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2011 Supreme(Mad) 3965
High Court of Judicature at Madras
K. VENKATARAMAN
The Nadippisai Pulavar K.R. Ramasamy Cooperative Sugar Mills, rep. by the Special Officer
Versus
Rajendran
C.R.P. (PD) Nos.1694 to 1696 of 2009 & M.P.Nos.1 & 1 of 2009
Decided On : 16-09-2011
For the Petitioner:Mrs.G. Thilagavathi, Advocate.
For the Respondent:R. Kannan, Advocate.
Ratios
a. Challenge to the charge memo issued by the cooperative society on the ground that the incident took place outside the workplace and the society had no jurisdiction to initiate disciplinary proceeding could be made before the Civil Court by filing a suit.
b. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Industrial Disputes Act, the remedy lies only before the Civil Court.
c. Charge memo issued by an employer could not be challenged as an industrial dispute.
Headnote:(A)Code of Civil Procedure, 1908(5 of 1908)-Sec.9- T.N.Cooperative Societies Act, 1983(30 of 1983)-Sec.156- Industrial Disputes Act, 1947(14 of 1947)-Sec.2A-Cooperative society-Employee-Disciplinary proceeding-Charge memo-Challenge-Civil Court-Jurisdiction-Suit-Maintainability-When the respondent was issued a charge memo alleging some misconduct, he challenged it by filing a suit-He had sought for a declaration by contending that the incident occurred out of his work place and for that charge memo could not be issued by the petitioner-Petitioner sought for the rejection of the suit by contending that as per Sec.156 of the Cooperative Societies Act, 1983, jurisdiction of the civil Court was barred which was resisted by the respondent-When the civil Court had dismissed the petition but ordered interim injunction, petitioner preferred revision-Parties stood by their stands-Held, challenge to the charge memo issued by the cooperative society on the ground that the incident took place outside the workplace and the society had no jurisdiction to initiate disciplinary proceeding could be made before the Civil Court by filing a suit-For that relief, neither the bar under Sec.156 of the Cooperative Societies Act, 1983 was applicable nor the said relief could be claimed under Sec.2A of the Industrial Disputes Act-Revision was dismissed.
(B)Code of Civil Procedure, 1908(5 of 1908)-Sec.9- Cooperative Societies Act, 1983(30 of 1983)-Sec.156- Cooperative society-Employee-Disciplinary proceeding-Charge memo-Challenge-Civil Court-Jurisdiction-Suit-Maintainability-Challenge to the charge memo issued by the cooperative society on the ground that the incident took place outside the workplace and the society had no jurisdiction to initiate disciplinary proceeding could be made before the Civil Court by filing a suit
In the case on hand, the issuance of charge memo is not by an Arbitrator or Liquidator or Registrar or any officer authorised under the Act. That apart, it is the case of the respondent that the misconduct alleged against him is nothing to do with the employment and the incident cited in the charge memo has not taken place within the premises where he is employed. In such circumstances, I am of the considered view that the petitioner cannot claim that in view of Section 156 of the said Act, the suit filed by the respondent is not maintainable. Para 9
(C)Code of Civil Procedure, 1908(5 of 1908)-Sec.9-Industrial Disputes Act, 1947(14 of 1947)-Sec.2A-Cooperative society-Employee-Disciplinary proceeding-Charge memo-Challenge-Civil Court-Jurisdiction-Suit-Maintainability-Industrial dispute-If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Industrial Disputes Act, the remedy lies only before the Civil Court-Charge memo issued by an employer could not be challenged as an industrial dispute.
Now, it has to be seen whether the dispute raised by the respondent herein is an industrial dispute or it relates to enforcement of any other right under the Industrial Disputes Act. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Industrial Disputes Act as held by the Hon’ble Apex Court, the remedy lies only before the Civil Court. Para 11
1. C.R.P. (PD) No.1964 of 2009 has been filed challenging the order of the learned Principal District Munsif, Mayiladuthurai dated 20.10.2008 made in O.S.No.217 of 2008 rejecting the claim of the petitioner on the maintainability of the civil suit filed by the respondent herein against the issuance of charge memo.
2. C.R.P (PD) Nos.1695 and 1696 of 2009 have been filed challenging the orders of the learned Principal District Munsif, Mayiladuthurai dated 26.10.2008 granting interim injunction in favour of the respondent herein in I.A.Nos.328 and 329 of 2008 in O.S.No.217 of 2008.
3. The respondent herein has laid the said suit against the petitioner herein for the following reliefs:-
(a) for a declaration that the proceedings of the defendant in naka. No.756/2008/m 3 dated 21.1.2008 and the subsequent proceedings based on that are all abinitio, void, illegal without jurisdiction, ultra vires the powers of the defendant, mala fide and will not fall under the enumerated misconduct and for the consequential relief of permanent injunction restraining the defendants, his men, agents, servants or any body acting through him or under him in any manner enforcing the proceedings or proceedings with the enquiry till the disposal of the Crime No.217/07.
(b) for a declaration that the proceedings of the defendant in naka. No.3993/2008/ m 3 dated 29.5.2008 and the subsequent proceedings based on that are all are all abinitio, void, illegal without jurisdiction, ultra vires the powers of the defendant, mala fide and will not fall under the enumerated misconduct and for the consequential relief of permanent injunction restraining the defendants, his men, agents, servants or any body acting through him or under him in any manner giving effect to the proceeding or in any manner proceeding with the enquiry.
4. The claim of the respondent in his suit, more so, in paragraphs 5 to 9 is usefully extracted here under:-
(a) The two charge memos are made with an intention to victimize the respondent for no fault of him. The charges are the result of representation made by trade union which supports the ruling party and was issued only on their insistence, that too, ten months after the alleged incident. The charges were issued only to prevent the respondent from discharging his duties as trade union leader. Further more, the charges are vague, baseless, without any basis, mala fide and does not fall within the enumerated misconduct and there is no nexus between the respondent and the charges levelled against him. The charges are clearly motivated. Based on the illegal charges, the petitioner herein takes hectic steps to victimize the respondent. The petitioner succumbed to the pressure exercised by the rival union who owe their allegiance to the ruling party.
(b) The alleged incident did not happen anywhere within the premises of the factory. There is no nexus between the alleged incident and the employment. The very identity and the presence of the respondent at the place of occurrence is in question and the he disputes the entire episode. Even if the alleged incident is true, the respondent presumes to be innocent till the guilt is proved and he denies the very charge levelled by the police authorities. Any departmental enquiry for the said charge will amount to compelling the respondent to disclose his defence and it violates the basic doctrine that the accused should not be compelled. It amounts to violating the right of silence which an accused has got. Even in the very charge memo, it is stated that the respondent is liable to be punished for misconduct if the charges are proved in the criminal Court. While, it is premature on the part of the petitioner herein to proceed with the enquiry at this stage.
(c) Charge Nos.1 and 4 are only based on first charge in Charge Memo No.1 and has no independent legs to stand. Unless and until the accusation is proved by the police, the guilt cannot be established. There cannot be a parallel enquiry at c
