The main legal point established is the requirement for participation in disciplinary proceedings and the need for fresh evidence before setting aside a punishment.

ORDER :

Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to issue a writ of Certiorari, to call for the records in Ka.Ni.Sa.06/2012 on the file of the Authority under Tamilnadu Shop and Establishments Act 1947 (Deputy Commissioner of Labour) Salem-636 001, the 1st respondent herein, to quash the order dated 30.11.2015 (received by the petitioner on 2.2.2016) passed therein.

The order passed by the Authority under Tamil Nadu Shop and Established Act, 1947 in proceeding dated 30.11.2015 is under challenge in the present writ petition.

2. The petitioner is the Management, Ponni Cooperative Supermarket, Salem District Consumer Co-operative Wholesale Stores Limited. The petitioner states that it is a Co-operative Society, registered under the provisions of the Tamil Nadu Co-operative Societies Act. The service conditions of the employees are governed under the special bylaws approved by the Competent Authorities under the provisions of the Cooperative Societies Act. The second respondent was employed as an Assistant Salesman in the Fair Price Shop. The second respondent Workman was responsible for the maintenance of stock of essential and non-essential commodities. During the course of employment, the second respondent committed a stock deficit in the Tamilarasu Party Shop as detailed below :

In so far as Mariamman Koil Fair price shop was concerned, the deficit recorded were as follows :

The total shortage amounted to Rs.38,606.10 in both the shops. The said amount was misappropriated by the 2nd respondent.”

3. A charge sheet dated 04.02.2002 was issued to the second respondent calling upon to explain as to why the disciplinary action should not be proceeded against him. However, the second respondent did not send any reply. He has not submitted any explanation with reference to the allegations set out in the charge sheet. Thus, the Authorities appointed an Enquiry Officer, who in turn conducted the enquiry by affording the opportunity to the charged official. The Enquiry Officer sent various communications on 30.03.2002, 06.04.2002 and 20.07.2002 to the second respondent. In spite of the communications, the second respondent Workman has not responded to the enquiry proceedings. Thus, the Enquiry Officer proceeded with the ex-parte enquiry and submitted his findings on 30.08.2002.

4. The Enquiry Officer found that the charges are held proved against the second respondent Workman. Further, it is held that the charges of stock deficit led to misappropriation. Accordingly, the Disciplinary Authority imposed the penalty of dismissal from service on the second respondent on 20.03.2003.

5. The second respondent invoked Section 2(A) of the Industrial Disputes Act, challenging the order of dismissal from service. The petitioner Management participated in the conciliation proceedings and contended that the petitioner lost confidence in the second respondent Workman due to his act of causing stock deficit and misappropriation. The conciliation proceedings ended and a failure report was filed to the Government, and thereafter, the matter was not pursued by the Conciliation Officer.

6. Subsequently, the second respo