BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/06/2007 CORAM: THE HONOURABLE Mr.JUSTICE K.CHANDRU W.P.(MD)No.3547 of 2004 The Management Elumalai Primary Agricultural Co-operative Bank, Elumalai, Peraiyur(TK) Madurai District, through its Special officer, ... Petitioner Vs. 1.The Appellate Authority under the Tamil Nadu Shops and Establishments Act, (The Deputy Commissioner of Labour), Sundaram, Theatre Road, K.K.Nagar, Madurai - 625 020. 2.S.Subramanian ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records of the 1st respondent in his filed T.N.S.E.No.29/02 and quash the impugned order of the 1st respondent Dt.18.02.2004. !For Petitioner ... Mr.S.Seenivasagam ^For 1st respondent ... Mrs.V.Chellammal, Spl.Government Pleader. For 2nd respondent ... No appearance :ORDER
The petitioner is a Cooperative Bank. Challenging the order passed
by the first appellate authority in TNSE No.29/2002 dated 18.02.2004, has come
forward with this petition.
2. The ground for setting aside the order of dismissal in the impugned
order is that the petitioner has not given due opportunity to the 2nd respondent
in the conduct of the enquiry and therefore, the domestic enquiry was not
properly conducted. On that ground, the appeal was allowed by order dated
18.02.2004.
3. Mr.S.Seenivasagam, learned counsel for the petitioner stated that the
finding rendered by the appellate authority is totally illegal and even assuming
that the enquiry was not conducted properly, he is eligible to let in additional
evidence and therefore, the order suffers from material irregularity.
4. When questioned whether in the pleadings filed before the lower
authority any request to let in additional evidence was made, the learned
counsel points out to the counter statement filed by the petitioner’s Management
before the authority. The copy of which is also filed in the typedset of papers
of the present writ petition. In the counter statement dated 2nd October, the
petitioner in paragraph 11 has clearly stated that if the authority finds that
the enquiry was not conducted properly, then the petitioner/Management may be
permitted to let in additional evidence to justify their action. Unfortunately,
the first respondent, appellate authority has not considered his request made in
the pleadings filed before him.
5. The Honourable Supreme Court in the Judgment reported in 1997 (2)
LLN 73 (United Planters Association of Southern India Vs. K.G.Sangameswaran and
another) held in an identical case and interpreted the provision of Section 41
of the Tamil Nadu Shops and Establishments Act and held in paragraph 19 which
reads as follows:-
“19. From a perusal of the provisions quoted above, it will be seen that
the jurisdiction of the appellate authority to record evidence and to come to
its own conclusion on the questions involved in the appeal is very wide. Even
if the evidence is recorded in the domestic enquiry and the order of dismissal
is passed thereafter, it will still be open to the appellate authority to
record, if need be, such evidence as may be produced by the parties.
Conversely, also if the domestic enquiry is ex parte or no evidence was recorded
during those proceedings, the appellate authority would still be justified in
taking additional evidence to enable it to come to its own conclusions on the
articles of charges framed against the delinquent officer.”
After stating so in the passage quoted above, in paragraph 26 the
Honourable Supreme Court’s further observed 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 proceedings to dispose of the appeal on the ground that the order
of dismissal having been passed without holding a domestic enquiry, was bad in
law.”
Finally, the Apex Court set aside the order of the appellate
authority as well as the Judgment of High Court and directed the appellate
authority to dispose of the appeal filed under Section 41 of the Act, in
accordance with law.
6. In the light of the same, the petitioner is entitled to succeed
in this writ petition. However, in the present case, since the petition has
been filed, the petitioner is succeeding only on the ground that no opportunity
was given, this Court is not going into the issue whether the findings given in
the impugned order regarding the validity of the enquiry are correct or not, as
there is ample opportunity for the petitioner/Management to agitate that issue
at a later point of time. Therefore, the order dated 18.2.2004 is only treated
as a preliminary order, giving full liberty to the petitioner to re-agitate the
matter on merits. If they are unable to succeed, it is needless to say that the
order of preliminary nature gets merged with final order and the petitioner can
also agitate he same issue before this Court at the appropriate time.
7. Under these circumstances, without disturbing the findings
rendered by the first respondent authority and treating it as a preliminary
order, this Court hereby directs the first respondent to reopen Tamilnadu Shops
and Establishment Appeal made in T.N.S.E.A.No.29 of 2002 and allow the
petitioner Management to let in evidence to justify their action as prayed by
them in the counter statement and proceed to deal with the merits of the said
case, after notice to the second respondent and pass appropriate orders on the
merits of the case.
8. The writ petition stands allowed to the extent indicated above.
As and when the appellate authority passes an order, liberty is to be allowed to
be retained by the petitioner Management to agitate both the final order as
well as the preliminary order. Since the matter is of the year 2002, the first
respondent is directed to dispose of the said appeal within a period of three
months from the date of receipt of a copy of this order, after giving due notice
to both the parties.
To
The Appellate Authority
under the Tamil Nadu Shops and
Establishments Act,
(The Deputy Commissioner of Labour),
Sundaram, Theatre Road, K.K.Nagar,
Madurai – 625 020.