Prayer:- Writ Petition filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorari, to call for the records of the 1st respondent in T.N.S.E. 14/2006 and quash the order dated 08.09.2008 passed in T.N.S.E. 14/2006.
!For Petitioner : Mr.T.Ravichandran ^For Respondents : Mr.Aayiram K.Selvakumar (for R1) Government Advocate No Appearance (for R2) :Order The instant writ petition is filed by the petitioner as against the Appellate order of his dismissal from service dated 08.09.2008 passed under Section 41 (2) of Tamil Nadu Shops and Establishment Act 1947 by the 1st respondent in case No. T.N.S.E. 14/2006.
2.It is the case of the petitioner that he was working as an Office Assistant in the 2nd respondent society. While so he was placed under suspension on 04.07.2005 for an alleged misappropriation of fund of the 2nd respondent. In consequence he was issued with a charge memo on 18.01.2006 leveling as many as 12 charges by the Special Officer of the 2nd respondent society. For the said charges the petitioner submitted his explanation praying innocence. However, without considering his explanation, an enquiry was ordered, whereby the enquiry officer rendered a finding that all charges against the petitioner are proved.
3.Thereafter the 2nd respondent issued a 2nd show cause notice on 02.09.2006, for which the petitioner submitted his explanation on 12.09.2006 praying innocence. Whereas without considering the explanation of the petitioner, the 2nd respondent passed the impugned order dismissed the petitioner from service vide an order dated 16.09.2006.
4.It is the further case of petitioner that challenging the above dismissal order he preferred a statutory appeal before the 1st respondent under Section 41 (2) of Tamil Nadu Shops and Establishment Act, 1947 and the same was taken on file in T.N.S.E. 14/2006.
5.Unfortunately the 1st respondent herein too without considering the case of petitioner and the appeal as well in a improper manner, by without giving any independent finding simply passed the impugned order of dismissal by merely extracting the content of the charge sheet, explanation and findings of the enquiry officer.
6.According to the petitioner it is the duty of the appellate authority to decide the fairness of enquiry conducted by an enquiry officer as against the petitioner herein, but in the case on hand despite of specific objection/explanation with regard to the unfairness of enquiry conducted, the 1st respondent had failed to look into the same and passed non speaking and reasonless order. Excepting a single line that appeal is dismissed, there is nothing in the impugned order to show that the appellate authority attempted to go into the case of the petitioner.
7.I heard Mr.T.Ravichandran, learned counsel for the petitioner and Mr.Aayiram K.Selvakumar, learned Government Advocate for the 1st respondent and perused the entire records. There is no representation on behalf of the 2nd respondent.
8.On careful perusal of the impugned order dated 08.09.2008, this court at the very outset find that the contention raised by the petitioner is liable to be accepted, for the reason that the 1st respondent had neither made any endeavor nor discussed the facts of case nor gave any independent finding over the dispute before him. It further reveals that the 1st respondent as contended by the petitioner had barely extracted the charge memo, explanation and the finding of the enquiry officer alone respectively.
9.It is needless to say that this Court and as well as our Hon?ble Apex Court by plethora of decisions have reiterated that always a Quasi Judicial authority that too sitting over an appeal is duty bound and expected in all fairness to appraise the order challenged before him and he should ensure that a fair enquiry is conducted prior to the passing of the impugned order under challenge before him came, so as to render substantial justice to the parties.
10.In the present case on hand, the contention of the petitioner is that all the charges leveled against him relating to misappropriation of fund of 2nd respondent?s society are false. However, as the officers of the petitioner persuaded the alleged amount of misappropriation to be paid by the petitioner to avoid termination of service, the petitioner has paid the alleged amount. Such payment was solely due to persuasion made by his departmental superiors. Therefore it does not mean that he has admitted the charges. Whereas the enquiry officer by misconception and apparently erred by holding that the petitioner admitting the charges has paid the alleged amount of misappropriation and thereby held that all the charges are proved.
11.When the petitioner has raised the above said contentions before the 1st respondent in the appeal, the appellate authority ought to have decided the same after due examination of oral and documentary evidence available before him.
12.Further it is contended by the Learned Counsel for the petitioner that despite the payment of alleged misappropriated amount, so as to avoid major punishment though he is not at all liable for same, the 2nd respondent has awarded a major punishment of dismissal from service which is highly disproportionate.
13.At this juncture in view of fact that already the entire subject amount of alleged misappropriation has been paid by the petitioner, this court finds that the contention of the Learned Counsel for the petitioner has some force and liable to be considered.
14.As already the entire amount is found to be paid by the petitioner, this court is of the opinion that the order of dismissal is disproportionate and unwarranted.
15.Again the impugned order is also liable to be set aside for want of reasoning and findings. In fact though it is claimed by the petitioner that independent finding is to be given, in the case on hand this court finds that there is no reasoning at all.
16.For the forgoing reasons, this Court has no hesitation to set aside the impugned order.
17.In the result:
a) the writ petition is allowed by setting aside the order passed by the first respondent in T.N.S.E.14 of 2006, dated 08.09.2008 and order passed by the second respondent dated 16.09.2006;
b) the second respondent is hereby directed to re-instate the petitioner within a period of four weeks from the date of receipt of copy of this order and pay back all the services and monetary benefits. No costs.
To The Deputy Commissioner of Labour, Appellate Authority under Tamil Nadu, Shops & Establishments Act, 147, Sundaram Thater Road, K.K.Nagar, Madurai 625 020.
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