Madras High Court
The Management/Special Officer vs The Presiding Officer on 7 December, 2021
W.P.(MD)No.441 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.441 of 2013
and
M.P.(MD)No.1 of 2013
The Management/Special Officer,
Thalakulam – Eraniel Farmers Service
Co-operative Society Ltd.,
Mondy Market, Neyyoor Post,
Kanyakumari District – 629 802. ... Petitioner
vs..
1. The Presiding Officer,
Labour Court,
Tirunelveli.
2. S. Jeyaseela. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relating to the impugned
award dated 21.09.2012, passed by the first respondent in I.D.No.31 of 2010 and
quash the same as illegal.
1/8
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W.P.(MD)No.441 of 2013
For Petitioner : Mr. Jerinmathew
For Mr.M.E.Ilango
For R-1 : Labour Court
For R-2 : Mr.L.Krishnmoorthy
ORDER
This writ petition is filed challenging the impugned award passed in
I.D.No.31 of 2010, dated 21.09.2012.
2. The Management has assailed the award on four grounds. The
preliminary award granted by the Labour Court is held in favour of Management,
wherein it has been recorded that natural justice has been granted to the second
respondent. If natural justice has been granted which is the preliminary issue,
then the only issue left over is whether the punishment is proportionate or not.
But, again the Labour Court has analyzed whether an enquiry was conducted
properly or not, which is illegal and therefore, the Labour Court has no
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W.P.(MD)No.441 of 2013
jurisdiction to state so. Since this is a case of misappropriation, the criminal
proceedings were initiated and the second respondent was convicted in the trial
Court. Separate Surcharge proceedings was initiated and the second respondent
was directed to pay the misappropriated amount. The second respondent has not
filed any counter affidavit, but relied on the petition filed before the Labour
Court.
3. Heard Mr. Jerin Mathew, learned Counsel appearing for the petitioner
and Mr.L.Krishnamoorthy, learned Counsel appearing for the second respondent.
4. The learned Counsel appearing for the petitioner has stated that the
Labour Court has no jurisdiction. Since in the preliminary award it is held as the
natural justice has been granted to the second respondent, the only question that is
left out is to see the proportionate of punishment, for which, the petitioner relied
on Supreme Court judgment in Civil Appeal No.1841 of 2010 filed by
M.L.Singla vs Punjab National Bank, wherein, it Hon’ble Supreme Court has
held
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W.P.(MD)No.441 of 2013
“22. If the answer to the question on the preliminary issue was that
the domestic enquiry is legal and proper. The next question to be
considered by the Labour Court was whether the punishment of
dismissal from the service is commensurate with the gravity of the
charges or is disproportionate requiring interference in its quantum
by the Labour Court”.
5. However, the learned Counsel appearing for the second respondent
contended that the preliminary enquiry means that only the Labour Court would
see whether proper opportunity was granted to the delinquent or not. The Labour
Court need not see the other aspects while granting preliminary award. This Court
is of the view, that this issue ought to be dealt with elaborately, since there are
other points in this case, the issue is left open.
6. The Management submitted that since it is a case of misappropriation,
the second respondent was convicted and the conviction order was placed as one
of the documents during the final hearing. Under these circumstances granting of
50% of backwages, is illegal. The second respondent has submitted that against
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W.P.(MD)No.441 of 2013
the criminal case, the second respondent has preferred a Criminal Appeal, which
is pending before the Sessions Court, Nagercoil and since appeal is pending as on
date, the 2nd respondent is entitled to the 50% backwages. The plea of the 2nd
respondent would lead to absurdity, a convicted person getting backwages and
this Court cannot entertain such a plea. Therefore, this Court is of the view that
the second respondent is not entitled to 50% of backwages. This Writ Petition is
allowed solely on that ground alone.
7. The respondent has submitted that since the criminal appeal is pending
from 2005 onwards, a direction may be issued to the Sessions Court, Nagercoil to
complete the appeal within a stipulated time. Therefore, this Court directs the
Sessions Court, Nagercoil to complete the appeal within six months from the date
of receipt of a copy of this order. If the criminal appeal ends up in acquittal of the
second respondent, then liberty is granted to the second respondent to come
before this Court and seek appropriate relief.
8. With the above direction, the Writ Petition is allowed. No costs.
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W.P.(MD)No.441 of 2013
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 07.12.2021
Internet : Yes
jbr
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
To
1. The Presiding Officer,
Labour Court,
Tirunelveli.
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W.P.(MD)No.441 of 2013
S.SRIMATHY, J
jbr
Order made in
W.P.(MD)No.441 of 2013
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.441 of 2013
07.12.2021
https://www.mhc.tn.gov.in/judis
