BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.13236 of 2010 and M.P.(MD)No.1 of 2010 The General Manager (Operations) Tamil Nadu Mercantile Bank Ltd., 57,V.E.Road, Thoothukudi - 628 002. ... Petitioner Vs 1.The Deputy Commissioner, 142/1, Lake Road, K.K.Nagar, Madurai - 625 020. 2.C.Kanagasabai ...Respondents PRAYER Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records of the 1st respondent in the proceedings in T.N.S.E.I.A.No.4/2010 in T.N.S.E.No.1/2006 dated 27.07.2010, quash the same and consequently direct the first respondent to decide the validity of the domestic enquiry as a preliminary issue. !For Petitioner ... Mr.R.Sivamanogaran ^For Respondents ... Mr.S.C.Herold Singh,G.A. For R1 :ORDER
The petitioner is the Tamil Nadu Mercantile Bank Limited, represented by
its General Manager (Operations). They have filed the present writ petition,
seeking to challenge an order passed by the first respondent Deputy Commissioner
of Lbaour, Madurai made in I.A.no.4/2010 IN T.N.S.E.No.1/2006.
2. Since this court was not inclined to entertain the writ petition, no
notice was issued to the contesting respondent.
3.The facts leading to the filing of the writ petition were as follows:
The second respondent, who was employed as a Manager in the first
respondent Bank filed an appeal under Section 41(2) of the Tamil Nadu Shops and
Establishments Act, 1947 against the order dated 22.09.2005, wherein and by
which, rejected his review application filed against the order of discharge
dated 19.02.2004, which was a modified order over the earlier penalty dated
20.11.2003, by which he was dismissed from service. The second respondent’s
appeal was taken on file as T.N.S.E.No.1/2006. On notice from the first
respondent Appellate Authority, the writ petitioner filed a counter statement
dated 14.06.2006. In the counter statement in Paragraph 32, they reserved their
right to adduce evidence in case the Appellate Authority was to hold that the
enquiry was vitiated.
4. Even before the matter was taken up for hearing, they filed
I.A.No.4/2010 requesting the first respondent to decide the validity of the
domestic enquiry as a preliminary issue. The said IA was supported by an
affidavit dated 15.12.2009. The reason for seeking such a relief was that the
second respondent was inclined to lead evidence to disprove the charges and
without deciding the validity of the enquiry, no evidene can be let in.
5. On notice on the interim application, the second respondent filed a
counter statement dated 27.07.2010 opposing the decision to be rendered on any
preliminary issue. It was contended that under Section 41 of the Act, the
Appellate Authority has wide power and to take fresh evidence in case, the
enquiry was held to be bad. The second respondent also filed I.A.No.9 of 2007
asking them to produce certain records and documents which was also sought for
in the domestic enquiry, but the same was not produced.
6. The Appellate Authority, by the order dated 27.07.2010 agreeing with
the stand of the second respondent decided to hear the application along with
the main appeal. The petitioner filed a memo dated 09.08.2010 and thereafter
filed the writ petition.
7. Mr.R.Sivamanogaran, learned counsel for the petitioner relied upon the
judgment of this Court in Management of Kodaikanal Cooperative House Building
Society Limited, Represented by its Special Officer v. Deputy Commissioner of
Labour reported in 2002 3 LLN 554 to contend that the authority under Section 41
has power to take additional evidence. He also relied upon another unreported
decision of this Court in W.P.Nos.7754 to 7756 of 2005 dated 18.09.2007 for
contending the similar proposition.
8. In the present case, the authority is of the view that it was
unnecessary to decide any preliminary issue and all issues can be tried
together. This Court cannot direct the first respondent as to how he should
frame issues in deciding the appeal. Even if he is to decide all issues together
and if on the issue relating to the enquiry, he records a finding that the
enquiry was vitiated, in the light of the reservation made by the petitioner
Management in their counter statement, seeking permission to lead evidence,
they will always get an opportunity to lead fresh evidence. By the impugned
order, the petitioner is not prejudiced. The decisions relied upon by the
petitioner have nothing to do with the present case on hand.
9. In this context, it is necessary to refer to the judgment of a Division
Bench of this court in S.Pattaraiswamy v. Management of Sundaram Industries
Limited and another reported in 2000 W.L.R.284. The relevant passages found at
paragraphs 22 and 24 may be usefully extracted below:-
“22. In none of those cases, the issue related to the discretion on the part of
the Tribunal to try the validity of the domestic enquiry. Therefore, without
being diverted by the general caution expressed by the Supreme Court in the
context of disposal of preliminary issues as regards the matters other than the
right of the Management to adduce evidence at the first instance, we would
record our conclusions as follows:
(i)The discretion to try the issue of validity of the domestic enquiry as a
preliminary issue is with the discretion of the Tribunal and the Tribunal was
not bound under law to frame such a preliminary issue, suo motu.
(ii)If the employer chooses to avail an opportunity to let in evidence for the
first time before the Tribunal, the Tribunal has no power to refuse. Such a
request should however be made at the earliest opportunity, namely, while filing
the written statement itself.
(iii)Any finding on the preliminary issue shall be agitated only after the final
award and it would be legitimate for the High Court to refuse to interfere at
the stage of the decision over the preliminary issue-vide-paragraph 19 of the
judgment in Cooper’s case (1975 (II) L.L.J.379)
24. We are of the view that it is within the discretion of the Tribunal top try
or not to try a preliminary issue as regards the validity of the domestic
enquiry.”
10. In the light of the above, the writ petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
svki
To
The Deputy Commissioner of Labour,
142/1, Lake Road,
K.K.Nagar, Madurai – 625 020.