K DAMODARAN Vs. PRESIDING OFFICER LABOUR COURT

JUDGEMENT

(1.) THE writ petition is directed against the award passed by the Labour Court, Vellore in I.D.No,6 of 1995 dated 28.03.2007 in so far as it relates to the finding relating to issue Nos.1,4,5 and 6 and consequently to direct the second respondent to reinstate the petitioner in service with back-wages, continuity of service and attendant benefits.

(2.) THE facts leading to raising of the dispute by the petitioner are as follows: (a) THE petitioner was appointed as a Salesman during 1992 at Kemparajapuram Fair Price Shop under the second respondent Co.operative Bank. It is stated that he was given the additional charge of another Fair Price Shop in Kuppathu Mottur in December,1992 and that the petitioner requested for increase of salary, for which the Sub-Registrar of Co.operative Stores demanded money, about which the petitioner made a complaint to the Special Officer and therefore, he was refused employment from 03.11.1993 and directed to hand over the charge to one D.Rathinam, Salesman on 03.11.1993 itself and accordingly, the petitioner handed over the charge and thereafter, raised the industrial dispute before the Labour Officer, Vellore on 08.11.1993. Since the Management did not appear before the Conciliation Officer, the matter was adjourned and even then there was no appearance on behalf of the Management before the Conciliation Officer. (b) In the meantime, the Management issued two memos dated 10.01.1994, which were marked as Exs.M.15 and M.16 before the Labour Court, by which it has stated that as per the letter of the Joint Registrar No.I, the petitioner should pay two times the value of the deficit in stock stated to have been detected on 03.11.1993, failing which appropriate disciplinary proceedings would be initiated. THE petitioner in his letter dated 18.01.1994 marked as Ex.M.5, denied the allegation stating that from 03.11.1993 onwards he was denied employment and in fact he raised a dispute and the charge was handed over on 03.11.1993 itself and there was no deficit in stock. (c) It is the case of the petitioner that even before the expiry of the time granted in the said memo to explain, a charge memo dated 13.01.1994, marked as Ex.M.4 was issued by the Management, containing four charges against the petitioner. THE charges are relating to, (i)Causing stock deficit by improper maintenance to an extent of Rs.1,861.75 (ii)Preparing false bills (iii)Issuing more than the prescribed quantity of goods and (iv)Failing to remit the sale proceeds to non-levy items and committing misappropriation thereof. (d) THE said charge memo was stated to have been received by the petitioner on 24.01.1994, for which he replied on 31.01.1994, marked as Ex.M.6, denying the charges, reiterating that the charge was handed over on 03.11.1993 itself and for the denial of employment, the matter has been referred to Conciliation, and therefore, the charge memo is nothing but an act of victimisation. (e) It is stated that the Enquiry Officer, who was appointed, by his report dated 28.03.1994, marked as Ex.M.9, held that the fourth charge was not proved and that other charges stood proved. It is the case of the petitioner that prior to the date of enquiry on 26.03.1994, he sent a letter dated 21.03.1994, marked as Ex.W.1 to the Enqiry Officer, requesting for list of witnesses and copies of documents to be relied upon by the Management and also seeking permission for taking the assistance of Trade Union leader during the course of enquiry. (f) THE said letter was acknowledged, which was marked as Ex.W.2 and without furnishing the materials, the Enquiry Officer submitted his report and thereafter, the Management issued a show cause notice dated 16.04.1994, proposing to impose the punishment of dismissal, for which a reply was given on 07.06.1994 and ultimately, without considering the contents of the same, by order dated 23.06.1994, the petitioner was dismissed from service. (g) Since the conciliation proceedings ended in failure, the petitioner raised a dispute before the Labour Court. It is stated that in the meantime the petitioner approached the concerned authorities under the Payment of Subsistence Allowance Act, in which there was some order passed and at the time of order of dismissal passed by the Management, the said proceedings were pending. (h) In the impugned award passed by the first respondent dated 10.10.2000, a direction was issued to the second respondent to pay the back-wages and all other attendant benefits to the petitioner from the date of his dismissal, but rejected the prayer for reinstatement. It is stated that against the said portion of the award, directing to pay back-wages and all other attendant benefits, the Management filed W.P.No.19699 of 2000 and as against the portion rejecting the reinstatement, the petitioner filed W.P.No,3046 of 2001. (i) By a common order dated 20.01.2006, both the writ petitions were decided against the petitioner, against which the petitioner filed Writ appeals in W.A.Nos.1596 and 1597 of 2006 and the Honourable First Bench of this Court, by a common Judgemnt dated 20.12.2006, disposed of the writ appeals, directing the Labour Court to consider the materials on record already submitted by the Management in the light of the power conferred on the Labour Court under Section 11-A of the Industrial Disputes Act,1947, as interpreted by the Supreme Court. (j) It was, after remand, the Labour Court framed fresh issues as to the correctness of the findings recorded in the domestic enquiry regarding three charges stated to have been proved and as to whether the petitioner was entitled for reinstatement. THE Labour Court, in the impugned award dated 28.03.2007, held that, charge No.1, viz., causing stock deficit by improper maintenance totalling Rs.1681.75 was alone proved and that in respect of Charge Nos.2 and 3, there was no substance, however, confirmed the punishment of dismissal from service.

(3.) ON the other hand, Mr.P.S.Sivashanmugasundaram, learned counsel appearing for the second respondent Management would submit that when the Labour Court has found on appreciation of evidence that Charge No.1 has been proved, the quantum of shortage is immaterial and therefore, this Court can not be made to appreciate the evidence as an appellate authority. He would rely upon the judgment in Regional Manager, U.P.S.R.T.C. Etawah and others vs. Hoti Lal and another (2003 II LLJ 267) and his contention is that the punishment in this case cannot be said to be shockingly disproportionate. It is his submission that the Labour Court decided the case on merit by relying upon the judgment, which requires no interference, for which he relied upon the judment in U.P.State Road Transport Corporation vs. Vinod Kumar (2008 (1) SCC 115). It is his further submission that in respect of pilferage, no sympathy should be shown, for which he relied upon the judgment in Divisional Controller, N.EK.R.T.C. vs. Amaresh (2006 III LLJ 232). It is also his submission that when the Labour Court has found that the domestic enquiry was fair, proper and in accordance with the principles of natural justice, no interference is required, for which he relied on the judgment in Tata Engineering and Locomotive Company Ltd., vs. N.K.Singh (2007 (1) L.L.N. 148). He has submitted that since there is a proved charge against the petitioner, he has lost confidence of the employer and therefore no useful purpose would be served by ordering reinstatement, by relying on the judgment in Rajesh Prasad vs. Bihar State Food Civil Supplies Corporation and others (2009 III LLJ 675).