IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 08.02.2010 Coram The Honourable Mr. Justice K. CHANDRU W.P. Nos.16931 and 17232 of 2000 D.R.L. (E) 11, Vallioor Co-operative Primary Agricultural and Rural Development Bank, rep. by its Special Officer ... Petitioner in both W.Ps. ..Vs.. The Deputy Commissioner of Labour, Palayamkottai, Tirunelveli 627 002. ... 1st respondent in both W.Ps. Mr. S. Ponniah ... 2nd respondent in W.P. No.16931/2000 Mr. E.S. Sundaramahalingam ... 2nd respondent in W.P. No.17232/2000 Writ Petitions under Article 226 of The Constitution of India, praying to issue a writ of certiorari, to call for the records in pursuant to the impugned order passed by the 1st respondent in T.N.S.C. Appeal Nos.6 and 4 of 99 dated 14.8.2000 and quash the same. For Petitioner : Mr. R. Subburaj for Mr. S.M. Subramaniam For Respondents : Mr. A. Arumugam, Spl. Govt. Pleader for R1 Mr. P.J. Pothiraj for R2 (W.P. No.16931/2000) Mr. A. Natarajan for R2 (W.P. No.17232/2000) O R D E R
Both the writ petitions were filed by the Co-operative Primary Agricultural and Rural Development Bank at Panagudi represented by its Special Officer. The Co-operative Society, being the employer, has come forward to challenge the order passed by the first respondent/Deputy Commissioner of Labour, which is the Appellate Authority under the Tamil Nadu Shops and Establishment Act, 1947 (hereinafter referred to as “the Act”). In W.P. No.17931 of 2000, challenge is to the order dated 14.8.2000 passed in TNSC Appeal No.6 of 1999 and in W.P. No.17232 of 2000, the challenge is to the order dated dated 14.8.2000 passed in TNSC Appeal No.4 of 1999.
2. Before the Appellate Authority, the contesting respondents have filed appeals under Section 41(2) of the Act, challenging their orders of dismissal passed by the Society. Before passing the order of dismissal, they were proceeded with the enquiry. The contesting respondents have submitted before the Authority that the enquiry was not valid inasmuch as no principles of natural justice was followed and no witness was examined in their presence. The Appellate Authority did not go into the merits of such contentions.
3. When notice was ordered to the petitioner-society, they filed counter statement dated 4.8.1999, justifying the enquiry and also stated that the enquiry was conducted by an advocate and full opportunities were given to the witnesses and that the findings of the Enquiry Officer were supported by records.
4. The Appellate Authority, which exercised its jurisdiction under section 41 of the Act, did not decide the validity of the enquiry as a preliminary issue. On the contrary, he allowed the parties to let in evidence afresh before him. On behalf of the Society, four witnesses were examined and on the side of the contesting respondents, they had examined themselves. Whatever documents that were filed were marked as exhibits before the Appellate Authority.
5. Under Rule 9(3) of the Tamil Nadu Shops and Establishment Rules, 1948 (hereinafter referred to as “the Rules”), it is stated that the proceedings before him were summary and he shall record briefly the evidence adduced before him and then pass orders giving reasons therein.
6. Section 41 of the Act read with Rule 9(3) came to be interpreted by the Supreme Court by the judgment in UNITED PLANTERS ASSOCIATION OF SOUTHERN INDIA v. K.G.SANGAMESWARAN (1997(20) L.L.N. 73). In that case, the Supreme Court held that the power exercised by the Appellate authority is akin to that of Section 11 of the Industrial Disputes Act and therefore, the Authority, in the event of setting aside the disciplinary action taken by the employer, is entitled to permit the parties to let in fresh evidence before him. In paragraph 26, it was stated as follows:-
” If the instant case is analysed in the light of the principles laid down above, it will be noticed that the appellate authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into the imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The appellate authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of he appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law.”
7. This was interpreted subsequently by this Court in the case of BHARAT OVERSEAS BANK LTD. v. DEPUTY COMMISSIONER OF LABOUR reported in (2004(2) L.L.N. 422) wherein this Court held that before proceeding with the recording of evidence, the Authority is bound by the materials on record and only when it rejects the materials on record, the question of going into further evidence will arise. If it does not do in the manner expected, then it will only be presumed that he fails to exercise the jurisdiction in the matter of consideration placed before him.
8. In the present case, without deciding the validity of the enquiry conducted by the petitioner, to which a definite stand was taken in the counter statement placed before him, he has allowed first the contesting respondents to examine themselves as AW1 and thereafter the petitioner to examine four witnesses as R.Ws.1 to 4. Such a view taken by the Appellate Authority is neither contemplated under the provisions of the Act nor under the aforesaid decisions referred to earlier.
9. Pending the writ petitions, certain conditional order was passed. Since the Management did not obey the same, interim stay was vacated by an order dated 15.9.2003. When the contesting respondents prayed for reinstatement, that was also rejected by this Court in the case of contesting respondent in W.P. No.17232 of 2000 on the ground that he has already reached the age of superannuation on 31.3.2001.
10. It is also brought to the notice of the Court that the contesting respondents were convicted by the learned Magistrate, which order was subsequently set aside by the Sessions Court, Tirunelveli in Crl.A. Nos.119 and 126 of 2005 by judgment dated 18.1.2006. This Court is not inclined to go into the subsequent acquittal order.
11. Yet another point the Appellate Authority shall keep in mind first is the applicability of the Act in terms of Section 1(3)(iii) of the Act to the Panchayat. The appellate Authority shall first decide the validity of the enquiry conducted by the petitioner society by allowing both the parties to let in evidence and mark documents with reference to such issues as are raised.
12. Both the writ petitions stand allowed. The appeals in T.N.S.C. Appeal Nos.6 and 4 of 99 shall stand remitted back to the first respondent for fresh disposal in accordance with law and with the directions indicated above. No costs.
ssa.
To
The Deputy Commissioner
of Labour,
Palayamkottai,
Tirunelveli 627 002