KALLAKURICHI TALUK CO-OP.HNG.STY.LTD. Vs M.MARIA SOOSAI .
Case number: C.A. No.-004357-004357 / 2010
Diary number: 27870 / 2007
Advocates: SHOBHA RAMAMOORTHY Vs
T. HARISH KUMAR
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4357 OF 2010 (@SPECIAL LEAVE PETITION(C) No.18834 OF 2007)
Kallakurichi Taluk Co-op. Housing Society Ltd. … Appellant
Vs.
M. Maria Soosai & Ors. … Respondents
J U D G M E N T
ALTAMAS KABIR, J .
1. Leave granted.
2. This appeal is directed against the judgment
and order passed by the Division Bench of the
Madras High Court on 27th June, 2007, in Writ Appeal
No.3748 of 2004, arising out of the judgment and
order dated 9th January, 2003, in Writ Petition
No.17237 of 2000. By the said order the Respondents
in the Writ Petition were directed to reinstate the
Respondent No.1 herein in service with back wages
from the date of his dismissal from service till
the date of reinstatement together with all
attendant benefits, within eight weeks from the
date of receipt of a copy of the order.
2
3. In order to appreciate the submissions made on
behalf of the respective parties and the relief
prayed for in the appeal, it is necessary to
briefly set out the facts leading to the filing of
the writ petition before the High Court.
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4. There is no dispute that the Respondent No.1,
M. Maria Soosai, was appointed as an Accountant in
the Appellant Society on 9th March, 1984. From 22nd
July, 1990, the Respondent No.1 failed to report
for duty without permission and without submitting
any leave application. Consequently, the said
Respondent was treated to have resigned from
service as per the Bye-laws of the Appellant
Society and in accordance with Rule 149(10)(1) of
the Tamil Nadu Co-operative Societies’ Rules, 1988,
hereinafter referred to as ‘the 1988 Rules’. On 29th
March, 1995, after a lapse of about 5 years, the
Respondent No.1 raised a dispute before the Labour
Court at Cuddalore, being I.D. No.44 of 1995,
questioning the decision of the Appellant Society
to treat him as having resigned from service since
1990.
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5. While the proceedings were pending before the
Labour Court, the Society sought permission of the
Registrar (Housing) and the Deputy Registrar
(Housing), Respondent Nos.2 and 3 herein, to re-
appoint the Respondent No.1 on compassionate
grounds. Accordingly, on 27th July, 1995, the
Respondent No.2 permitted the Appellant Society to
re-appoint the Respondent No.1 upon certain
conditions, which are as follows :-
“1. He will not be paid from 22.7.90 till he joins duty and this period be treated as leave without pay.
2. The employee should withdraw the case pending before the Labour Court.
3. The employee shall be transferred to Sankarapuram Co-operative Housing Society as soon as the said Society is started.
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4. He should join duty in the place appointed by the Special Officer and he should not claim seniority.”
Certain other conditions were suggested by the
Respondent No.3 for re-appointing the Respondent
No.1, which are as under :-
“1. The period between 22.7.1990 and 7.5.95 shall be treated as leave without pay.
2. He should involve in society work and collect all the pending loans.
3. As soon as Sankarapuram Taluk Co-op Hsg. Society is started, he should go and work there.”
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6. On being reinstated in service by the order of
the Respondent No.3 dated 7th September, 1995, the
Respondent No.1 was relieved from his duties under
the Appellant Society and was asked to join in the
Vijayapuram Co-operative House Building Society.
The Respondent No.1 thereupon joined the services
of the Vijayapuram Co-operative House Building
Society on 11th September, 1995, and worked there
till 7th January, 1996. From 8th January, 1996,
after having barely worked for about four months,
the Respondent No.1 again failed to report for work
with the Vijayapuram Co-operative House Building
Society. Thereafter, on 24th February, 1997, a
Resolution was adopted by the Board of Directors of
the Vijayapuram Co-operative House Building
Society, Chinna Salem, and by Resolution 7 it was
resolved that the Respondent No.1 be sent back to
his parent society on account of his failure to
report for work from 8th January, 1996 to 24th
February, 1997, without any prior intimation and
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without applying for leave. It was also noted that
within a short tenure of four months service, the
Respondent No.1 had obtained consumer loan of
Rs.20,990/- in respect whereof there were
outstanding dues of Rs.19,900/-. Furthermore, he
had also obtained Rs.1,500/- towards festival
advance. The said Resolution was duly confirmed
by the President of the Vijayapuram Co-operative
House Building Society on 24th February, 1997.
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7. On 30th September, 2000, the Respondent No.1
filed Writ Petition No.17237 of 2000 for a
direction upon the Respondents therein to issue an
order of appointment to him to a suitable post in
the Appellant Society or Sankarapuram Taluk Co-
operative Housing Society, pursuant to the order
passed by the Registrar (Housing) on 27th
September, 1995, and also the order of the
Respondent No.3 dated 11th August, 1995, and for
providing all salaries and other benefits from 2nd
November, 1990. The said writ petition came to be
dismissed on 9th January, 2003, on the ground that
the Respondent No.1 in his writ petition suppressed
the fact that he had joined his duties under the
Vijayapuram Cooperative House Building Society
pursuant to the order passed by the Respondent No.3
on 7th September, 1995.
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8. Writ Appeal No.3748 of 2004 was filed by the
Respondent No.1 against the order of the learned
Single Judge dismissing his Writ Petition. On 18th
August, 2003, the said Writ Appeal was allowed with
a direction to reinstate the Respondent No.1 in
service with back wages from the date of his
dismissal till the date of reinstatement, together
with all other attendant benefits, within 8 weeks
from the date of receipt of a copy of the order.
9. It is the said order which has been challenged
in the present proceedings.
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10. Appearing on behalf of the Appellant Society,
Ms. N. Shobha, learned Advocate, submitted that
having regard to the conduct of the Respondent No.1
from 1995 onwards, the learned Single Judge had
quite rightly dismissed the writ petition filed by
the Respondent No.1, inter alia, for issuance of a
writ in the nature of Mandamus to direct the
Respondents to issue an order of appointment to a
suitable post either in the Appellant Society or in
the Sankarapuram Taluk Co-operative Housing Society
which had since come into existence and was made
Respondent No.4 in the writ petition and for a
further direction to pay all his arrears and other
benefits alleged to be due from 2nd November, 1990.
Ms. Shobha submitted that in his order dated 9th
January, 2003, the learned Single Judge, while
dismissing Writ Petition No.17237 of 2000, noted
the fact that after the Respondent No.1 was deemed
to have resigned from service, he was re-appointed
on 7th September, 1995, and that he joined his
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duties on 11th September, 1995, which meant that the
Appellant had given due effect to the orders which
were alleged not to have been given effect to in
the writ petition. Without taking into
consideration the said fact and the other facts as
indicated hereinabove, including the fact that the
Respondent No.1 had once again failed to report for
work from 8th January, 1996 to 24th February, 1997,
the Division Bench quite erroneously came to a
finding that the Appellant Society had not passed
orders appointing the Respondent No.1 despite the
orders passed by the Deputy Registrar (Housing) on
10th March, 1997, directing the Appellant Society to
do so.
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11. Ms. Shobha submitted that it is soon thereafter
on 10th March, 1997, that the Deputy Registrar
(Housing) wrote to the Society requesting it to
compassionately consider the request that the
Respondent No.1 could be appointed in the Appellant
Society, subject to the order of the Registrar
(Housing).
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12. Ms. Shobha indicated that the said order of the
Deputy Registrar (Housing) was only a request and
the fact remains that on his failure to report for
duties for more than one year from 8th January,
1996, in addition to his earlier absence from
duties between 1990 and 1995, the Vijayapuram
Cooperative House Building Society resolved that
Respondent No.1 be sent back to his parent Society,
the Appellant herein. Ms. Shobha frankly stated
that in view of his conduct, the Appellant had
rightly not passed any order of reinstatement
pursuant to the impugned order of the Division
Bench of the High Court since the Respondent No.1
was, once again, deemed to have resigned from
service under Rule 149(10)(1) of the 1988 Rules.
Ms. Shobha urged that the question of reinstatement
with full back wages from the date of dismissal,
namely, 10th October, 1990, till the date of his
reinstatement, which would mean a period of about
20 years, despite the fact that the Respondent No.1
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had been re-appointed in July, 1995, on certain
terms and conditions and had himself stayed away
from his duties, even thereafter, was unjust and
inequitable, besides being erroneous, and could not
be sustained.
13. Ms. Shobha submitted that one of the conditions
for the re-appointment of the Respondent No.1 was
that he would not be paid from 22nd July, 1990, till
he rejoined service and the said period would be
treated as leave without pay, but if the order of
the Division Bench in the Writ Appeal No.3749 of
2004, is to be accepted as it is, it would mean
that payment of salaries and other emoluments would
have to be made for the said period as well.
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14. Ms. Shobha submitted that during the pendency
of the Special Leave Petition, one G. Anbalagan was
appointed as Special Officer of the Appellant
Society. By his letter dated 24th November, 2007,
the Special Officer reinstated the Respondent No.1
in the service of the Society without prejudice to
its rights and contentions in the pending Special
Leave Petition. Pursuant thereto, the Respondent
No.1 rejoined duty on 6th December, 2007, but, once
again, he failed to report for work from 16th
February, 2009 and committed other acts of
misconduct. As a result, the Respondent No.1 was
again placed under suspension on 4th March, 2009,
and a charge memo dated 13th April, 2009, was issued
to him. Thereafter, a domestic inquiry was
conducted by the Appellant Society in respect of
the charge memo and by his report dated 19th
October, 2009, the Inquiry Officer held that the
charges against the Respondent No.1 had been duly
proved. In the affidavit filed by the Special
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Officer, it has also been indicated that the copy
of the Inquiry Report had been duly sent to the
Respondent No.1 seeking his comments and that on
receipt of the same, the proceedings would be
conducted against the Respondent No.1 in accordance
with law. Ms. Shobha submitted that during this
period, the Respondent No.1 was being paid
subsistence allowance as per the rules and in the
said circumstances, the direction to reinstate the
Respondent No.1 in service with back wages during
the pendency of the inquiry, was not only wrong,
but improper and the same was liable to be quashed.
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15. On the other hand, Ms. Anitha Shenoy, learned
Advocate appearing for the Respondent No.1,
submitted that although an attempt has been made on
behalf of the Appellant Society to blame the
Respondent No.1 for his alleged lapses, it was the
Appellant Society which had not acted in terms of
the conditions imposed by the Registrar (Housing)
in his order dated 27th July, 1995, indicating that
the Respondent No.1 would be transferred to the
Sankarapuram Taluk Co-operative Housing Society as
soon as the said Society was started. Ms. Shenoy
urged that the Sankarapuram Taluk Co-operative
Housing Society was started on 26th June, 1998, but
pursuant to the order passed by the Division Bench
of the Madras High Court on 27th June, 2007, the
Respondent No.1 was reinstated in service not in
the Sankarapuram Housing Society as agreed upon,
but in the Appellant Society.
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16. Countering the submission made on behalf of the
Appellant society that the Respondent No.1 must be
deemed to have resigned from service as per the
bye-laws of the Appellant Society and Rule
149(10)(i) of the 1986 Rules, Ms. Shenoy submitted
that even when an employee is deemed to have
abandoned his service, the employer was under a
duty to conduct a departmental enquiry before
dispensing with his services. In this regard
reference was made to the decision of this Court in
Novartis India Limited vs. State of West Bengal,
[(2009) 3 SCC 124], wherein the dismissal of an
employee for not joining the place to which he had
been transferred, fell for consideration and it was
held that the same was hit by the principles of
natural justice and such dismissal could only be
effected after holding a domestic enquiry/
disciplinary proceeding. Mr. Shenoy urged that if
not from 1990, the respondent No.1 was certainly
entitled to back wages from February, 1997, when he
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was sent back from the Vijayapuram Co-operative
House Building Society to the Appellant Society.
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17. Having carefully considered the submissions
made on behalf of the respective parties, we are
inclined to agree with Ms. Shobha that the
decision of the Division Bench of the High Court in
Writ Appeal No.3748 of 2004, impugned in the
instant appeal, cannot be sustained at least as far
as payment of back wages and other benefits are
concerned. The conduct of the Respondent No.1 does
not justify the relief given to him by virtue of
the impugned order. Despite the fact that the
learned Single Judge pointed out that the prayer
made in the Writ Petition could not be granted on
account of suppression of material facts which ran
counter to such prayer, the Division Bench appears
to have lost sight of the same. As the facts
reveal, the Respondent No.1 unilaterally stopped
coming to work without submitting any leave
application or prior intimation and that too not
for a day or two, but for months on end. It is, in
fact, surprising as to why a decision was taken to
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consider his case on a compassionate basis, despite
laches of his own making. The decision of the
Appellant Society to re-appoint the Respondent No.1
on compassionate grounds leading to the order of
the Registrar (Housing) dated 27th July, 1995,
permitting the Appellant Society to re-appoint
him, was in itself a concession made to the
Respondent No.1 which he misused subsequently.
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18. Even after he was released from the Vijayapuram
Society on 24th February, 1997, the Respondent No.1
remained silent till 30th September, 2000, when he
filed Writ Petition No.17237 of 2000 for a
direction upon the Respondents therein to appoint
him to a suitable post in the Appellant Society or
the Sankarapuram Taluk Co-operative Housing Society
pursuant to the order passed by the Registrar
(Housing) on 27th September, 1995. Despite the
maximum latitude shown to him by allowing him to
rejoin his duties in the Appellant Society on 6th
December, 2007, the Respondent No.1 again failed to
report for work from 16th February, 2009, as a
result he was placed under suspension and a
domestic enquiry was conducted in which he was
found to be guilty of the charges brought against
him.
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19. The Division Bench of the High Court does not
appear to have considered the events which occurred
after the Respondent No.1 was reinstated in service
on 7th September, 1995, to the effect that the
Respondent No.1 had again failed to report for work
from 8th January, 1996 till 24th February, 1997, when
a direction was given by the Division Bench to the
Registrar (Housing) to consider the appointment of
the Respondent No.1 in the Appellant Society. The
fact that thereafter, on account of his failure to
report for duties for more than one year from 8th
January, 1996, the Respondent No.1 was once again
deemed to have resigned from the services of the
Society under Rule 149(10)(1) of the 1988 Rules,
appears to have been overlooked by the High Court.
The Division Bench of the High Court does not also
appear to have taken into consideration the fact
that the Respondent No.1 remained silent till 30th
September, 2000, when he filed Writ Petition
No.17237 of 2000 for a direction for his
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appointment and that despite being allowed to
rejoin his duties in the Appellant Society on 6th
December, 2007, the Respondent No.1 again failed to
report for work from 16th February, 2009, as a
result of which he was placed under suspension and
a domestic inquiry was conducted.
20. The events, prior to 11th September, 1995, and
thereafter, were not seriously considered by the
Division Bench of the High Court which proceeded on
the basis that despite the order passed by the
Deputy Registrar (Housing) on 27th September, 1995,
the Respondent No.1 had not been given appointment,
which fact was entirely erroneous, as would be
evident from what has been mentioned hereinbefore.
The decision of this Court in Novartis India
Limited’s case (supra) cited by Ms. Shenoy is not
of any help to the case of the Respondent No.1
since in the said case the order of dismissal of
the employee was passed as he did not join the post
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to which he had been transferred. In the instant
case, the Respondent No.1 joined the post to which
he had been transferred, but, thereafter, stopped
reporting for work without any application for
leave or prior intimation.
21. In such circumstances, the judgment and order
of the Division Bench of the High Court impugned in
this appeal cannot be sustained and must
necessarily be set aside. However, having regard
to the fact that a domestic inquiry was conducted
against the Respondent No.1, in which he was found
guilty, we do not propose to interfere with that
part of the order impugned directing reinstatement,
but we are not inclined to maintain the order of
the Division Bench of the High Court regarding
payment of back wages. Ever since his appointment
on 9th March, 1984, as an Accountant in the
Appellant Society, the Respondent No.1 has shown
lack of interest in his duties under the Appellant
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Society and stopped attending his duties as and
when he felt like without permission and without
submitting any leave application. This habit did
not show any signs of improvement on his re-
appointment in service on 27th July, 1995, or the
subsequent order by which he was allowed to rejoin
his duties in the Appellant Society on 6th December,
2007.
22. In these circumstances, while not interfering
with the order of reinstatement passed by the
Division Bench of the High Court, which was duly
acted upon, we are inclined to modify that part of
the said order directing payment of back wages.
23. In the circumstances, we allow the appeal in
part and modify the order of the Division Bench of
the High Court in Writ Appeal No.3748 of 2004, by
directing that the Respondent No.1 will be entitled
to full wages only for the period between 6th
December, 2007 and 15th February, 2009, and other
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connected benefits, if any. As far as payment of
full salary for the period under suspension
undergone by the Respondent No.1 during which
period he was being paid subsistence allowance is
concerned, the same will depend on the final order
to be passed in the disciplinary proceedings
already initiated against the Respondent No.1.
24. The appeal is disposed of in the above terms.
There will, however, be no order as to costs.
………………………………………J. (ALTAMAS KABIR)
………………………………………J. (CYRIAC JOSEPH)
New Delhi Dated: 6th May, 2010.
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