S E MADURAI ELECY SYSTEM Vs. V BALUSWAMY

JUDGEMENT

(1.) ON judgment pronounced on September 28, 1989, learned Counsel Mr. N. G. R. Prasad, points out that he had taken up a point that S. O. 21 (vii) (g) had not been complied with before passing the order of removal from service, and therefore, the order dated May 5, 1978 is illegal. The said S. O. reads as follows:

(2.) HE contends that, if a S. O. is not complied with, the procedure followed in the disciplinary proceeding being illegal, the order of removal from service will have to be/set aside and the resultant effect is that, first respondent gets restored to service, and he is entitled to the payment of the entirety of the backwages straightway. Second respondent having set aside the order of removal, that order becomes operative. The disciplinary proceeding initiated gets vitiated, and it is now left to the Board either to proceed against him afresh or abide by the order of the second respondent and reinstate the first respondent in service. An order passed by an authority under the Tamil Nadu Shops and Establishments Act setting aside an order of dismissal or removal from service is much more than an order of reinstatement which could be passed by a Labour Court; and therefore, the first respondent will have to be not only restored to service, but entirety of the back wages which had accrued due till date, will have to be paid to him, on being restored to service. To show that Standing Orders are statutory in nature, he relies on Workmen in B and C Mills v. B. C. Mills (1970-I-LLJ-26) and that it had to be construed strictly. He has referred to Glaxo Lab (I) Ltd. v. Labour Court, Meerut and Ors. (1984i-LLJ-16 ). After referring to Western India Match Company Ltd. v. Workmen (1973-II-LLJ-403), it was held as follows (1984-I-LLJ-16 at 25):

(3.) THE next decision of the learned Judge of this Court is V. Radhakrishnan v. Indian Bank (1986-II-LLJ-443) in which a dismissed Bank employee succeeded before the authority in an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act, and it was set aside by the High Court by sending back the matter for fresh disposal; and at that stage, the employee died and his legal representatives sought for a review of the High Court's decision. This decision is relied upon with considerable emphasis, to contend that this Court cannot remit the matter for being further proceeded with in compliance with S. O. 21 (vii) (g) and that for its noncompliance, when the order gets vitiated, it has to simply uphold the order of the Appellate Authority, though it had set aside the order of removal from service on different grounds, and that the matter should be left at large. If this approach is to be made, it would result in the entire disciplinary proceeding being quashed, in spite of the conclusions arrived at by this Court about the most unsatisfactory manner in which the Appellate Authority has passed the order and in spite of the findings in the disciplinary proceedings on charges 2 and 3 are allowed to stand by remitting the matter to the second respondent for appropriate disposal. In the decision relied upon, charges 1, 3 and 4 against the employee were held proved by the Management based on admissions made by him, and it conducted an enquiry only in respect of charge No. 2 and found him guilty of the said charge. The Appellate authority held that charge No. 2 has not been proved, and that the penalty of discharge cannot be sustained on charges 1, 3 and 4 which are minor in nature, and it is against such an order, when a writ petition was filed, this court held that as for these three charges, para 19. 12 (e) of Bi-partite Settlement having not been complied with, it being that the holding of enquiry is imperative irrespective of admission; the matter was remitted to the Appellate authority to go into these charges. It is to review this order, a petition was filed by the legal representatives of the deceased employee and the learned Judge held that in the absence of enquiry in respect of three charges, "this Court should have upheld the order of the Appellate authority holding the discharge as invalid". It is then concluded by holding that the matter need not have been remitted and the petition is ordered.