IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-08-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.4096 of 2001 The Management of Tiruchirappalli Cooperative Wholesale Stores Limited, (Chinthamani Cooperative Super Market) 12/1, E.V.R.Road, Tiruchirappalli-17. .. Petitioner. Versus 1.The Deputy Commissioner of Labour, (Appellate Authority under the Tamil nadu Shops and Establishments Act) Tiruchirappalli-20. 2.R.Mani .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorari, calling for the records of the 1st respondent in his order in I.A.No.4 of 2000 in TNSE Appeal No.6/95, dated 27.12.2000 and quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Ms.D.Geetha Additional Government Pleader (R1) Mr.P.Pandi (R2) O R D E R
Heard Mr.R.Parthiban, the learned counsel appearing for the petitioner, Ms.D.Geetha, the learned Additional Government Pleader appearing for the first respondent and Mr.P.Pandi the learned counsel appearing for the second respondent.
2. It is stated that the petitioner is a Cooperative Society registered under the Tamilnadu Cooperative Societies Act and the Rules framed thereunder, functioning in accordance with its bye-laws and the service conditions of the staff of the said society is governed by the Special bye-laws of the society. The second respondent was working as a sub-staff in the Packet Godown of the petitioner society. On 30.4.94, charges were framed against him stating that he had absented himself from duty without prior permission. He had failed to discharge his duties in the Packet Section as he had failed to fill up articles in 500 packets a day as allotted to him and that he had also failed to discharge other duties and responsibilities entrusted to him. Another charge memo was framed against the second respondent, on 14.6.94, stating that he had failed to discharge his duties and responsibilities and he had failed to complete the work allotted to him and that he had received the salary for the months of March and April, 1994, even though he had not done any work during those months.
3. It was also stated that he had signed in the attendance register, on 10.6.94, after he had been marked absent. On 26.7.94, another charge memo was framed against the petitioner stating that he had availed casual leave against the provisions of the bye-laws of the petitioner wholesale stores. In spite of an enquiry being conducted against the petitioner, based on the charges framed against him, he had failed to participate in the said domestic enquiry. Without any reasonable grounds, the second respondent had wanted the petitioner Management to change the Enquiry Officer. Though he had no reasons to make such a request, the Enquiry officer had been changed and one N.Kanagasabai, a retired Joint Registrar of Cooperative Societies was appointed to enquire into the charges. Again the second respondent had wanted the petitioner Management to change the Enquiry Officer. His request was rejected and an enquiry was conducted. The second respondent did not participate in the enquiry, in spite of a notice having been sent to him.
4. It has been further stated that in respect of the charge memo, dated 30.4.94, the Enquiry Officer had submitted his findings on 17.8.94 and in respect of the other two charge memos, dated 14.6.94 and 26.7.94, the enquiry officer had submitted his findings on 2.12.94. In the report of the Enquiry Officer, the charges levelled against the second respondent were held as proved, except for one of the allegation in respect of the charge memo, dated 14.6.94. In view of the serious nature of the charges, a second show cause notice was issued to the second respondent on 21.1.95, calling upon the second respondent to show case as to why he should not be dismissed from service. The second respondent had refused to receive the second show cause notice issued to him. Therefore, the notice was published on 4.2.95 in the Tamil daily “Dina Thanthi”, directing the second respondent to receive the second show cause notice and to submit his explanation and to appear before the Special Officer of the petitioner wholesale stores, on 15.2.95, for a personal hearing. Though the second respondent was offered an opportunity of personal hearing to defend himself against the charges, as well as the proposed punishment of dismissal from service, he had failed to submit his explanation and he had also failed to appear for the personal hearing held, on 15.2.95. Therefore, by an order, dated 14.3.95, he was dismissed from service.
5. Aggrieved by the said order, dated 14.3.95, the second respondent had filed an appeal, under Section 41(2) of the Tamilnadu Shops and Establishments Act, 1947, before the Deputy Commissioner of Labour, Trichy, the first respondent herein, on 13.4.95. Even though the petitioner Management had filed a detailed counter statement, the first respondent had set aside the order of dismissal, dated 14.3.95, by an order, dated 22.4.96, on an erroneous consideration of the facts and circumstances of the case. Against the order of the first respondent, dated 22.4.96, the petitioner Management had filed a writ petition before this Court in W.P.No.10894 of 1996. By an order, dated 3.4.98, the writ petition had been allowed. Paragraphs 20, 21 and 22 of the said order reads as follows:
“20. It could be seen from the available records and the correspondence between the petitioner and the second respondent that the petitioner has given an ample opportunity to the second respondent to take part in the domestic enquiry and he avoided the same for one reason or other and filed the appeal before the first respondent under Section 41(2) of the Act, which according to the petitioner was not properly considered. One thing could be seen from the attitude of the second respondent that he has been purposely and willfully avoiding the domestic enquiry in spite of ample opportunity was given to him. The said facts were not properly considered by the first respondent and in the said circumstances, the order passed by the first respondent suffers from error of law.
21. In the above said circumstances, I feel it necessary that the matter should be remanded back to the first respondent to decide the matter.
22. In the result, the findings of the first respondent are hereby set aside and the case is remitted back to the first respondent to pass an order afresh in accordance with law. No costs.”
Thus, the matter was remanded to the file of the first respondent. The petitioner had filed an interlocutory application in I.A.No.4 of 2000, in T.N.S.E. Appeal No.6 of 1995, to permit the petitioner to let in additional evidence, both oral, as well as documentary. However, the said application was dismissed by the first respondent by an order, dated 27.12.2000, on the ground that this Court, while remanding the matter, had not permitted the parties to let in evidence. In such circumstances, the petitioner Management had filed the present writ petition, under Article 226 of the Constitution of India.
6. No counter affidavit has been filed on behalf of the respondents. However, the learned counsel appearing on behalf of the second respondent had submitted that this Court had passed an order, dated 3.4.98, in W.P.No.10894 of 1996, setting aside the findings of the first respondent therein and remitting the matter back to the first respondent to pass an order, afresh, in accordance with law. In the said order, dated 3.4.98, this Court had not permitted fresh evidence to be let in before the appeal was decided by the first respondent. Therefore, the petitioner Management cannot use the opportunity to improve its case by letting in fresh evidence, at the stage of the appeal, before the first respondent.
7. At this stage of the hearing of the writ petition, it was agreed by the learned counsels appearing on behalf of the petitioner Management, as well as the respondents, that the petitioner Management as well as the second respondent would go before the first respondent, pursuant to the directions issued by this Court, by its order, dated 3.4.98, made in W.P.No.10894 of 1996, for the adjudication of the issues involved in the matter, by letting in fresh evidence.
8. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned, the impugned order of the first respondent, dated 27.12.2000, made in I.A.No.4 of 2000, in T.N.S.E. Appeal No.6 of 1995, is set aside, in so far as it rejects the request of the petitioner Management to let in fresh evidence, before hearing the said appeal, as directed by this Court, by its order, dated 3.4.98, in W.P.No.10894 of 1996. However, the first respondent is directed to permit the petitioner Management, as well as the second respondent, to let in fresh evidence, with regard to the issues raised by them and decide the T.N.S.E.Appeal No.6 of 1995, on merits and in accordance with law, within a period of twelve weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is partly allowed, with the above directions. No costs.
Index:Yes/No 18-08-2008
Internet:Yes/No
csh
To
The Deputy Commissioner of Labour,
(Appellate Authority under the
Tamil nadu Shops and
Establishments Act)
Tiruchirappalli-20.
M.JAICHANDREN,J.
csh
Writ Petition No.4096 of 2001
18-08-2008