Madras High Court
Swarnapuri Cooperative Stores Ltd vs The Presiding Officer on 30 August, 2022
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.31250 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2022
CORAM:
THE HON'BLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.31250 of 2004
and W.M.P.No.37862 of 2004 & W.V.M.P.No.1761 of 2006
Swarnapuri Cooperative Stores Ltd.,
Rep by its Special Officer,
Swarnapuri, Salem – 4,
Salem District. ...Petitioner
-Vs-
1.The Presiding Officer,
Labour Court, Salem.
2.P.Jayaraman ...Respondents
Prayer: Writ Petition filed under Section 226 of the Constitution of India,
praying for the issuance of writ of certiorari calling for the records pertaining
to the impugned award dated 25.03.2004 made in Complaint No.1 of 2003
(I.D.No.82 of 1984 Labour Court, Coimbatore) on the file of the Labour
Court, Salem, quash the same.
For Petitioners : Mr.N.Manokaran
For Respondent – 1 : Court
For Respondent – 2 : Mr.V.Gangatharan
https://www.mhc.tn.gov.in/judis
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W.P.No.31250 of 2004
ORDER
The relief sought by the petitioner in this writ petition is to call for the records pertaining to the impugned award dated 25.03.2004 made in Complaint No.1 of 2003 (I.D.No.82 of 1984 Labour Court, Coimbatore) on the file of the Labour Court, Salem and quash the same.
2. The case of the petitioner is that his store is a society registered under the provisions of the Tamil Nadu Cooperative Societies Act, 1983 and functioning under the provisions of the Act, 1983 and the Rules 1988 framed there under. The second respondent was working as a sales man in the petitioner's fair price shops at Fairlands, Salem. The Taluk Supply Officer inspected the Fairlands Branch of the petitioner society on 27.06.1982 and found that there are irregularities in the maintenance of accounts. He filed his report on 01.07.1982 wherein he stated that there were stock deficit in the cooperative society. At the time of inspection he found that there should be 2500 Kgs of rice, 85 litres of kerosene and 16.300 Kgs of sugar in the stock. During the inspection the truth came out that the sale of Rs.2400 Kgs of rice on 24.06.1982 was not brought to the stock register till 27.06.1982, but from 24.06.1982 to 27.06.1982 there was no sale of rice, and there should be only https://www.mhc.tn.gov.in/judis 2/24 W.P.No.31250 of 2004 100 kgs of rice in the stock but there was no rice in the stock is the truth. In regard to 85 litres of Kerosene, but nothing was there in the kerosene stock. Further more in respect of sugar, there was only 5.300 Kgs of sugar in the stock but actually there should be 16.300 Kgs of sugar in the stock and therefore there was deficit of 11.00 Kgs of sugar in the stock. The Special Tahsildar referred above found that as per the bill dated 24.06.1982 there was distribution of kerosene. Though the second respondent made alterations in the accounts as if, there was 1000 litres of kerosene, the defects pointed out was due to the mistake and inaction on the part of the second respondent. Hence, the Enquiry Officer in his proceedings dated 01.07.1982 recommended the petitioner Management to suspend the second respondent from the service and in pursuance to the report submitted by the Taluk Supply Officer. The petitioner Management issued a Charge Memo against the second respondent on 29.10.1982 and the reply given by the second respondent on 10.05.1983. Since the explanation submitted by the second respondent was not satisfactory, and the petitioner Management appointed an Enquiry Officer to conduct the domestic enquiry. The Enquiry Officer submitted his report after considering the materials adduced by both parties holding that the second respondent is guilty of charges. After giving further https://www.mhc.tn.gov.in/judis 3/24 W.P.No.31250 of 2004 opportunity, a second show cause notice was issued on 25.02.1984 and the same was also replied by the second respondent. However, the reply given by the second respondent was not satisfactory hence he dismissed from the service by the petitioner Management by order dated 07.12.1984. Aggrieved by the above dismissal order the second respondent has filed a complaint under Section 33 (A) of the Industrial Disputes Act, before the first respondent as his service was terminated while I.D.No.82 of 1984 is pending. The Labour Court by its award dated 23.08.1991 made in Complaint No.1 of 1984 in I.D.No.82 of 1984 allowed the complaint while recording a finding that a domestic enquiry conducted is not valid and the petitioner Management had failed to let in evidence to substantiate the charges before the Labour Court. Aggrieved by the aforesaid award the petitioner Management filed W.P.No.9960 of 1992 stating that the second respondent had not challenged the domestic enquiry conducted by the Management as vitiated on any one of the ground, therefore there is no reason to examine whether a fair procedure had been adopted in the domestic enquiry or not. This Court by an order dated 18.07.2001 has held that the award of the Labour Court dated 23.08.1991 passed by the first respondent is vitiated and thereby the award of the Labour Court was set aside and the matter has been https://www.mhc.tn.gov.in/judis 4/24 W.P.No.31250 of 2004 remitted back to the Labour Court to afford an opportunity to the petitioner Management to substantiate the charges framed against the workmen, after the remand order, the complaint was taken on file in Complaint No.1 of 2003 before the Labour Court, Salem in order to substantiate the charges levelled against the second respondent. The Taluk Survey Officer who conducted the inspection was examined as M.W.1 and 14 documents were marked as exhibits and the enquiry report marked as Document No.11 and 12 would substantiate the case of the Management. There was no material available on the side of the second respondent the Labour Court by its award dated 25.03.2004 made in Complaint No.1 of 2003 in I.D.No.82 of 1984 has allowed the complaint by directing Management to reinstate the second respondent with continuity in service without any backwages and the said order was served on the petitioner on 17.07.2004. Aggrieved by the above award the petitioner Management has come forward with the present writ petition.
3. The learned counsel appearing for the petitioner submitted that the Taluk Survey Officer who conducted the inspection on 27.06.1982 was examined as a witness on the Management side, and she has categorically https://www.mhc.tn.gov.in/judis 5/24 W.P.No.31250 of 2004 deposed the malpractices committed by the second respondent. He was also examined during the course of domestic enquiry. At the time of his inspection on 27.06.1982 he had gone through the records namely Kerosene Bill Book Extract, Levy Rice Stock Register, Kerosene Stock Register, Levy Sugar Stock Register and Kerosene Bill and found that the second respondent was not doing his work properly and he was responsible for the shortage of stock. The proved charges of misconduct cannot be leniently viewed. There is no complaint regarding the violation of the principles of natural justice. Under such circumstances the Labour Court is not justified in ordering reinstatement for the simple reason that the original documents, which were inspected by the Taluk Survey Officer had not been produced before the Labour Court. In fact there is no documentary evidence marked through the second respondent and absolutely there is no material to controvert the case of the Management. Xerox copies of all the documents were produced before the Labour Court and there had been an endorsement by the Taluk Survey Officer. Merely because the endorsement made by the Taluk Survey Officer was not legible, it cannot be a ground to reject the case of the Management.
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4. While the matter is remitted back to the Labour Court for fresh disposal to enable the petitioner Management to substantiate the charges independently, the Labour Court is expected to give a finding that the order of dismissal is not valid in view of the pendency of the matter before the Labour Court. The Labour Court erred in ordering reinstatement solely on humanitarian basis despite the fact that the Management had lost confidence on the workman who is not loyal to his employer especially when he is entrusted with the duty of public distribution system and the second respondent is out of service for the past 2 decades and there is no purpose in ordering reinstatement especially when he lost his ability to do any work by efflux of time and the defence put forth by the second respondent is totally contrary to the documentary evidence.
5. In support of his contentions, he has relied on the following decisions of the Hon'ble Supreme Court:
(i) In the case of U.P.SRTC vs. Ram Kishan Arora reported in (2007) 4 SCC 627, wherein, the Hon'ble Apex Court has held as follows:
“6. It is now well settled that commission of a criminal breach of trust by a person holding a position of trust is a misconduct of serious nature. The charges levelled against the respondent having been proved, in our opinion, the High Court in https://www.mhc.tn.gov.in/judis 7/24 W.P.No.31250 of 2004 exercise of its jurisdiction under Article 226 of the Constitution of India was not at all justified in reducing the punishment and imposing the punishment of stoppage of two increments only.
8. In Anand Regional Coop. Oil Seedsgrowers' Union Ltd. v. Shaileshkumar Harshadbhai Shah [(2006) 6 SCC 548 :
2006 SCC (L&S) 1486] this Court opined : (SCC p. 557, paras 24-25) “24. The Labour Court although has jurisdiction to consider the question in regard to the quantum of punishment but it had a limited role to play.
25. It is now well settled that the industrial courts do not interfere with the quantum of punishment unless there exist sufficient reasons therefor.”
9. In U.P. SRTC v. Suresh Pal [(2006) 8 SCC 108 : 2006 SCC (L&S) 1905] this Court stated the law, thus : (SCC pp. 110-
11, paras 8-9) “8. Normally, the courts do not substitute the punishment unless they are shockingly disproportionate and if the punishment is interfered or substituted lightly in the punishment in exercise of their extraordinary jurisdiction then it will amount to abuse of the process of court. If such kind of misconduct is dealt with lightly and the courts start substituting the lighter punishment in exercising the jurisdiction under Article 226 of the Constitution then it will give a wrong signal in the society. All the State Road Transport Corporations in the country have gone in red because of the misconduct of such kind of incumbents, therefore, it is time that misconduct should be dealt with an iron hand and not leniently.
9. Learned counsel for the appellant invited our attention to a decision of this Court in Regional Manager, U.P. SRTC v. Hoti https://www.mhc.tn.gov.in/judis 8/24 W.P.No.31250 of 2004 Lal [(2003) 3 SCC 605 : 2003 SCC (L&S) 363] wherein, this Court has very categorically held that a mere statement that it is disproportionate would not suffice to substitute a lighter punishment. This Court held as under : (SCC p. 606) ‘The court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper.’ In view of the above observation made by this Court there remains nothing more to be added.”
11. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The award of the Labour Court is also set aside and the punishment of https://www.mhc.tn.gov.in/judis 9/24 W.P.No.31250 of 2004 removal imposed by the disciplinary authority is upheld. The appeal is allowed. In the facts and circumstances of this case, there shall be no order as to costs.”
(ii) In the case of Diwan Singh vs. Life Insurance Corporation of India and Others reported in (2015) 2 SCC 341, wherein, the Hon'ble Apex Court has held as follows:
“8. As far as argument relating to quantum of punishment, as modified by the High Court, which results in consequential forfeiture of pensionary benefits in view of Rule 23, quoted above, is concerned, we do not find the punishment to be harsh or disproportionate to the guilt, in view of the nature of the charge of which the appellant is found guilty in the present case. Time and again, this Court has consistently held that in such matters no sympathy should be shown by the courts.
9. In NEKRTC v. H. Amaresh [(2006) 6 SCC 187 : 2006 SCC (L&S) 1290] , this Court, in para 18 of the judgment has expressed the views on this point as under : (SCC p. 193) “18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and https://www.mhc.tn.gov.in/judis 10/24 W.P.No.31250 of 2004 awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.”
10. In Karnataka SRTC v. A.T. Mane [(2005) 3 SCC 254 :
2005 SCC (L&S) 407] in which unaccounted amount was only Rs 93 this Court expressed its opinion in para 12 as under : (SCC p.
259) “12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.”
11. In Niranjan Hemchandra Sashittal v. State of Maharashtra [(2013) 4 SCC 642 : (2013) 2 SCC (Cri) 737 :
(2013) 2 SCC (L&S) 187] , this Court has made following observations in para 25 of the judgment : (SCC p. 654) “25. … In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy.
There are cases where the amount is small, and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenets of democracy, for it erodes https://www.mhc.tn.gov.in/judis 11/24 W.P.No.31250 of 2004 the faith of the people in the system. It creates an incurable concavity in the rule of law.”
12. In Rajasthan SRTC v. Bajrang Lal [Rajasthan SRTC v. Bajrang Lal, (2014) 4 SCC 693 : (2014) 2 SCC (Civ) 721 : (2014) 2 SCC (L&S) 97] , this Court, following Municipal Committee, Bahadurgarh v. Krishnan Behari [(1996) 2 SCC 714 :
1996 SCC (L&S) 539 : (1996) 33 ATC 238] , has opined that in cases involving corruption there cannot be any other punishment than dismissal. It has been further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. In the said case (Rajasthan SRTC [Rajasthan SRTC v. Bajrang Lal, (2014) 4 SCC 693 :
(2014) 2 SCC (Civ) 721 : (2014) 2 SCC (L&S) 97] ), the respondent employee was awarded punishment of removal from service. In the present case it is compulsory retirement. The learned counsel for respondents submitted that on an earlier occasion, the appellant was awarded a minor punishment for his misconduct, regarding defalcation of stamps. And now he is found guilty for the second time.”
(iii) In the case of Uttra Pradesh State Road Transport Corporation and Another vs. Gopal Shukla and Another reported in (2015) 17 SCC 603, wherein, the Hon'ble Apex Court has held as follows:
“23. In view of the aforesaid analysis, the irresistible conclusion is that both the Labour Court and the High Court have fallen in error by imposing a lesser punishment on the respondent workman whereas the only punishment, on establishment of the https://www.mhc.tn.gov.in/judis 12/24 W.P.No.31250 of 2004 charges which have been accepted by the Labour Court, should have been dismissal and not a lesser one.
25. In Niranjan Hemchandra Sashittal v. State of Maharashtra [Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642 : (2013) 2 SCC (Cri) 737 :
(2013) 2 SCC (L&S) 187] it has been observed that: (SCC pp.
654-55, para 26) “26. … corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality.” In the said case, it has also been observed that the degree of corruption is immaterial.
26. In the case at hand, as we perceive, the delinquent employee has harboured the notion that when the cancerous growth has affected the system, he can further allow it to grow by covering it like an octopus, with its tentacles disallowing any kind of surgical operation or treatment so that the lesion continues. The whole act is reprehensible and such a situation does not even remotely commend any lenience.
27. Consequently, the appeal is allowed and the award passed by the Labour Court as well as the order passed [U.P. SRTC v. Gopal Shukla, 2008 SCC OnLine All 912 : (2009) 1 All LJ 263] by the High Court is set aside and the order of dismissal https://www.mhc.tn.gov.in/judis 13/24 W.P.No.31250 of 2004 imposed by the Corporation is restored. There shall be no order as to costs.”
(iv) In the case of Divisional Controller, Karnataka State Road Transport Corporation vs. M.G.Vittal Rao reported in (2012) 1 SCC 442, wherein, the Hon'ble Apex Court has held as follows:
“Loss of confidence
25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. [Vide Air India Corpn. v. V.A. Rebellow [(1972) 1 SCC 814 : AIR 1972 SC 1343] , Francis Klein & Co. (P) Ltd. v. Workmen [(1972) 4 SCC 569 :
AIR 1971 SC 2414] and BHEL v. M. Chandrasekhar Reddy [(2005) 2 SCC 481 : 2005 SCC (L&S) 282 : AIR 2005 SC 2769] .]
26. In Kanhaiyalal Agrawal v. Gwalior Sugar Co.
Ltd. [(2001) 9 SCC 609 : 2002 SCC (L&S) 257 : AIR 2001 SC 3645] this Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (SCC p. 614, para 9) (i) the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits an act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the https://www.mhc.tn.gov.in/judis 14/24 W.P.No.31250 of 2004 Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management, regarding trustworthiness or reliability of the employee, must be alleged and proved. (See also Sudhir Vishnu Panvalkar v. Bank of India [(1997) 6 SCC 271 : 1997 SCC (L&S) 1662 : AIR 1997 SC 2249] .)
27. In SBI v. Bela Bagchi [(2005) 7 SCC 435 : 2005 SCC (L&S) 940 : AIR 2005 SC 3272] this Court repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence. While deciding the said case, reliance has been placed upon its earlier judgment in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [(1996) 9 SCC 69 : 1996 SCC (L&S) 1194] .
28. An employer is not bound to keep an employee in service with whom relations have reached the point of complete loss of confidence/faith between the two. [Vide Binny Ltd. v. Workmen [(1972) 3 SCC 806 : AIR 1972 SC 1975] , Binny Ltd. v. Workmen [(1974) 3 SCC 152 : 1973 SCC (L&S) 444 : AIR 1973 SC 1403] , Anil Kumar Chakraborty v. Saraswatipur Tea Co. Ltd. [(1982) 2 SCC 328 : 1982 SCC (L&S) 249 : AIR 1982 SC 1062] , Chandu Lal v. Pan American World Airways Inc. [(1985) 2 SCC 727 : 1985 SCC (L&S) 535 : AIR 1985 SC 1128] , Kamal Kishore Lakshman v. Pan American World Airways Inc. [(1987) 1 SCC 146 : 1987 SCC (L&S) 25 : AIR 1987 SC 229] and Pearlite Liners (P) Ltd. v. Manorama Sirsi [(2004) 3 SCC 172 : 2004 SCC (L&S) 453 : AIR 2004 SC 1373] .]
29. In Indian Airlines Ltd. v. Prabha D. Kanan [(2006) 11 SCC 67 : (2007) 1 SCC (L&S) 359 : AIR 2007 SC 548], while https://www.mhc.tn.gov.in/judis 15/24 W.P.No.31250 of 2004 dealing with the similar issue this Court held that: (SCC p. 90, para 56) “56. …loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved.”
30.In case of theft, the quantum of theft is not important and what is important is the loss of confidence of employer in employee. (Vide A.P. SRTC v. Raghuda Siva Sankar Prasad [(2007) 1 SCC 222 : (2007) 1 SCC (L&S) 151 : AIR 2007 SC 152] .)
31. The instant case requires to be examined in the light of the aforesaid settled legal proposition and keeping in view that judicial review is concerned primarily with the decision-making process and not the decision itself. More so, it is a settled legal proposition that in a case of misconduct of grave nature like corruption or theft, no punishment other than the dismissal may be appropriate. (Vide Pandiyan Roadways Corpn. Ltd. [(2007) 9 SCC 755 : (2008) 1 SCC (L&S) 1084] and U.P. SRTC v. Suresh Chand Sharma [(2010) 6 SCC 555 : (2010) 2 SCC (L&S) 239] .)”
6. The learned counsel for the petitioner has relied on the judgement, Director General of Police / Inspector General of Prisons Chennai and Others vs. K.Chidambaram reported in (2020) 7 MLJ 815, is extracted as hereunder:
“12. On the fateful day when the respondent was caught https://www.mhc.tn.gov.in/judis 16/24 W.P.No.31250 of 2004 red handed, with the contraband in his possession, he was produced before the third appellant. On such appearance, the respondent had voluntarily given a statement in writing, admitting his guilt. Notwithstanding such an admission of guilt on the part of the respondent, in compliance with the principles of natural justice, an enquiry was conducted. During the course of enquiry, the Department examined four witnesses and they were subjected to cross-examination by the respondent. However, before the Writ Court, it was contended that the enquiry officer himself has posed question to the witnesses besides cross-examined them and thereby the enquiry officer acted as a prosecutor. But to our dismay, we find that such a plea was never raised by the respondent before the appellants, but it was raised for the first time only before the Writ Court. Therefore, we see no force in such a submission on the part of the respondent that the enquiry is vitiated. Above all, when the respondent himself has admitted his guilt, in writing, no amount of further evidence would over weigh the admission. However, to comply with the principles of natural justice, an enquiry was conducted and adequate opportunity was given to the respondent to defend the charges. Thus, apart from the admission of the respondent, evidences were brought on record to prove the guilt of the respondent during the course of enquiry.
13. As regards the quantum of punishment, we feel that the appellants, as employer, have lost the confidence in the respondent in discharge of his duties especially when he contravened the Prison Rules in attempting to supply mobile phone and other accessories to the prisoners. The respondent is working as a Warder and if he himself indulges in such an act to facilitate the prisoners to establish contact outside the prison https://www.mhc.tn.gov.in/judis 17/24 W.P.No.31250 of 2004 through the cellular phone, it requires a serious outlook. Having regard to the above, the disciplinary authority, appellate authority and revisional authority, in unison, have formed an opinion that punishment of dismissal from service will be commensurate to the charges against the respondent. Such an opinion was formed not only on the basis of the material records collected during the course of the enquiry but also on the strength of the admission of guilt made by the respondent in writing. The fact that the respondent has admitted his guilt in writing was also recorded by the learned single Judge. It is well settled that an admitted fact need not be proved. In such a circumstance, we are of the opinion that the punishment imposed on the respondent is adequate and it is not shockingly disproportionate to the charges. Therefore, taking a lenient view in the matter of imposition of punishment, in the given facts and circumstances, is not warranted. When the order of dismissal from service is preceded by a valid enquiry, this Court, in exercise of power under Article 226 of The Constitution of India, cannot interfere with such an order. In this context, we are fortified by the decision of the Honourable Supreme Court in the decision reported in State Bank of Bikaner & Jaipur versus Nemi Chand Nalwaya reported in MANU/SC/0411/2011 : 2011 4 Law Weekly 769 wherein it was held that in exercise of the powers conferred under Article 226 of The Constitution of India, the High Court cannot interfere with an order of dismissal preceded by a valid enquiry, unless it is noticed that such enquiry is perverse and the conclusion arrived at is contrary to the evidence available on record.” https://www.mhc.tn.gov.in/judis 18/24 W.P.No.31250 of 2004 The petitioner cannot rely on the above judgments for the reason that in the present case on hand the vital documents were not produced before the Labour Court by the petitioner.
7. A counter affidavit was filed on behalf of the second respondent.
8. The learned counsel appearing for the second respondent submitted that at the time of dismissal the Union raised an Industrial Dispute in I.D.No.82 of 1984 before the Coimbatore Labour Court in respect of wages, revision and bonus for the year 1982-83. At the time of his dismissal the above dispute was pending and the second respondent is a workman directly connected with that dispute and therefore as required under Section 33 of I.D., Act the Management should have obtained the permission from the Labour Court before dismissing him from the service and this was not done under the provisions of Section 33 of I.D. Act. Therefore, the second respondent filed a complaint in Complaint No.1 of 83 in I.D.No.82 of 1984 dated 25.03.2004 on the file of the Labour Court, Coimbatore, praying for setting aside the order of dismissal and to reinstate him backwages and the https://www.mhc.tn.gov.in/judis 19/24 W.P.No.31250 of 2004 Labour Court allowed the same. Hence, he is entitled for full wages. The Labour Court has now passed an award of reinstatement without backwages and the Management has stated the reasons for awarding the backwages as the grievous charge have not been proved because the originals of rice stock register, sugar stock register, kerosene stock register have not been filed in spite of the request. The petitioner has copy of records to prove that the stocks have been cleared. The Management has to prove the charge by producing the records which are in their possession. Hence, the reasons for avoiding backwages are not valid. The basic pay is Rs.4200/- along with other benefits Rs.6700/- and now he is without employment, the Labour Court awarded reinstatement with continuity of service without backwages. Hence he is entitled to be continued in service as per Labour Court award from 25.03.2004 till date and he is without employment from 07.05.84 onwards.
9. Heard the rival submissions made by the learned counsel on either side and perused the materials available on record. https://www.mhc.tn.gov.in/judis 20/24 W.P.No.31250 of 2004
10. In this case, it is pertinent to note that the records namely Kerosene Bill Book Extract, Levy Rice Stock Register, Kerosene Stock Register, Levy Sugar Stock Register and Kerosene Bill inspected by the Taluk Supply Officer, have not been produced before the Labour Court. The above records are in possession of the Management but the same were not produced before the Labour Court and only xerox copies which has been endorsed by the Taluk Supply Officer which are not legible, were filed by the Management before the Labour Court. This Court remitted back the matter to the Labour Court for fresh consideration and the Labour Court after pursuing the materials, documents and evidences gave a findings that the order of dismissal is not valid in law.
11. It is well settled principle / law that this Court cannot interfere with the findings of the Labour Court unless it is perverse, discriminatory, arbitrary, error apparent on the face of the record, illegal and unsustainable in law.
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12. Considering the facts and circumstances of the case, this Court do not find any infirmity or perversity in the award passed by the first respondent / Labour Court, Salem dated 25.03.2004 made in Complaint No.1 of 2003 (I.D.No.82 of 1984 Labour Court, Coimbatore) and the same is hereby confirmed.
13. In the result, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
30.08.2022 Index : Yes/No Speaking/Non Speaking order cda https://www.mhc.tn.gov.in/judis 22/24 W.P.No.31250 of 2004 To
1.The Special Officer Swarnapuri Cooperative Stores Ltd., Swarnapuri, Salem – 4, Salem District.
2.The Presiding Officer, Labour Court, Salem.
https://www.mhc.tn.gov.in/judis 23/24 W.P.No.31250 of 2004 J.SATHYA NARAYANA PRASAD, J.
cda W.P.No.31250 of 2004 30.08.2022 https://www.mhc.tn.gov.in/judis 24/24