Madras High Court
The Management Of Meenakshipettai ... vs The Deputy Commissioner Of Labour ... on 9 April, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 09.04.2013 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.13175 of 2005 The Management of Meenakshipettai Cotton & Silk Weavers Co-operative Society, Cuddalore Taluk, Cuddalore District. .. Petitioner Vs. 1. The Deputy Commissioner of Labour (Minimum Wages), Labour Welfare Board Building, Teynampet, Chennai 600 006. 2. N.Balu .. Respondents Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Certiorari to call for the records of the first respondent pertaining to his order dated 22.11.2004 made in TSE II-18/2001 and quash the same. For Petitioner ... Mr.S.Sivashanmuga Sundaram For 1st Respondent ... Mr.S.V.Durai Solaimalai, Additional Govt. Pleader For 2nd Respondent ... Mr.C.Prakasam ORDER
The writ petition has been filed by the Management of Meenakshipettai Cotton & Silk Weavers Cooperative Society challenging the order dated 22.11.2004 in TSE II-18/2001 passed by the first respondent/Deputy Commissioner of Labour (Minimum Wages), Labour Welfare Board Building, Teynampet, Chennai in which, the order of termination dated 1.9.2000 passed by the petitioner Management was set aside when the petitioner Management has failed to pay the subsistence allowance to the second respondent during the suspension period. In view of non-payment of the subsistence allowance, the second respondent was unable to appear before the Enquiry Officer and hence, it was made clear that it is a clear case of breach of principles of natural justice. Hence, the first respondent directed the petitioner Management to reinstate the second respondent in service and further directed to pay entire back wages.
2.Mr.S.Siva Shanmuga Sundaram, learned counsel for the petitioner has submitted that the second respondent was working as senior clerk-cum-cashier in the petitioner Management from 10.10.1974 and his last drawn wages was Rs.2,306/-. Later, the second respondent was suspended on 11.3.1996 due to misappropriation committed by him to an extent of Rs.11,750/-. Hence, the Charge Memo dated 10.4.1996 was served on the second respondent. Subsequently, a domestic Enquiry Officer was appointed on 30.6.1996. The said Enquiry Officer conducted the enquiry on 10.7.1996 and 16.8.1996 and submitted his report dated 12.9.1996 holding that the charges framed against the second respondent were held proved. Again, the second respondent was served with another Charge Memo dated 6.1.1997 for other misappropriation act namely, he has colluded with one G.Rajagopal and A.S.Selvaraj and committed a finished goods stock deficit on 31.3.1996 to an extent of Rs.1,37,600/-. For that, he submitted his explanation on 15.1.1997. As the explanation submitted by the second respondent was not satisfactory, the petitioner-Management ordered to conduct a domestic enquiry by appointing an Enquiry Officer. Though the Enquiry Officer summoned the second respondent to appear for enquiry, he failed to appear for enequiry before the Enquiry Officer. Therefore, the Enquiry Officer adjourned the enquriy on various dates and the same are as follows:
<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> Sl.No. Summons Date Enquiry Date <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> 1 15/07/1999 24/07/1999 <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> 2 24/07/1999 31/07/1999 <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> 3 31/07/1999 7899 <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> 4 91299 14/12/1999 <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> 5 8400 12400 <><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><><> The Enquiry Officer submitted his enquiry report on 17.4.2000 holding that the charges framed against him were proved. Therefore, the petitioner Management issued another show cause notice dated 23.7.2000 along with enquiry report to the second respondent asking him as to why his services should not be terminated, for the grave charges proved in the enquiry proceedings. Section 81 enquiry of the Tamil Nadu Co-operative Societies Act was initiated on the second respondent. On the report dated 10.10.1997 submitted by the Section 81 Enquiry Officer, complaints were lodged against him on 23.3.2001 and 11.7.2001 by the Assistant Director of Handlooms, Cuddalore. Based on the said complaints, a criminal case was also filed against the second respondent in C.C.No.4 of 2001 u/s 408, 468 and 477 of IPC and the same is still pending on the file of the III Judicial Magistrate Court, Cuddalore. In the meantime, the second respondent submitted his explanation dated 25.07.2000 to the second show cause notice. As the petitioner Management was not satisfied with the explanation submitted by the second respondent, it removed him from service by passing the termination order dated 1.9.2000. Subsequently, he filed an Appeal in TSE No.18 of 2001 before the Labour Court and the Labour Court allowed the said appeal by the order dated 22.11.2004. Aggrieved by the same, the present writ petition has been filed.
3.The learned counsel for the petitioner-Management, after narrating the above said case of the second respondent, has submitted that the decision of the Hon'ble Apex Court in JAGDAMBA PRASAD SHUKLA VS. STATE OF U.P AND OTHERS (2000 (II) LLJ) relied upon by the first respondent, to quash the order of termination dated 1.9.2000 for non-payment of subsistence allowance to an employee under suspension as it was not a bounty but a right can not be applied against the petitioner Management for the reason that when the petitioner was under suspension by the order dated 11.3.1996, it is an admitted fact that the second respondent was paid with the subsistence allowance from 11.3.1996 to 31.10.1998. Therefore, the decision of the Hon'ble Apex Court (cited supra) relied upon by the first respondent that owing to non-payment of subsistence allowance, the second respondent was unable to appear in the enquiry, shall be brushed aside.
4.He pleaded further that admittedly, when the petitioner was paid with the subsistence allowance from 11.3.1996 to 31.10.1998, the petitioner ought to have appeared before the Enquiry Officer, who was appointed on 10.7.1999. But, even after receiving the subsistence allowance, the petitioner did not choose to appear before the Enquiry Officer. Though summons have been served upon the second respondent to appear before the Enquiry Officer, the Second respondent deliberately failed to attend the enquiry. Hence, the Enquiry Officer set him ex-parte and passed the ex-parte order on 12.4.2000 and submitted his enquiry report on 17.4.2000 by arriving at a finding that the charges framed against the second respondent have been held proved. Subsequently the petitioner Management issued second show cause notice dated 23.7.2000 along with the enquiry report calling upon the second respondent to submit his written representation. Accordingly, the second respondent has submitted his explanation on 25.07.2000 to the second show cause notice. The second respondent has no where disputed the case of the petitioner Management that he was denied the subsistence allowance from the date of suspension namely, 11.3.1996. Since the second respondent himself has admitted the factum of receipt of subsistence allowance for the period from 11.3.1996 to 31.10.1998, the first respondent ought not to have relied upon the decision of the Hon'ble Apex Court in JAGDAMBA PRASAD SHUKLA VS. STATE OF U.P AND OTHERS (2000 (II) LLJ) to set aside the order of termination dated 1.9.2000 passed by the petitioner Management, hence the decision (cited supra) relied upon by the first respondent cannot be made applicable to the present case for the reason that no subsistence allowance was paid to the employee during the relevant period.
5.However, in the present case, it is an admitted fact that the employee himself has admitted that he was paid with subsistence allowance for the period from 11.3.1996 to 31.3.1998. Therefore, it was pleaded that the first respondent/Deputy Commissioner of Labour, Chennai has committed a serious mistake in setting aside the order of termination dated 1.9.2000 while passing the order dated 22.11.2004 in T.S.E. II No.18 of 2001. Hence, he has prayed this Court to set aside the impugned order passed by the first respondent dated 22.11.2004 and he has further prayed that an opportunity may be given to the petitioner Management to initiate appropriate steps to recover the loss of a sum of Rs.1,37,600/-, which was caused to the petitioner Management by the second respondent.
6.Finally, it was pleaded that the petitioner Management is legally entitled to initiate the Surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 to recover the loss amount of Rs.1,37,600/-, which was caused to the petitioner Management by the second respondent.
7.Mr.C.Prakasam, learned counsel for the second respondent has submitted that an opportunity sought for by the petitioner Management to initiate Surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 cannot be legally granted for the reason that when the second respondent was already terminated from service by the petitioner Management by the order dated 1.9.2000 and they have already initiated the Surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 on the second respondent, being aggrieved, the second respondent filed C.M.A.No.83 of 2005 before the Deputy Registrar of the Tamil Nadu Co-operative Societies Act, 1983 challenging the same to set aside the surcharge proceedings initiated against him. The Deputy Registrar of the Tamil Nadu Co-operative Societies Act, 1983, after entertaining the said Civil Miscellaneous Appeal, set aside the Surcharge proceedings initiated by the petitioner Management under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 against the second respondent. Therefore, the petitioner Management cannot seek liberty once again to proceed with Surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 against the second respondent.
8.It was further submitted that when the second respondent was placed under suspension on 11.3.1996, it is the bounden duty of the petitioner Management to pay subsistence allowance till the final order of termination passed on 1.9.2000. Even though the subsistence allowance was paid to the second respondent during the period from 11.3.1996 to 31.10.1998, the petitioner Management miserably failed to pay the subsistence allowance continuously from 31.10.1998 till the order of termination was passed on 1.9.2000. Therefore, the second respondent, in view of non-payment of the subsistence allowance, was unable to appear before the Enquiry Officer. When he brought the said fact to the notice of the first respondent, the first respondent by relying upon the decision of the Apex Court in JAGDAMBA PRASAD SHUKLA VS. STATE OF U.P AND OTHERS (2000 (II) LLJ), rightly set aside the order of termination dated 1.9.2000, which was passed only for the reason that the second respondent was unable to appear before the Enquiry Officer. Moreover, the enquiry conducted by the Enquiry Officer was not fair and proper. Therefore, the termination order passed by the petitioner Management is in violation of the principles of natural justice. Subsequent to the order passed by the first respondent, the petitioner Management, has come forward to file the present Writ Petition.
9.During the pendency of the Writ Petition, the petitioner Management paid wages under Section 17B of the Industrial Disputes Act, till the second respondent reached the age of superannuation, namely, on 30.6.2012. Therefore, when the petitioner Management has to pay the wages under Section 17B to the second respondent till he attained the age of superannuation, the petitioner-Management cannot agitate further by filing the present Writ Petition to set aside the order dated 22.11.2004 passed by the first respondent Labour Court.
10.As rightly argued by the learned counsel for the second respondent that when the petitioner was placed under suspension from 11.3.1996, it was the bounden duty of the petitioner Management to pay the subsistence allowance till passing of the final order of termination on 1.9.2000. But, the petitioner Management paid the subsistence allowance from 11.3.1996 to 31.10.1998 only and after 1.11.1998 for the reason best known to them, they stopped the subsistence allowance. Since the enquiry was held after 31.10.1999, the petitioner Management financially prevented the second respondent employee from participating in the enquiry for the reason of non payment of subsistence allowance. In this context, the Law is well settled that "the payment of subsistence allowance to an employee under suspension was not a bounty but a right. No justifiable ground was made out by the respondents for non-payment of the subsistence allowance. The appellant was unable to appear in the enquiry on account of non-payment of subsistence allowance. It was a clear case of breach of principles of natural justice."
11.From the above, this Court finds two reasons in favour of the second respondent, namely, (i)the conduct of the petitioner Management in not continuously paying the subsistence allowance to the second respondent employee during the crucial period of enquiry is not only in violation of the principles of natural justice but also will prove fatal to the dismissal order and (ii) as found from the records that when the petitioner Management came to this Court by filing the Writ Petition challenging the correctness of the order passed by the first respondent in TSE-II-18/2001, dated 22.11.2004, the petitioner Management also paid the wages under Section 17B of the said Act to the second respondent till 31.10.1998 instead of the dismissal order dated 01.09.2000. It is reported that during the pendency of the Writ Petition, on reaching the age of superannuation on 30.6.2012, the second respondent retired from service and therefore, no useful purpose would be served in re-instating him in service.
12.Besides, the petitioner Management also initiated Surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 to recover the loss of Rs.1,37,600/- from the second respondent employee after passing the termination order dated 1.9.2000 by the petitioner Management. Therefore, the second respondent filed C.M.A.No.83 of 2005 under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 on the file of the Deputy Registrar, challenging the correctness of the order passed by the petitioner Management. In view of that no more liberty can be granted to initiate Section 87 surcharge proceedings.
13.Mr.C.Prakasam, the learned counsel for the second respondent employee has further requested this Court that as the petitioner Management stopped paying the 17B wages after 31.10.1998, a direction be given to pay the 17B wages till the date of superannuation.
14.Considering the submission made by the learned counsel for the second respondent, this Court is of view that the second respondent is entitled to receive 50% of the back wages for the period from 1.9.2000, the date of dismissal order passed by the petitioner-Management till 30.06.2012 the date of superannuating of the second respondent, if he was not paid with the Section 17B wages as ordered by this Court on 09.12.2005. Hence, the petitioner-Management is directed to work out and pay 50% of the back wages to the second respondent employee from 1.9.2000, date of order of dismissal till 30.06.2012, the date of superannuation.
15.It is needless to mention that the second respondent employee is directed to work out the service benefits in the event of any revised scale of pay made during the period, when he was in service.
16.With the above said observation, the writ petition is dismissed. There is no order as to costs.
cla To The Deputy Commissioner of Labour (Minimum Wages), Labour Welfare Board Building, Teynampet, Chennai 600 006