BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 10/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.1229 of 2004 and W.P.M.P.No.1226 of 2004 The Management, Ramanathapuram District Consumers' Co-operative Wholesale Stores Ltd., through its Secretary, Vandikkara Street, Ramanathapuram. ... Petitioner Vs. 1.D.Murugan 2.The Appellate Authority under Section 41 of Tamil Nadu Shops and Establishments Act, (Deputy Commissioner of Labour) Sundaram Theatre Road, K.K.Nagar, Madurai - 625 020. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the relating to the impugned order of the respondent-2, in his filed T.N.S.E.No:8/03 and quash the order of the 2nd respondent dated 17.05.2004. !For Petitioner .... Mr.S.Seenivasagam ^For 2nd Respondent .... Mr.K.V.Vijayakumar, Special Government Pleader. For 1st Respondent .... Mr.K.C.Ramalingam :ORDER
Heard the learned counsel appearing for the petitioner and the learned
Special Government Pleader for the respondents.
2. This writ petition is filed challenging the order of the second
respondent, the appellate authority under Section 41 of the Tamil Nadu Shops and
Establishments Act, (The Deputy Commissioner of Labour) Madurai dated
17.05.2005. The first respondent in the writ petition has filed an appeal before
the second respondent in T.N.S.E. Appeal No.8/03 under Section 41 of the Tamil
Nadu Shops and Establishments Act against the order of dismissal passed by the
petitioner dated 03.07.2002. The second respondent while allowing the appeal has
set aside the order of dismissal against which the present writ petition is
filed.
3. According to the petitioner, the petitioner is a co-operative
institution constituted under the Tamil Nadu Co-operative Societies Act having
registered bye-laws of its own with the main purpose of supply of essential
commodities at fair and reasonable price.
4. The first respondent who was working as a Junior Assistant in the
petitioner’s store was having the duties and responsibilities of collecting the
sale proceeds and income from the salesmen and others to remit them properly in
the Mudhukulathur Branch of Ramanathapuram District Co-operative Central Bank
Limited.
5. When the petitioner came to know that the first respondent has indulged
in a tricky way of tapping money, while preparing remittance of challan, a
preliminary enquiry was ordered in which the serious irregularities committed by
the first respondent was reported and the first respondent was placed under
suspension on 16.07.2001. A detailed charge memo dated 17.08.2001 was served on
him by the petitioner and the first respondent sent explanation on 27.08.2001.
A domestic enquiry was ordered by appointing Mr.C.G.Pethanaraj, Advocate. The
first respondent has given his evasive reply and finally when the matter was
posted for enquiry on 01.03.2002, the first respondent shown health ground for
evading to attend the enquiry. Due to the non co-operation of the first
respondent the enquiry was held in the absence of the first respondent and after
examination of the management witnesses, the enquiry was completed on
01.03.2002. The enquiry officer has made his findings on 30.03.2002 holding
that the charges levelled against the first respondent were proved including the
charges relating to the misappropriation etc.
6. Based on the enquiry officer’s report the petitioner has given a show
cause notice to the first respondent dated 11.04.2002 asking him to give
explanation. Even for that he has not given explanation for the proposed
punishment of dismissal but on 29.04.2002 the first respondent alleged want of
opportunity having failed to avail the opportunity given several times.
7. Accordingly by the order dated 03.07.2002, the petitioner was dismissed
from service. The first respondent challenging the said dismissal by filing an
appeal under Section 41 of the Tamil Nadu Shops and Establishments Act before
the second respondent. The petitioner has filed detailed counter statement. The
petitioner also filed an application for reopening the case for the purpose of
receiving certain documents which were inadvertently omitted along with that
written arguments. However, the second respondent has set aside the dismissal
order. As against the order of the second respondent the petitioner has filed
present writ petition on various grounds including that the petitioner was not
given proper opportunity before the second respondent that the petitioner filed
an application for reopening for additional documents which was rejected.
8. That apart, it is the case of the petitioner that as per the legal
position, when the tribunal comes to a conclusion against the order of dismissal
passed by the petitioner, it is the duty on the part of the tribunal to give
opportunity for additional evidences to prove the charges and to justify the
order of the dismissal. This has been a procedure followed while dealing with
Section 41 of the Tamil Nadu Shops and Establishments Act, as laid down by
various judgments.
9. It is also the case of the petitioner that the second respondent has
failed to take into consideration that the first respondent has never attended
the enquiry and he has been evading all the opportunities. It is also the
further case of the petitioner that when once the employer placed the petitioner
under suspension and when subsequently dismissal order passed the employer is
entitled to treat the suspension from the date of suspension retrospectively.
The petitioner also would state that non payment of subsistence allowance during
the period of suspension will not affect the enquiry and the second respondent
failed to take it into consideration.
10. According to the petitioner, the first respondent has moved the Civil
Court as against the order of suspension which was stayed by the Civil Court and
therefore there was no question of subsistence allowance to be paid to the first
respondent.
11. It is the case of the petitioner that the second respondent has failed
to appreciate that decision of misappropriation against first respondent, not
joined with other employees and that he has alone picked up in respect of
remittance made and thereby unlawfully made some gain.
12. The respondent has not chosen to file any counter affidavit, even
though the learned counsel for the first respondent has appeared and made his
submission.
13. The case of the first respondent who is the appellant under Section 41
of the Tamil Nadu Shops and Establishments Act, 1947 before the appellate
authority was that the petitioner being the employer has not given him any
opportunity before passing the order and even the list of evidences were not
produced to him. Even though he has informed that he was not physically well
and wanted some more time, the petitioner/employer has not given sufficient time
before passing the order of dismissal. The order of dismissal passed ex parte
against the first respondent is against the principles of law and natural
justice. The first respondent has submitted before the appellate authority that
when all the employees of the shop are liable jointly the first respondent alone
has been picked out which is mala fide and there was no opportunity for the
purpose of defending his case in the domestic enquiry. The petitioner has not
even paid the subsistence allowance which has resulted the gross injustice to
the first respondent.
14. Mr.S.Seenivasagam, learned counsel for the petitioner would submit
that the appellate authority under Section 41 of the Tamil Nadu Shops and
Establishments Act, 1947 has not given proper opportunity to the writ petitioner
being the employer and infact when the second respondent wanted to set aside the
order of dismissal passed by the writ petitioner being the employer, the
petitioner should have been given opportunity to file additional documents.
That apart, it is the contention of the learned counsel for the petitioner that
the Tamil Nadu Shops and Establishments Act, will apply only in respect of
conditions of work and not relating to conditions of service.
15. According to the learned counsel, the said Act has not framed for the
purpose of service conditions. The very fact that there was no grievance
redressal procedure prescribed under the Act shows that the intent and purport
of the said act is not for the purpose of deciding about the conditions of
service of the workmen especially under Section 41 of the Tamil Nadu Shops and
Establishments Act. According to him, under Section 41 of the Tamil Nadu Shops
and Establishments Act, 1947 it is only the non employment which alone can come
under the Act. According to him, the case of disciplinary proceedings wherein
the dismissal order passed based on the disciplinary enquiry which relates to
condition of services, the same cannot be covered under the 41 of the Act and at
the most the industrial disputes can be raised under Section 2 (K) of the
Industrial Disputes Act.
16. According to him, the powers of the appellate authority under Section
41 of the Tamil Nadu Shops and Establishments Act is limited and applicable only
in respect of “persons employed” as defined under Section 2(12) of the Act. The
authority under the Tamil Nadu Shops and Establishments Act, has no power like
that which is found under the Industrial Disputes Act.
17. Therefore, according to him, at the most, the first respondent should
have raised the industrial dispute. the learned counsel also would submit that
as per the judgment of the Supreme Court in Uttar Pradesh State Textile
Corporation Ltd., Vs. P.C.Chaturvedi and others reported in 2005 (4) L.L.N.979
(SCC). The non payment of subsistence allowance cannot vitiate the disciplinary
proceedings. Further, according to him, the first respondent having
participated in the domestic enquiry there is no prejudice caused to him.
18. The learned counsel would also submit that the second respondent has
not discussed anything about the merits of the case at all and no one of the
points raised by the petitioner has been dealt with by the second respondent
appellate authority.
19. On the other hand, Mr. K.C.Ramalingam, learned counsel for the first
respondent would submit that when admittedly the first respondent was only a
Junior Assistant working in the petitioner shop he alone was picked out for
arbitrary dismissal and even the dismissal order was passed violating the
principles of natural justice and it was in those circumstances, the appellate
authority under the Tamil Nadu Shops and Establishments Act, has clearly
followed procedure and held that the dismissal is arbitrary.
20. I have heard the learned counsel for the petitioner and also the
learned counsels for the respondents and perused the entire records.
21. A perusal of the operative portion of the order passed by the second
respondent being the appellate authority under Section 41 of the Tamil Nadu
Shops and Establishments Act, 1947 would show that the appellate authority has
not considered any issue on merit at all. The appellate authority has only made
an observation about the contention of the first respondent stating that when
there are several shop staffs including the cashier, who are all basically
responsible for the maintenance of the shop, the first respondent being a Junior
Assistant has been picked out. The second respondent in the impugned order has
also chosen to refer about the non payment of subsistence allowance and on that
basis has held that the enquiry was not proper.
22. The impugned order further states that since the writ petitioner has
filed additional documents only belatedly, the claim of the writ petitioner was
rejected. Ultimately, the second respondent would say that the removal of the
petitioner retrospectively from the date of order of suspension is invalid as
per the judgment of the Andra Pradesh High Court and also during the period of
suspension no subsistence allowance was paid and placing reliance on the
judgment of the Rajasthan High Court the second respondent has set aside the
order of dismissal.
23. In this regard, it is relevant to point out Section 41(2) of the
Tamil Nadu Shops and Establishments Act, 1947 which states as follows:
“The person employed shall have a right to 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.”
24. Therefore, the act contemplates a duty on the part of the appellate
authority under Section 41 to decide that there was no reasonable cause for
dispensing with the services of the employee or the employee is not guilty of
misconduct and therefore a decision of the employer is not proper.
25. While that is the legal position, the impugned order of the second
respondent only choose to state that the order of dismissal is not valid on two
grounds namely that subsistence allowance is not paid and when there are several
employees, the first respondent alone has been chosen by the employer for the
purpose of dismissal.
26. In my considered view, that is not the purport of the Section 41 of
the Tamil Nadu Shops and Establishments Act, 1947. It is unfortunate that even
the nature of charges framed against the first respondent, the evidence recorded
on the side of the employer, and as to how the employer has come to the
conclusion for dismissal based on the evidence relied on by the employer and
nothing of that sort has been discussed by the second respondent while passing
the impugned order.
27. In view of the same, in my considered view, the impugned order of the
second respondent is liable to be set aside and remanded back the matter to the
second respondent for a proper decision based on Section 41(2) of the Tamil Nadu
Shops and Establishments Act, 1947. This is relevant because the Hon’ble
Supreme Court has held in the judgment in Uttar Pradesh State Textile
Corporation Ltd., Vs. P.C.Chaturvedi and others reported in 2005 (4) L.L.N.979
(SCC) as correctly pointed out by the learned counsel for the petitioner that
unless prejudice is shown and established mere non payment of subsistence
allowance cannot ipso facto be a ground to vitiate the proceedings in every
case. In the said case, the Supreme Court has also held that non payment of
subsistence allowance is a residual question. The Supreme Court held that non
payment of subsistence allowance will automatically make the entire disciplinary
proceedings vitiated. In any event, the second respondent himself in the
impugned order has not chosen to discuss anything about the correctness or
otherwise of the order of dismissal on merit.
30. In view of the reasons stated above, the writ petition stands allowed
and the impugned order of the second respondent being the appellate authority
under Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 passed in
T.N.S.E.No.8/03 dated 17.05.2004 is set aside and the matter is remanded back to
the second respondent for fresh consideration of the entire facts and pass
orders in accordance with Section 41(2) of the Tamil Nadu Shops and
Establishments Act, 1947 after affording reasonable opportunity to both the
parties. In view of the same, the writ petition is ordered accordingly. There is
no order as to costs. Consequently, connected W.P.M.P. is also closed.
10.04.2006
Index : Yes
Internet: Yes
sms
To
The Appellate Authority under Section 41
of Tamil Nadu Shops and Establishments Act,
(Deputy Commissioner of Labour)
Sundaram Theatre Road, K.K.Nagar,
Madurai – 625 020.
P.JYOTHIMANI,J
sms
W.P.No.1229 of 2004
10.04.2006