have elapsed, the Labour Court shall give preference in disposing of the matter and in any event dispose of the same within three months from the date of receipt of this order. 16. However, the condition of payment in compliance of 17-B wages was not obeyed by the management. Even if the impugned award stood set aside, the petitioner management cannot deny their liability in paying the last drawn wage as required under section 17- B of the Industrial Disputes Act. There is no explanation forthcoming as to why the petitioner did not comply with the order passed by this Court as early as 16.2.2004. If the petitioner has any grievance about the interim order, they ought to have moved an appropriate application for varying the condition of interim order passed by this Court. As noted elsewhere the Supreme Court vide judgment in Dena Bank's case has held that such payment, which is made by a Parliamentary Enactment is in the form of subsistence allowance and even if such amounts are paid, the same was not recoverable. 17. In that view of the matter, it is now claimed that the https://hcservices.ecourts.gov.in/hcservices/ amount of dues in terms of Section 17-B of the Industrial Disputes Act will work out to Rs.1,19,000/- from the date of the Writ Petition till date. However, in order to give a quietus to the matter, the petitioner Cooperative Bank is directed to pay Rs.1,00,000/- (Rupees One lakh only) to the 2nd respondent by way of Demand Draft within four weeks from the date of receipt of this order. Only after making such payment and filing a memo to that effect before the Labour Court, the Industrial Dispute will be taken up for fresh disposal. 18. The Writ Petition is allowed to the extent indicated above. No costs. The connected Miscellaneous Petitions stand closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Presiding Officer Principal Labour Court Chennai 1 cc To Mr.M.S.Palaniswamy, Advocate, SR.12703 1 cc To Mr.P.Anbarasan, Advocate, SR.12242 W.P.No.29713 of 2003 sr(co) pmk.5.3.2010 https://hcservices.ecourts.gov.in/hcservices/