The burden of proof required for substantiating the charge memo is on the employer to the satisfaction of the Labour Court when the domestic enquiry is held to be invalid.

1. The petitioner is the management of Primary Agricultural Cooperative Bank represented by its Special Officer at Kolathur, Mettur Taluk, Salem District. In this Writ Petition, they have come forward to challenge an Award passed by the Labour Court, Salem, 1st respondent herein in I.D.No.423 of 2011 dated 18.7.2006. By the impugned award, the Labour Court directed reinstatement of the 2nd respondent with 50% of the backwages but with service continuity and other attendant benefits.

2. The Writ Petition was admitted on 19.1.2007. Pending the Writ Petition, initially Notice was ordered in the said application. Subsequently, an interim stay was granted with liberty to the 2nd respondent to file counter and vacate the said order. The 2nd respondent though entered appearance through counsel has not chosen to file any counter and vacate the interim order.

3. It is seen from the records that the 2nd respondent was employed as a Salesman in the shop run at Singiripatty Village. He was placed under suspension for certain misconduct on 31.5.2000. The said suspension was based on the report given by the flying squad, which inspected the shop and found that the 2nd respondent has created a shortage in the stock kept for the Public Distribution System and the accounts have not been written properly. Though certain bills were written in Singiripatti Fair Price Shop, the original bills were torn, thereby those bills were not recorded in the accounts In view of the irregularities reported by the flying squad vide its report on 18.5.2000, the suspension came to be made, which was followed by a charge memo dated 5.6.2000. The petitioner gave an explanation on 30.6.2000 and subsequently after the charge memo was given on 10.6.1997 and after conducting enquiry, the 2nd respondent was dismissed by an order dated 17.1.2001.

4. The 2nd respondent raised an industrial dispute before the Government Labour Officer at Salem. The Special Officer after notice to the management could not bring about any mediation between the parties and gave a failure report. On the strength of the failure report, the 2nd respondent filed a claim statement before the Labour Court. The Labour Court registered the dispute as I.D.No.423 of 2001 and issued notice to the management.

5. The management filed a counter statement. In the counter statement, they also reserved their liberty to lead fresh evidence, in case the Labour Court found that the enquiry was not fair and proper. However, even though the preliminary issue regarding the validity of the enquiry was taken, the management reserve their liberty to give up the enquiry proceedings and took permission to lead evidence for the first time before the Labour Court.

6. Before the Labour Court, the workman examined himself as WW.1 and he filed an order of suspension dated 31.5.2000 Ex.W.1. On the side of the management, one S.Duraisami, who was a Clerk working in the old office of the society was examined as M.W.1. They also filed 9 documents, which were marked as Ex.M.1 to M.9.

7. The Labour Court found that as per Ex.R.2, there were as many as six charges. But, it found that the charges are relating to opening of the shop belatedly and closing the shop before time and the shop was not kept tidy and clean and relating to shortage of stocks, no details were furnished even before the Labour Court. The only evidence that was made in opening the factory of the headquarters could not speak about the happening in the society by any direct knowledge. Therefore, it found that the charges were vague and they are also not substantiated before the Labour Court. As regards the charge of shortage of stocks and the accounts not being maintained properly and other irregularities, reliance was placed upon Ex.R.1, which is the report of the flying squad.

8. The Labour Court found that at the time of flying squad visit, the workman was not in the shop and details were taken in his absence and no independent statements were r