Madras High Court
S.Balusami vs The Management on 23 November, 2023
W.P.Nos.2721 of 2005 & 19482 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.07.2023
PRONOUNCED ON : 23.11.2023
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
W.P.Nos.2721 of 2005 and 19482 of 2003
and
W.P.M.P.No.24333 of 2003
W.P.No.2721 of 2005
S.Balusami : Petitioner
-vs-
1.The Management,
Vellakoil Sarvodaya Sangh
Head Office, Uppulipayalam Road,
Vellakoil 638 111.
2.The Presiding Officer,
Labour Court,
Salem. : Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, to call for the records on
the file of the second respondent relating to the Award passed in I.D.No.426
of 1992 on 30.12.002, quash the same insofar as the petitioner is denied
payment of full backwages and consequently direct the first respondent to
pay the petitioner full backwages for the period of his non-employment.
1/15
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W.P.Nos.2721 of 2005 & 19482 of 2003
For Petitioner : Mr.M.Kalyanasundaram
Senior Counsel
for Mr.M.Saravanakumar
For R1 : Mr.V.Kalayanaraman
for M/s.Aiyar & Dolia
For R2 : Court
W.P.No.19482 of 2003
Management,
Vellakoil Sarvodaya Sangh
Head Office, Uppupalayam Road,
Vellakoil 638 111. : Petitioner
-vs-
1.The Presiding Officer,
Labour Court,
Salem
2.S.Balusami : Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari, to call for the records pertaining to
I.D.No.426 of 1992 dated 30.12.2002 on the file of the first respondent and
quash the same.
For Petitioner : Mr.V.Kalayanaraman
for M/s.Aiyar & Dolia
For R1 : Court
For R2 : Mr.M.Kalyanasundaram
2/15
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W.P.Nos.2721 of 2005 & 19482 of 2003
Senior Counsel
for Mr.M.Saravanakumar
COMMON ORDER
By consent of both parties, the cases are taken up together and
common argument is heard and common Judgment is delivered.
2. W.P.No.19482 of 2003 is filed by the Management against the
award passed in I.D.No.426 of 1992 dated 30.12.2002, wherein,
reinstatement into service with 25% of backwages has been ordered by the
Labour Court, Salem.
3. W.P.No.2721 of 2005 is filed by the employee against the very
same award whereby, he has claimed 100% of backwages.
4. For the sake of convenience, the parties are referred to as per their
litigative status in W.P.No.19482 of 2003.
5. The facts leading to filing of both the cases are as under:
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W.P.Nos.2721 of 2005 & 19482 of 2003
(a) The petitioner Management is a Registered Society engaged in the
manufacture, production and distribution of Khadi and Village Industries
products through the employment of rural artisans. The institution is backed,
assisted and also controlled by the commission through the Regional
Directorates in all respects. This institution is non-profitability.
(b) On 24.01.1981, the 2nd Respondent submitted a report to the
petitioner management with certain papers, which is a working sheet
removed from the accounts and records kept under the control of the
manager of Muthur branch of the petitioner management without the
knowledge and consent of the said manager involving the manager of the
branch, Thangamuthu and another relating to some lapses alleged to have
committed in the purchase of mats for sale by the institution. After making
preliminary enquiries in the matter with the Branch in-charge, the petitioner
issued a letter to the 2nd Respondent on 06.03.1991 calling for explanation
to which, the 2nd Respondent sent a reply.
(c) Charge memo was sent on 13.03.1981 and the 2 nd Respondent
submitted his explanation denying the charges and charging the
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W.P.Nos.2721 of 2005 & 19482 of 2003
management with ulterior motives in order to tarnish the image of the
institution before the public.
(d) The petitioner decided to hold an enquiry into the charges by a
committee on 04.05.1981 and notices were sent to the 2nd Respondent. The
2nd Respondent appeared before the enquiry committee and filed a letter
stating that he has filed a suit before the Civil Court and therefore, he is not
participating in the enquiry and left abruptly.
(e) The 2nd Respondent filed a claim petition before the Deputy
Commissioner of Labour, Coimbatore claiming subsistence allowance
which was dismissed as not maintainable. The 2nd Respondent then filed
W.P.No.2534 of 1984 before this Court. This Court, by order dated
24.07.1986 directed the 2nd Respondent to co-operate with the proper
conduct of the enquiry and also directed the petitioner herein to complete
the enquiry before 30.11.1986. The 2nd Respondent then filed W.A.No.828
of 1986 against the order only insofar as it related to the quantum arrived at.
The Writ Appeal No. 828 of 1986 was dismissed on 15.12.1986.
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W.P.Nos.2721 of 2005 & 19482 of 2003
(f) In compliance with the order of this Court dated 24.07.1986 to
complete the enquiry by 30.11.1986, this Court appointed Sri Ramani,
Advocate, Dharapuram to conduct the enquiry. The 2nd Respondent took
objection to the enquiry and did not attend the enquiry. After following the
due procedure, exparte enquiry was held on 25.01.1986 and an order of
dismissal from service was passed removing him from service from
11.12.1986. In the meantime, the 2nd Respondent moved the District Munsif
Court at Kangeyam and obtained an order of injunction restraining the
management from dismissing the petitioner or passing any order in the
Enquiry proceedings.
(g) O.S.No.638 of 1985 filed by the 2nd Respondent was summarily
tried and by judgment and order dated 23.02.1989, the suit was decreed with
regard to the declaration and that the relief for mandatory injunction was
dismissed. The petitioner herein filed A.S.No.31 of 1989 unsuccessfully
while the 2nd Respondent did not file any cross appeal against the refusal of
reinstatement. However, the petitioner filed S.A.No.1999 of 1989 and in
C.M.P.No.16377 of 1989, injunction was granted restraining all further
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W.P.Nos.2721 of 2005 & 19482 of 2003
proceedings pursuant to the decree and judgment in O.S.No.638 of 1985
pending S.A.No. 1999 of 1989. The point that arose for consideration in
appeal was whether the Civil Court has jurisdiction to grant the relief in
Industrial disputes which is covered by a self contained code-Industrial
Disputes Act.
(h) During the pendency of S.A.No. 1999 of 1989, the 2 nd
Respondent preferred a petition to the Labour Court, Coimbatore under
Section 2-A of Industrial Disputes Act,1947 which was numbered as
I.D.317 of 1991 (stood transferred to Labour Court, Salem due to
bifurcation of the Coimbatore district), which was re-numbered as I.D.426
of 1992. Since already further proceedings in this matter has been stayed in
S.A.No. 1999 of 1989, the petitioner herein further filed W.P.No.14340 of
1991 before this Hon’ble Court against I.D.No. 317 of 1991 and this
Hon’ble Court stayed all further proceedings in I.D.No. 317 of 1991.
(i) S.A.No. 1999 of 1989 filed by the petitioner herein was allowed by
this Hon’ble Court by order dated 25.04.1997 holding that the civil Court
has no jurisdiction to try the suit pertaining to Industrial Disputes.
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W.P.Nos.2721 of 2005 & 19482 of 2003
Consequently, W.P.No.14340 of 1991 filed by the petitioner herein was also
withdrawn.
6. After disposal of the writ petition in W.P.No.14340 of 1991 and the
second appeal in S.A.No.1999 of 1989, the Labour Court has taken up the
matter and in the trial, the employee has not let in any oral evidence or
marked any documentary evidence. On the side of the Management,
Ex.M.W.1 to Ex.M.W.56 were marked. On consideration of arguments
advanced, the Labour Court has held that the internal enquiry conducted
against the second respondent herein has been conducted in fairness and the
charges though proved are not so grave or major warranting dismissal from
service and accordingly, set aside the order of dismissal passed by the
Management and ordered for reinstatement of service with continuity of
service and also observed that the delay is caused due to the conduct of the
second respondent herein (employee) and accordingly, granted 25% of
backwages. Hence, the above writ petitions.
7. Heard the learned counsel on either side.
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W.P.Nos.2721 of 2005 & 19482 of 2003
8. The learned counsel for the petitioner Management submitted that
already, the petitioner Management has paid a sum of Rs.3,00,000/- to the
employee.
9. The learned Senior Counsel for the second respondent employee
submitted that it is a clear case of victimization. Since the employee,
namely, S.Balusami found out the malpractice in connection with purchase
of mat by the Society and instead of taking action upon the report of the
delinquent, the Management has chosen to victimize the employee. The
learned Senior Counsel also relied upon the Judgment of this Court in the
case of Administrator, Union Territory of Dadra and Nagar Haveli Vs.
Gulabhia M.Lad reported in (2010) 5 SCC 775; Colour-Chem Limited, Vs.
A.L.Alaspurkar and Others reported in (1998) 3 SCC 192; and National
Tabacco Co. of India and Others Vs. Fourth Industrial Tribunal & Ors
reported in AIR 1960 Culcutta 249.
10. On perusal of Ex.M.W.48, enquiry proceedings and statement
recorded under Ex.M.W.49 to Ex.M.W.55, the Labour Court has rightly
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W.P.Nos.2721 of 2005 & 19482 of 2003
come to the conclusion that the Management has ordered for internal
enquiry and all the procedures were duly complied with in the internal
enquiry and notice of enquiry was duly served upon the second respondent
herein for enquiry on 04.05.1981. However, though the second respondent
appeared before the enquiry committee, has filed a letter stating that he has
filed a suit before the Civil Court. Therefore, he is not participating in the
enquiry and left without attending the enquiry. The position has been
admitted by the second respondent herein before the Labour Court. The
Labour Court also held that the delay is on the part of the second respondent
herein. After perusing the report of the enquiry, I find that the internal
enquiry committee has conducted the enquiry in a fair manner and there is
no violation of principles of natural justice and due opportunity has been
clearly given to the second respondent herein.
11. From the records, I find that the second respondent herein was
placed under suspension on 17.03.1981 as could be seen from Ex.M.W.14
and he was removed from service as per the orders in Ex.M.W.33 and
subsequently, there are proceedings on the writ jurisdiction of this Court and
civil Court and thereafter, it appears that the second respondent/employee
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W.P.Nos.2721 of 2005 & 19482 of 2003
has moved the Labour Court in the above I.D.
12. The sum and substance of the charges is that the second
respondent had submitted a report on 24.01.1981 to the writ petitioner
Management with certain papers annexed in thereto, whereby, he had
removed a working sheet from the accounts and the records kept under the
control of the Manager of the Muthur Branch of the Kadhi Craft Sarvodhaya
Sangam and he did so without the knowledge and consent of the said
Manager and also it is alleged that some lapses are said to have been
committed in the purchase of mats for the sale by the institution. The
charges are said to have been proved in the internal committee. As observed
by the Labour Court, I find that even if the charges are held to be proved,
major punishment of removal from service could not be inflicted since the
punishment of dismissal of service does not appears to be incommensurate
with the proved charges. A similar reasoning has been recorded by the
Labour Court and therefore, set aside the major punishment of dismissal of
service and since the second respondent/employee was caused for delay as
ordered for backwages of 25%. Hence, I find that the reasonings assigned
by the Labour Court for setting aside the order of dismissal and for award of
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W.P.Nos.2721 of 2005 & 19482 of 2003
backwages at 25% are well founded and well merited and does not require
any interference in the writ jurisdiction under Article 226 of the
Constitution of India. Accordingly, the Writ Petition filed by the
Management in W.P.No.19482 of 2003 is hereby dismissed.
13. In respect of W.P.No.2721 of 2005 filed by the second
respondent/employee, this Court finds that in spite of the receipt of the
notice for the enquiry on 04.05.1991, the employee has not chosen to
participate in the enquiry and he has not challenged any fairness of the
internal enquiry before the Labour Court and he has not whispered anything
before the Labour Court regarding that he has no plea of gainfully employed
or non-gainfully employed or pleaded before the Labour Court or in the writ
petition. Hence, in the absence of any such plea being raised either before
the Labour Court or in the affidavit filed before this Court. I am of the
considered view that 25% of backwages granted by the Labour Court is just
and fair and hence, this writ petition is dismissed.
14. In the result, the Writ Petitions stand dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
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W.P.Nos.2721 of 2005 & 19482 of 2003
23.11.2023
Index: Yes / No
Internet: Yes / No
NCC : Yes/No
sji
To
The Presiding Officer,
Labour Court,
Salem.
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W.P.Nos.2721 of 2005 & 19482 of 2003
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W.P.Nos.2721 of 2005 & 19482 of 2003
RMT. TEEKAA RAMAN, J.
sji
Order made in
W.P.Nos.2721 of 2005 and 19482 of 2003
and
23.11.2023
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