:COMMON ORDER There are two sets of Writ Petitions one filed by the Society and the other filed by the affected employees and since both arise out of the identical facts and identical orders all the petitions are taken up together for disposal by consent of both parties and a common order is passed.
2. The short facts of the case in respect of the Management petitions are: The petitioner's Society is a Co-operative institution registered under the Tamil Nadu Co-operative Societies Act. The said Society is having several fair price shops in and around Palani to distribute the essential commodities to the public ration card holders. The second respondent employee worked in the fair price shop of the petitioner's society as a Salesman.
3. On 24.09.1986, the second respondent received 15 quintals of rice at the rate of Rs.1.75 per kilo distributed by the Tamil Nadu Civil Supplies Corporation. The second respondent employee the salesman without distributing the said rice to the ration card holders fabricating false bills and manipulated the society records as if the rice was distributed to the ration card holders and as such he sold the said rice in the open market and thereby cheated the society.
4. The second respondent was placed under suspension through the order dated 07.04.1987. Subsequently, the charge memo dated 08.06.1987 was issued to the employee. The employee submitted his explanation dated 16.06.1987. Since his explanation was not satisfactory a domestic enquiry was conducted by an independent advocate. The enquiry was conducted on 21.02.1988. The employee admitted his guilt at the beginning of the enquiry itself. Even then the enquiry officer examined the management witness and marked the documents and the opportunity was also given to him to cross examine the management witness. But, again the employee gave a letter dated 21.02.1988 accepting the charges and asked to close the enquiry. The enquiry officer gave the findings that the charges levelled against the employee was proved. After that a second show cause notice dated 10.08.1989 was issued. The employee submitted his explanation dated 16.08.1989. Finally, the employee was dismissed from service through the final orders dated 21.08.1989. After that nearly after four years the employee filed an Industrial Dispute with delay before the Labour Court, Madurai in I.D.No.354/1993 and thereafter, the case was transferred to Labour Court, Trichy and renumbered as I.D.No.301/1995. Before the Labour Court, the management side documents and Court documents Exs.M1 to M7 and the Exs.C1 to C22 were marked and there were no oral evidence on both sides. The case was argued by both sides and the Labour Court, Trichy passed the award dated 30.12.1994 directing the Management to reinstate the employee with continuity of service but without backwages and other attended benefits.
5. Against the order of reinstatement the Management preferred this Writ Petition W.P.No.3930/2005 before this Court and the employee claiming the backwages preferred the Writ Petition in W.P.No.3661 of 2007 nearly two years after the writ petition was filed by the Management.
Dates and events of the case is given below:
S.No. Date Particulars 1 08-06-1987 Charge memo issued to the employee 2 16-06-1987 Reply given by the petitioner 3 21-02-1988 Employee gave a letter before the enquiry officer.
Admitting the guilt.
4 Enquiry findings submitted by the enquiry officer.
5 10-08-1989 Second show cause notice issued by the management to the employee.
6 21-08-1989 Final orders issued to the employee dismissing him. 7 11-10-1993 2(A) petition filed before the Labour Court, Madurai in I.D.354/93 and the Labour Court, Trichy renumbered in I.D.301/1995. 8 30-12-2004 Labour Court, Trichy passed the award directing the Management to reinstate the employee with continuity of service but without backwages and other attended benefits.
6. The facts of the cases mentioned above pertaining to W.P.No.3930 of 2005 are similar to the facts in the other cases also excepting that in some of the cases, the theft of quintals of rice is different in other respects, however, the facts are identical and the order passed by the authority is also identical.
7. Heard all the parties.
8. The learned counsel appearing for the Management would contend that the order passed by the Labour Court for reinstatement without back wages is totally incorrect. Inasmuch as the lower Court has given a finding that the domestic enquiry conducted by the respondent therein was fair and proper and in accordance with the principles of natural justice and also has given a finding that the charges against the petitioner have been proved. Having come to the conclusion on these two issues in favour of the Management, the Labour Court without assigning any specific reason reduced the punishment and set aside the order of dismissal and directed for reinstatement of service only with the prohibition of payment of back wages. Such a finding in respect of the punishment alone is per se illegal and non-est in the eye of law.
9. The learned counsel appearing for the Management Society would specifically contend that the Labour Court could not have come to the conclusion in respect of the punishment alone without any valid reasons. It is also settled law that when a person who has been charge-sheeted in the domestic enquiry and also in a criminal proceeding, the acquittal made in the criminal proceeding cannot be a reason for reconsidering the proceedings by the domestic enquiry. In this case, the reference made to the reinstatement of the co- workers also cannot be taken into account in view of the fact that those co- workers filed petition before the authorities and only as per the order of the Court, on whom the charges were not proved, they were reinstated. Therefore, others cannot be compared to that of the punishment and the finding given by this Court.
10. Contra, the learned Senior Counsel appearing for the workers would specifically contend that they are opposed only because of the mistaken belief by the workers with the Management as they thought that they would be taken back without backwages. The learned Senior Counsel would further contend that the enquiry conducted was not fair and proper and in fact the enquiry itself was conducted in the police station and the admission alleged to have been made is not correct and not valid and above all those things, the Management enticed or induced them stating that other employees have been reinstated and the same treatment would be given to the petitioners also and believing that the employees directed their Counsel not to argue on merits of the case but to plead only in respect of the punishment alone and this has been totally given a go-by the Management, after the disposal of the cases. The learned Senior Counsel also pointed out that in fact only because of the reason that there was an understanding between the parties that they will not pursue the matter further and the workers would be reinstated even the Management counsel had only stated before the Labour Court that insofar as the quantum of punishment, he had left it to the discretion of the Labour Court and the Labour Court having exercised its discretion reduced the punishment from dismissal of services as to one of the reinstatement without backwages and thereafter, the Management now has come forward with the Writ Petition challenging that order.
11. The learned Senior Counsel would further contend that the stand of the Management is totally different from the one at the Labour Court. The petitioners, that is, the workers have also come forward with Writ Petitions challenging insofar as the denial of backwages and continuity of services.
12. The learned Senior Counsel would also point out that out of the total number of employees in the case, two of them have been recruited through employment exchange and the rest though not recruited through the employment exchange, that by itself cannot be the criterion at this point of time to deny their opportunity for reinstatement. Even basing on the factual findings that the employees who have put in more than ten to twenty years of service should not be summarily thrown out.
13. In the above circumstances, the learned counsel appearing for the Management brought to the notice of this Court that insofar as certain cases are concerned, namely, in W.P.No.3977 of 2005 in respect of one Murugan case, the Labour Court conducted the enquiry. Upon enquiry, witnesses have been examined and there also, it was held that the enquiry conducted was proper and the charge was also proved and taking into consideration, the charges which are grievous in nature especially any charges relates to taking away 15 quintals of rice without distributing the rice to ration card holders, fabricating false bills and manipulated the Society records as if the rice was distributed to the ration card holders and selling the rice in the open market are nothing but cheating the public at large and thereby the offences involved is very much immoral and such offenders could not in any case get sympathy from this Court and above all, when the finding is given that the charges are proved, the reduction in punishment from dismissal to one of reinstatement is totally illegal. In this connection, the the learned counsel appearing for the Management further pointed out that the employees who are all seeking reinstatement are the persons who have been appointed on the backdoor method as they have never been recruited through employment exchange. Therefore, as per the decision of the Madras High Court reported in 2009 4 MLJ 186 (Special Officer, Palayamkottai Urban Co- operative Bank Limited v. Presiding Officer, Labour Court, Tirunelveli and Another) wherein this Court has held that irregular appointments cannot be recognised and the Labour Court award is against the Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988 which mandatorily provides for recruitment through employment exchanges in case of regular appointment by a Co- operative Society and since this rule has been violated, the Labour Court award cannot be implemented and liable to be set aside.
14. Similarly, the learned counsel also relied upon a decision of the Kerala High Court reported in 84 FJR 172 (P.K.Thankachan v. Thalanadu Service Co-operative Bank Ltd. and another) wherein, it was held that the petitioner, an employee of a co-operative bank, was found guilty of the charge that he fabricated documents with a view to having loans sanctioned in the names of certain members. The petitioner admitted that he did commit the misconduct before the domestic enquiry was conducted and the admission was reiterated by him during the course of the domestic enquiry. In view of the admission made by the petitioner no evidence need to be let in. Therefore, the respondents employees cannot even argue that the enquiry was not fair, proper and correct. In view of the fact that all of them had admitted to the guilt and without any coercion and they have all participated in the enquiry and signed in all the pages of the enquiry report and such being the case they have no legal right to question the punishment.
15. The learned counsel also relied upon a decision of the Division Bench judgment of this Court reported in 2007-3-L.W.743 (The Tamil Nadu Highways & Rural Work Employees' Cooperative, etc., Ltd. v. The Presiding Officer, Labour Court, Tiruchirapalli and another) wherein with regard to the conduct of enquiry, there was no allegation before the enquiry officer that evidence was not properly recorded and only after the domestic enquiry, such an allegation appears to have been made. Even then, as the petitioner has attested the entire domestic enquiry proceedings, it has to be naturally concluded that the domestic enquiry was conducted in a fair and proper manner. The learned counsel also pointed out as per the above said Division Bench judgment, this Court has held that, no iota of sympathy need be shown to the employee either to reinstate him or to compensate him in lieu of his termination for the reason that once an employee gets into the bad books of his employer, it may not be advisable on the part of the employer to continue the employee in service. Therefore, in this case also since they have lost the confidence of the employer that it is no more possible to reinstate his employees. The learned counsel also brought to the notice of this Court yet another decision of a Division Bench of this Court reported in (2004) 107 FJR 371 (Mad) (Francis Vincent Neelankovil v. Industrial Tribunal) wherein also, when a bank employee therein committed a fraud by making false documents and deposited the draft in his own name and thereby, he played fraud on the costumer. This Court has held that the appellant in that appeal was working as a Bank Clerk and was in reality holding the position of trust. He not only abused that position but went on to drive nails in his coffin by making false representations one after the other. In such case, the reinstatement order along with 50% backwages was set aside by the Division Bench. In this case also, the employees are more in the nature of the trustee for the public distribution system and they having lost that confidence should not be granted any sympathy.
16. The learned counsel further relied upon a decision of the Hon'ble Supreme Court reported in 1996 1 CLR 667 (Municipal Committee, Bahadurgarh v. Krishnan Behari and others) wherein, it has held that in the cases of involving corruption, there cannot be any other punishment than dismissal. In this case, the amount misappropriated may be smaller or larger, however, it is an act of misappropriation which is relevant here. The misappropriation of the rice meant for public distribution system, cannot be easily tolerated. Similar to this effect another decision of the Hon'ble Supreme Court reported in (2004) 107 FJR 535 (SC) (Regional Manager, Rajasthan State Road Transport Corporation v. Sohan Lal) wherein also, it has held where misconduct proved against workman is one of dishonesty, quantum of loss is immaterial, it is loss of confidence that matters; in such case employer should not be directed to reinstate the said workman.
17. The learned counsel also relied upon a decision reported in 75 FJR 389 (A.Veeman v. Paramakudi Co-operative Urban Bank Ltd. and another) wherein it has held that punishment is appropriate in such cases of misappropriation. In that case, it was further held that a Co-operative bank employee was dismissed from service by the employer-Bank as a result of domestic enquiry into alleged misconduct in that he used to retain collections on behalf of the Bank with himself for a few days instead of remitting them on the day of collection or the next day as per the rules and he used to alter the dates on the receipts and vouchers. When he was dismissed from service and the matter was referred to adjudication, the dismissal order was confirmed as the Reference Court did not find any reason for interference with the action of the employer, on a challenge by the workman in the Writ Petition, the Madras High Court has held that with regard to the propriety and quantum of the punishment of dismissal, the Tribunal had found that the workman had committed a breach of the confidence reposed in him by the employer-Bank and his conduct must be characterised as a reprehensible one and the punishment of terminating his service was the appropriate one. This finding did not suffer from any infirmity. Therefore, here also the learned counsel appearing for the Management would submit that the dismissal from service is proper, correct and reasonable. Therefore, the reduction of punishment by the Labour Court from dismissal of service to one of reinstatement without backwages cannot in any way be considered as appropriate. Further, he would also contend that the workman was nowhere able to establish that at any point of time the Management gave any promise much less to reinstate the employees along with other employees reinstated as per the Court order where the charges were not proved against them. Whereas, in this case, it is totally different where the enquiry was conducted properly as well as the charges have been found to be proved. Apart from this, the petitioner also would contend that the employees themselves have admitted to the guilt and they themselves would admit that they instructed the Counsel only to argue on the question of punishment and not on the question of proving of the guilt.
18. In case of departmental enquiries and the findings recorded therein, the High Court does not exercise the powers of an appellate Court/authority. The jurisdiction of the High Court in such cases is very limited; for instance, where it is found that the domestic enquiry is vitiated because of non- observance of the principles of the natural justice, where there is a denial of reasonable opportunity, where the findings are based on no evidence, or where the punishment is totally disproportionate to the proved misconduct of the employee, only then the High Court has jurisdiction to interfere. But, on appraisal of the materials and the order of the Labour Court, it is clearly found that the enquiry officer has conducted the enquiry in a fair and reasonable manner which had been rightly upheld by the Labour Court even in another case where evidence has been recorded in the Labour Court and there also, the charges were found to be proved and the Labour Court has also given a further finding that where the enquiry has been made proper, correct, fair and reasonable. The charges have been proved and the Labour Court having come to the conclusion that the charges are proved after elaborately discussing the evidence and various factors, it is not open to the Labour Court to alter the punishment alone. So, when sitting in the Writ Court when the fact of proof of enquiry having been held to be fair and the Labour Court having given a finding in respect of the charges have been proved, this Court cannot interfere under
Article 226 especially when the punishment of dismissal also cannot be construed to be highly disproportionate as they have misused their position to misappropriate the rice meant for public.
19. As per various decisions of the Hon'ble Supreme Court and the Madras High Court, such person cannot be permitted to be taken back for employment. Above all these things, insofar as the Society is concerned, as per the latest decision of this Court reported in (2009) 4 MLJ 186 (Special Officer, Palayamkottai Urban Co-operative Bank Limited, Palayamkottai v. Presiding Officer, Labour Court, Tirunelveli and another) wherein it has held that the Labour Court should have taken into consideration the Rule 149(2) of the Tamil Nadu Co-operative Societies Rules, 1988 which were brought into effect from 13.04.1988 which mandatorily provides for recruitment through employment exchange in case of regular employment by a Co-operative Society and in this case admittedly the employees have been appointed only beyond 13.04.1988, therefore, such employees who are appointed contrary to the bye-laws cannot be reinstated which is a violation under law. The Labour Court ought not to have directed for reinstatement. This decision of this Court would squarely apply to the facts of this case.
20. Even in case of appointment through employment exchange, inasmuch as the finding is of grave nature, a decision of Division Bench of this Court reported in 1997-3-L.W.743 (stated supra) wherein it is held that as the employees have attested the entire domestic enquiry proceedings, it has to be naturally concluded that the domestic enquiry was conducted in a fair and proper manner and no iota of sympathy need be shown to the employee either to reinstate him or to compensate him in lieu of his termination for the reason that once an employee gets into the bad books of his employer, it may not be advisable on the part of the employer to continue the employee in service. Furthermore, the employee was not in a position to substantiate his only allegation that he has contested the case on merits before the Tribunal and pleaded only for punishment in view of any understanding between the parties for reinstatement nor any material to show that the enquiry was not properly conducted. Therefore, the finding of the Labour Court insofar as it relates to the reducing the punishment from dismissal of service to that of reinstatement without backwages is without any basis at all. Therefore, the order of the Labour Court in setting aside the punishment and reducing them to one that of reinstatement without backwages is set aside and the order of dismissal in respect of the employees are confirmed.
21. Insofar as the Writ Petitioners concerned in W.P.No.10107 of 2005 and W.P.No.1750 of 2006, they have already superannuated. All the employees admitted the guilt before the enquiry officer and it was voluntary. But, an attempt was made to bring that an enquiry was conducted in the police station. It is to be noted that neither before the enquiry officer nor before the Labour Court any evidence was let in nor any telegram was produced nor worthwhile attempt was made to substantiate his case of threat or interference of the police and the employees have signed in each page of the enquiry conducted by the enquiry officer will definitely dislodge the attempt made by the employees at this fag end of the case.
22. In the result, the Writ Petitions in W.P.(MD)Nos.3930, 10107 to 10109, 3977, 3979/2005 and W.P.(MD) Nos. 67 and 1750 of 2006 filed by the Management against the reinstatement are allowed setting aside the order of Labour Court for reinstatement and the Writ Petitions in W.P.(MD)Nos.3659 to 3663 and 3674 of 2007 filed by the employees seeking for backwages along with reinstatement are dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
srm To The Presiding Officer, Labour Court, Trichy.