Madras High Court
The Management vs R.Parthipan on 24 August, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.14519 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.14519 of 2017
And
W.M.P.No.15745 of 2017
The Management
Anthiyur Consumer Co-operative Stores Limited,
Anthiyur – 638 501.
Bhavani Taluk,
Erode District. ... Petitioner
Vs.
1.R.Parthipan
2.Presiding Officer,
Labour Court,
Salem. ... Respondents
Prayer:
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari to call for the records relating to the
impugned order dated 28.11.2016 passed by the second respondent
herein in I.D.No.126 of 2008 and quash the same.
For Petitioner : Mr.R.Bala Ramesh
For Respondents : Ms.Vidya Pinto for R1
Legal Aid Counsel
R2 – Court
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.14519 of 2017
ORDER
The petitioner has filed this writ petition seeking issuance of Writ of Certiorari to call for the records relating to the impugned order dated 28.11.2016 passed by the second respondent herein in I.D.No.126 of 2008 and to quash the same.
2.The case of the petitioner is that the first respondent joined as Salesman in a consolidated daily wages employee under PDS Scheme on 27.05.1991. Based on the Resolution dated 18.05.1998 and orders dated 17.11.1998 passed by the Joint Registrar of Co-operative Societies, seven shops conducted by the Pachampalayam Primary Agricultural Co-operative Bank was transferred and handed over along with its employees to the petitioner Anthiyur Consumer Co-operative Stores Limited. During the final audit conducted for the year 2004 – 2005, it was found that there was some shortage of goods and gunny bags, by which the first respondent (Pachampalayam – I shop) had caused loss of a sum of Rs.9,098/-. Hence, the Special Officer issued a charge memo dated 28.03.2006 to the first respondent.
3.The further case of the petitioner is that the Salesman of Thamaraikarai Primary Agricultural Co-operative PDS had lodged a 2/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 complaint of theft during the period between 02.03.2006 and 06.03.2006 and an FIR had been lodged on 26.03.2006. During the investigation, it was found that the first respondent along with two others had committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs in Thamaraikarai Fair Prise Shop and hence, a case in Crime No.15 of 2006 for the offence under Sections 457 and 380 of I.P.C. was registered by the Bargur Police Station as against the first respondent and others. Thereafter the first respondent obtained anticipatory bail from this Court.
4.The further case of the petitioner is that for the above reasons, the first respondent was placed under suspension vide order dated 29.03.2006. Subsequently, revised charge memo dated 15.07.2006 was issued to the first respondent and domestic enquiry was conducted. The Enquiry Officer after providing opportunity to the first respondent drawn proven minute as against the first respondent. The enquiry report was furnished to the first respondent and second show cause notice dated 09.02.2008 was issued to him, however, the first respondent did not give any explanation. Thereafter, considering the enquiry report and pending criminal case, a Resolution was passed on 23.02.2008 to dismiss the first respondent.
3/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017
5.The further case of the petitioner is that the first respondent, without exhausting the remedy under Section 153 of the Tamil Nadu Co-operative Societies Act, filed industrial dispute in I.D.No.126 of 2008 before the Labour Court challenging the dismissal order dated 23.02.2008. The Labour Court vide order dated 28.11.2016 made in I.D.No.126 of 2008 set aside the dismissal order and directed the petitioner to reinstate the first respondent with continuity of service along with 30% backwages. Challenging the same, the petitioner has filed this writ petition.
6.The learned counsel appearing for the petitioner submitted that the first respondent along with two others committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs in Thamaraikarai Fair Prise Shop and hence, a case in Crime No.15 of 2006 for the offence under Sections 457 and 380 of I.P.C. was registered by the Bargur Police Station as against the first respondent and others. Thereafter investigation was conducted and the law enforcing agency filed charge sheet and the same was taken on the file of the Judicial Magistrate Court, Bhavani in C.C.No.104 of 2006 and the said criminal case ended in acquittal in respect of the first 4/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 respondent. Even then departmental proceedings can continue.
7.The learned counsel appearing for the petitioner further submitted that what is the requirement in the departmental proceedings is prepondrance of probabilities and what is the requirement in the criminal proceedings is beyond reasonable doubt. In the present case, the first respondent committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs which are meant for public distribution system and the Enquiry Officer after providing opportunity to the first respondent drawn proven minute as against the first respondent, however, the Labour Court mechanically set aside the dismissal order, which is not sustainable one.
8.The learned counsel appearing for the petitioner further submitted that before the Labour Court the petitioner specifically pleaded that the first respondent was gainfully employed in some other shop during the non employment period and the said fact was not properly appreciated by the Labour Court.
9.The learned legal aid counsel appearing for the first respondent submitted that it is the case of the petitioner that the first respondent 5/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 along with two others committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs in Thamaraikarai Fair Prise Shop, thereby, the petitioner initiated criminal proceedings and departmental proceedings as against the first respondent. However, the criminal case ended in acquittal in respect of the first respondent and the petitioner decided to continue the departmental proceedings. No opportunity was given to the first respondent and the Enquiry Officer drawn proven minute as if the first respondent created loss. On the basis of presumption, the Enquiry Officer drawn proven minute which is not sustainable one.
10.The learned legal aid counsel appearing for the first respondent further submitted that the Labour Court arrived at a conclusion that enquiry was not conducted in a fair manner and no witness was examined inorder to prove the guilt alleged to have committed by the first respondent. The first respondent specifically pleaded before the Labour Court that he was not gainfully employed anywhere during the non employment period and the Labour Court rightly passed the impugned order, which warrants no interference. 6/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017
11.Heard the arguments advanced on either side and perused the materials available on record.
12.It is alleged that the first respondent along with two others committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs in Thamaraikarai Fair Prise Shop, thereby, a case in Crime No.15 of 2006 for the offence under Sections 457 and 380 of I.P.C. was registered by the Bargur Police Station as against the first respondent and others. Thereafter investigation was conducted and the law enforcing agency filed charge sheet and the same was taken on the file of the Judicial Magistrate Court, Bhavani in C.C.No.104 of 2006 and the said criminal case ended in acquittal in respect of the first respondent. Such fact is not in dispute.
13.Initially, the petitioner initiated departmental proceedings as against the first respondent since in the final audit conducted for the year 2004 – 2005, it was found that there was some shortage of goods and gunny bags, by which the first respondent had caused loss of a sum of Rs.9,098/-. Hence, he was issued with a charge memo dated 28.03.2006. Thereafter, after initiation of the criminal proceedings, in 7/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 Crime No.15 of 2006 for the offence under Sections 457 and 380 of I.P.C. on the allegation that the first respondent along with two others had committed theft of 47 bags of rice each 50 Kgs and 10 bags of sugar each 50 Kgs in Thamaraikarai Fair Prise Shop, the petitioner placed the first respondent under suspension vide order dated 29.03.2006.
14.Subsequently, revised charge memo dated 15.07.2006 was issued to the first respondent and domestic enquiry was conducted. Thereafter the Enquiry Officer drawn proven minute as against the first respondent. Though the petitioner claim that enquiry report was furnished to the first respondent, there is no clear evidence or proof to substantiate that enquiry report was furnished to the first respondent. Thereafter, second show cause notice dated 09.02.2008 was issued to to the first respondent and since the first respondent did not give any explanation, considering the enquiry report and pending criminal case, a Resolution was passed on 23.02.2008 to dismiss the first respondent.
15.This Court perused the enquiry report and it reveals that no witness was examined in the domestic enquiry and no opportunity was 8/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 given to the first respondent. The Enquiry Officer had drawn the proven minute on the premise that the first respondent had admitted the guilt by paying the loss to the society, however, admission of guilt was not properly discussed and based on the presumption that since the first respondent paid the amount, he admitted the guilt, the Enquiry Officer had drawn the proven minute, which is not sustainable one.
16.Even the witnesses examined by the Management before the Labour Court are bit related to the incident occurred at the relevant point of time and without conducting proper enquiry and without giving opportunity to the first respondent, he was dismissed from service. Thereby, the Labour Court ordered for reinstatement with continuity of service which cannot be interfered with.
17.With regard to backwages, the first respondent has specifically pleaded before the Labour Court that he was not gainfully employed anywhere during the non employment period. It is for the petitioner to disprove the same by adducing proper evidence and by marking relevant documents, however, the petitioner has not taken 9/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 any steps to dis-prove the same. Hence, the impugned order is just and reasonable and cannot be interfered with.
18.The writ petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
19.The State Legal Services Authority is directed to pay admissible fees to Ms.Vidya Pinto, learned Legal Aid Counsel appointed by this Court.
24.08.2023 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No To
1.The Presiding Officer, Labour Court, Salem.
10/11 https://www.mhc.tn.gov.in/judis W.P.No.14519 of 2017 M.DHANDAPANI,J.
pri W.P.No.14519 of 2017 And W.M.P.No.15745 of 2017 24.08.2023 11/11 https://www.mhc.tn.gov.in/judis