BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03/08/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition(MD) No.3630 of 2006
and
W.P.M.P.(MD)No.3886 of 2006
The Management,
rep. by Special Officer,
RA.385, Sadhananthapuram Primary
Agricultural Co-operative Bank Ltd.,
Sadhananthapuram,
Virudhunagar District. ...... Petitioner
Vs
1. The Appellate Authority under the
Tamil Nadu Shops and Establishments Act,
(Assistant Commissioner of Labour),
K.K.Nagar, Madurai.
2. M. Nagarajan,
S/o. Mariappan,
V. Salvarpatti,
Naranapuram (PO),
Sivakasi, Virudhunagar District. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari, to call for the records and the
proceedings of the Appellate Authority under the Tamil Nadu Shop and
Establishments Act Madurai in T.N.S.E.No.16 of 2002 dated 10.10.2005 and
19.12.2005 and quash the same.
!For Petitioner ... Mr. V. O. S. Kalaiselvam
^For Respondents... Mr. D. Muruganandam for R-1
Additional Government Pleader
No appearance for R-2
- - - - - - - -
:ORDER
The petitioner prays for issuance of a Writ, in the nature of
Certiorari, to quash the order passed by the Appellate Authority, in exercise of
power under Section 41(2) of the Tamil Nadu Shops and Establishments Act 1947.
2. The second respondent herein was employed as Salesman in a fair
price shop on 08.01.2000, on temporary basis in pursuance to the Resolution
passed by the petitioner. After the second respondent had put in more than four
years of service, he was terminated. It is not in dispute that the appointment
of the second respondent was against permanent vacancy.
3. The case of the petitioner, is that as the appointment of the
second respondent was not made in terms of the Tamil Nadu Co-operative Societies
Rules, therefore, the services were terminated, after issuance of a show cause
notice.
4. Feeling aggrieved by the order of termination, the second
respondent filed an Appeal under Section 41(2) of the Tamil Nadu Shops and
Establishments Act, 1947.
5. An objection was taken by the petitioner, with regard to the
jurisdiction of the Appellate Authority, to entertain the Appeal, on the ground
that the respondent Society was situated within a village panchayat, therefore,
the Tamil Nadu Shops and Establishments Act, 1947, was not applicable to it.
6. The learned Appellate Authority rejected the plea, holding that
two other employees, whose services were terminated like that of the second
respondent, had filed Appeal under Section 41(2) of the Act, and the petitioner
took no objection to the jurisdiction of the Appellate Authority, to entertain
the Appeal.
7. After rejecting the preliminary objection as referred to above,
the Appeal filed by the second respondent was accepted, and the order of
dismissal was set aside, vide order dated 10.10.2005.
8. The reasons for passing the order, was that the instruction of
the Government with regard to termination of services of the employees who were
not appointed through employment exchange was not applicable to the employees,
who were recruited prior to 2001.
9. After passing of the order of reinstatement with consequential
benefit of continuity of service and backwages, an application was moved by the
second respondent, undertaking therein to forego back wages and relief of
continuity of service but prayed for re-employment.
10. This offer was accepted by the Management and the order passed
in Appeal was modified, ordering re-employment of Respondent No.2.
11. Challenging the order, the petitioner has filed this writ
petition, on the ground of jurisdiction of the first respondent to entertain the
Appeal.
12. The reasoning given by the Appellate Authority, to hold that it
had the jurisdiction, cannot be sustained in law, as the conduct of the parties
cannot give jurisdiction to an Authority, which is not vested under the Act.
13. It is also well settled, that one wrong exercise of power cannot
give jurisdiction to exercise the power. Subsequently, it is brought to the
notice of the Authority / Court that it has no jurisdiction.
14. The question to be decided is whether the first respondent had
the jurisdiction to entertain the Appeal.
15. The term “Commercial Establishment” is defined under Section
2(3) of the Tamil Nadu Shops and Establishments Act, to reads as under:-
“2(3) “Commercial Establishment” means an establishment which is not
a shop but which carries on the business of advertising, commission, forwarding
or commercial agency, or which is a clerical department of a factory or
industrial undertaking or which is an insurance company, joint stock company,
bank, broker’s office or exchange and includes such other establishment as the
State Government may by notification declare to be a commercial establishment
for the purposes of this Act”.
The petitioner admittedly fall within the definition of “commercial
establishment”.
16. The contention of the learned counsel for the petitioner, that
in view of Section 1(3)(iii) of the Act, the establishment of the petitioner
will not be covered under the Act, as it is situated in the village panchayat,
which is not classified by the State Government, as Class I Panchayats under
Section 5(1)(a) of the Madras Village Panchayats Act, 1950.
17. This contention of the learned counsel for the petitioner cannot
be accepted, as after coming into force of Tamil Nadu Panchayat Act 1994, the
earlier Acts stood repealed by the new Act. In this Act, there is no
categorisation of panchayats in different classes. The Tamil Nadu Panchayat Act
1994, defines the Panchayat to mean a Village Panchayat, a Panchayat Union
Council or a District Panchayat constituted under the Act.
18. The Bank establishment within the panchayat would be covered
under the Panchayat Act 1994, and in view of the definition of industrial
establishment, the petitioner will fall within the jurisdiction of the Appellate
Authority. The contention of the learned counsel for the petitioner, therefore,
deserved to be rejected.
19. No other point has been urged.
20. Otherwise also, no ground is made out to exercise, extra
ordinary writ jurisdiction, to interfere with the order passed by the Appellate
Authority, as the order was passed with the consent of the petitioner, after the
second respondent had given up his claim for back wages and continuity of
service. In view of the consent, having been given, this Court is not inclined
to exercise the extra ordinary writ jurisdiction to interfere with the impugned
order.
21. Finding no merit, this writ petition is dismissed.
No costs.
Consequently, the connected W.P.M.P.(MD)No.3886 of 2006 is closed.
Dpn/-
To
Assistant Commissioner of Labour,
The Appellate Authority under the
Tamil Nadu Shops and Establishments Act,
K.K.Nagar, Madurai.