{"id":125129,"date":"2006-04-10T00:00:00","date_gmt":"2006-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-d-murugan-on-10-april-2006"},"modified":"2014-06-13T19:36:41","modified_gmt":"2014-06-13T14:06:41","slug":"the-management-vs-d-murugan-on-10-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-vs-d-murugan-on-10-april-2006","title":{"rendered":"The Management vs D.Murugan on 10 April, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
The Management vs D.Murugan on 10 April, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT\n\n\nDATED : 10\/04\/2006\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.JYOTHIMANI\n\n\nW.P.No.1229 of 2004\nand\nW.P.M.P.No.1226 of 2004\n\n\nThe Management,\nRamanathapuram District Consumers'\nCo-operative Wholesale Stores Ltd.,\nthrough its Secretary,\nVandikkara Street,\nRamanathapuram.\t\t\t\t...\tPetitioner\n\n\nVs.\n\n\t\n1.D.Murugan\n\n2.The Appellate Authority under Section 41\n  of Tamil Nadu Shops and Establishments Act,\n  (Deputy Commissioner of Labour)\n  Sundaram Theatre Road, K.K.Nagar,\n  Madurai - 625 020.\t\t\t...\tRespondents\n\n\nPRAYER\n\n\nWrit Petition filed under Article 226 of the Constitution of India\npraying for the issuance of a Writ of  Certiorari, to call for the relating to\nthe impugned order of the respondent-2, in his filed T.N.S.E.No:8\/03 and quash\nthe order of the 2nd respondent dated 17.05.2004.\n\n!For Petitioner   \t\t....\tMr.S.Seenivasagam\n\n^For 2nd Respondent \t\t....\tMr.K.V.Vijayakumar,\t\t\t\n\t\t\t\t\tSpecial Government Pleader.\nFor 1st Respondent \t\t....\tMr.K.C.Ramalingam\t\t\t\n\t\t\t\t\n\t\t\t\t\n\n:ORDER\n<\/pre>\n
\tHeard the learned counsel appearing for the petitioner and the learned
\nSpecial Government Pleader for the respondents.\n<\/p>\n
\t2. This writ petition is filed challenging the order of the second
\nrespondent, the appellate authority under Section 41 of the Tamil Nadu Shops and
\nEstablishments Act, (The Deputy  Commissioner of Labour) Madurai dated
\n17.05.2005. The first respondent in the writ petition has filed an appeal before
\nthe second respondent in T.N.S.E. Appeal No.8\/03 under Section 41 of the Tamil
\nNadu Shops and Establishments Act against the order of dismissal passed by the
\npetitioner dated 03.07.2002. The second respondent while allowing the appeal has
\nset aside the order of dismissal against which the present writ petition is
\nfiled.\n<\/p>\n
\t3. According to the petitioner, the petitioner is a co-operative
\ninstitution constituted under the Tamil Nadu Co-operative Societies Act having
\nregistered bye-laws of its own with the main purpose of supply of essential
\ncommodities at fair and reasonable price.\n<\/p>\n
\t4. The first respondent who was working as a Junior Assistant in the
\npetitioner’s store was having the duties and responsibilities of collecting the
\nsale proceeds and income from the salesmen and others to remit them properly in
\nthe Mudhukulathur Branch of Ramanathapuram District Co-operative Central Bank
\nLimited.\n<\/p>\n
\t5. When the petitioner came to know that the first respondent has indulged
\nin a tricky way of tapping money, while preparing remittance of challan, a
\npreliminary enquiry was ordered in which the serious irregularities committed by
\nthe first respondent was reported and the first respondent was placed under
\nsuspension on 16.07.2001.  A detailed charge memo dated 17.08.2001 was served on
\nhim by the petitioner and the first respondent sent explanation on 27.08.2001.
\nA domestic enquiry was ordered by appointing Mr.C.G.Pethanaraj, Advocate.  The
\nfirst respondent has given his evasive reply and finally when the matter was
\nposted for enquiry on 01.03.2002, the first respondent shown health ground for
\nevading to attend the enquiry. Due to the non co-operation of the first
\nrespondent the enquiry was held in the absence of the first respondent and after
\nexamination of the management witnesses, the enquiry was completed on
\n01.03.2002.  The enquiry officer has made his findings on 30.03.2002 holding
\nthat the charges levelled against the first respondent were proved including the
\ncharges relating to the misappropriation etc.<\/p>\n
\t6. Based on the enquiry officer’s report the petitioner has given a show
\ncause notice to the first respondent dated 11.04.2002 asking him to give
\nexplanation. Even for that he has not given explanation for the proposed
\npunishment of dismissal but on 29.04.2002 the first respondent alleged want of
\nopportunity having failed to avail the opportunity given several times.\n<\/p>\n
\t7. Accordingly by the order dated 03.07.2002, the petitioner was dismissed
\nfrom service. The first respondent challenging the said dismissal by filing an
\nappeal under Section 41 of the Tamil Nadu Shops and Establishments Act before
\nthe second respondent. The petitioner has filed detailed counter statement. The
\npetitioner also filed an application for reopening the case for the purpose of
\nreceiving certain documents which were inadvertently omitted along with that
\nwritten arguments. However, the second respondent has set aside the dismissal
\norder.  As against the order of the second respondent the petitioner has filed
\npresent writ petition on various grounds including that the petitioner was not
\ngiven proper opportunity before the second respondent that the petitioner filed
\nan application for reopening for additional documents which was rejected.\n<\/p>\n
\t8. That apart, it is the case of the petitioner that as per the legal
\nposition, when the tribunal comes to a conclusion against the order of dismissal
\npassed by the petitioner, it is the duty on the part of the tribunal to give
\nopportunity for additional evidences to prove the charges and to justify the
\norder of the dismissal. This has been a procedure followed while dealing with
\nSection 41 of the Tamil Nadu Shops and Establishments Act, as laid down by
\nvarious judgments.\n<\/p>\n
\t9. It is also the case of the petitioner that the second respondent has
\nfailed to take into consideration that the first respondent has never attended
\nthe enquiry and he has been evading all the opportunities.  It is also the
\nfurther case of the petitioner that when once the employer placed the petitioner
\nunder suspension and when subsequently dismissal order passed the employer is
\nentitled to treat the suspension from the date of suspension retrospectively.
\nThe petitioner also would state that non payment of subsistence allowance during
\nthe period of suspension will not affect the enquiry and the second respondent
\nfailed to take it into consideration.\n<\/p>\n
\t10. According to the petitioner, the first respondent has moved the Civil
\nCourt as against the order of suspension which was stayed by the Civil Court and
\ntherefore there was no question of subsistence allowance to be paid to the first
\nrespondent.\n<\/p>\n
\t11. It is the case of the petitioner that the second respondent has failed
\nto appreciate that decision of misappropriation against first respondent, not
\njoined with other employees and that he has alone picked up in respect of
\nremittance made and thereby unlawfully made some gain.\n<\/p>\n
\t12. The respondent has not chosen to file any counter affidavit, even
\nthough the learned counsel for the first respondent has appeared and made his
\nsubmission.\n<\/p>\n
\t13. The case of the first respondent who is the appellant under Section 41
\nof the Tamil Nadu Shops and Establishments Act, 1947 before the appellate
\nauthority was that the petitioner being the employer has not given him any
\nopportunity before passing the order and even the list of evidences were not
\nproduced to him.  Even though he has informed that he was not physically well
\nand wanted some more time, the petitioner\/employer has not given sufficient time
\nbefore passing the order of dismissal.  The order of dismissal passed ex parte
\nagainst the first respondent is against the principles of law and natural
\njustice.  The first respondent has submitted before the appellate authority that
\nwhen all the employees of the shop are liable jointly the first respondent alone
\nhas been picked out which is mala fide and there was no opportunity for the
\npurpose of defending his case in the domestic enquiry.  The petitioner has not
\neven paid the subsistence allowance which has resulted the gross injustice to
\nthe first respondent.\n<\/p>\n
\t14. Mr.S.Seenivasagam, learned counsel for the petitioner would submit
\nthat the  appellate authority under Section 41 of the Tamil Nadu Shops and
\nEstablishments Act, 1947 has not given proper opportunity to the writ petitioner
\nbeing the employer and infact when the second respondent wanted to set aside the
\norder of dismissal passed by the writ petitioner being the employer, the
\npetitioner should have been given opportunity to file additional documents.
\nThat apart, it is the contention of the learned counsel for the petitioner that
\nthe Tamil Nadu Shops and Establishments Act, will apply only in respect of
\nconditions of work and not relating to conditions of service.\n<\/p>\n
\t15. According to the learned counsel, the said Act has not framed for the
\npurpose of service conditions.  The very fact that there was no grievance
\nredressal procedure prescribed under the Act shows that the intent and purport
\nof the said act is not for the purpose of  deciding about the conditions of
\nservice of the workmen especially under Section 41 of the Tamil Nadu Shops and
\nEstablishments Act.  According to him, under Section 41 of the Tamil Nadu Shops
\nand Establishments Act, 1947 it is only the non employment which alone can come
\nunder the Act.  According to him, the case of disciplinary proceedings wherein
\nthe dismissal order passed based on the disciplinary enquiry which relates to
\ncondition of services, the same cannot be covered under the 41 of the Act and at
\nthe most the industrial disputes can be raised under Section 2 (K) of the
\nIndustrial Disputes Act.\n<\/p>\n
\t16. According to him, the powers of the appellate authority under Section
\n41 of the Tamil Nadu Shops and Establishments Act is limited and applicable only
\nin respect of “persons employed” as defined under Section 2(12) of the Act.  The
\nauthority under the Tamil Nadu Shops and Establishments Act, has no power like
\nthat which is found under the Industrial Disputes Act.\n<\/p>\n
\t17. Therefore, according to him, at the most, the first respondent should
\nhave raised the industrial dispute.  the learned counsel also would submit that
\nas per the judgment of the Supreme Court in Uttar Pradesh State Textile
\nCorporation Ltd., Vs. P.C.Chaturvedi and others reported in 2005 (4) L.L.N.979
\n(SCC). The non payment of subsistence allowance cannot vitiate the disciplinary
\nproceedings.  Further, according to him, the first respondent having
\nparticipated in the domestic enquiry there is no prejudice caused to him.\n<\/p>\n
\t18. The learned counsel would also submit that the second respondent has
\nnot discussed anything about the merits of the case at all and no one of the
\npoints raised by the petitioner has been dealt with by the second respondent
\nappellate authority.\n<\/p>\n
\t19. On the other hand, Mr. K.C.Ramalingam, learned counsel for the first
\nrespondent would submit that when admittedly the first respondent was only a
\nJunior Assistant working in the petitioner shop he alone was picked out for
\narbitrary dismissal and even the dismissal order was passed violating the
\nprinciples of natural justice and it was in those circumstances, the appellate
\nauthority under the Tamil Nadu Shops and Establishments Act, has clearly
\nfollowed procedure and held that the dismissal is arbitrary.\n<\/p>\n
\t20. I have heard the learned counsel for the petitioner and also the
\nlearned counsels for the respondents and perused the entire records.\n<\/p>\n
\t21. A perusal of the operative portion of the order passed by the second
\nrespondent being the appellate authority under Section 41 of the Tamil Nadu
\nShops and Establishments Act, 1947 would show that the appellate authority has
\nnot considered any issue on merit at all.  The appellate authority has only made
\nan observation about the contention of the first respondent stating that when
\nthere are several shop staffs including the cashier, who are all basically
\nresponsible for the maintenance of the shop, the first respondent being a Junior
\nAssistant has been picked out.  The second respondent in the impugned order has
\nalso chosen to refer about the non payment of subsistence allowance and on that
\nbasis has held that the enquiry was not proper.\n<\/p>\n
\t22. The impugned order further states that since the writ petitioner has
\nfiled additional documents only belatedly, the claim of the writ petitioner was
\nrejected.  Ultimately, the second respondent would say that the removal of the
\npetitioner retrospectively from the date of order of suspension is invalid as
\nper the judgment of the  Andra Pradesh High Court and also during the period of
\nsuspension no subsistence allowance was paid and placing reliance on the
\njudgment of the Rajasthan High Court the second respondent has set aside the
\norder of dismissal.\n<\/p>\n
\t23. In this regard,  it is relevant to point out Section 41(2) of the
\nTamil Nadu Shops and Establishments Act, 1947 which states as follows:\n<\/p>\n
\t“The person employed shall have a right to appeal to such authority and
\nwithin such time as may be prescribed either on the ground that there was no
\nreasonable cause for dispensing with his services or on the ground that he had
\nnot been guilty of misconduct as held by the employer.”\n<\/p>\n
\t24. Therefore, the act contemplates a duty on the part of the appellate
\nauthority under Section 41 to decide that there was no reasonable cause for
\ndispensing with the services of the employee or the employee is not guilty of
\nmisconduct and therefore a decision of the employer is not proper.\n<\/p>\n
\t25. While that is the legal position, the impugned order of the second
\nrespondent only choose to state that the order of dismissal is not valid on two
\ngrounds namely that subsistence allowance is not paid and when there are several
\nemployees, the first respondent alone has been chosen by the employer for the
\npurpose of dismissal.\n<\/p>\n
\t26. In my considered view, that is not the purport of the Section 41 of
\nthe Tamil Nadu Shops and Establishments Act, 1947.  It is unfortunate that even
\nthe nature of charges framed against the first respondent, the evidence recorded
\non the side of the employer, and as to how the employer has come to the
\nconclusion for dismissal based on the evidence relied on by the employer and
\nnothing of that sort has been discussed by the second respondent while passing
\nthe impugned order.\n<\/p>\n
\t27. In view of the same, in my considered view, the impugned order of the
\nsecond respondent is liable to be set aside and remanded back the matter to the
\nsecond respondent for a proper decision based on Section 41(2) of the Tamil Nadu
\nShops and Establishments Act, 1947.  This is relevant because the Hon’ble
\nSupreme Court has held in the judgment in Uttar Pradesh State Textile
\nCorporation Ltd., Vs. P.C.Chaturvedi and others reported in 2005 (4) L.L.N.979
\n(SCC) as correctly pointed out by the learned counsel for the petitioner that
\nunless prejudice is shown and established mere non payment of subsistence
\nallowance cannot ipso facto be a ground to vitiate the proceedings in every
\ncase. In the said case, the Supreme Court has also held that non payment of
\nsubsistence allowance is a residual question.  The Supreme Court held that non
\npayment of subsistence allowance will automatically make the entire disciplinary
\nproceedings vitiated.  In any event, the second respondent himself in the
\nimpugned order has not chosen to discuss anything about the correctness or
\notherwise of the order of dismissal on merit.\n<\/p>\n
\t30. In view of the reasons stated above, the writ petition stands allowed
\nand the impugned order of the second respondent being the appellate authority
\nunder Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 passed in
\nT.N.S.E.No.8\/03 dated 17.05.2004 is set aside and the matter is remanded back to
\nthe second respondent for fresh consideration of the entire facts and pass
\norders in accordance with Section 41(2) of the Tamil Nadu Shops and
\nEstablishments Act, 1947 after affording reasonable opportunity to both the
\nparties. In view of the same, the writ petition is ordered accordingly. There is
\nno order as to costs. Consequently, connected W.P.M.P. is also closed.\n<\/p>\n
\t\t\t\t\t\t\t\t\t10.04.2006<\/p>\n
Index   : Yes
\nInternet: Yes
\nsms<\/p>\n
To<\/p>\n
The Appellate Authority under Section 41
\n  of Tamil Nadu Shops and Establishments Act,
\n  (Deputy Commissioner of Labour)
\n  Sundaram Theatre Road, K.K.Nagar,
\n  Madurai – 625 020.\n<\/p>\n
P.JYOTHIMANI,J
\nsms<\/p>\n
W.P.No.1229 of 2004<\/p>\n
10.04.2006<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Management vs D.Murugan on 10 April, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-125129","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Management vs D.Murugan on 10 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-management-vs-d-murugan-on-10-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management vs D.Murugan on 10 April, 2006 - 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