Madras High Court
Ramasamy vs The Joint Registrar Of on 29 June, 2021
W.P.Nos.26174 & 26175 of 2017
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 29.06.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.Nos.26174 & 26175 of 2017
Ramasamy ... Petitioner in
W.P.No.26174 of 2017
L.Ramesh ... Petitioner in
W.P.No.26175 of 2017
Vs
1.The Joint Registrar of
Co-Op. Societies,
Kancheepuram Region,
Kancheepuram District.
2.The Management of G.3414,
Kayarambedu Primary Agricultural
Co-op.Credit Society Ltd.,
Rep.by its President, Kayarambedu,
Guduvancherry,
Kancheepuram District.
3.V.Duraisamy,
Co-op. Sub Registrar (Retd)/
Enquiry Officer,
No.71/12, Thiruvalluvar Street,
Chinna Kancheepuram,
Kancheepuram District.
1/10
https://www.mhc.tn.gov.in/judis/
W.P.Nos.26174 & 26175 of 2017
4.The Deputy Commissioner of Labour,
(Minimum Wages)
Appellate Authority for Tamilnadu Shops
and Establishment Act, Teynampet,
Chennai-18. ...Respondents in both cases
Prayer in W.P.No.26174 of 2017: Writ Petition filed under Article 226
of the Constitution of India to issue a Writ of Certiorarified Mandamus
calling for the records relating to the impugned order dated 18.08.2016
issued by the second respondent herein and the consequential impugned
order in TNSE No.II/7/2016 dated 18.09.2017 passed by the fourth
respondent herein and quash the same and consequently direct the second
and third respondents to conduct afresh domestic enquiry for the charge
memo dated 24.11.2015 by affording enough opportunity by recording
the evidence along with cross examination of the witnesses of the
management.
Prayer in W.P.No.26175 of 2017: Writ Petition filed under Article 226
of the Constitution of India to issue a Writ of Certiorarified Mandamus
calling for the records relating to the impugned order dated 19.08.2016
issued by the second respondent herein and the consequential impugned
order in TNSE No.II/6/2016 dated 18.09.2017 passed by the fourth
respondent herein and quash the same and consequently direct the second
and third respondents to conduct afresh domestic enquiry for the charge
memo dated 03.02.2016 by affording enough opportunity by recording
the evidence along with cross examination of the witnesses of the
management.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.26174 & 26175 of 2017
(in both cases)
For Petitioners : Mr.T.Sundaravadanam
For R1, 3 & 4 : Mr.K.V.Sajeev Kumar
Government Counsel
For R2 : Mr.L.P.Shanmugasundaram
Standing Counsel
COMMON ORDER
By consent of both the parties, these writ petitions are taken up for
final disposal.
2. The petitioners herein, who have been appointed as Salesmen in
the second respondent Society, were subjected to charges of bogus
billing. A Disciplinary action was conducted, wherein, all the charges
were held to be proved. Subsequent to the enquiry report, the second
respondent herein had dismissed the petitioner in W.P.No.26174 of 217
from services on 18.08.2016 and the petitioner in W.P.No.26175 of 2017
on 19.08.2016. The appeal against the dismissal order before the Deputy
Commissioner of Labour was also dismissed on 18.09.2017. The present
writ petitions have been filed against the orders of dismissal and
rejection of appeal.
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W.P.Nos.26174 & 26175 of 2017
3. The learned counsel for the petitioners submitted that after the
conclusion of the enquiry, the second respondent herein had not issued
any further show cause notice calling for explanation on the proposed
punishment and therefore, the orders of dismissal itself cannot be
sustained. In support of his claim, the learned counsel relied on the
decision of this Court in the case of K.Ravi Vs.The Joint Registrar of
Co-operative Societies and two others passed n W.P.No.3152 of 2016
dated 14.09.2016.
4. The learned Standing Counsel appearing for the second
respondent, however, would submit that the charges against the
petitioners herein are very severe in nature, whereby, huge monetary loss
was caused to the second respondent Society. Though he would admit
that the second show cause notice was not issued, he placed reliance on
the averments made in the counter affidavit and submitted that K.Ravi's
case (supra) is not applicable to the petitioners, since the petitioners
herein had challenged the order of the second respondent before the
Deputy Commissioner of Labour by way of an appeal, whch is not fact in
K.Ravi's case (supra).
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W.P.Nos.26174 & 26175 of 2017
5. I have given careful consideration to the submissions made by
the respective counsels.
6. Admittedly, the petitioners herein were not issued with a second
show cause notice on conclusion of the enquiry, whereby, the charges
against them were held to be proved. In service jurisprudence, such
issuance of second show cause notice is mandatory, whereby, the
disciplinary authority is required to inform the delinquent about the
proven charges and call for explanation with regard to the contemplated
action against him. In the absence of such a show cause notice, the
consequential punishment cannot be sustained. However, the learned
Standing Counsel would submit that they are willing to issue a second
show cause notice along with a enquiry report calling for the explanation
from the petitioners.
7. In identical facts connected with the same agricultural co-
operative society in the judgment cited by the learned counsel for the
petitioners in K.Ravi's case (supra), this Court had remitted back the
https://www.mhc.tn.gov.in/judis/
W.P.Nos.26174 & 26175 of 2017
matter to the disciplinary authority fro issuance of a second show cause
notice. The relevant portion of the said order reads as follows:
"4.The learned counsel for the petitioner
would submit that the second respondent ought to
have issued show cause notice calling for
explanation fro the domestice Enquiry Report
from the petitioner before passing the impugned
order of dismissal from the services of the second
respondent society. The act of the second
respondent is against the principles of natural
justice. Hence, the impugned order has to be set
aside.
5. Learned Special Government Pleader
appearing for the first respondent would submit
that the respondent society is ready to issue the
second show cause notice to the petitioner along
with the Enquiry Report calling for explanation
from the petitioner for the domestic Enquiry
Report dated 03.05.2016 and on receipt of the
explanation from the petitioner, the second
respondent society will pass a fresh order.
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W.P.Nos.26174 & 26175 of 2017
6. At this stage, the learned counsel for the
petitioner would submit that the impugned order
may be set aside by remanding the matter back to
the second respondent fro issuing the second
show cause notice calling for explanation for the
Domestic Enquiry Report from the petitioner and
then to pass fresh orders.
7. Though this Court is not inclined to
remand the matter back to the second respondent
as the enquiry was already concluded,
considering the fact that the second show cause
notice was not issued enclosing the Enquiry
Report for explanation from the petitioner, the
impugned order has to be set aside and the
matter has to be remanded back to the second
respondent enabling him to issue the second
show cause notice enclosing the Domestic
Enquiry Report calling for the explanation from
the petitioner and then pass orders based on the
explanation of the petitioner.
8. Accordingly, the impugned order of
dismissal passed by the second respondent is set
aside and the matter is remanded back to the
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W.P.Nos.26174 & 26175 of 2017
second respondent for the issuance of the second
show cause notice enclosing the Domestic
Enquiry Report calling for the explanation from
the petitioner and then pass orders based on the
explanation of the petitioner. The entire exercise
shall be completed within a period of four weeks
from the date of receipt of a copy of this order"
8. In the light of the above observations and recording the
submission of the learned counsel for the respondents, this Court is of the
view that the matter can be remitted back to the second respondent for
issuance of a second show cause notice. Accordingly, the impugned
orders of dismissal dated 18.08.2016 and 19.08.2016 passed by the
second respondent herein, as well as the order passed by the fourth
respondent dated 18.09.2017, are quashed and the matter is remitted back
to the second respondent for issuance of a second show cause notice
including the copy of the enquiry report to the petitioners herein, within a
period of two weeks from the date of receipt of a copy of this order. On
receipt of such notice, the petitioners herein shall give their further
explanation within a period contemplated in the show cause notice and
thereafter, the disciplinary authority shall consider the explanation within
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W.P.Nos.26174 & 26175 of 2017
a period of twelve weeks from the date of receipt of the further
explanation and thereafter take further course of action in accordance
with law.
9. The writ petitions stand ordered accordingly. No costs.
29.06.2021
Index:Yes/No
Internet:Yes/No
Speaking order/Non-speaking order
hvk/sbn
https://www.mhc.tn.gov.in/judis/
W.P.Nos.26174 & 26175 of 2017
M.S.RAMESH,J.
sbn/hvk
To
1.The Joint Registrar of
Co-Op. Societies,
Kancheepuram Region,
Kancheepuram District.
2.The Management of G.3414,
Kayarambedu Primary Agricultural
Co-op.Credit Society Ltd.,
Rep.by its President, Kayarambedu,
Guduvancherry,
Kancheepuram District.
3.V.Duraisamy,
Co-op. Sub Registrar (Retd)/
Enquiry Officer,
No.71/12, Thiruvalluvar Street,
Chinna Kancheepuram,
Kancheepuram District.
4.The Deputy Commissioner of Labour,
(Minimum Wages)
Appellate Authority for Tamilnadu Shops
and Establishment Act, Teynampet,
Chennai-18.
W.P.Nos.26174 & 26175 of 2017
29.06.2021
https://www.mhc.tn.gov.in/judis/
