Madras High Court
The Management vs The Presiding Officer on 19 August, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
W.A.(MD).No.1111 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.08.2024
CORAM :
THE HON'BLE MRS. JUSTICE P.VELMURUGAN
AND
THE HONOURABLE MR.JUSTICE K.K. RAMAKRISHNAN
W.A.(MD).No.1111 of 2018
and
C.M.P.(MD).No.7977 of 2018
The Management,
Q-308, Perunkarai Primary Agricultural
Cooperative Bank, Now called as
Q-308, Perunkarai Primary Agricultural
Cooperative Credit Society,
Keela Perunkarai, Paramagudi Taluk,
Ramnad District. ... Appellant
Vs.
1.The Presiding Officer,
Labour Court, Madurai.
2.R.Alagarsamy ... Respondents
PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent,
praying this Court to set aside the order dated 23.03.2018 passed in W.P.
(MD).No.2673 of 2014.
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.1111 of 2018
For Appellant : Mr.R.Saravanan
for M/S.C.G.Pethanaraj
For Respondents : Labour Court for R1
: Mr.S.M.Mohan Gandhi
JUDGMENT
[Order of the Court was made by Mr.K.K.RAMAKRISHNAN, J.]
The above intra Court writ appeal has been filed under clause 15
of Letter Patent Act, challenging the impugned order of the writ Court in
W.P.(MD).No.2673 of 2014, dated 23.03.2018, wherein the writ Court
confirmed the award passed by the Labour Court in I.D.No.97 of 2002,
dated 24.07.2013.
2. Earlier, appellant society is Perunkarai Primary Agricultural Co-
operative Bank. The second respondent was appointed as a peon on the
basis of daily wages by appointment order dated 03.10.1997.
Subsequently, in order to fill the permanent vacancy the appellant society
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called for the interview of the eligible candidate through the employment
exchange. The employment exchange department also sponsored the
second respondent’s name on the basis of the seniority. The second
respondent also attended the interview on 05.02.2001. The second
respondent attended the interview on 05.02.2001 and then the appellant
Management passed a resolution in his favour on 07.02.2001 and
selecting him to the post of peon. From the said date onwards, he was
working as a peon and he was continuously working in the society
without any blemish and misconduct. That being the situation, the
appellant society served the show cause notice dated 14.09.2001 and the
dismissal order dated 27.09.2001 on 17.11.2001 in person. In the said
show cause notice dated 14.09.2001, it is stated that the erstwhile officer
of the second respondent appointed the second respondent without
following the existing rules and without any sponsorship from the
employment exchange and hence, they sought for explanation within 7
days. In the dismissal order dated 27.09.2001, it is stated that the second
respondent failed to give explanation and hence he was liable to be
terminated from the service on the ground that the appointment was
made on the basis of the irregular resolution of the previous board and
consequentially the said appointment was irregular. The same was
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challenged by the second respondent before the Labour Court. The
conciliation proceedings also ended in failure and thereafter, the Labour
court after the trial, passed the order on 26.07.2013 setting aside the said
dismissal order. Challenging the same, the society filed writ petition in
W.P.(MD).No. 2673 of 2014 and writ court also confirmed the same by
passing the impugned order dated 23.03.2018, challenging the same, the
present writ appeal is filed.
3.The learned counsel appearing for the appellant submitted that
the appointment was made beyond the cadre strength. Hence, the
appointment was illegal. Therefore, the show cause notice was issued and
the termination order was passed and the same is in accordance with law.
Both the Labour Court as well as the writ Court failed to appreciate the
same. Hence, he seeks to allow this appeal
4.The learned counsel appearing for the second respondent
submitted that there was no substance in the argument of the learned
counsel for the appellant. He specifically stated that he was appointed
through the employment exchange and the same was admitted in the
counter and also both the Labour Court and the writ Court also
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considered the same. The cadre strength is concerned, there was no
pleadings and also there was no charge. The charge memo was issued
only on the premise that the second respondent was not appointed
through the employment exchange and for his appointment was beyond
cadre strength, there was no charge. Hence, as per the findings of the
learned Labour Court that the department took a different stand at
different times, to suit the convenience, which is not appreciable and
hence, he seeks for the dismissal of this writ appeal.
5.This Court considered rival submission made on either side and
perused the records.
6. The specific pleading of the second respondent before the
labour court in the I.D.No. 97 of 2002 is that the show cause notice dated
14.09.2001 and dismissal order dated 27.09.2001 were served upon the
second respondent on 17.11.2001. The said pleading and his evidence
has not been repudiated by the appellant society either through the oral
evidence or the documentary evidence. Hence, the termination order
passed without issuing show cause notice and obtaining the explanation
and framing the charges and conducting the domestic enquiry and getting
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the enquiry officer report is wrong.
6.1. In the show cause notice and the termination order the
submission made before the labour Court are not in uniform. Earlier, they
mainly contended that the second respondent's appointment was made
illegally through back door entry i.e., without obtaining the employment
seniority, the previous management appointed him. From the records, it is
clear that the said allegation is not correct. Under Ex.W2, the District
Employment office forwarded the seniority list of 5 persons eligible for
selection as a peon. The second respondent was the one among the
persons. The interview card was sent to the second respondent under
Ex.W3 to attend the interview on 07.02.2001. He was selected on
05.02.2001 and the appellant bank had passed the resolution on
07.02.2001 selecting the second respondent for the post of peon at a
consolidate fee of Rs.1300/- as per month under Ex.W4 and the
appointment order was issued under Ex.P5. In the said circumstances, the
allegation that the petitioner was appointed without following the
employment seniority is not correct. The said factual aspect was properly
appreciated by the labour court and the same was reconsidered by the
writ court and this court also perused the records and finds no error in the
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said finding of the both labour court and the writ court. Therefore, the
argument of the appellant counsel that the appointment of the second
respondent is illegal cannot be accepted.
6.2. The Learned counsel for the appellant's further submission
that the appointment was beyond cadre strength and hence his
appointment was illegal is without pleadings and without evidence. In
this aspect, admittedly no domestic enquiry was conducted by issuing
such charge memo. Even as per the unchallenged evidence of the second
respondent, it is found that the termination order and show cause notices
were issued on the same day. In the show cause notice, it is only stated
that the appointment was not made by calling the eligible candidates
from the district employment exchange. But, before this Court, they
made a different submission. It is settled principle that disciplinary
proceedings should be commenced with issuance of charge memo with
specific allegation, framing of the charges with specific imputations and
prove the said imputation with adequate evidence and on the proof of the
same proper punishment to be rendered. They cannot be allowed to make
a submission different from the charge memo, in the higher forum.
Therefore, this Court is unable to accept the argument.
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6.3. Apart from that either before labour court, writ court or before
this court during the course of the hearing of this writ appeal, they have
not produced any material including bye laws and order to substantiate
their contention that the appointment was made beyond cadre strength.
Therefore, mere submission without pleadings and evidence cannot be
accepted.
6.4. In the said circumstances the labour court thoroughly gone
into all aspect, set aside the termination order dated 27.09.2001 passed
against the second respondent. Considering the principle lay down by the
Hon’ble Supreme Court, the labour court only awarded 25% backwages.
The writ court also accepted the same and dismissed the second
respondent's writ petition seeking full backwages. Hence, in all aspect
this court finds no merits in the writ appeal and the same is liable to be
dismissed.
7.Accordingly, this writ appeal is dismissed with direction to the
appellant to settle the entire due amount of the second respondent within
a period of four weeks from the date of receipt of the copy of this order.
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Consequently, the connected civil miscellaneous petition is closed.
[P.V.J.,] & [K.K.R.K.J.,]
19.08.2024
NCC :Yes/No
Index :Yes/No
Internet : Yes/ No
vsg
To:
The Presiding Officer,
Labour Court, Madurai.
https://www.mhc.tn.gov.in/judis
P.VELMURUGAN. J.,
and
K.K. RAMAKRISHNAN. J.,
vsg
and
Dated :19.08.2024
https://www.mhc.tn.gov.in/judis
