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Judgment
P.D. Dinakaran, J.—This is an appeal from an order of the learned Single Judge dated 9.12.2004 made in W.P. No. 14394 of 1998
dismissing the writ petition filed by the appellant herein.
2.1. Shortly stated, the facts giving rise to this appeal are these : The appellant was working as a salesman in the fair price shop run by the third
respondent, and he was permitted to work as Extra Departmental Branch Post Master on part time basis by a no objection resolution passed by
the third respondent dated 10.7.1991.
2.2. Taking advantage of such no objection resolution dated 10.7.1991 passed by the third respondent, when it was alleged that the appellant had
committed certain irregularities and had closed down the fair price shop from 12.8.1991 to 14.8.1991 without handing over the charge and
applying for leave, disciplinary action was initiated against the appellant, pursuant to which he was placed under suspension, charges were framed,
and enquiry was conducted by an Enquiry Officer.
2.3. Even though the appellant initially denied the charges levelled against him, during the course of disciplinary proceedings, he admitted all the
charges on 8.2.1992 and on the basis of the said admission, the Enquiry Officer submitted his report on 2.3.1992 holding the appellant guilty. The
relevant portion of the report of the Enquiry Officer dated 2.3.1992 reads as under:
VI. When the enquiry was taken up finally on 8.2.1992 after giving four adjournments Somasundaram was present in the enquiry. When he was
permitted to bring in his observer, if he need, in the enquiry, he represented that there was no necessity for an observer on this behalf and he
informed that he would defend his case himself. After reading over the charges, as contained in the charge memos dated 5.8.1991, 14.8.1991,
4.9.1991 and 19.9.1991 to Somasundaram and explaining to him the procedures relating to the enquiry, when asked, if he was guilty of the
charges, Somasundaram admitted the charges. He further stated that he admitted the charges as contained in the charge memos dated 5.8.1991,
14.8.1991, 4.9.1991 and 19.9.1991 wholeheartedly and that he repented for his acts. He further stated that he would not repeat such acts in
future. He further requested to conclude the enquiry. In these circumstances, the enquiry was concluded.
VII. As Somasundaram himself had voluntarily admitted the charges levelled against him and I am satisfied that the admission of guilt by
Somasundarm is voluntary, I accept his voluntary and wholehearted admission and I have no hesitation in finding Somasundaram guilty of all the
charges levelled against him as per the charge memos dated 5.8.1991, 14.8.1991, 4.9.1991 and 19.9.1991 issued to him.
2.4. Based on the said report of the Enquiry Officer dated 2.3.1992, a show cause notice was issued to the appellant on 2.5.1992, to which no
reply was sent and ultimately, by proceedings dated 11.6.1992, the appellant was removed from service.
2.5. Aggrieved by the order of removal from service dated 11.6.1992, the appellant raised an industrial dispute in I.D. No. 256 of 1995. The
Labour Court, by order dated 8.10.1996, after taking into consideration the materials placed before it, finding that the appellant frequently closed
the fair price shop and attended the post office as he was working there as Extra Departmental Branch Post Master on part time basis; that he had
also not disputed the charges levelled against him and had in fact admitted the charges during the enquiry; that the fair price shop run by the third
respondent had been handed over to Pollachi Co-operative Wholesale Society, came to the conclusion that the appellant had no opportunity to get
employment again in the third respondent/Co-operative Bank. However, the Labour Court, awarded a sum of Rs. 5000/- to the appellant towards
loss of employment and dismissed the petition.
2.6. Challenging the said order dated 8.10.1996 of the Labour Court in I.D.No.256 of 1995, the appellant filed W.P. No. 14394 of 1998 and the
learned Single Judge, by order dated 9.12.2004, dismissed the writ petition confirming the order of the Labour Court. Hence, this appeal.
According to Mr. C. Chinnasamy, learned Senior Counsel for the appellant:
(i) the disciplinary action initiated on the ground that the appellant closed down the fair price shop from 12.8.1991 to 14.8.1991 without handing
over the charge and applying for leave and attended the post office as he was working there as Extra Departmental Branch Post Master on part
time basis, cannot be sustained in view of the resolution passed by the third respondent/Co-operative Bank dated 10.7.1991, permitting him to
work as Extra Departmental Branch Post Master on part time basis;
(ii) the admission of charges framed against the appellant, relied upon by the Labour Court as well as the learned Single Judge is not voluntary, but
the same was at the instance of the third respondent/Co-operative Bank; and
(iii) in view of the denial of each and every charge by the appellant, the finding of the Enquiry Officer that the appellant admitted all the charges
deserves to be reconsidered.
Per contra, Mr. G. Sankaran, learned Special Government Pleader for respondents 1 and 3 contends that:
(i) the operative portion of the report of the Enquiry Officer dated 2.3.1992, referred to above, as well as the finding rendered by the Labour
Court in its order dated 8.10.1996 made in I.D. No. 256 of 1995 reveal that the admission of the charges by the appellant was voluntary and in
view of the same, there is no necessity to reconsider the charges and probe into the same; and
(ii) the impugned fair price shop run by the third respondent/Co-operative Bank has already been handed over to the Pollachi Co-operative
Wholesale Society and it is only under such circumstances, the Labour Court arrived at the conclusion there is no opportunity for the appellant to
get employment again in the third respondent/Co-operative Bank.
We have given careful consideration to the submissions of both sides.
From the facts and circumstances referred supra, it is clear that the third respondent/Co-operative Bank by resolution dated 10.7.1991 resolved
that they have no objection in the appellant continuing his work as Extra Departmental Branch Post Master on part time basis, except during the
working hours of the impugned fair price shop, viz., between 9.00 a.m. to 1.00 p.m. and 3.00 p.m. to 7 p.m.
In our considered opinion, such no objection granted to the appellant cannot be exploited against the interest of the third respondent/Co-operative
Bank, and the appellant is, not in any way, authorised to close the fair price shop and attend the work of the Post Office, and it is only under such
circumstances, the Enquiry Officer and the Labour Court concurrently held that the distribution of the commodities in the impugned fair price shop
were paralysed on account of the conduct of the appellant in closing the fair price shop.
Even though the appellant initially denied the charges, he admitted all the charges before the Enquiry Officer, as the fact remains that he closed
the shop and attended the Post Office work. Such conduct of the appellant certainly amounts to dereliction of duty, which he is not expected to do
as a condition of the service and it would, by all means, warrant disciplinary action.
It is trite that the interest of the employer should be always kept in the forefront and given prime consideration, to test the charges relating to the
misconduct of the employee affecting the interest of the employer. In the instant case, the misconduct of the appellant, absenting himself from the
fair price shop under the guise of the no objection granted to him by the third respondent/Co-operative Bank to continue his work as Extra
Departmental Branch Post Master on part time basis, has resulted in the closure of the impugned fair price shop during the working days and the
same, in our considered opinion, is not permissible as rightly found by the Enquiry Officer and the Labour Court.
It is only due to the irregularities committed by the appellant, the third respondent/Co-operative Bank, based on the findings of the Enquiry
Officer in his report dated 2.3.1992, dismissed the appellant, and the Labour Court confirmed the same by awarding a sum of Rs. 5000/- towards
the loss of employment, which was further confirmed by the learned Single Judge, by order dated 9.12.2004 made in W.P.No.14394 of 1998,
holding that the appellant had not made out a prima facie case.
At this juncture, it may be mentioned that there is no finding of mala fides against the third respondent/Co-operative Bank in the order of the
Labour Court or the judgment of the learned Single Judge; nor the Labour Court or the learned Single Judge held that there is any defect in the
inquiry proceedings or violation of the principles of natural justice. The appellant, concededly, participated in the inquiry, and admitted the charges
levelled against him. The Labour Court and the learned Single Judge recorded a concurrent finding upholding the order of removal of the appellant
and such concurrent finding, in our considered opinion, cannot be interfered with at this stage, as the scope of judicial review of the disciplinary
action taken by the employer is extremely limited. The Court can interfere with the punishment imposed on the employee only if it is shown that the
action of the employer is vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation has
prejudiced his cause. The Court cannot sit in appeal over the findings recorded by the enquiry officer and/or disciplinary authority except when it is
convinced that the finding is perverse.
As neither mala fide is alleged against the third respondent/Co-operative Bank, nor there is any defect in the inquiry proceedings or violation of
the principles of natural justice, we are of the firm opinion that the learned Single Judge, was right in holding that no prima facie case is made out by
the appellant warranting interference. Hence, finding no merits, this appeal is dismissed. No costs. Consequently, W.A.M.P. No. 1355 of 2005 is
closed.