IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.11227 of 2003 The Management of Tiruchirappalli Agricultural Producers Co-operative Marketing Society Limited, Rep. By its Special Officer, Uraiyur, Tiruchirappalli 620 003. ... Petitioner vs. 1.The Deputy Commissioner of Labour (Authority under the Tamil Nadu Shops and Establishments Act 1981), Tiruchirappalli. 2.A.Prabhakaran ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of certiorari to call for the records of the first respondent in its Award in TNSE (Tha.Ka.Ni.Cha) No.18/80 dated 26.07.2001, quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mr.N.Senthil Kumar for R1 Additional Government Pleader R2- No Appearance Party in person & counsel O R D E R
The petitioner has filed this writ petition praying for issuance of a writ of Certiorari in calling for the records of the first respondent in its Award in TNSE (Tha.Ka.Ni.Cha) No.18/80 dated 26.07.2001 and to quash the same.
2. The petitioner/Society is registered under the provisions of the Tamil Nadu Cooperative Societies Act. It has its own bye-laws, special bye-laws in regard to the conditions of the services of the employees. The petitioner/Society deals with receiving and storage of goods like rice, wheat, etc., from the Tamil Nadu Civil Supplies Corporation and supply the same to different units. There was a shortage of goods supplied due to under-weighment in the Branch where the second respondent was working.
3. The second respondent was employed in the petitioner Society as a Packer from 25.06.1975. He was engaged as a Packer, Office boy to perform day to day casual duties. He was issued with a charge memo by the Special Officer for numerous misconduct committed by him and later he was kept under suspension from 01.11.1978.
4. The charges framed against the second respondent/employee were as follows:-
[i] During 1977-78, there was a stock shortage of Rs.720.27 and for which the second respondent deposited a sum of Rs.352.41 leaving behind a balance of Rs.368.46. There were stock shortages on various dates viz. 30.6.1977, 31.3.1978, 23.3.1978, 19.1.1978, 20.2.1978, 18.3.1978 and 31.3.1978.
[ii] From 1.4.1978 to 15.4.1978, when the second respondent was working as a Packer/Weighing worker in the Thiruthanthoni Branch, stock shortages were noticed in (a) 6 kgs., in the first hand variety of rice, (b) 9 kgs in wheat (c) 6 kgs. In superfine rice and thereby to the extent of a total sum of Rs.35.70 was misappropriated by him.
[iii] On 28.9.1978, the second respondent took 7 tons of rice from the Sempattu Godown and distributed the same to other Branches. While delivering, he did not prepare delivery orders properly and get receipts for them from the proper authorities, but made an entry in a rough paper and delivered. When an explanation was called for from him for this lapse, he refused to receive the letter dated 21.10.1978.
[iv] On 7.11.78, the second respondent complained against the Special Officer of the Society and one Kulanthai, a co-worker in the Society with false information to the Trichy District Cholia Vellalar Sangam, thereby he violated the provisions of Rule 9 of the Society.
[v] On 22.6.1978, the second respondent was transferred to the Chinamani Branch. Even though he received the letter of transfer, he refused to take responsibility of the Branch and disobeyed the orders of the Special Officer. He had therefore committed the misconduct of disobedience of the orders of superior officers.
[vi] (1) When he was asked to explain for his refusal to receive the salary of May 1978, even though he received the letter dated 14.6.1978, he did not reply to the Management.
(2) He refused to receive the Notice dated 31.8.1978 about the reduction of staff.
(3) He refused to receive the letter asking him to explain about the stock shortage of rice which he took from Sempattu Branch.
5. A domestic enquiry was conducted by an Advocate and the Enquiry Officer found the second respondent guilty of misappropriation and found all the charges framed against him except the charge No.6 were proved. The report of the Enquiry Officer was considered by the petitioner Society and it came to an individual conclusion to terminate the services of the second respondent and resultantly an order of termination with effect from 01.11.1978 was passed in respect of the second respondent.
6. Being dissatisfied with the order of termination, the second respondent filed an appeal as per Section 41(2) of the Tamil Nadu Shops and Establishments Act 1947 before the Appellate Authority and the Appellate Authority also concurred with the findings of the Enquiry Officer and dismissed the appeal.
7. The second respondent filed a writ petition in W.P.No.1230 of 1987 and this Court in its order dated 05.01.1998 has allowed the writ petition inter alia observing that ‘there was no material for the Appellate Authority to come to the conclusion that the question of misappropriation of stock was proved and he had not applied his mind to the charges 3, 5 and 6 and even assuming that the charges 1 and 4 were proved it would not lead to a conclusion that the Appellate Authority would sustain the order of dismissal from service and the Appellate Authority was directed to consider the matter with reference to charges 3, 5 and 6 and the Appellate Authority applied his mind and held that the charges 1 and 4 were proved and in regard to the charge No.3, the Appellate Authority came to the conclusion that without any discussion and therefore the Appellate Authority was directed to consider the matter afresh with reference to charges 3, 5 and 6 and then impose appropriate punishment and resultantly remitted the matter to the Appellate Authority to consider the matter afresh with reference to charge Nos.3, 5 and 6 and has also held that if the Appellate Authority comes to the conclusion that the charges 3, 5 and 6 are proved or even some of the charges are proved, it is open to him to impose a just punishment for the charges proved including the charges 1 and 4 which were held to be proved.
8. The first respondent/Appellate Authority on remand passed an order on 26.07.2001 setting aside the order of termination imposed on the second respondent and ordered the relief of reinstatement with continuity of service and 50% backwages.
9. Against the said order dated 26.07.2001 passed by the first respondent, the petitioner/Society has filed the present writ petition.
10. The learned counsel for the petitioner/Society submits that the first respondent had not assigned any reason for setting aside the order of petitioner/Society and also had not applied its mind and as a matter of fact, the Appellate Authority came to the conclusion that the charges (i) to (iv) were proved and only charges (ii) and (v) were not proved and mentioned that the charge No.(iii) cannot be an acceptable one and charge No.(vi) an ordinary charge and in fact the learned Appellate Authority allowed the appeal based on the reasons that
(a) the past record of the second respondent is good;
(b) principles of natural justice were not followed by the
Enquiry Officer;
(c) second show cause notice was not issued;
(d) the second respondent was out of service for 20 years,
which itself is a punishment;
(e) there was enmity between the petitioner and the second
respondent which led to the termination of the services of
the second respondent;
(f) the second respondent had not obeyed the orders of the
petitioner Management which in fact which resulted in the
termination of his services;
and the reasons given by the first respondent in its order dated 26.07.2001 are an illegal one and when this Court has held in W.P.No.1230 of 1987 that the charge Nos.(i) and (iv) were held to be proved then the Appellate Authority ought to have applied his mind to correlate the charges with the other three charges and charge No.(ii) was a serious misconduct on the part of the second respondent which warrants dismissal and the second respondent himself had accepted that he had not obtained signatures from the concerned persons in the delivery order and that he only maintained a rough receipts and this would establish clearly his motive to misappropriate stocks and his attitude towards his responsibility and that apart when the petitioner Society required him to show cause for not adhering to the procedure in a proper manner, the second respondent/employee refused to receive the letter which shows the attitude of the employee but the first respondent gave a finding that the second respondent refused to receive the communication which was sent by the Management and held that the charge No.(ii) was not proved, a perverse finding indeed and when the second respondent had accepted the charge No.(iii), then the Appellate Authority had not applied its mind in a proper perspective and even though the charge of refusal to obey the transfer order was proved to say that the same was not a misconduct as observed by the Appellate Authority was not a correct view and merely because the second respondent was out of service for 20 years and that will be a major punishment cannot be a reason to set aside the order of dismissal, etc., passed by the Management since the same will not mitigate the grave charges levelled against the second respondent and also that the finding of the first respondent/Appellate Authority that the past service of the second respondent was good was not based on the facts and circumstances.
11. Continuing further, the learned counsel for the petitioner contends that the issuance of the second show cause notice is not necessary and in this regard the contrary observation of the Appellate Authority is not a correct one in the eye of law and therefore prays for allowing the writ petition.
12. It is useful to refer to the order of this Court passed in W.P.No.1230 of 1987 dated 05.01.1998 wherein it is among other things observed that ‘……on the basis of the admission by the writ petitioner (Second respondent), the Appellate Authority came to the conclusion that the first charge was proved and since that it was found that the petitioner was accepted the stock shortage the finding of the Appellate Authority could not be held to be vitiated and in regard to the second charge was concerned, it pertains to misappropriation of the stocks by the second respondent/writ petitioner with ulterior motive during the period from 01.04.1978 to 15.04.1978 and during that period, there was shortage of 6 kilograms of rice, 6 kilograms of super fine rice and 9 kilograms of wheat totalling a sum of Rs.35.75 and this Court came to the conclusion that on the mere existence of stock deficiencies particularly when there was joint responsibility, it could not be inferred that the petitioner (Second respondent) misappropriated the stock or the value of the goods without any evidence to the misappropriation and therefore it has not accepted the findings of the Appellate Authority as well as the Disciplinary Authority that the charge No.(ii) was proved and in regard to the third charge, it came to the conclusion that there was no discussion by the Appellate Authority as to the third charge, though the petitioner was found guilty by the Disciplinary Authority and as far as the fourth charge was concerned, it was observed that the Appellate Authority accepted the findings of the Disciplinary Authority and since it was a question of fact that the fourth charge must be taken to have been proved and the Appellate Authority had not considered the other charges against the petitioner and therefore it came to the conclusion that the impugned order was not sustainable in law and in regard to (iii), (v) and (vi) charges were concerned, it came to the conclusion that there was no discussion by the Appellate Authority as to how he confirmed the findings of the Disciplinary Authority though the second respondent denied the same in the appellate proceedings and there was no consideration of the grounds raised by him. Therefore the Appellate Authority was directed to consider the matter with reference to the charges (iii), (v) and (vi) afresh and then impose appropriate punishment for the charges proved including the charges (i) and (iv) which are held to be proved.’
13. At this stage, the learned counsel for the petitioner/Society draws the attention of this Court to the order of the first respondent dated 26.07.2001 wherein the said Authority has observed that the second respondent/delinquent has prepared the delivery order without obtaining the signature and supplied the stock to the branches and it is true that without delivery order, the second respondent/delinquent has handed over the stocks to the Branch Incharge and then certainly the charge No.(iii) was proved and to further observed that the second respondent’s attitude of not receiving the communication by refusing the same cannot be a misconduct when it was found that the said refusal was true was not a correct one and to come to a conclusion that this type of act cannot be a misconduct was not a correct conclusion and in regard to the charge No.(v), in subordination to come to the conclusion, the charge was proved by the Management as per the report of the Enquiry Officer was not correct, etc., and ultimately exonerated the delinquent from the said charge and in regard to the charge No.(vi), the first respondent came to a conclusion that the postal covers were returned by not accepting the same by delinquent. Therefore the charge No.(vi) was held to be proved and in totality, out of six charges, charge Nos, (i) and (iv) have been proved and though the charge No.(vi) ordinary one was held to be proved but charge Nos. (ii) and (v) were not proved and the charge No.(iii) was not to be accepted and therefore the charges could not be construed to be one of related serious misconduct, other deviant acts, misappropriation and ultimately even though the charge Nos.(i) and (iv) were held to be proved by the High Court as per order dated 05.01.1998 in W.P.No.1230 of 1987 and since the charge No.(vi) was found to be proved it set aside the order of dismissal of second respondent and granted reinstatement with continuity of service with 50% backwages of the second respondent/employee by way of punishment.
14. When once the charges were held to be proved by the first respondent then the first respondent could not exonerate the second respondent/employee and an appropriate punishment was to be awarded by the competent Authority and in the instant case, the same was not done and in this regard, the learned counsel for the petitioner cites the decision of the Supreme Court in JANATHA BAZAR (SOUTH KANARA CENTRAL CO-OPERATIVE WHOLESALE STORES LTD.), ETC., V. SECRETARY, AIR 2000 SUPREME COURT 3129 wherein it is observed that ‘in respect of charges of breach of trust and misappropriation of goods which have been proved then reinstating the one and even the past record of employee cannot be taken into account. He also cites the decision COIMBATORE DEVANGO WEAVERS CO-OPERATIVE PRODUCTION AND SALES SOCIEITY LTD. Vs. C.NATARAJAN, 2002 WRIT L.R. 443, wherein it is observed that ‘merely because a workman had been in service for long time, it did not give him licence to misappropriate the funds of the Co-operative society and that the conclusion of the Labour Court that punishment is excessive is misconceived.’
15. He brings it to the notice of this Court the decision MGMT. OF TAN INDIA LTD., Vs. PRESIDING OFFICER, LABOUR COURT, COIMBATORE, 2002 (II) LLJ 678, wherein it is observed that ‘insubordination of the employee has to be seriously viewed and strict discipline has to be enforced’. Also on the side of the petitioner, the decision of the Supreme Court in STATE OF U.P. AND OTHERS Vs. NAND KISHORE SHUKLA AND ANOTHER, (1996) 3 SCC 750, is pointed out to the effect that although only one charge under Rule 24 of the Conduct Rules, viz., sale and purchase of properties without requisite permission proved and witnesses with regard to other charges remained unexamined due to non-cooperation of the employee, the enquiry officer giving a finding that all the charges were proved and pursuant to such finding, the disciplinary authority passing the order of removal and even in such circumstances, held, the High Court could not interfere with the order of removal on the mere ground that it was doubtful as to whether the disciplinary authority would have passed the order of removal only on the basis of a single charge.
16. Another decision of this Court R.VENKATESAN Vs. THE GOVERNMENT OF PONDICHERRY REP. BY THE SECRETARY TO THE GOVERNMENT, 1983 (2) MLJ 159 is cited on the side of the petitioner, wherein it is held as follows:-
” Out of the four charges levelled against the delinquent in a domestic enquiry, the delinquent admitted to the second charge in his written explanation. When an order of dismissal was passed against him on the basis that the first two charges had been proved, the delinquent pleaded violation of the principles of natural justice and held that since the second charge had been admitted by the delinquent, the plea of violation of the principles of natural justice, cannot survive.”
17.At this stage, this court pertinently points out that this court in its order dated 05.01.1998 in W.P.No.1230 of 1987 in regard to the second charge at paragraph No.11 has observed as follows:-
“11.The appellate authority palced relaince on a decision stated to be reported in [1963 [1] CRL.L.J. 10] wherein it was stated to be held tht to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominian, misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure and breach of an obligation to account for the property entrusted may be proved in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversions. Though the appellate authority has referred to the decision reported in [1963 [1] CRL.L.J. 10], it is seen, the appellate authority has not mentioned the name of the case and there is no case reported in [1963 [1] CRL.L.J.] dealing with the question of misappropriation of the goods. The authorities, wherever they rely upon decisions, should give the citation of the cases and also give the name of the cases and the practice of merely quoting the citation should be avoided. Here, there is no proof of entrustment of the property to the petitioner herein. Ex.R2 makes it clear that the goods were entrusted to the bill clerk as well as weighman and that being the position, whenjoint responsibility was imposed, it cannot be stated, the petitioner was guilty of dishonest and misappropriation of goods because he was a packer of the goods. It is not a case of entrustment of goods to the petitioner along. But, a joint responsibility was imposed and without any proof, it is neither possible to infer that the goods were solely entrusted to the petitioner, not it is possible to infer that because of the stock shortage, the petitioner had misappropriated the goods in question. The admission of stock shortage in one aspect, but the proof for misappropriation of goods is another thing. It is relevant to notice that the petitioenr had not admitted misappropriation of the goods. Hence, it is not possible to accept the findings of the appellate authority as well as disciplinary authority that the charge No.2 was proved.”
and therefore, it is quite evident that this court has not accepted the findings of the Appellate Authority as well as the Disciplinary Authority that the charge No.[ii] pertaining to the misappropriation of Rs.35.70 has been proved.
18.This court in W.P.No.1230 of 1987 filed by the second respondent as petitioner while passing orders on 05.01.1998 at paragraphs Nos.17 and 18 has observed inter alia as follows:-
17.Learned cousnel for the first respondent also placed reliance on a decision of the Supreme Court in STATE OF U.P. Vs. NAND KISHORE SHUKLA [1996] 3 SWCC 750] and submitted that even one of the charges, was held to be proved that would be sufficient for imposition of penalty by the disciplinary authority of the appellate authority, and the Court would not interfere with that part of the order. The decision relief upon by the learned counsel for the first respondent is not applicable to the facts of the case. In the case before the Supreme Court, department enquiry was initiated on five charges and before the enquiry officer, all five charges were proved. It was also found that the disciplinay authority has passed an order of removal of service on the basis of charge No.2 alone. In that situation, the Supreme Court held that even if one of the charges were proved, that would be sufficient for imposition of penalty by the disciplinary authority as well as the appellate authority this court should not interfere with the punishment aspect. On the facts of that case, it is not clear whether the disciplinary authority as well as the appellate authority would have passe an order of termination of service if the charge No.2 was not proved. Charge No.2 is a serious charge relating to misappropriation of fund and if that charge was not proved, what would be the quantum of punishment that may be imposed depends upon the discretion of the disciplinary authority as well as the appellate authority. Therefore, in the instant case, the mere fact that charges 1 and 4 were proved does not ipso facto lead to a conclusion that the impugned order should be upheld. In the instant case, there is no material for the appellate authority to come to a conclusion that the question of misappropriation of stock was proved and he has not applied his mind to the charges 3,5 and 6. Even assuming that charges 1 and 4 were proved, it would not lead to a concluson that the appellate authority would sustain the order of dismissal from service. The appellate authority is directed to consider the matter with reference to charges 3,5 and 7. As already stated, the appellate authority has applied its mind and held that the charges 1 and 4 were proved. In so far as charge No.3 is concerned, I find that the appellate authority has come to the conclusion without any discussion on that asked. Therefore, the appellate authority is directed to consider the matter afresh with reference to charges 3,5 and 6 and then impose appropriate punishment. Since this Court is remitting the order to the appellate authority to consider the matter afresh with reference to some of the charges levelled against the petitioner, the decisions relied upon by the learned counsel for the first respondent that this Court should not interfere with the quantum of punishment have no application to the facts of the case. It is further made clear that it is open to the appellate authority to consider the matter afresh with reference to the charges set out above and impose proper punishment in the circumstances of the case warranting the same.
18.With these observations, the writ petition is allowed to that extent. The Appellate Authority is directed to consider the matter with reference to the charges 3, 5 and 6 and if the appellate authority comes to the conclusion that the charges 3, 5 and 6 were proved, or even if some of the charges are proved, it is open to him to impose a just punishment for the charges proved including the charges 1 to 4 which were held to be proved. However, in the circumstances of the case, there will be no order as to costs.
19. In this connection, it is apt for this Court to make a mention that according to Stroud’s Judicial dictionary, Misconduct means, a misconduct arising from all ill notions, acts of negligence. The term ‘misconduct’ is a generic term and insubordination, neglect to work, etc., are species thereof.
20. Any employee who indulges in dishonesty or fraud will be hazardous to the organisation in which he serves. Added further, if due to unlawful activity of any employee the organisation is not getting what is legally due to it, then the organisation is very much within its right to take action against such employee. A dishonest conduct on the part of an employee in relation to the business of his employee is a serious misconduct justifying the dismissal from service.
21. That apart, ‘insubordination’ means the tendency or State of mind or any act which is contrary to subordinate position of an employee. In this sense, all acts of disobedience can be said to amount to insubordination but not vice-versa.
22. Since this Court in its order dated 05.01.1998 in W.P.No.1230 of 1987 has held in paragraph No.11 that the charge No.(ii) has not been proved, it is not open to the first respondent to make any observation regarding the charge No.(ii) once again to say that it has not been established and the said observation is of no avail and further it is only otiose because of the simple fact that the finding referred in the earlier order passed in W.P.No.1230 of 1987 dated 05.01.1998 in regard to the charge No.(ii) has become final and conclusive and binding between the parties and cannot be re-agitated once again.
23. Inasmuch as this Court by its order dated 05.01.1998 in W.P.No.1230 of 1987 has directed the first respondent/Appellate Authority to consider the matter with reference to the charges Nos.(iii), (v) and (vi), etc., and allowed the writ petition to that extent then the observation of the first respondent in its order dated 26.7.2001 in T.N.S.E.No.18 of 1980 to the effect that the second show cause notice has not been issued to the second respondent will not prejudice the case of the second respondent/employee in any manner in the considered opinion of this Court. Equally, the other observation of the first respondent in his order to the effect that the second respondent/employee has served for more than 20 years and therefore the order of dismissal is a larger punishment, is not a prudent one based on the facts and circumstances of the case, which admittedly floats on the surface.
24. On a careful consideration of the respective contentions, this Court is of the considered view that the charges (i) and (iv) were already held to have been proved in the order dated 05.01.1998 passed in W.P.No.1230 of 1987 and when the first respondent in his order in regard to the charge No.(iii) has observed that it is true that the second respondent has supplied the rice stock without delivery orders then the said charge is held to be proved and the contra view taken by the first respondent is not correct and therefore this Court holds that the charge No.(iii) is proved and when the Head Clerk Periyasamy had submitted a report to the Special Officer that the second respondent/employee had come to Chinthamani fair shop and verified the stocks and refused to sign, then the said contents of report establishes that the charge No.(v) has been proved and accordingly this Court holds that the charge No.(v) has been substantiated by the petitioner/Society and since the charge No.(vi) which contains three sub charges has been held to be proved by the first respondent by observing that out of three postal letters, the second respondent has received one but not given acknowledgement thereto and refused to receive the postal covers as seen from exhibits marked on the side of the Management and therefore this Court is an agreement with the view taken by the first respondent in regard to the charge No.(vi) and resultantly holds that the charge No.(vi) has been proved against the second respondent/employee and in short, it is suffice for this Court to conclude that in view of the proved charges viz., (i), (iv), (iii), (v) and (vi), this Court awards a punishment of dismissal to secure the ends of justice and thereby the order of the first respondent dated 26.07.2001 in T.N.S.E.No.18 of 1980 to prevent an aberration of justice and allows the writ petition without costs.
25. Before parting with the case, it is to be pointed out that this Court while passing an order of interim stay in W.P.M.P.No.14077 of 2003 dated 28.08.2003, has directed the writ petitioner/Society to pay a sum of Rs.10,000/- to the second respondent/Employee within a period of four weeks from the date of receipt of a copy of the order and if the condition is not complied with, an amount of Rs.10,000/- as ordered by this Court in W.P.M.P.No.14077 of 2003 dated 28.08.2003 has been paid to the second respondent/employee the same shall not be recovered by the petitioner/Society. No costs.
21.01.2010 Index :Yes/No Internet :Yes/No vri M.VENUGOPAL,J. VRI W.P.No.11227 of 2003 21.01.2010