Madras High Court
The Koslapuri Primary ... vs N.Nityanandham on 23 March, 2022
W.A.No.1419 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2022
CORAM
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
W.A.No.1419 of 2013
The Koslapuri Primary Agricultural
Co-operative Bank Ltd., R.No.1615
represented by its President
Kuppam Post (via) K.Paramathi
Karur Taluk and District .. Appellant
-vs-
1. N.Nityanandham
2. The Labour Court
Trichy .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the order
dated 06.01.2012 made in W.P.No.2139 of 2000.
For Appellant :: Mrs.P.V.Rajeswari
For Respondents :: Mr.K.V.Ananthakrushnan
for R1
R2-Court
1/17
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W.A.No.1419 of 2013
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
The Koslapuri Primary Agricultural Co-operative Bank Limited
represented by its President, Kuppam, Karur District has filed this writ
appeal against the impugned order passed by the learned single Judge in
Writ Petition No.2139 of 2000 dated 06.01.2012, wherein the learned single
Judge, setting aside the award dated 10.06.1998 passed by the Labour
Court, Tiruchirappalli and the order of termination passed by the appellant
Bank dated 22.06.1991, directed the appellant to pay 50% of the
backwages, on the ground that the first respondent reached the age of
superannuation on 05.01.2009.
2. The facts in nutshell leading to the filing of the writ petition would
show that the first respondent joined the Co-operative Bank as Secretary on
18.10.1974 and on 10.10.1990, one Mr.P.Palanivelu was elected as the
President of the Bank. From the date of taking over charge as President, the
said Palanivelu was in full and complete charge of the day-to-day affairs of
the Bank. Later on, when an inspection was done by the Supervisor on
22.03.1991, certain irregularities and lapses were found to have been
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W.A.No.1419 of 2013
committed by the first respondent. Thereafter, the first respondent had
deposited a sum of Rs.63,569.06p and also a sum of Rs.40,729.26p towards
the value of shortage in fertilizer stock. Subsequently, the first respondent
was also placed under suspension on 12.04.1991. Within a couple of weeks,
he was also issued with a charge memo dated 29.04.1991 containing two
charges, namely, (a) that he had misappropriated the cash balance of
Rs.63,569.06p and (b) that he had committed fraud by misappropriating the
fertilizer stocks of the Bank valued at Rs.40,729.26p. On receipt of the said
charge memo on 06.05.1991, the first respondent sent a letter dated
07.05.1991 to the President seeking permission to peruse the records. But
without giving any opportunity to the first respondent to peruse the records
for giving a suitable explanation, the President appointed an enquiry officer
on 10.05.1991, on the premise that the delinquent could peruse the relevant
records before the enquiry officer. Even the enquiry notice dated 10.05.1991
fixing the date of enquiry on 17.05.1991, was received by the first
respondent only on 18.05.1991. Again the first respondent sent another
letter on 21.05.1991 requesting the President to fix a fresh date for enquiry
and also grant him permission to peruse the records. In the meanwhile, a
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W.A.No.1419 of 2013
paper publication was made in the Malai Malar Tamil daily on 29.05.1991
fixing the date of enquiry on 01.06.1991. After seeing the paper publication,
the first respondent again sent a letter to the President and the enquiry
officer to grant him permission to peruse the records. When the enquiry was
initiated, Mr.P.Palanivelu, the President, who is also the disciplinary
authority, appeared as a management witness and also gave evidence against
the first respondent supporting the charge memo.
3. On the basis of the enquiry report dated 03.06.1991 submitted by
the enquiry officer, a second show cause notice was issued on 05.06.1991
calling upon the first respondent to give his explanation as to why his
services should not be terminated. In the second show cause notice, the
President has also fixed the personal hearing on 10.06.1991. After receiving
the second show cause notice on 13.06.1991, the first respondent sent a
reply on 14.06.1991 informing the President/disciplinary authority that he
was not given reasonable opportunity to peruse the documents for giving his
explanation. Secondly, the enquiry was not properly and fairly conducted,
because, in the enquiry, the President, who is also the disciplinary authority,
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W.A.No.1419 of 2013
appeared as a management witness, therefore, the same witness cannot serve
as the disciplinary authority. On this basis, the first respondent requested to
drop the enquiry. But the order of termination was issued on 22.06.1991.
Aggrieved thereby, the first respondent filed an application before the
Assistant Commissioner of Labour, Tiruchirappalli for conciliation. Since
the conciliation ended in failure, the first respondent raised an industrial
dispute in the renumbered I.D.No.291 of 1992 on the file of the Labour
Court, Tiruchirappalli. The Labour Court, after hearing both parties,
affirming the order of termination, passed the award dated 10.06.1999.
Aggrieved thereby, the first respondent filed the writ petition and the learned
single Judge, after finding that no opportunity was given to the first
respondent to peruse the documents and also considering the fact that the
disciplinary authority appeared as a witness before the enquiry officer and
supported the charge memo issued against the first respondent, allowed the
writ petition by setting aside the award of the Labour Court as well as the
order of termination and directed the appellant to pay 50% of the
backwages, for the reason that the first respondent has reached the age of
superannuation on 05.01.2009. Challenging the said order, the appellant
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W.A.No.1419 of 2013
Bank has filed the present appeal.
4. Learned counsel appearing for the appellant, assailing the
impugned order, submitted that the learned single Judge, without
considering the vital fact that the first respondent in his letter dated
22.03.1991, had accepted the guilt that he was responsible for the shortage
of fertilizer stock worth about Rs.40,729.26p and he also embezzled a sum
of Rs.63,569.06p of the Bank, has wrongly allowed the writ petition,
because, when the facts are admitted, there is no need for further enquiry.
Moreover, when the first respondent appeared before the enquiry officer on
01.06.1991, he walked out of the proceedings without even perusing the
documents and without co-operating with the enquiry officer by producing
any oral and documentary evidence to disprove the charges. Therefore, left
with no other option, the enquiry officer, on the basis of the admission made
by the first respondent, has rightly submitted his report holding the first
respondent guilty of both the charges. This ought not to have been interfered
with by the learned single Judge sitting under Article 226 of the Constitution
of India. Concluding her arguments, the learned counsel appearing for the
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W.A.No.1419 of 2013
appellant submitted that when the Labour Court, Tiruchirappalli also
accepted the approach and the method adopted by the enquiry officer in the
domestic enquiry, it is unjustified on the part of the learned single Judge to
reverse the findings and the conclusions reached by the Labour Court. On
this basis, she prayed for allowing the writ appeal.
5. In reply, Mr.K.V.Ananthakrushnan, learned counsel appearing for
the first respondent submitted that when the first respondent was working as
Secretary from 18.10.1974, after 17 long years, the inspection took place on
22.03.1991. However, without even disclosing the report of the inspection
made by the Supervisor, unilaterally, it was concluded that the first
respondent had committed misappropriation of Rs.63,569.06p in the name
of the Bank and the said report also held that the first respondent was
responsible for the shortage of fertilizer stock worth about Rs.40,729.26p.
Immediately after the inspection made by the Supervisor, the President of
the Bank advised the first respondent to deposit the entire amount. Based on
the advice given by the President, the first respondent, although was not
responsible for anyone of the allegations, deposited the entire amount.
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However, based on the letter dated 22.03.1991 given by the first respondent
at the instance of the President, he was placed under suspension.
Subsequently, the charge memo dated 29.04.1991 was issued containing
two charges, namely, (a) that he had misappropriated the cash balance of
Rs.63,569.06p and (b) that he had committed fraud by misappropriating the
fertilizer stocks of the Bank valued at Rs.40,729.26p. When the charge
memo was issued against the first respondent, it is a rudimentary and basic
principle that the delinquent, who has been slapped with the charges, should
be given a reasonable opportunity to give his explanation. Therefore, the first
respondent has given the letter dated 07.05.1991 seeking permission to
peruse the records so that he would be able to give his detailed explanation
to the charge memo. But for the reasons best known, the President of the
appellant Bank refused to consider the same and thereafter, overlooking the
fact that the first respondent would be able to submit his explanation only
after perusing the documents available with the Bank, ordered for enquiry.
6. Secondly, when the enquiry notice dated 10.05.1991 was issued
fixing the date of enquiry on 17.05.1991, ironically, the same was received
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W.A.No.1419 of 2013
by the first respondent only on 18.05.1991, one day after the enquiry date.
This was also immediately brought to the notice of the enquiry officer to give
him an opportunity to peruse the records and on receipt of the explanation, if
the same is found unsatisfactory, then to hold an enquiry. But overlooking
the said reasonable request made by the first respondent, for the reasons best
known to the appellant, a paper publication was made as though the first
respondent refused to receive the notice of enquiry. Although the first
respondent took part in the enquiry held on 01.06.1991, he renewed his
request to grant him permission to peruse the records. However, the
repeated request made by the first respondent was refused. Surprisingly,
when the enquiry was held, the President, Mr.P.Palanivelu, who is also the
disciplinary authority, appeared as a management witness before the enquiry
officer and supported the charges issued against the first respondent. After
the President, who is also the disciplinary authority, appeared as a
management witness before the enquiry officer, he ought not to have passed
the order of termination as the disciplinary authority. In the present case, the
President, Mr.P.Palanivelu, who appeared as a management witness before
the enquiry officer supporting the charge memo, relying on the report of the
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enquiry officer holding the first respondent guilty of both the charges, has
passed the order of termination. Therefore, the learned single Judge,
referring to the judgment of the Apex Court in the case of State of U.P. v.
Mohamed Nooh, AIR 1958 SC 86, deprecating the approach adopted by the
enquiry officer not permitting the delinquent to peruse the documents and
equally finding fault with the approach adopted by the disciplinary
authority, who appeared as a management witness before the enquiry officer
and passed the order of termination, that would be violative of the golden
principles of natural justice, set aside the order of termination and the
findings and conclusions reached by the Labour Court, Tiruchirappalli and
allowed the writ petition. Since the first respondent, in the meanwhile, had
reached the age of superannuation on 05.01.2009, the learned single Judge,
he pleaded, has rightly ordered for payment of 50% of backwages to the first
respondent. When the first respondent is entitled to get full backwages for
the simple reason that no enquiry was held, however, the first respondent
has not filed any appeal. Therefore, the appellant ought to have disbursed
the amount representing 50% of backwages without filing this appeal. Since
they have filed the appeal against the ratio laid down by the Apex Court in
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the case of State of U.P. v. Mohamed Nooh, AIR 1958 SC 86, the appellant
has no legs to stand and the appeal is liable to be dismissed, he pleaded.
7. We find full force on the submissions made by the learned counsel
appearing for the first respondent. When the first respondent was issued
with the charge memo containing two charges, namely, (a) that he had
misappropriated the cash balance of Rs.63,569.06p and (b) that he had
committed fraud by misappropriating the fertilizer stocks of the Bank valued
at Rs.40,729.26p, he has immediately given a letter dated 07.05.1991
requesting the appellant to permit him to peruse the records enabling him to
prepare a suitable reply/explanation to the charge memo. The learned
counsel appearing for the appellant, while arguing before this Court, has
fairly submitted that the first respondent could have participated in the
enquiry and during the course of enquiry, he could have perused the records.
This argument of the learned counsel for the appellant itself clearly shows
that the appellant was not prepared to provide reasonable opportunity to the
first respondent to prepare a suitable explanation by allowing him to peruse
the records. As the first respondent in his letter dated 04.06.1991 has clearly
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mentioned the fact that he was unable to give his explanation without
perusing the documents held by the appellant, not providing an opportunity
to peruse the records clearly shows that the finding of the learned single
Judge that the first respondent was denied a reasonable opportunity, cannot
be found fault with.
8 Secondly, Mr.P.Palanivelu, the President, who is also the
disciplinary authority, has appeared as a management witness and supported
the charges framed against the first respondent. In our considered opinion,
having appeared as a management witness and supported the charges, he
ought not to have continued as the disciplinary authority for passing the
order of termination against the first respondent.
9. In this context, useful reference can be had from the judgment of
the Hon'ble Apex Court in the case of State of U.P. v. Mohamed Nooh, AIR
1958 SC 86. In the said case, a departmental enquiry was initiated against
the respondent therein, a Head Constable and the enquiry was held by the
District Superintendent of Police as an enquiry officer. During the enquiry,
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the District Superintendent of Police himself appeared as a witness and gave
evidence supporting the charges levelled against the delinquent/Head
Constable. Thereafter, he had again continued as an enquiry officer and
proceeded with the enquiry and ultimately passed the order of dismissal
against the respondent. On a challenge made to the said order by the
delinquent, the High Court quashed the order of punishment by holding that
the enquiry officer cannot act both as the Judge and as a witness. When the
said order of the High Court was taken on appeal by the State of U.P., the
Apex Court, deprecating the approach adopted by the enquiry officer, while
upholding the order of the High Court quashing the order of punishment,
laid down the law that once the enquiry officer appeared as a witness, he
cannot once again serve as the enquiry officer, as the same would be
contrary to the rules of natural justice and fair play.
10. In the light of the above ratio laid down by the Hon'ble Apex
Court, in the case on hand, as highlighted above, Mr.P.Palanivelu, who was
the President of the appellant Bank, appeared as a management witness
before the enquiry officer and gave evidence against the delinquent/first
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W.A.No.1419 of 2013
respondent. Having appeared as a management witness and supported the
charges, in our considered opinion, he ought not to have served as the
disciplinary authority. But violating the settled legal position, the
disciplinary authority, after appearing as a management witness, has
accepted the report of the enquiry officer and also passed the order of
termination against the first respondent. Therefore, the learned single Judge,
giving a finding that no reasonable opportunity was given to the first
respondent, has rightly set aside the order of termination and also the award
of the Labour Court, Tiruchirappalli and directed the appellant to pay 50%
of the backwages, for the reason that the first respondent had also reached
the age of superannuation on 05.01.2009. Hence, we do not find any error
or infirmity in the order passed by the learned single Judge. Accordingly,
the writ appeal fails and it is dismissed.
11. A perusal of the calculation memo filed by the appellant dated
17.09.2013 shows that the first respondent is entitled to a sum of
Rs.2,84,702.30p representing 50% of the backwages as ordered in the writ
petition and pursuant to the interim order dated 01.08.2013 passed in the
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writ appeal, the appellant had deposited a sum of Rs.1,42,352/- on
13.09.2013 to the credit of the I.D.No.291 of 1992 before the Labour Court,
Tiruchirappalli, out of which, the first respondent was already permitted to
withdraw 50% of the amount and the remaining amount along with interest
was ordered to be kept in fixed deposit in a nationalised bank, pending
disposal of the appeal, as per the order dated 15.07.2019. In view of the
order passed by this Court dismissing the writ appeal, the appellant is
hereby directed to deposit the balance 50% of the backwages i.e.,
Rs.1,42,352/- to the credit of the I.D.No.291 of 1992 before the Labour
Court, Tiruchirappalli within a period of four weeks from the date of receipt
of a copy of this order and on such deposit, the first respondent is entitled to
withdraw the entire amount along with accrued interest by making a proper
application before the Labour Court, Tiruchirappalli. Consequently,
M.P.No.1 of 2013 is closed. However there is no order as to costs.
Speaking/Non speaking order (T.R.,J.) (S.S.K., J.)
Index : yes/no 23.03.2022
ss
To
1. The Presiding Officer
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W.A.No.1419 of 2013
Labour Court
Tiruchirappalli
2. The President
Koslapuri Primary Agricultural
Co-operative Bank Ltd., R.No.1615
Kuppam Post (via) K.Paramathi
Karur Taluk and District
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W.A.No.1419 of 2013
T.RAJA, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
ss
W.A.No.1419 of 2013
23.03.2022
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