SooperKanoon Citation | sooperkanoon.com/837322 |
Subject | Labour and Industrial |
Court | Chennai High Court |
Decided On | Jun-15-2007 |
Case Number | W.P. (MD) No. 4051/2004 |
Judge | K. Chandru, J. |
Reported in | [2007(115)FLR400]; (2007)IIILLJ221Mad |
Acts | Tamil Nadu Shops and Establishments Act, 1947 - Sections 41(2); Industrial Disputes Act - Sections 2A and 11A; Constitution of India - Article 226 |
Appellant | Y-46, Sarel Primary Agricultural Co-operative Bank Ltd. Rep. by Its Special Officer |
Respondent | Deputy Commissioner of Labour and anr. |
Appellant Advocate | M.E. Ilango, Adv. for M. Ajmal Khan, Adv. |
Respondent Advocate | V. Chellammal, Spl. Govt. Pleader for Respondent No. 1 and ;G.R. Swaminathan, Adv. for Respondent No. 2 |
Disposition | Petition dismissed |
Cases Referred | Karnataka State Road Transport Corporation v. Lakshmidevamma |
K. Chandru, J.
1. The petitioner is a Co-operative Society. Aggrieved by the order of the first respondent-appellate authority dated October 25, 2004 under the Tamil Nadu Shops and Establishments Act, 1947, in having allowed the appeal filed by the second respondent filed under Section 41(2) of the said Act, has filed the present writ petition.
2. Heard the arguments of Mr. M.E. Ilango for Mr. M. Ajmal Khan, learned Counsel for the petitioner, Ms. V. Chellammal, learned Special Government Pleader for the first respondent and Mr. G.R. Swaminathan, learned Counsel for the second respondent and have perused the records.
3. The second respondent had served as a Secretary to the petitioner/Society. He was dismissed on charges of certain misconduct. Against the said order, he filed an appeal being TNSE 7/2003 before the first respondent/appellate authority. Before going before the authority, he raised a dispute under Section 2-A of the Industrial Disputes Act (for short 'I.D. Act'). Since he is not a 'workman' under the I.D. Act, he was directed to move an appropriate forum. Accordingly, he had filed the present appeal.
4. In fact, while filing the appeal, there was a delay of 860 days. The said delay was also condoned on a proper application. Before the first respondent, the petitioner raised several grounds.
5. The first respondent, however, found the order impugned as invalid merely on three -grounds. The first was that, when he was suspended pending enquiry, no period of suspension was prescribed. Therefore, the same was illegal. The second ground was that though the enquiry was conducted properly when the: writ petitioner gave a second show cause notice including the enquiry report, only 3 days time was granted for the submission of the second respondent's reply. The second respondent by a written communication demanded 15 days time to enable him to submit his reply. Without waiting for the time extension, the writ petitioner passed an order of dismissal. The authority found that it amounted to a denial of reasonable opportunity. The third infirmity was that when the order of dismissal was passed, it was passed from the date of suspension and this, according to the authority, was illegal, as according to the authority, a dismissal can be; only prospective.
6. With reference to the first contention, the question, all along remains academic because, a Full Bench of this Court has held vide its decision reported in A.S. Subramani v. Deputy Registrar of Co-operative Societies, Tindivanam Circle and Anr. : (2006)4MLJ1148 that there is no necessity to prescribe any particular period of suspension as it is only a suspension pending enquiry and no challenge can be made if period of suspension is not prescribed.
7. With reference to the third ground that no dismissal order can be passed retrospectively, may be a correct proposition of law but when there is an order of suspension pending enquiry, if an order of dismissal is passed, it is open to the employer to pass an order of dismissal either from the date of suspension so as to deny wages for the interregnum period or dismiss him prospectively and therefore, on that ground, the order cannot be invalid.
8. Mr. M.E. Ilango, the learned counsel, contended that the petitioner has conducted a proper enquiry and the first respondent being an appellate authority, he has the power, similar to the power provided under Section 11-A of the I.D. Act. Hence, the jurisdiction exercised by the authority is illegal. Such a contention is impermissible in the light of the judgment reported in United Planters Association of Southern India v. K.G. Sanganmesnraran and Anr. 1997 (2) LLN 73.
9. Further submission made by the learned Counsel is that when the petitioner has prescribed 3 days' time, though no time period is prescribed under the bye-laws of the society, it cannot be open to the second respondent to seek further time so as to delay the proceedings. Further, the said show cause notice was issued even though there was no rule to that effect. Even that contention cannot be accepted for the simple reason that a Constitution Bench of the Supreme Court vide its decision reported in E.C.I.L. v. Karunakar : (1994)ILLJ162SC has held that if the enquiry authority is different from the disciplinary authority, a notice including enquiry report is a requirement on the principles of natural justice.
10. Therefore, this contention cannot be found accepted. In fact, the very object of giving a copy of the report is to make an employee to convince the disciplinary authority not to accept the findings. It is in consonance with grant of a reasonable opportunity. When the workman makes a request for another 10 days to submit his explanation, the petitioner should have granted the said extension. Rushing to pass an order before that date shows certain amount of pre-determination.
11. The learned Counsel for the petitioner submitted that the order of the first respondent have been passed only on a technical ground and once the enquiry is upheld as invalid, he must be given an opportunity to let in evidence, before the authority, which is permitted in a proceedings under the I.D. Act.
12. When questioned, whether any such permission was sought for before the authority, in the counter statement filed by the writ-petitioner, the learned Counsel fairly conceded that no such request was made. Even before this Court, no such plea was raised in the affidavit.
13. The Division Bench of this Court (to: which I am a party), While dealing with a similar case reported in Santhanaraman v. (1) Management of Needamangalam. Co-operative Agricultural Bank Ltd., (represented by its President), Needamangalam and (2) Deputy Commissioner of Labour (Appellate Authority, under Tamil Nadu Shops and Establishments Act), Tiruchirapalli 2007 (2) LLN 656 held in paragraph 16, which reads as follows:
16. Once it is accepted that the authority can, if requested, record additional evidence to decide the guilt or otherwise of an employee, the next question naturally will arise as to whether it is incumbent upon the authority to record evidence on his own without there even being an application in this regard by the employer. In fact, the Constitution Bench of the Supreme Court in t its judgment reported in Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt) and Anr. 2001 (3) LLN 105, has answered this issue squarely. Pra.20, at page 110, of the said judgment may be usefully extracted below:In the present case, the appellant employer did not seek permission to lead evidence until after the Labour Court had held that its domestic enquiry was vitiated. Applying the aforesaid principles to these facts, we are of the opinion that the High Court has rightly dismissed the writ petition of the appellant, hence, this appeal has to fail....
Therefore, the last contention raised by the petitioner is also rejected.
14. There is no ground to interfere with the order passed by the first respondent impugned in the writ petition. However, the petitioner's counsel argued that the petitioner is a Co-operative Society and if so much back wages is allowed, it will cause great hardship to the petitioner/society and therefore, the Court must interfere on the quantum of backwages to be given to the petitioner. Ultimately, the consequence of the appellate authority in setting aside an order of dismissal will be that as if there is no dismissal in existence and that the employee is entitled for all consequential relief.
15. But, in the present case, there are two factors, which make the Court to interfere, with the relief to be given to the 2nd respondent by exercising extra-ordinary powers under Article 226 of the Constitution of India. Firstly, the petitioner during the period of suspension, was passed full subsistence allowance was paid at the rate of 50%. After the dismissal, he had taken more than 860 days to go before the authority and the proceedings before the authority also took merely one year. For this purpose, it is inequitable to make the writ petitioner to pay back wages as the second respondent was not diligent enough to pursue his lawful remedies without delay. After coming before this Court, to the fortune of the second respondent by an order dated February 17, 2005, this Court directed monthly payment from October 25, 2004 i.e. (from the date of impugned order) and he has been currently getting the said amount of Rs. 4,000/- every month. Therefore, it cannot be said that the petitioner had not suffered gravely during the period of suspension and in the period of non-employment.
16. Under the circumstances, this Court is of the opinion that while the second respondent should be restored to service pursuant to the order of the first respondent, however, he is not eligible to get any back wages for the aforesaid reasons. While the second respondent will be restored to the service within a period of two weeks from the date of receipt of copy of the order, he will not be paid any back wages for the interregnum period. However, the entire period of his non-employment including suspension period will be counted for the purpose of terminal benefits as well as pay fixation, increments, bonus etc.
17. With the above direction, the writ 0 petition will stand dismissed. There shall be no order as to costs. Consequently, connected WVMP (MD) No. 81 of 2005 is closed.