@JUDGMENTTAG-ORDER
M. Jaichandren, J.@mdashHeard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the second respondent.
2. This writ petition has been filed by the petitioner challenging the award of the first respondent Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999.
3. The first respondent Labour Court, in its award, dated 22.11.2000, had held that the punishment of demotion from the post of Assistant Secretary to that of Clerk, imposed by the petitioner on the second respondent, is illegal. Consequently, the Labour Court has directed the petitioner Society to reinstate the second respondent in the post of Assistant Secretary, with full backwages, continuity of service and all other attendant benefits.
4. It has been stated that the second respondent was working as an Assistant Secretary in the petitioner Society. He was discharging the duties of the Secretary, whenever the Secretary was not available. He was vested with the power of accepting deposits, renewing deposits, refunding deposits and admitting members to the petitioner Society. While the second respondent was discharging his official duties he had violated the rules and the regulations applicable to the petitioner Society. He had refunded a deposit belonging to one A. Karuppannan to his legal heir, without any authority. Further, he had admitted the legal heirs of A. Karuppannan, as members of the Society even though they were residing abroad. The second respondent, after transferring the funds in favour of the son and daughter-in-law of A. Karuppannan, had created a deposit in their names. Thus, the second respondent had dealt with the funds of the Society, disregarding the rules and regulations applicable to the Society. The various procedures established for dealing with the deposit had not been followed. A. Karuppannan had deposited a sum of Rs. 40,000/- in the fixed deposit, on 9.10.92, for a period of 24 calendar months. He had nominated his son Karthikeyan as his nominee. A. Karuppannan had passed away, on 12.6.94, before the deposit had matured. After his demise another son of the deceased A. Karuppannan had issued a letter, dated 16.6.94, to the Society objecting to the disbursement of the deposit to the nominee. However, by a letter, dated 14.7.94, he had stated that the amount in deposit could be disbursed to his brother Karthikeyan. The second respondent ought to have taken care to follow the established procedures while dealing with the amount which was in Fixed Deposit and which had belonged to A. Karuppannan. Thus, the second respondent had been careless in transferring the funds without the proper approval and consent of the persons concerned. In such circumstances, the management of the petitioner Society had initiated a domestic enquiry, with regard to the charge memo issued to the second respondent relating to his mishandling of the funds of the Society. The enquiry had been conducted, giving sufficient opportunity to the second respondent to defend himself against the charges. The Enquiry Officer had duly considered the evidence available and gave a finding that the charges levelled against the second respondent were proved. The Special Officer in-charge of the management of the petitioner society had issued a show cause notice, dated 29.6.96, proposing the punishment of removal from service to be imposed on the second respondent. In the meantime, the Registrar of Cooperative societies had issued a circular, dated 25.10.96, to all the special officers of the Cooperative institutions restraining them from taking any decision with regard to matters pertaining to the staff members of the Co-operative institutions since the newly elected Board was to assume charge shortly thereafter. Unfortunately, the Special Officer neglecting the directions issued by the Registrar of Co-operative societies, had passed the order, dated 28.10.96, imposing the punishment of one increment cut on the second respondent and he had directed the second respondent to join duty. The said order had not been communicated to the second respondent and it was not given effect to.
5. It has been further stated that the elected Board of the petitioner Society had assumed office, on 30.10.96. On the same day, the Deputy Registrar of Co-operative Societies had issued directions, directing the Board to keep the order of the Special Officer, dated 28.10.96, in abeyance. This fact was communicated to the second respondent, on 5.11.96. Thereafter, by an order, dated 9.12.96, the petitioner Society had imposed the punishment of demotion on the second respondent, demoting him to the post of Clerk, taking note of the gravity of the charge proved against him. The second respondent had filed a writ petition before this Court, in W.P. No. 18335 of 1996, challenging the order, dated 30.10.1996, passed by the Deputy Registrar of Co-operative Societies, Omalur. The writ petition had been dismissed by an order of this Court, dated 7.11.97. The writ appeal filed against the said order, in W.A. No. 1513 of 1997, had also been dismissed, with liberty to the second respondent to challenge the order imposing the punishment of demotion on him. Thereafter, the second respondent had raised an industrial dispute challenging the order, dated 9.12.96, demoting him to the post of Clerk. The first respondent Labour Court, after having adjudicated the dispute, passed the impugned award, dated 22.11.2000, in I.D. No. 4 of 1999, reinstating the second respondent in his original post with full backwages, continuity of service and all other attendant benefits. However, the second respondent was to suffer the punishment of increment cut.
6. It has been further stated that the Labour Court had found that the domestic enquiry conducted against the second respondent was fair and proper. It was also held that the charges levelled against the second respondent had been proved beyond doubt and that the findings of the enquiry officer were correct. However, the Labour Court had come to the erroneous conclusion that the order, dated 28.10.1996, of the Special Officer of the petitioner Society, imposing the punishment of increment cut, is correct and that the subsequent order of the petitioner Society imposing the punishment of demotion is illegal. Further, the Labour Court had held that the punishment of demotion is excessive in nature, for the proved misconduct. The first respondent Labour Court had held that once the punishment of increment cut had been imposed on the second respondent, it could not have been re-opened by the management of the petitioner society, to impose the punishment of demotion on the second respondent.
7. The learned Counsel appearing on behalf of the petitioner Society had submitted that the award of the first respondent Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999, is erroneous and illegal. He had further submitted that the first respondent Labour Court had erred in interfering with the punishment imposed by the petitioner Society, after having found that the enquiry by the petitioner management, on the charges levelled against the second respondent, was fair and proper and that the charges had been proved. Thus, the first respondent Labour Court had exceeded its jurisdiction in interfering with the punishment imposed by the petitioner Society on the second respondent. It was also submitted that the order of the Special Officer, dated 28.10.96, imposing the punishment of increment cut, had been passed without jurisdiction as it was contrary to the circular of the Registrar of Co-operative Societies, dated 25.10.96. After assuming office, the Board of Management of the petitioner Society had passed an order demoting the petitioner to the post of Clerk since the charges levelled against the second respondent had been proved. The earlier order, dated 28.10.96, passed by the Special Officer of the petitioner Society had been suspended by the Deputy Registrar of Co-operative Societies, Omalur, by his order, dated 30.10.96. The second respondent had challenged the order of the Deputy Registrar, dated 30.10.1996, keeping the order of the Special Officer, dated 28.10.96, in abeyance. The order of the Deputy Registrar, dated 30.10.96, and the consequential order of the petitioner Society, dated 5.11.96, had been challenged by the second respondent before this Court, in W.P. No. 18335 of 1996. The writ petition filed by the second respondent had been dismissed by this Court, on 7.11.97. The writ appeal, in W.A. No. 1513 of 1997, had also been dismissed with liberty to the second respondent to challenge the impugned orders in the manner known to law. Thereafter, the second respondent had not challenged the order of the Deputy Registrar, dated 30.10.1996. Thus, it has become final. In such circumstances, the first respondent Labour Court ought not to have interfered with the order of punishment, dated 9.12.1996, which had been passed pursuant to the directions of the Deputy Registrar, Omalur, dated 30.10.1996.
8. It has also been submitted that the first respondent Labour Court had failed to note that the order, dated 28.10.1996, passed by the Special Officer of the petitioner society was not communicated to the second respondent and it had never come into force at any point of time. Even before it became effective, it was suspended by the Deputy Registrar, Omalur, by his order, dated 30.10.96. Therefore, the first respondent Labour Court ought to have held that there was no re-opening of the issue and that the order, dated 9.12.96, is in order. The Labour Court ought to have held that the order passed by the Deputy Registrar was in the interest of the petitioner Society as it was issued in accordance with Section 181 of the Tamilnadu Cooperative Societies Act, 1983. The first respondent Labour Court had erred in holding that the second respondent ought to have been given sufficient opportunity before the punishment of demotion had been imposed on him. Since the earlier punishment of increment cut had never been imposed on the second respondent, the first respondent Labour Court had also held that the order, dated 9.12.96, is illegal, as it had been stayed by the High Court. After having categorically found that the charges levelled against the second respondent had been proved, the first respondent Labour Court had no jurisdiction to interfere with the punishment of demotion imposed by the petitioner Society, as the power u/s 11-A of the Industrial Disputes, 1947, is not available to the first respondent Labour Court, while dealing with the case of demotion.
9. It had also erred in coming to the conclusion that, for the grave charges proved against the second respondent, the punishment of increment cut was sufficient. Further, the Labour Court had failed to note that after the punishment of demotion was imposed, the suspension of the second respondent had been revoked and he was asked to report for work. The second respondent workman, S. Pitchumani, had failed to report in spite of the reminder issued to him. Hence, the question of payment of backwages and reinstatement of the petitioner in his original post, with continuity of service, would not arise. The principle of `no work no pay'' will apply. The award of the Labour Court, directing the petitioner Society to reinstate the second respondent with backwages, continuity of service and all other attendant benefits, is erroneous, since there was no termination of his service. Thus, the first respondent Labour Court had misunderstood the entire dispute while passing its award, dated 22.11.2000. The first respondent Labour Court had no jurisdiction to modify the punishment imposed on the second respondent when the charges against him had been proved, especially, when the charges levelled against the second respondent were of a grave nature. In such circumstances, the award of the Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999, is liable to be set aside.
10. The learned Counsel appearing on behalf of the petitioner had contended that the award of the first respondent Labour Court, is erroneous and illegal. The first respondent Labour Court after having held that the enquiry had been conducted in a fair manner and that the charges had been proved, it had erred in interfering with the punishment imposed by the petitioner Society on the second respondent. Once the first respondent Labour Court had come to the conclusion that the enquiry was conducted in a fair and proper manner and that the charges had been proved, it cannot interfere with the punishment of demotion imposed on the second respondent. The order of the Special Officer, dated 28.10.96, imposing the punishment of increment cut had been passed without jurisdiction, as it was contrary to the circular of the Registrar of Cooperative societies, dated 25.10.96. The Registrar of Cooperative Societies, had given a specific direction that the Special Officers should not take a decision with regard to matters relating to the employees of the societies, as the elected Board was to assume charge, shortly. Ignoring the directions issued by the Registrar of Cooperative Societies, the Special Officer had passed the order, dated 28.10.96. However, before the said order was communicated to the second respondent, he had been suspended by the Deputy Registrar of Cooperative Societies, Omalur, by his order, dated 30.10.1996. Thereafter, the elected Board of the petitioner Society, after considering the entire materials on record, the gravity of the misconduct proved, imposed the punishment of demotion. In such circumstances, the first respondent Labour Court ought to have held that the punishment of demotion imposed on the second respondent is illegal and the industrial dispute raised by the second respondent ought to have been dismissed by the first respondent Labour Court.
11. Even though the second respondent had challenged the decision of the Deputy Registrar of Cooperative Societies, dated 30.10.96, the petition had been dismissed and the writ appeal filed thereafter, had also been dismissed by this Court. In such circumstances, the first respondent Labour Court ought to have seen that the order of the Deputy Registrar of Co-operative Societies, dated 30.10.96, was valid. Accordingly, the Special Officer of the petitioner Society could not have validly passed the order, dated 28.10.96. Since the order of the Special Officer, dated 28.10.96, had not come into force, there was no necessity for the petitioner Society to give an opportunity to the second respondent with regard to the same. The Labour Court had also erred in coming to the conclusion that the punishment of increment cut was sufficient, even though the charges proved against the second respondent were grave in nature. The learned Counsel for the petitioner had further submitted that the first respondent Labour Court had committed a serious jurisdictional error in interfering with the punishment of demotion imposed on the second respondent by the petitioner Society. The first respondent Labour Court ought to have recognised that the petitioner Society has the power to review its own decisions, especially, when a direction has been issued by the higher officials, u/s 181 of the Tamilnadu Cooperative Societies Act, 1983. There is no clear finding by the first respondent Labour Court that the earlier order of the Special officer of the petitioner society, dated 28.10.96, had been implemented. There should have been an actual imposition of the said order. In fact, the order, dated 28.10.96, ought to have been implemented by the imposition of increment cut on the second respondent to say that the said order had been implemented. Since the punishment had not been imposed on the second respondent, it cannot be said that the order had been implemented. Further, the order of the Deputy Registrar of Co-operative Societies, dated 30.10.96, has not been challenged before the Labour Court. Once the Labour Court had found that the enquiry is fair and proper there is no power or jurisdiction to the Labour Court to interfere with the punishment imposed by the petitioner Society on the second respondent.
12. It has been further submitted that in spite of the fact that this Court had not granted an order of stay against the order of the petitioner Society, dated 28.10.96, the second respondent had not joined duty. Thus, the second respondent is guilty of further misconduct. In such circumstances, the second respondent deserves no sympathy and therefore, this Court may not interfere with the order passed by the petitioner Society, on 9.12.96, demoting the petitioner for his serious misconduct. Since the award of the Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999, is erroneous, illegal and invalid, the same may be set aside by this Court.
13. Per contra, the learned Counsel appearing on behalf of the second respondent had submitted that the award of the Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999, is correct and valid. The order passed by the Special Officer of the petitioner society, on 28.10.1996, imposing the punishment of increment cut on the second respondent, had been implemented by the petitioner Society. Based on the said order, the second respondent had resumed his duties after submitting a joining report. Once the said order of the petitioner Society, dated 28.10.96, had been given effect to, re-opening the issues and imposing another punishment on the second respondent, for the same charges, would not be valid. The claim made by the second respondent in his claim statement that he had joined duty, had not been denied in the counter statement filed by the petitioner society before the first respondent Labour Court. Once the order, dated 28.10.96, imposing the punishment of increment cut had been imposed on the second respondent, it would not be open to the petitioner Society to state that the new Board of management, which had taken charge of the management of the petitioner society could review the earlier order and pass a subsequent order imposing a different punishment on the second respondent. Since there is no power of suo motu review vested in the Special Officer of the petitioner Society, the earlier order, dated 28.10.96, could not have been reviewed by the elected Board of the petitioner Society. Therefore, the second order of punishment, dated 9.12.96, issued by the Board of the petitioner Society, imposing the punishment of demotion on the second respondent, is arbitrary and illegal. No notice had been given to the second respondent before the order of demotion, dated 9.12.96, had been passed by the petitioner Society. Since the order, dated 9.12.96, passed by the petitioner Society is illegal and void, the backwages due to the second respondent cannot be denied. Since the petitioner Society had refused to accommodate the second respondent in his original post, which he was holding at the time when the order, dated 28.10.96, had been passed, the second respondent could not continue to work. Further, if the second respondent had joined in the demoted post, pursuant to the order of the petitioner Society, dated 9.12.96, he could not have challenged the said order. In such circumstances, there is no bar on the first respondent Labour Court to award reinstatement of the petitioner, with continuity of service and with full backwages and other attendant benefits. It has also been stated the second respondent had resumed his duties, on 12.10.2001 and he had retired from service, on 30.6.2004, on his attaining the age of superannuation.
14. In view of the submissions made by learned Counsels for the petitioner, as well as the second respondent and on a perusal of the records available, this Court is of the considered view that the petitioner Society has not shown sufficient cause or reason for this Court to interfere with the award of the first respondent Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999. The claim of the petitioner Society that the earlier order of the Special Officer, dated 28.10.1996, imposing the punishment of one increment cut on the second respondent had not been given effect to, cannot be sustained, since it has not been shown that the said order had not been communicated to the first respondent. On the other hand, it has been shown that the second respondent had resumed his duties based on the order, dated 28.10.1996, after having received the said order. When such a claim had been made by the second respondent, in his claim statement filed before the first respondent Labour Court, in I.D. No. 4 of 1999, the said claim had not been denied in the counter statement filed on behalf of the petitioner Society. Once it is accepted that the order, dated 28.10.96, had been imposed on the second respondent, the second order of punishment, dated 9.12.96, could not have been validly issued by the Board of management of the petitioner society, to impose the punishment of demotion on the second respondent.
15. The petitioner Society has not been in a position to show that it has the power to review its own decisions. New specific provision of law has been relied on by the petitioner Society to substantiate its claim that it could review its own orders. The petitioner Society cannot take shelter under the general powers vested with the Registrar of Cooperative Societies, u/s 181 of the Cooperative Societies Act, 1983, to sustain its order, dated 9.12.96, imposing the punishment of demotion on the second respondent. It is also clear that, having imposed the punishment of one increment cut on the second respondent, the Board of management of the petitioner society had attempted to review the said order by imposing a further punishment of demotion on the second respondent, based on the same charges. No notice had been given to the second respondent before the punishment of demotion had been imposed by the order, dated 9.12.96. Therefore, the claim made by the petitioner Society that its earlier order, dated 28.10.96, had not been implemented cannot be accepted. Even otherwise, the second respondent ought to have been given a notice before the punishment of demotion was imposed on him by the order of the petitioner Society, dated 9.12.96.
16. The order of Deputy Registrar of Co-operative Societies, dated 30.10.96, had been issued to the petitioner Society and it has not been shown as to how such an order could have been challenged by the second respondent, before the first respondent Labour Court. It is for the petitioner Society to sustain its order, dated 9.12.96, independently. It is well settled that this Court, while exercising its writ jurisdiction, under Article 226 of the Constitution of India, does not, normally, interfere with the award of the Labour court, unless it is clearly shown that the Labour Court had misdirected itself in coming to its conclusions, without any evidence, or that the findings of the Labour Court are perverse in nature. There is nothing shown by the petitioner Society in the present case for this Court to come to the conclusion that the findings of the Labour Court are perverse or that there was no evidence for the Labour Court to arrive at its conclusions. In such circumstances, this Court is not inclined to interfere with the award of the Labour Court, dated 22.11.2000, made in I.D. No. 4 of 1999. Hence, the writ petition stands dismissed. No costs.
