IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.35066 of 2003 1.The Secretary, Thiruverumbur Primary Agricultural Co-op. Bank Ltd., Tiruchirapalli. 2.The Special Officer (Formerly the President), Thiruverumbur Primary Agricultural Co-op. Bank Ltd., Tiruchirappalli. .. Petitioners Vs. 1.The Deputy Commissioner of Labour (Authority under the Tamilnadu Shops and Establishments Act), Tiruchirappalli. 2.P.Selvaraj, Koothappar, Tiruchirappalli-13. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the award of the Deputy Commissioner of Labour (Authority under the Tamil Nadu Shops and Establishments Act), Tiruchirappalli in T.N.S.E. Case No.3/2001 and to quash the same. For Petitioners : Mr.R.Parthiban For Respondents : Mr.A.Arumugham, Spl.G.P. for R1 Mr.G.Bala for R2 - - - - ORDER
The petitioner is the management of a Cooperative Bank. Aggrieved by the order, dated 29.7.2003 passed by the first respondent Deputy Commissioner of Labour-cum-Appellate authority under the Tamil Nadu Shops and Establishment Act, 1947, Trichy in TNSE Case No.3/2001, the present writ petition has been filed.
2.By the impugned order, the first respondent appellate authority set aside the dismissal order passed by the petitioners Bank against the second respondent who was employed as a Sales person in the cooperative Bank. The writ petition was admitted on 2.12.2003. Pending the writ petition, an interim stay was granted. Subsequently, a vacate stay application was filed. This court made the interim stay absolute on 16.12.2009. On 06.04.2004, this court granted a direction to pay monthly salary in terms of Section 17-B of the ID Act from the date of filing of the case. On 16.12.2009, this court directed the first respondent to produce the original records relating to the case in question. Accordingly, original files were produced and circulated for perusal by this court.
3.Heard the arguments of Mr.R.Parthiban, learned counsel for the petitioner and Mr.A.Arumugam, learned Special Government Pleader for first respondent and Mr.G.Bala, learned counsel for second respondent.
4.The facts leading to the present case are as follows:
The petitioners’ society is a registered society under the Tamil Nadu Cooperative Societies Act, 1983. The second respondent was employed as a sales man in the society. He claimed that he has been working from 1.6.1988 in the said society. On 30.4.1999, a charge memo was given to him. The second respondent submitted his explanation, dated 11.5.1999. Since his explanation was not satisfactory, one Ramachandran was appointed as an Enquiry Officer. An enquiry was conducted on 16.6.1999 and 21.6.1999. The second respondent participated in the enquiry. During the enquiry, one Ravichandran, Secretary in-charge was examined on the side of the petitioner management. The second respondent was permitted to cross examine the witness. But, he stated that he did not want to cross examine him. Apart from examining the witness, 19 documents were filed on the side of the management. The second respondent examined himself and marked six documents on his side. The enquiry was closed on 21.6.1999. The Enquiry Officer gave his finding on 26.7.1999 and found that charges levelled against the petitioner were proved. The petitioners management agreeing with the findings of the enquiry officer held that the charges were serious and that it requires serious punishment of dismissal.
5.A second show cause notice, dated 11.10.1999 was issued to him to show cause against the proposed penalty. The second respondent submitted his explanation, dated 12.11.2009. Considering the explanation given by the second respondent and the materials on record, the petitioners management dismissed the second respondent from service on 31.1.2000. The second respondent thereafter filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (for short Shops Act). The said appeal was taken on file by the first respondent as TNSE Case No.3 of 2001. Notice was issued to the petitioners management. The petitioners submitted a counter statement, dated 25.5.2003. The first respondent appellate authority held that so far as the first charge, i.e. the second respondent while working in the village shop one at Thiruverumbur and the other at Agaram did not deposit the daily collections in the Bank and misappropriated the amount causing loss to the bank, was not proved. The appellate authority disagreed with the findings of the enquiry officer in this regard. The allegation was that a sum of Rs.57,069.19 was misappropriated in Thiruverumbur shop and Rs.64,337.55 was misappropriated at Agaram shop. But the authority chose to agree with the second respondent that he had already paid the amounts to the Secretary of the Society and no receipts were given to him. Though the enquiry officer clearly stated that payments were accepted by the Secretary, but not the entire money and for non crediting the amount, only the second respondent is solely responsible. Since the enquiry officer himself found that the amount has been entrusted to the Secretary and the fact that the second respondent has paid Rs.25000/- will not make him guilty of misappropriation or financial loss.
6.With reference to the second charge, i.e. instead of crediting the amount to the Bank and getting the receipt, the second respondent entrusted the amount to the Secretary and got signature in the cash receipt for a major portion and for the balance payment, there was not even signature and that he aided the Secretary of the society in misappropriating the amount. As against the said charge, the first respondent found that since the Secretary was holding the high post, the second respondent being only a sales man, he could not have demanded immediate receipt for the amount. Therefore, it cannot be held that there was any basis for the second respondent colluding with the Secretary of the society. It is only the Secretary’s conduct in not giving receipt then and there was improper and that by itself, it cannot be said that the second respondent has misappropriated the amount. He also held that the very same conduct has been converted into two different charges. It is in that view of the matter, the order of dismissal was set aside.
7.Though Mr.R.Parthiban, learned counsel for the petitioners raised objections regarding the jurisdiction of the Shops Act authority from determining the issue, the said objection may not be valid in the light of the specific application of provision to the cooperative society by the Government notification. With reference to the appreciation of evidence, the learned counsel submitted that for the period from 12.6.1997 to 20.10.1997, the second respondent did not remit the entire amount collected by way of sale proceeds. It is also admitted that for remitting the amount of Rs.29607.20, no proof was available. It is only on 4.6.1998, i.e. after a period of eight months, he deposited Rs.25000/- which does not cover the entire sale proceeds. Even assuming that the second respondent cannot be accused of misappropriation of amounts, since the amounts have been entrusted to the Secretary, but with reference to the difference in the amount, it can be implied that the amount has been misappropriated by the second respondent. Therefore, the question is not the exact amount that has been misappropriated, but whether there was any misappropriation leading to the enquiry against the second respondent, who in turn was found guilty of misconduct.
8.In this context, the learned counsel relied upon a judgment of this court in Nilgiris District Consumers’ Co-operative Wholesale Stores, Ltd. Vs. Appellate Authority, Deputy Commissioner of Labour, Coimbatore reported in 2003 (4) LLN 904 and placed reliance upon the following passage found in paragraph 8, which reads as follows:
“8….The charge is serious in nature. The statement that the delinquent had not repaid the amount cannot be wrong considering that a balance of more than Rs.8,000 remained to be refunded by the delinquent. Therefore, the mere fact of non-mentioning of the repayment of Rs.3,000 being only a part of the total amount cannot result in setting aside the charge against the delinquent. The fact of repayment will not help the petitioner in any manner. It is in fact a circumstance in favour of the management. ”
9.As correctly contended by the learned counsel for the petitioners, even if not for the entire amount, there is no explanation for the balance amount of Rs.27000/-, for which the second respondent himself has credited Rs.25000/-. But the amount has not been credited to the society account and that by itself will not make the charge either vague or vitiated. The reasoning given in the impugned order referred to above clearly support the case of the management. The findings of the enquiry officer in this regard is clearly perverse and the authority has set up a special case for the second respondent.
10.In the light of the above, the writ petition will stand allowed. The impugned order will stand set aside. No costs.
vvk
To
The Deputy Commissioner of Labour
(Authority under the Tamilnadu Shops
and Establishments Act),
Tiruchirappalli