{"id":259663,"date":"2011-01-27T00:00:00","date_gmt":"2011-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-27-january-2011"},"modified":"2017-08-29T17:32:14","modified_gmt":"2017-08-29T12:02:14","slug":"the-management-vs-the-presiding-officer-on-27-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-27-january-2011","title":{"rendered":"The Management vs The Presiding Officer on 27 January, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management vs The Presiding Officer on 27 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/01\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.VENUGOPAL\n\nW.P(MD)No.9607 of 2005\n\nThe Management,\nA 876, Cumbum Urban Co-operative\nSociety, Nehruji Street, Cumbum,\nTheni District - 625 516.\t\t\t... Petitioner\n\nVs.\n\n1.The Presiding Officer,\n  Labour Court,\n  District Court Buildings,\n  Melur Road,\n  Madurai - 625 020.\n\n2.M.Dhinakaran\t\t\t\t\t... Respondents\n\nPrayer\n\nPetition filed under Article 226<\/a> of the Constitution of India, to issue\na Writ of Certiorari to call for the records relating to the impugned order of\nthe first respondent in his file I.D.No.159\/97 and quash the order dated\n27.10.2004.\n\n!For Petitioner   ... Mr.M.Seenivasagam\n^For Respondents  ... Mr.T.Ravichandran for R.2\n\t\t\t R1 - Court.\n* * * * *\n\n:ORDER\n<\/pre>\n
\tThe petitioner has filed this writ petition seeking a Writ of Certiorari
\nto call for the records relating to the impugned order of the first respondent
\nin his file I.D.No.159\/97 and quash the order dated 27.10.2004.\n<\/p>\n
\t2. The petitioner’s\/Society’s object is to extend the financial assistance
\nto its members at their need.  They also grant jewel loan by means of mortgage
\nof the jewels.  For the maintenance of stock and accountance, a set of employees
\nhas been allotted with specific duties and responsibilities.  The procedure for
\nreceipts and issues are backed by supporting vouchers, etc.<\/p>\n
\t3. The case of the petitioner\/Society is that the second
\nrespondent\/employee has been serving as a clerk in the petitioner\/Society.  He
\nhas been assigned with the pledged jewels on joint custody with the Secretary.
\nAs per the procedure, on receipt of the cash for redemption of jewels, the clerk
\nhas to make a note of the receipt in the  jewel loan ledger with the help of the
\nSecretary by using the other key after satisfying that the entries therein are
\ntallying with each other.  The second respondent\/employee as a custodian of the
\njewels has equal responsibility to look into the transactions carefully.  It is
\nimpossible to do any mischief without the knowledge or connivance of the second
\nrespondent\/employee.  The Special Officer of the petitioner\/Society on
\n27.12.1995, has verified the accounts and stocks of jewels and found that 33
\nitems of jewels have not been in the stock.  Whereas there is no entry in the
\nrespective books of accounts about the clearing of the loans.\n<\/p>\n
\t4. It is the case of the petitioner\/Society that there is no possibility
\nfor the jewels to cross the door without the knowledge of the second
\nrespondent\/employee.  However, he has not explained in detail as to the release
\nof the jewels when accounts have not been closed. Thus, his connivance with the
\nSecretary is a open secret parting with those jewels under pledge.\n<\/p>\n
\t5. The learned Counsel for the petitioner\/Society submits that
\nRs.3,65,761.65 have been still outstanding and the petitioner\/Society has
\nincurred a heavy loss.  Also, it is found that Rs.1,400\/- on 10.08.1994 has not
\nbeen brought to the account of the Society.\n<\/p>\n
\t6. The second respondent\/employee has been suspended followed by a detail
\ncharge memo dated 21.03.1996 and he has been directed to submit his explanation
\nwithin a week.  He acknowledged the charge memo on 22.03.1996 and sent his
\nexplanation dated 10.04.1996 which has been found to be unsatisfactory and a
\ndomestic enquiry has been conducted against the second respondent\/employee and
\nThiru.C.G.Pethanaraj, Advocate, has been appointed as Enquiry Officer. The
\nsecond respondent\/employee, on 27.07.1996 attended the enquiry and pleaded
\nguilty unconditionally.  However, to provide adequate opportunity to him to
\ndefend the charges, the Enquiry Officer decided to proceed with the enquiry on
\n24.09.1996.  The second respondent\/employee again admitted the charges by his
\nstatement with supportive documents.  When he has been given an opportunity to
\ncross-examine the Management witness, K.Paramasivam, he reiterated once again
\nthat he admitted his guilt and need not cross-examine the witness.  Therefore,
\nthe enquiry has been concluded.\n<\/p>\n
\t7. The Enquiry Officer submitted his finding dated 07.12.1996 holding that
\nall the charges levelled against the petitioner mentioned in the charge memo
\nhave been proved beyond doubts and the charges levelled against the second
\nrespondent\/employee are as follows:\n<\/p>\n
\t“(a) That he failed to make necessary entries in the records of the
\nsociety for the receipt of Rs.3,65,761-65\/= towards redemption of jewel loans,
\nreleased the pledged jewels from custody, thereby, he connived with the
\nsecretary in misappropriation of those amount;\n<\/p>\n
\t(b) That he, by suppressing the above misdeeds from the knowledge of the
\nSpecial Officer, he derelict from his duties and responsibilities;\n<\/p>\n
\t(c) That he, failed to transact the receipt of Rs.1,400\/- on 10.08.1994,
\nreduced the cash balance, thereby, helped the secretary to commit
\nmisappropriation of the said amount;\n<\/p>\n
\t(d) That he, by his willful acts and omissions undermined the morale and
\ndiscipline of the society;\n<\/p>\n
\t(e) That, by his above commissions and omissions, the management lost
\nconfidence that reposed on him.”\n<\/p>\n
\t8. The petitioner\/Society decided to agree with the finding of the Enquiry
\nOfficer and in view of the proved serious misconducts of the second
\nrespondent\/employee, the petitioner\/Society resolved to dismiss him.  A second
\nshow cause notice dated 10.12.1996 proposing the punishment of dismissal along
\nwith the copy of the Enquiry Officer’s finding have been sent to the second
\nrespondent\/employee to offer his explanation.  The second respondent\/employee by
\nhis reply dated 16.12.1996 admitted his guilt, but prayed for admonition.  The
\npetitioner\/Society has not been in a position to reconsider the proposed
\npunishment  in view of the seriousness of the proved misconduct and therefore,
\nby means of an order dated 16.05.1997 dismissed  the second respondent from
\nservice taking effect from the date of suspension on 29.02.1996.\n<\/p>\n
\t9. The second respondent\/employee filed I.D.No.159 of 1997 raising a
\ndispute as per Section 2-A(2)<\/a> of the Industrial Disputes Act, 1947, before the
\nfirst respondent\/Labour Court, Madurai.  After contest, the first
\nrespondent\/Labour Court, without considering or interfering with the quantum of
\npunishment has incorrectly relied upon the order passed in the surcharge
\nproceedings initiated against the second respondent\/employee and also improperly
\nmisconstrued the exoneration of his liability to exonerate himself from the
\ncharges held that no charge has been made out and passed an award of setting
\naside the dismissal order passed by the petitioner\/Society dated 16.05.1997 and
\nfurther, directed to reinstate the second respondent\/employee and that too, with
\nbackwages.\n<\/p>\n
\t10. The learned Counsel for the petitioner\/Society contends that the first
\nrespondent\/Labour Court in paragraph 22 of the award in I.D.No.159 of 1997 dated
\n27.10.2004, when admittedly the second respondent\/employee has conceded that the
\nenquiry has been conducted properly and that the propriety of enquiry need not
\nbe gone into, has proceeded to find out that the charge of connivance of the
\nsecond respondent in misappropriation has been proved and thereby traversed
\nbeyond the pleadings, written arguments and without a issue being framed thereto
\nwhen it is not at all the issue or pleading or a point in controversy and that
\nthe procedure adopted by the first respondent is not in accordance with law.\n<\/p>\n
\t11. Advancing his arguments, it is the submission of the learned Counsel
\nfor the petitioner\/Society that the second respondent\/employee in his
\nexplanation to the charges – Ex.M.3, in his confession statement – Ex.M.9,
\nduring questioning in the domestic enquiry and in his deposition in the domestic
\nenquiry – Ex.M.35, all along admitted his guilt and there is no need to go into
\nthe question that the charge of connivance has been proved or not.\n<\/p>\n
\t12. Proceeding further, the learned Counsel for the petitioner\/Society
\nurges before this Court that the first respondent\/Labour Court has taken shelter
\non Ex.W.1, the order of the Deputy Registrar of Co-operative Societies passed in
\nthe surcharge proceedings initiated against the second respondent along the co-
\naccused which is not an admissible document as it is not related to the
\ndisciplinary action or relied upon during the domestic enquiry and thereby,
\nrelied on an extraneous material beyond the documents pertaining to disciplinary
\naction\/domestic enquiry to which he is not empowered.\n<\/p>\n
\t13. Expatiating his submissions, the learned Counsel for the
\npetitioner\/Society submits that the first respondent\/Labour Court has failed to
\nappreciate that the Arbitrator in his order in Ex.W.1, exonerated the second
\nrespondent\/employee from the liability of repayment of the loss on the ground
\nthat the co-delinquent conceded to remit the amount as he has been the
\nbeneficiary of misappropriation and his admission of guilt or the exoneration of
\nthe second respondent\/employee from the liability cannot absolve the second
\nrespondent from the charge of connivance in the misappropriation.\n<\/p>\n
\t14. The learned Counsel for the petitioner\/Society submits that it is
\nadmitted that without repayment of loan and without any entry in the loan ledger
\non the redemption of loan, the second respondent\/employee co-operated with the
\nSecretary to get the release of the pledged jewels by using the key in his
\npossession and thereby, with his knowledge, the jewel has crossed the locker
\nillegally which amounts to clear connivance in the misdeeds and misuse of power
\nand position, besides gross dereliction from his duties coupled with breach of
\ntrust.\n<\/p>\n
\t15. The learned Counsel for the petitioner\/Society takes a plea that the
\nfirst respondent\/Labour Court has failed to note that the second respondent has
\nbeen charged for connivance and not for misappropriation and when the charge of
\nthe connivance when proved amounts to the offence committed, the second
\nrespondent\/employee is to be awarded with punishment for misappropriation.\n<\/p>\n
\t16. In short, the contention of the learned Counsel for the
\npetitioner\/Society, is that the reasons assigned by the first respondent\/Labour
\nCourt to set aside the order of dismissal passed by the petitioner\/Society dated
\n16.05.1997 in its award in I.D.No.159 of 1997, are against facts, biased and
\ntotally against the well settled principles of law and as such, the award is to
\nbe quashed by means of allowing this writ petition.\n<\/p>\n
\t17. In response, the learned Counsel for the second respondent\/employee
\nsubmits that the second respondent\/ employee has been levelled with the
\nallegations that he has connived with the Secretary of the petitioner\/Society in
\nregard to the misappropriation of jewel loan amount and further that, he has
\nmisappropriated  the receipt amount of Rs.1,400\/-, but the Secretary of the
\npetitioner\/ Society, K.Kottaimayan, has categorically admitted that he alone is
\nliable for misappropriation and that he himself repaid the full amount and that
\nthe Enquiry Officer himself found that he has recorded the alleged receipt of
\nRs.1,400\/- in the rough cash book and thereby he has not committed any mistake.\n<\/p>\n
\t18. It is the contention of the learned Counsel for the second
\nrespondent\/employee that the Deputy Registrar of the Co-operative Societies,
\nUthamapalayam, has deleted the name of the second respondent\/employee from the
\nsurcharge proceedings as per Section 87 of the Tamil Nadu Co-operative Societies
\nAct and when the petitioner\/Society has dismissed the second respondent\/employee
\nas per order dated 16.05.1997, the petitioner filed I.D.No.159 of 1997 in which
\nthe award has been passed by the first respondent\/Labour Court on 27.10.2004,
\nwherein a direction has been issued to the petitioner\/Society to reinstate the
\nsecond respondent\/employee with continuity of service and backwages.\n<\/p>\n
\t19. According to the learned Counsel for the second respondent\/employee,
\nthe petitioner\/Society has not reinstated the second respondent\/employee though
\nvarious letters have been written by him and ultimately, the petitioner\/Society
\nhas filed the present writ petition, whereas in W.P.M.P.(MD)No.10317 of 2005,
\nthis Court has directed the petitioner\/Society on 25.10.2005 to deposit the
\nentire backwages within the period of three weeks, but the petitioner\/Society
\nhas not made any deposit.\n<\/p>\n
\t20. The second respondent\/employee filed W.P.M.P(MD) No.11032 of 2005 as
\nper Section 17(B)<\/a> of the Industrial Disputes Act, 1947 and this Court on
\n01.02.2006, in W.P.M.P(MD)No.11032 of 2005 has directed the petitioner\/ Society
\nto pay the monthly wages to the second respondent\/employee as per Section 17(B)<\/a>
\nof the Industrial Disputes Act, 1947. When the petitioner\/Society has not
\ncomplied with the order passed by this Court in W.P.M.P(MD)No.11032 of 2005
\ndated 01.02.2006, the second respondent\/employee sent a notice dated 20.06.2006
\nfor the contempt committed by the petitioner\/Society, and only from the month of
\nApril 2006, the petitioner\/Society is paying the monthly wages and that too, not
\nregularly.  The categorical stand of the second respondent\/employee is that only
\nfor the record purpose, the petitioner\/Society has given fixed liability on the
\nsecond respondent\/ employee for jewel loan key.  Practically, the Secretary,
\nKottaimayan, has been fully dealing with the jewel loan individually and this
\nhas been accepted by him at the enquiry held by the petitioner\/Society, but that
\ndocument has been suppressed.\n<\/p>\n
\t21. Further, the Secretary, Kottaimayan has admitted that he alone
\ncommitted the misappropriation in jewel loan and the second respondent\/employee
\nhas no hand in it before the Deputy Registrar of the Co-operative Societies,
\nUthamapalayam and therefore, the second respondent\/ employee has been exonerated
\nfrom liability by the Deputy Registrar. Also, the fact that the Secretary,
\nKottaimayan, will get money and redeem the jewel, goes to show that the second
\nrespondent\/employee is no way practically concerned with it.\n<\/p>\n
\t22. Inasmuch as the Secretary, Kottaimayan is fully responsible for the
\njewel loan and when he has paid the loss admitting his guilt, there is no
\nconnivance on the part of the second respondent\/employee.  Added further, the
\nEnquiry Officer in his report has clearly stated that ‘likewise, on different
\ndates, when the jewel loan has been redeemed, the loan amount received by the
\nSecretary has been misappropriated by him and that the jewel loan in -charge,
\nDinakaran (second respondent\/employee) has not informed the illegal\/cheating
\nacts to the higher officials.’<\/p>\n
\t23. The learned Counsel for the second respondent\/ employee submits that
\nthe second respondent\/employee is no way helped or connived with the Secretary
\nKottaimayan, to commit misconduct and there is no evidence also that the second
\nrespondent\/employee released any jewel and when the Secretary Kottaimayan has
\nadmitted his guilt and also repaid the amount, there is no loss to the
\npetitioner\/Society. In regard to the receipt of Rs.1,400\/- on 10.08.1994, the
\nsecond respondent\/employee has recorded the receipt in the rough cash book and
\nin the domestic enquiry, it is observed that ‘in the Day Book Register, Ex.P.6,
\non 10.08.1995, a sum of Rs.1,000\/- and Rs.400\/- totally a sum of Rs.1,400\/- has
\nnot been credited into the account. However, in the Subsidiary Day Book
\nRegister, the same has been credited and that the Subsidiary Day Book Register,
\nEx.P.7, has been maintained by the delinquent and that after receiving the cash
\namount, the same has not been credited into the savings account and the
\nSecretary has misappropriated.’<\/p>\n
\t24. Relying on the aforesaid observation in the enquiry report, the
\nlearned Counsel for the second respondent\/employee vehemently contends that the
\nmisappropriation has been committed only by the Secretary, Kottaimayan.  That
\napart, it is the submission of the learned Counsel for the second
\nrespondent\/employee that even in the explanation dated 21.12.1996, furnished by
\nthe second respondent\/employee to the second show cause notice,  it has been
\nclearly mentioned that the Secretary has committed all the misconducts and he
\nhas accepted the same and paid back the loss amount and therefore, the second
\nrespondent\/employee is innocent.  Furthermore, the second respondent\/employee in
\nnot objecting to the conduct of enquiry will not amount to admission of the
\nguilt by him. The purported confession of the second respondent\/ employee
\nobtained through coercion, ought not to be given importance and that too, when
\nin the explanation to the second show cause notice, the second
\nrespondent\/employee has stated that the Secretary, Kottaimayan has committed
\nmisconduct and as such, he is innocent.\n<\/p>\n
\t25. The learned Counsel for the second respondent\/ employee puts forward
\nthe argument that the facts mentioned in Ex.W.1 go to show that the Secretary,
\nKottaimayan, paid the misappropriated amount in full and therefore, this will
\nprove that he alone is responsible for the misconduct  and further that the
\ncharge of connivance or criminal breach of trust against the second
\nrespondent\/employee have not been proved and the loss of confidence can never be
\nattributed against the second respondent\/employee in the present case.\n<\/p>\n
\t26. The sum and substance of the submission of the learned Counsel for the
\nsecond respondent\/employee is that the first respondent\/Labour Court has rightly
\nmentioned in the award in I.D.No.159 of 1997 that if at all, the mischief
\ncommitted by the second respondent\/employee is that he has not informed the act
\nto the superiors, etc and therefore, the writ petition is liable to be
\ndismissed.\n<\/p>\n
\t27. The learned Counsel for the petitioner\/Society submits that the order
\nof dismissal passed by the President of the petitioner\/Society on 16.05.1997
\nagainst the second respondent\/employee is a valid one and in fact, the second
\nrespondent\/employee on 28.12.1995 has given a confessional statement before the
\nSpecial Officer of the petitioner\/Society inter alia stating that the Special
\nOfficer of the petitioner\/Society has inspected the petitioner\/Society on
\n27.12.1995 and found that for the jewel loan Nos.150, 152, 310, 365, 371, 382,
\n463, 723, 826, 945, 659, 717, 1056, 1204, 1229, 1237, 1362, 1374, 38, 648, 518,
\n1163 and 1859, the principal amount of Rs.3,37,700\/- and the interest thereto
\nalong with the other expenditure have been received in cash by the
\npetitioner’s\/Society’s Secretary, Kottaimayan from the members concerned and for
\nwhich, the receipts have not been issued, but the same has been entered into the
\njewel loan ledger and the jewels have been returned and the fact that the
\nprincipal amount, interest and other expenditures have been utilised by the
\nSecretary without issuing receipts which is known to him very well and since the
\nSecretary is a higher officer and further, he has assured him that the aforesaid
\namounts will be remitted by him to the petitioner\/Society and as such, he has
\nnot informed the Special Officer of the petitioner\/Society.\n<\/p>\n
\t28. In the aforesaid confessional statement of the second
\nrespondent\/employee dated 28.12.1995, it is clearly mentioned by the second
\nrespondent\/employee that he has given the aforesaid confessional statement
\nwithout anybody’s inducement and he has given the same in a good disposition
\nstate of mind and also that, the Domestic Enquiry Officer in his findings, has
\nclearly found that the charges 1 to 5 levelled against him have been held to be
\nproved and as such, the award passed by the first respondent\/Labour Court in
\ndirecting the reinstatement of the second respondent\/employee with continuity of
\nservice and backwages is not valid in law.\n<\/p>\n
\t29. The petitioner\/Society cites the decision of the Honourable Supreme
\nCourt in Suresh Pathrella v. Oriental Bank of Commerce<\/a> reported in (2007) 1
\nSupreme Court Cases (L&S) 224, at page 231, wherein it is held as follows:
\n\t“22. In the present case the appellant acted beyond his authority in
\nbreach of the Bank’s regulation. Regulation 3(1) of the Bank’s Regulations
\nrequired that every officer of the Bank at all times takes all possible steps to
\nprotect the interest of the Bank and discharge his duties with utmost integrity,
\nhonesty, devotion and diligence and do nothing which will be unbecoming of a
\nbank officer. It is a case of loss of confidence in the officer by the bank.  In
\nsuch a situation, it would be a futile exercise of judicial review to embark
\nupon the decision of the disciplinary authority removing the officer from
\nservice, preceded by an enquiry, and to direct the bank to take back the officer
\nin whom the bank has lost confidence, unless the decision to remove the officer
\nis tainted with mala fides, or in violation of principles of natural justice and
\nprejudice to the officer is made out. No such case is made out in the present
\ncase.\n<\/p>\n
\t23. In the result, this appeal being devoid of merits is, accordingly,
\ndismissed. There will be no order as to costs.”\n<\/p>\n
\t30. He also relies on the decision of the Honourable Supreme Court of
\nIndia in State Bank of India and others v. Ramesh Dinkar Punde<\/a> reported in 2007
\nLLR 1, wherein it is laid down thus:\n<\/p>\n
\t“It was impermissible for the High Court to re-appreciate the evidence as
\nproduced in the enquiry which was duly considered by the enquiry officer,
\ndisciplinary authority and the appellate authority as such the finding of the
\nHigh Court on facts, runs to the teeth of the evidence on record hence the
\nimpugned judgment of the High Court in setting aside the orders of disciplinary
\nauthority and the appellate authority which are restored by the Apex Court.
\n\tA bank officer holds a position of trust where honesty and integrity are
\ninbuilt requirements of functioning and it would not be proper to deal with the
\nmatter leniently.\n<\/p>\n
\tIf a bank officer commits a misconduct pertaining to his personal needs
\nagainst the interest of the bank and the depositors, he must be dealt with iron
\nhands and does not deserve to be dealt with leniently.”\n<\/p>\n
\t31. Per contra, it is the contention of the learned Counsel for the second
\nrespondent\/employee that after the insertion of Section 11-A<\/a> of the Industrial
\nDisputes Act, 1947, the first respondent\/Labour Court, Madurai, has a right to
\nsit in appeal over the findings of the Enquiry Officer and since the findings of
\nthe first respondent\/ Labour Court, Madurai, are finding of fact in I.D.No.159
\nof 1997, they need not be interfered with in the writ jurisdiction.  To lend
\nsupport to his contention, he places reliance on the decision of this Court in
\nManagement of United India Shoe Corporation Pvt. Ltd. v. Presiding Officer,
\nLabour<\/a> Court and another reported in 2006-I-LLJ-958, at page 959, at paragraphs
\n3 to 5, it is observed as hereunder:\n<\/p>\n
\t“3. After the insertion of Section 11-A<\/a> in the Industrial Disputes Act<\/a>,
\nthe Labour Court has a right to sit in appeal over the findings of the enquiry
\nofficer which it earlier could not do.  Hence the Labour Court can re-assess and
\nre-appreciate the evidence and it has done so in this case. The findings of the
\nLabour Court are findings of fact and we cannot interfere with the findings of
\nfact in writ jurisdiction.\n<\/p>\n
\t4. Learned counsel for the appellant then submitted that the Labour Court
\nhas not set aside the findings on the charge of pasting posters in the toilet.
\nA perusal of the award of the Labour Court shows that the Labour Court has
\nobserved that this charge appears to be very trivial.\n<\/p>\n
\t5. On the facts of the case, while we dismiss this writ appeal we give a
\nwarning to the workman concerned not to commit such acts in future.  No costs.
\nConsequently, WAMP No.3667\/2004 is also dismissed.”\n<\/p>\n
\t32. In the explanation submitted by the second respondent\/employee dated
\n10.04.1996, it is mentioned that as per the charge of the Special Officer of the
\npetitioner\/Society dated 21.03.1996, he being the Clerk having the joint
\nresponsibility along with the Secretary in respect of jewel loan, without
\nverifying the Jewel Loan Register as to whether proper receipts have been made
\nand the same being entered into the Register in regard to the redeeming of
\njewels, has released the jewels to the members concerned by fully believing the
\nSecretary of the petitioner\/Society and this misconduct has been committed by
\nhim out of ignorance based on belief and further, the act of not entering the
\nSavings Account amount as found in the Day Book Register, in the Cash Register,
\nis a mistake committed by him on account of his negligence.\n<\/p>\n
\t33. The Domestic Enquiry Officer, in his enquiry report dated 07.12.1996,
\nhas found that the second respondent\/employee who is jointly responsible for the
\njewel loan, has not informed the cheating acts of the Secretary of the
\npetitioner\/Society on different dates to the higher officials and to the Special
\nOfficer of the petitioner\/Society and only during inspection of the Special
\nOfficer on 27.12.1995, these misdeeds have been found out and further that, the
\njewel loan redeeming amounts have not been credited in the Day Book Register and
\nthe Subsidiary Day Book Register and a sum of Rs.3,65,861.65 being the jewel
\nloan redeeming amount together with interest and other items, have been
\nreceived, but the same has not been brought into the petitioner’s\/Society’s
\naccount and for the misappropriation done by the Secretary, the second
\nrespondent\/employee has connived with him.\n<\/p>\n
\t34. Further, the second respondent\/employee has admitted this charge and
\nin the course of evidence, has deposed that he has known the misdeeds committed
\nby the Secretary of the petitioner\/Society, but he has not informed the same to
\nthe higher officials and when the Special Officer has found out the misdeeds of
\nthe Secretary, then on 28.12.1995, he has accepted the charges and has given a
\nvoluntary confessional statement and therefore, the first charge levelled
\nagainst the second respondent\/employee has been proved.\n<\/p>\n
\t35. Also, the second charge levelled against the second
\nrespondent\/employee is based on the first charge and as such, the second charge
\nlevelled against the second respondent\/employee by the petitioner\/Society is a
\ncorrect one as held by the Domestic Enquiry Officer.\n<\/p>\n
\t36. As regards the third charge that the second respondent\/employee has
\nconnived or aided with the Secretary by not bringing a sum of Rs.1,400\/- dated
\n10.08.1994 from the Subsidiary Day Book Register to the Cash Register and also
\nshown less amount on hand, the Enquiry Officer has come to the conclusion that
\nthis charge has been admitted by the second respondent\/employee in his evidence
\nand as such the third charge has been proved on the basis of the Management
\ndocuments and also on the admission of the second respondent\/employee.\n<\/p>\n
\t37. In regard to the fourth charge that because of the charges 1 to 3, the
\nsecond respondent\/employee has violated the petitioner’s\/Society’s discipline
\nand conduct rules and further in regard to the fifth charge that the second
\nrespondent\/employee is responsible for the petitioner\/Society losing confidence
\non him, the Enquiry Officer has come to the conclusion that these charges are
\nbased on the charges 1 to 3 and inasmuch as the charges 1 to 3 have been proved
\nagainst the second respondent\/employee, the charges 4 and 5 levelled against him
\nby the petitioner\/Society are found to be a proper one.\n<\/p>\n
\t38. The Deputy Registrar of Co-operative Societies, Uthamapalayam, in his
\nsurcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies
\nAct, 1983, dated 30.06.1999, has among other things stated that the former
\nSecretary of the Society, Thiru.K.Kottaimayan, in his statement dated
\n22.06.1999, has admitted that for the interest amount of Rs.44,472.70, he is
\nfully responsible and has exonerated the second respondent\/employee from the
\nsurcharge proceedings.  Further, for the interest sum of Rs.44,472.70,
\nThiru.K.Kottaimayan, has been directed to pay the interest at 18% from
\n01.03.1997 till the date of payment being made to the petitioner\/Society.
\nSignificantly, K.Kottaimayan, in his statement dated 22.06.1999, has stated that
\na sum of Rs.44,472.70 mentioned in the surcharge notice towards interest will
\nhave to be paid by him and that will be paid by him before  15.07.1999 and this
\nhas been made mention of by the Deputy Registrar of Co-operative Societies,
\nUthamapalayam in his proceedings dated 30.06.1999.\n<\/p>\n
\t39. At this stage, this Court aptly points out the decision of the
\nDivision Bench in Vittal M. v. Disciplinary Authority & R.M., Region I,
\nHyderabad Zonal Office, State Bank of Hyderabad<\/a> reported in 2003-I-LLJ-811,
\nwherein it is held thus:\n<\/p>\n
\t“Appellant-bank employee could no where make out a case of innocence on
\nhis part, either in the domestic enquiry or before a single Judge or even before
\nthe present Division Bench which heard this writ appeal. It observed that none
\nof the contentions raised by the appellant merited any consideration. The
\nappellant’s fraud of withdrawing a little over Rs.8400\/- from the account of a
\ndead customer was clearly established.\n<\/p>\n
\tThere was no substance in the plea of the appellant that no opportunity
\nwas given to him at the time of enquiry. The punishment of the appellant was
\nalso held to be not excessive.”\n<\/p>\n
\t40. Also, this Court worth recalls the decision in Subhash Chand Jain v.
\nRegional Manager, Punjab National Bank and another<\/a> reported in 2003-III-LLJ-396,
\nwherein it is laid down as follows:\n<\/p>\n
\t“Petitioner who was in the employment of the Hindustan Bank (which merged
\nwith respondent-Punjab National Bank) impugned in this petition an adverse award
\nof the Industrial Tribunal, granting him no relief against dismissal from
\nservice. The High Court dismissed the petition. It observed that the reliance of
\nthe petitioner on clause 19.4 of the Bipartite Settlement was misplaced. The bar
\nunder that clause against initiation of departmental proceedings for one year
\nfrom the date of misconduct would not operate if the charges of misconduct in
\nsuch proceedings were different from those for which the delinquent official was
\nprosecuted before the criminal Court. In this case the charges against the
\npetitioner in the criminal trial were cheating and fraud, whereas in the
\ndepartmental enquiry the charges against him were negligence and dereliction of
\nduties.”\n<\/p>\n
\t41. Further, a bank employee is required to exercise higher standard of
\nhonesty and integrity when he deals with money.  If a bank employee works
\nagainst the interest of the bank, then his dismissal is a justifiable one, in
\nthe considered opinion of this Court.\n<\/p>\n
\t42. Normally, a Court of law does not substitute the punishment unless
\nthey are shockingly disproportionate to the gravity of the offence committed.
\nMoreover, the award of punishment is a primary function of a disciplinary
\nauthority.  The High Court will not interfere with the quantum of punishment
\nawarded when it is based on evidence. The quantum of amount misappropriated by
\nan employee is an irrelevant one when there is fiduciary relationship between
\nthe employer and the employee.  When an employer has lost the confidence of an
\nemployee in employment, then the employee’s retention should not be directed by
\na Court of law, as opined by this Court.\n<\/p>\n
\t43. It is well settled that once the charges against a delinquent employee
\nhave been proved, the quantum of punishment is to be decided by the employer.
\nWhen the major charges are proved against the bank employee, then the compassion
\nhas no role to play.  As a matter of fact, the jurisdiction of a Court of law to
\ninterfere with the quantum of punishment would be exercised only when  inter
\nalia  it is found that the said punishment is found to be grossly
\ndisproportionate, as per the decision in Hombe Gowda Educational Trust and
\nanother v. State of Karnataka and others<\/a> reported in 2006(1) L.L.N.461.\n<\/p>\n
\t44. If an enquiry is fair, a Labour Court has no power to interfere
\npunishment as per the decision in General Secretary, South India Cashew
\nFactories Workers Union v. Managing Director, Kerala State Cashew Development
\nCorporation, Ltd<\/a>. reported in AIR 2006 S.C.2208.\n<\/p>\n
\t45. Further, this Court pertinently quotes the decision of the Honourable
\nSupreme Court in Mahindra and Mahindra, Ltd. v. N.B.Naravade<\/a> reported in 2005(1)
\nL.L.N. 1074, wherein it is observed thus:\n<\/p>\n
\t“A Labour Court should interfere with the punishment under S.11A of the
\nIndustrial Disputes Act only when it is disturbing to the conscience and it is
\nhighly disproportionate to the misconduct.”\n<\/p>\n
\t46. It is to be borne in mind that as per Section 11A<\/a> of the Industrial
\nDisputes Act, 1947, a Labour Court should act as a revisional Court and not an
\nappellate Court, in the considered view of this Court.\n<\/p>\n
\t47. As far as the present case is concerned, the charges levelled against
\nthe second respondent\/employee to the effect that “(A) he failed to make
\nnecessary entries in the records of the society for the receipt of Rs.3,65,761-
\n65\/= towards redemption of jewel loans, released the pledged jewels from
\ncustody, thereby, he connived with the secretary in misappropriation of those
\namount;(B) That he, by suppressing the above misdeeds from the knowledge of the
\nSpecial Officer, he derelicted from his duties and responsibilities; (C) That
\nhe, failed to transact the receipt of Rs.1,400\/- on 10.08.1994, reduced the cash
\nbalance, thereby, helped the secretary to commit misappropriation of the said
\namount; (D) That he, by his willful acts and omissions undermined the morale and
\ndiscipline of the society; and\t(E) That, by his above commissions and
\nomissions, the management lost confidence that reposed on him;” have been held
\nto be proved in the Domestic Enquiry by the Domestic Enquiry Officer.\n<\/p>\n
\t48. However, the first respondent\/Labour Court, Madurai, while passing an
\naward in I.D.No.159 of 1997 filed by the second respondent\/employee dated
\n27.10.2004, has among other things, at paragraph 30 observed that ‘the
\nrespondent Management Deputy Registrar the competent authority have issued a
\nproceeding fixing the liability on the then Secretary K.Kottaimayan and
\nabsolving the liability of the petitioner.\n<\/p>\n
\t49. Therefore what else remains to proceed against the petitioner (second
\nrespondent\/employee) terming its as a misconduct. Hence it is under these
\ncircumstances the word used in the counter against the petitioner namely
\nconnivance is unwanted. Moreover the irregularity has happened on one occasion.
\nIt is subsequently found that the petitioner (second respondent\/employee) acted
\nin connivance with the Secretary goes to show that the irregularity committed by
\nthe petitioner is only after the commission of an offence by the Secretary. The
\nmischief committed by the petitioner is that he has not informed the act of the
\nSecretary to the higher officials, etc. and further the loss to the respondent
\nManagement (writ petitioner) has been paid by the Secretary. Hence it I under
\nthese circumstances no misconduct would arise on the part of the petitioner in
\nregard to the charges levelled against him.’\n<\/p>\n
\t50. Also, in paragraph 31, the first respondent\/Labour Court has stated
\nthe following:\n<\/p>\n
\t“31. It is no doubt the petitioner has not committed in fraud
\nmisappropriation and grave misconduct. The non-information of the circumstances
\nfor committing fraud misappropriation has let to the Management to fix the
\nliability on the petitioner. The punishment for the connivance of the petitioner
\nalong with the Secretary is the termination even after the payment of the full
\namount by the Secretary Kottaimayan.”\n<\/p>\n
and has held that the punishment of termination passed by the
\nrespondent\/Management (writ petitioner) against the petitioner (second
\nrespondent\/employee) is not proportionate and therefore, the first
\nrespondent\/Labour Court inclined to invoke Section 11(A)<\/a> of the Industrial
\nDisputes Act, to interfere with the quantum of punishment and found that the
\npunishment awarded to the petitioner (second respondent\/employee) is
\ndisproportionate to the guilt committed by him and consequently, set aside the
\ntermination order passed against the second respondent\/employee dated 16.05.1997
\nand directed his reinstatement with continuity of service and backwages and
\nthereby allowed the I.D.No.159 of 1997.\n<\/p>\n
\t51. It is to be pointed out that in the instant case on hand, in the
\nDomestic Enquiry, the charges levelled against the second respondent\/employee by
\nthe petitioner\/ Society have been found to be proved and as such, it is for the
\npetitioner\/Society to decide the quantum of punishment to be awarded to the
\nsecond respondent\/employee and in the preset case on hand, the writ
\npetitioner\/Society has issued the order of dismissal dated 16.05.1997 to the
\nsecond respondent\/employee.  The conduct of the Domestic Enquiry Officer against
\nthe second respondent\/employee is a fair and reasonable one and when that be the
\ncase, the first respondent\/Labour Court has misdirected itself while passing the
\naward in I.D.No.159 of 1997 to interfere with the punishment of dismissal dated
\n16.05.1997 ordered by the petitioner\/Society.  Moreover, the principles of
\nnatural justice have been followed in the Domestic Enquiry.\n<\/p>\n
\t52. Causing a financial loss either by direct act of a particular employee
\nor by the act of connivance or committing or abetting another person and
\ncommitting deliberate irregularities will entail punishment of dismissal and the
\nsaid punishment cannot be said to be shockingly disproportionate.  To put it
\nprecisely, the second respondent\/employee (as a Clerk) with the
\npetitioner\/Society acts in a fiduciary relationship between the writ
\npetitioner\/Society (employer) and himself, by conniving or aiding or abetting
\nthe misconduct of K.Kottaimayan, the Secretary of the petitioner\/Society.
\nFurther, this Court points out that a blame worthy conduct of an employee is a
\nmisconduct.\n<\/p>\n
\t53. The second respondent\/employee has not informed the higher officials
\nabout the misdeeds of the Secretary of the petitioner\/Society, K.Kottaimayan and
\nonly through his confessional statement\/admission statement dated 28.12.1995
\nwhen the Special Officer of the petitioner\/ Society has made a surprise
\ninspection to the petitioner\/ Society, the act of misappropriation done by
\nK.Kottaimayan by not remitting the principal amount of Rs.3,37,700\/- and
\ninterest etc., which have been received from the Members for which no receipt
\nhas been prepared, but in the Day Book Register, the same has been credited into
\nand that the jewels have been returned, has been found out and the second
\nrespondent\/employee has also stated that because of the fact that the
\npetitioner’s Secretary is his higher official and further, since the Secretary
\nhas assured him that he will remit the amount into the petitioner\/Society, he
\nhas not informed the same to the Special Officer of the petitioner\/Society, goes
\nto show that the second respondent\/employee has connived or aided or abetted the
\nmisdeeds or misconducts of the said Secretary of the petitioner\/Society and
\ncertainly, he has lost confidence of his employer and if he is retained in
\nemployment, then it will be against the interest of the petitioner\/Society and
\nas such, the reinstatement of the second respondent\/employee with continuity of
\nservice and backwages as ordered by the first respondent\/Labour Court in
\nI.D.No.159 of 1997 dated 27.10.2004 is a perverse and unreasonable one and not
\nbased on proper appreciation of material, oral and available evidence on record,
\nin the considered opinion of this Court.\n<\/p>\n
\t54. In a case of this nature, it is the loss of confidence which is the
\nprimary factor for awarding the quantum of punishment and the second
\nrespondent\/employee being the employee of the petitioner\/Society, has not
\nexercised an impeccable standard of honesty and integrity and has acted against
\nthe interest of the petitioner\/Society and therefore, the petitioner\/Society has
\nrightly dismissed the second respondent\/employee from service, as opined by this
\nCourt.\n<\/p>\n
\t55. When the petitioner\/Society has lost the confidence upon the second
\nrespondent\/employee, then in such an event, the first respondent\/Labour Court
\ncannot exercise its discretion and set aside the order of termination dated
\n16.05.1997 and to order reinstatement of the second respondent\/employee with
\ncontinuity of service and backwages, it is not a prudent one, in the considered
\nopinion of this Court and since the Domestic Enquiry has been conducted in a
\nfair and reasonable manner and also followed by the principles of natural
\njustice, this Court comes to an inevitable conclusion that the first
\nrespondent\/Labour Court has not power to interfere with the punishment awarded
\nby the petitioner\/Society and the contra view taken by the first
\nrespondent\/Labour Court in setting aside the order of termination dated
\n16.05.1997 and passing an award by directing the petitioner\/Society to reinstate
\nthe second respondent\/employee, is an illogical and illegal one and this Court
\ninterferes with the award of the first respondent\/Labour Court in I.D.No.159 of
\n1997 dated 27.10.2004, in the writ jurisdiction and sets aside the same to
\nprevent an aberration of justice and restores the punishment of dismissal dated
\n16.05.1997 imposed by the petitioner\/Society and allows this writ petition to
\npromote the substantial cause of justice.\n<\/p>\n
\t56. In the result, the writ petition is allowed leaving the parties to
\nbear their own costs and the award passed by the first respondent\/Labour Court
\nin I.D.No.159 of 1997 dated 27.10.2004 is set aside by this Court for the
\nreasons assigned by this Court in this writ petition.  Resultantly, the
\npunishment of dismissal dated 16.05.1997 imposed on the second
\nrespondent\/employee by the petitioner\/Society is restored.\n<\/p>\n
rsb<\/p>\n
To\n<\/p>\n
1.The Presiding Officer,
\n  Labour Court,
\n  District Court Buildings,
\n  Melur Road,
\n  Madurai – 625 020.\t\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management vs The Presiding Officer on 27 January, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27\/01\/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.9607 of 2005 The Management, A 876, Cumbum Urban Co-operative Society, Nehruji Street, Cumbum, Theni District – 625 516. … Petitioner Vs. 1.The Presiding Officer, Labour Court, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-259663","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management vs The Presiding Officer on 27 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-management-vs-the-presiding-officer-on-27-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management vs The Presiding Officer on 27 January, 2011 - 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