JUDGMENT
Raju J.
1. The above appeal has been filed against the order of the learned single Judge dated August 22, 1990 in W.P. No. 7878 of 1987, whereunder the learned Judge by issuing a Writ of Certiorari set aside the order of the Second respondent herein dated August 1, 1986 in T.S.E. Case No. 1/80 rendered in exercise of his powers as the Appellate Authority under the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as ‘the Act’). The appellant was working as an Inspector in the services of the first respondent-Bank. A charge memo came to be issued on the basis of certain irregularities said to have been committed by him. Since the explanation offered was found to be not satisfactory, a domestic enquiry was ordered to be conducted and the Administrative Officer of the Bank conducted the domestic enquiry. On the completion of the domestic enquiry, the Enquiry Officer submitted a report holding all the charges proved against the appellant. A second show cause notice was also issued giving an opportunity to the appellant to show cause against the penalty proposed and thereupon by an order dated April 30, 1979, the services of the appellant came to be terminated and he was dismissed from service.
2. Aggrieved, the appellant filed an appeal before the Registrar of Co-operative Societies. The said appellate Authority entertained and disposed of the appeal by his order dated April 15, 1980, confirming the order of the first respondent Management.
Thereupon, the appellant has chosen to file an appeal under Sub-section(2) of Section 41 of the Act.
The appellant also appears to have filed an application for condoning the delay of 11 months and 24 days in filing the appeal before the said authority in view of the objection raised by the Office of the Second respondent. The application was opposed by the Management and thereupon, the Appellate Authority condoned the delay in preferring the appeal and directed the posting of the appeal for hearing on merits. The 1st respondent-Management raised a preliminary objection, contending that the appeal before the second respondent was not maintainable. The appellate Authority, by an order dated May 20, 1982 held that the second respondent had jurisdiction to hear the appeal.
3. The said order was challenged by the first respondent – Management in W.P.N.o. 4845 of 1982. In the said Writ Petition it was contended before this Court that the Appellate Authority concerned was not duly constituted, and therefore, he has no right to entertain and hear the appeal. It was also contended that no appeal could be maintained under Sub-section (2) of Section 41 of the Act after the orders of the Registrar of Co-operative Societies, which itself was passed on an appeal in terms of the bye-laws of the Society governing the conditions of service of the appellant. The learned Judge, by an order dated December 23, 1983, rejected the ground pertaining to the constitution of the authority relying upon a statutory notification referred to therein. As far as the question relating to the maintainability of the appeal, it was observed that the question as to whether the appellant was disabled from filing an appeal under the Act after having filed earlier an appeal before the Registrar of Co-operative Societies can be urged before the Appellate Authority and it is for the parties to convince the Appellate Authority about the correctness of the respective stand in this regard. Thereupon, the appeal was heard and the Appellate Authority, by the impugned order dated August 1, 1986, not only held that the appeal was maintainable but also came to the conclusion that the charges against the appellant have not been properly proved in the domestic enquiry and that there had been violation of the principles of natural justice. Consequently, the Appellate Authority set aside the order of termination of the appellant.
4. Aggrieved against the order of the second respondent – Appellate Authority, the first respondent – Management filed W.P. No. 7878 of 1987. Before the learned single Judge among other things, it was contended that the second respondent committed an error in entertaining an appeal under Section 41(2) of the Act, since according to the first respondent – Management, there was no provision for entertaining such an appeal after the order of the Registrar of Co-operative Societies made on an appeal, and that entertaining once over again an appeal by the second respondent would amount to permitting the filing of a second Appeal. The learned single Judge was convinced of the challenge made before him in respect of the maintainability of the appeal before the second respondent under Sub-section (2) of Section 41 of the Act and on that ground alone, set aside the order of the second respondent, holding that the second respondent has no jurisdiction to entertain a second appeal under Section 41(2) of the Act. Aggrieved, the above appeal has been filed by the worker.
5. Before us, the learned counsel appearing on either side made submissions in support of their respective stand regarding the maintainability or otherwise of an appeal under Sub-section (2) of Section 41 of the Act after the disposal of an appeal filed before the Registrar of Co-operative Societies invoking Clause 44 of special Bye-laws governing the conditions of service of the employees in the first respondent Bank. The learned counsel for the appellant reiterated the submissions by adverting to the reasons assigned by the Appellate Authority in his order and contended that the learned Judge committed an error in treating the appeal filed by the appellant before the second respondent as a second appeal and that it was not only incorrect to characterise the appeal before the second respondent as the second appeal, but the learned single Judge ought not to have interfered with the well considered order of the second respondent in holding the appeal is maintainable.
6. Tamil Nadu Shops and Establishments Act, 1947 was enacted to provide for the regulation of conditions of work in shops, commercial establishments, restaurants, theatres and other establishments and for certain other specified purposes. Section 41 deals with the dismissal of persons employed and stipulates the conditions as also the procedure to be complied with and adhered to before dispensing with the services of a person employed continuously for a period of not less than six moths in the shop or establishment within the meaning of the Act. Sub-section (2) of Section 41 of the Act provides that the person employed shall have a right of appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.
7. Section 6 of the Act enables the State Government to exempt by notification either permanently or for any specified period any establishments or class of establishments or person or class of persons from all or any of the provisions of the Act subject to such conditions as may be specified. In exercise of such powers, the State Government by a Government Order in G.O. Ms. No. 5780 Industries, Labour and Co-operation dated December 11, 1963 exempted permanently every Society registered or deemed to be registered under the then Madras Co-operative Societies Act, 1961 and the exemption granted is in the following terms:-
“In exercise of the powers conferred by Section 6 of the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947) (hereinafter in this notification referred to as “the 1947 Act”), the Government of Madras hereby exempts permanently every society registered or deemed, to be registered under the Madras Co- operative Societies Act, 1961 (Madras Act 53 of 1961) (hereinafter in this notification referred to as the “The 1961 Act”) from-
(i) the provisions of clause (a) of sub-section (2) of Section 34, Section 35 and Section 41 of the 1940 Act-
(a) on and from January 1, 1964, if the registered bye-laws for the time being in force or the registered amendment of the bye-laws of such society contain the model bye-laws appended to this notification; and
(b) On and from the date on which the model bye-laws aforesaid are incorporated in the registered bye-laws of the society and registered under Section 11 of the 1961 Act, if the registered bye- laws of the society do not contain the model bye-laws aforesaid; and
(ii) all the other provisions of the 1947 Act on and from January 1, 1964.
8. Thereupon it appears in G.O.Ms. No. 1239 Labour and Employment dated August 4, 1979, the earlier notification dated December 11, 1963 came to be superseded and in its place, a new notification came to be issued in the following terms:-
…..” The Governor of Tamil Nadu hereby exempts permanently all societies registered or deemed to be registered under the Tamil Nadu Co-operative Societies Act, 1961 (Tamil Nadu Act 53 of 1961) from the provisions of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947) except Sections 31,41,43, 50 and 51 of the said Act subject to the condition that the said societies shall exhibit their name boards in Tamil and wherever other languages are used the versions in those languages shall be below the Tamil version”.
9. Whereas, it has been contended by the learned counsel for the appellant that though the order of termination came to be passed on April 30, 1979, and the appellant had filed an appeal before the Registrar of Co-operative Societies availing of the remedy prescribed under Special bye-law Clause 44 governing the conditions of service applicable to the employees of the first respondent-Bank and the same came to be dismissed by the said Appellate Authority on April 15, 1980, the appellant is entitled to file a further appeal under Sub-section (2) of Section 41 of the act, challenging the order of dismissal dated April 30, 1979 as confirmed by the order of the Registrar of Co-operative Societies by his order dated April 15, 1980. The learned counsel for the first respondent-Management would contend that as the provisions stood at the time of the passing of the order of termination or dismissal, the appellant had no right to invoke the appellate provisions contained in Sub-section (2) of Section 41 of the Act and the only avenue of remedy was an appeal as provided under clause 44 of the special bye-laws applicable to the employees of the first respondent-Bank and the appellant, having availed of the same, there is no scope for any further or fresh appeal once over again before the Appellate Authority under Sub-section (2) of Section 41 of the Act. It was also contended by the learned counsel for the first respondent – Management that permitting the appellant to file another appeal under the Act, would amount to permitting a second appeal and there is no room or scope for permitting such an appeal to be filed for the second time before the authority under Sub-section (2) of Section 41 of the Act and therefore, no exception could be taken to the well considered decision of the learned single Judge.
10. We have carefully considered the submissions of the learned counsel appearing on either side. We are of the view that the order of the learned single Judge deserves to be sustained for more than one reason. The remedy of appeal is one to be specifically provided for and there cannot be any right to file an appeal by an implication. That apart, the avenues of remedies either by way of appeal or by way of revision or otherwise, has got to be determined with reference to the date of the order sought to be challenged in an appeal. Inasmuch as the order of dismissal in the case on hand was passed on April 30, 1979, long prior to the notification in G.O.Ms. No. 1239 Labour and Employment dated August 4, 1979 and since on the date of the order, the exemption from the provisions of Section 41 was in full force and effect, the only available avenue of appeal was the one provided under the special bye-law No. 44 governing the conditions of service of the employees working in the first respondent-Management. As a matter of fact, the appeal as per the said bye-law was to a State level Officer of the Government and the Registrar of Co-operative Societies, who was the designated Appellate Authority also dealt with the appeal and disposed of the same by his order dated April 15, 1980, confirming the order of the 1st respondent-Management. While that be the position, it would be futile for the appellant to contend that he is entitled to file a further appeal. It is only in that context, the learned single Judge was of the view that countenancing the plea of the appellant would tantamount to providing for a second appeal. The provisions for appeal contained in Sub-section (2) of Section 41 of the Act contemplates the filing of an appeal against the orders of the Management and once taking advantage of the bye- laws, which governed the conditions of the service of the appellant, an appeal has been preferred to the designated Authority and as such Appellate Authority also disposed of finally the appeal, thereafter, it would be untenable in law to contend that the appellant can choose to challenge the orders passed on appeal also by invoking the powers under Sub-section (2) of Section 41 of the Act. Not only that the entitlement as per the law applicable as on the date of the passing of the order of dismissal did not warrant recourse to the appellate provisions in Sub-section (2) of Section 41 of the Act, but the appellant could not be held to be entitled to avail of the appellate forum constituted under the Act, merely because long after the order of dismissal, the notification exempting the institutions like the first respondent-Management from the provisions of Section 41 was superseded and a prospective notification, which had the effect of applying Section 41 to such institutions came to be issued. On that view of the matter, we do not find any infirmity in the reasoning of the learned Judge, taking the view that so far as the claim of the appellant is concerned, there could be no further appeal by way of a second appeal against the order passed on an appeal by the Registrar of Co-operative Societies in the absence of any specific stipulation, providing for such an appeal. Hence, we see no reason to interfere with the order of the learned single Judge in this appeal.
11. The Writ Appeal, therefore, fails and shall stand dismissed. But in the circumstances of the case, there will be no order as to costs.