AI Structured Summary
Not yet generated for this judgment
Judgment
S. Nagamuthu, J.—Certain interesting (sic) questions relating to the maintainability of an Appeal and further jurisdiction of the Authority, u/s
41(2) of the Tamil Nadu Shops and Establishment Act, 1947, have arisen for consideration in this writ petition.
The background facts are as follows:
(i) The second Respondent was employed as a Supervisor in the Petitioner-Co-operative Bank, which is a Society registered under the Tamil
Nadu Co-operative Societies Act. On September 13, 1976, October 13, 1976 and September 17, 1977, three charge memorandums were
issued to him in respect of certain alleged misconducts committed by him in discharge of his official duties. He denied all the charges. Not satisfied
with the explanation offered by the second Respondent, the Petitioner ordered for an enquiry and appointed an Enquiry Officer for the said
purpose. On January 16, 1978, the Enquiry Officer submitted a report holding that most of the charges were proved against him. Based on the
above, a second show cause notice was issued by the Petitioner to the second Respondent calling upon him to submit his further explanation in
respect of the findings of the Enquiry Officer. Accordingly, the second Respondent has submitted his further explanation. Thereafter, the Petitioner,
by order dated March 2, 1978, accepting the findings of the Enquiry Officer, terminated the second Respondent from service.
(ii) Aggrieved over the same, the second Respondent preferred a revision u/s 153 of the Tamil Nadu Co-operative Societies Act before the Joint
Registrar of Co-operative Societies. The same was also dismissed and thus, the order of termination became final. It was only thereafter, the
second Respondent filed an appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act before the first Respondent herein on October 29,
1979.
(iii) At this juncture, it should also be stated that as per G.O. Ms. No. 5780 dated December 11, 1963, the Co-operative Societies, which are
governed by the Tamil Nadu Co-operative Societies Act, were originally exempted from the provisions of the Tamil Nadu Shops and
Establishments Act. However, under G.O. Ms. No. 1238 dated August 4, 1979, the said exemption was withdrawn and therefore, the provisions
of the Tamil Nadu Shops and Establishments Act, 1947, were made applicable to the Co-operative Society governed by the Tamil Nadu Co-
operative Societies Act also.
(iv) A writ petition was filed challenging the said Government Order granting exemption in W.P. 2704/1980 and the same was dismissed. An
appeal preferred in W.A. No. 1001/1986 was also dismissed. Thereafter, the appeal filed by the Petitioner before the first Respondent-Authority
under the Tamil Nadu Shops and Establishments Act, in T.N.S.E. Appeal No. 1/1990 was taken up for hearing. Before the first Respondent-
Authority, two interlocutory applications in LA. Nos. 1/1991 and 2/1991 were filed by the Petitioner-Management raising two preliminary
issues.I.A. No, 1 of 1991 was filed with a request to dismiss the appeal on the ground of delay. The said I.A. was dismissed by order dated
September 13, 1991 and the same has become final. Insofar as LA. No. 2/1991 is concerned, the first Respondent-Authority directed the same to
be heard along with the original appeal in T.N.S.E. Appeal No. 1/1990. Accordingly, the appeal as well as I.A. No. 2/1991 were taken up for
disposal together and disposed of.
(v) Before the first Respondent-Authority, no further evidence was let in. The Authority went into the evidence already placed before the Enquiry
Officer. The Authority held that the appeal before him was still maintainable notwithstanding the fact that the revision filed by the second
Respondent was dismissed by the Joint Registrar of Co-operative Societies u/s 153 of the Tamil Nadu Cooperative Societies Act. Going into the
merits of the case, the Authority held that the principles of natural justice were not strictly adhered to by the Enquiry Officer, when he conducted
the enquiry into the charges levelled against the second Respondent. Further, going into the merits of the case, the first Respondent-Authority held
that the charges have not been proved and therefore, the order of termination is not sustainable. On these three findings, the first Respondent-
Authority set aside the order of termination. Challenging the same, the Petitioner-Management has come up with this writ petition.
In this writ petition, the foremost contention raised is with regard to the maintainability of the appeal filed u/s 41(2) of the Tamil Nadu Shops and
Establishments Act.
Mr. R. Parthiban, the learned Counsel appearing for the Petitioner would submit that having chosen to file a revision u/s 153 of the Tamil Nadu
Co-operative Societies Act, against the order of termination passed by the Petitioner, It is not open for the second Respondent to again re-agitate
the matter by filing an appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act. In this regard, the learned Counsel would rely on a
Division Bench judgment of this Court rendered in Dhakshinamoorthy Vs. The Management, Kancheepuram Central Co-operative Bank and
Others, , wherein, the Division Bench held that having chosen to prefer a statutory appeal as provided under the Tamil Nadu Co-operative
Societies Act, the employee cannot again re-agitate the matter by filing an appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act, as
the same would amount to second Appeal. In paragraph 10 of the said judgment, the Division Bench has held as follows at p. 342:
We have carefully considered the submissions of the learned Counsel appearing on either side. We are of the view that the order of the learned
single Judge deserves to be sustained for more than one reason. The remedy of appeal is one to be specifically provided for and there cannot be
any right to file an appeal by an implication. That apart, the avenues of remedies either by way of appeal or bv way of revision or otherwise, has
got to be determined with reference to the date of the order sought to be challenged in an appeal. Inasmuch as the order of dismissal in the case on
hand was passed on April 30, 1979, long prior to the notification in G.O. Ms. No. 1239 Labour and Employment dated August 4, 1979 and since
on the date of the order, the exemption from the provisions of Section 41 was in full force and effect, the only available avenue of appeal was the
one provided under the special bye-law No. 44 governing the conditions of service of the employees working in the first Respondent-
Management. As a matter of fact, the appeal as per the said bye-law was to a State level Officer of the Government and the Registrar of Co-
operative Societies, who was the designated Appellate Authority also dealt with the appeal and disposed of the same by his order dated April 15,
1980, confirming the order of the 1st Respondent-Management. While that be the position, it would be futile for the Appellant to contend that he is
entitled to file a further appeal. It is only in that context, the learned single Judge was of the view that countenancing the plea of the Appellant would
tantamount to providing for a second appeal. The provisions for appeal contained in Sub-section (2) of Section 41 of the Act contemplates the
filing of an appeal against the orders of the Management and once taking advantage of the bye-laws, which governed the conditions of the service
of the Appellant, an appeal has been preferred to the designated Authority and as such Appellate Authority also disposed of finally the appeal,
thereafter, it would be untenable in law to contend that the Appellant can choose to challenge the orders passed on appeal also by invoking the
powers under Sub-section (2) of Section 41 of the Act. Not only that the entitlement as per the law applicable as on the date of the passing of the
order of dismissal did not warrant recourse to the appellate provisions in Sub-section (2) of Section 41 of the Act, but the Appellant could not be
held to be entitled to avail of the appellate forum constituted under the Act, merely because long after the order of; dismissal, the notification
exempting the institutions like the first Respondent-Management from the provisions of Section 41 was superseded and a prospective notification,
which had the effect of; applying Section 41 to such institutions came to be issued. On that view of the matter, we do not find any infirmity in the
reasoning of the learned Judge, taking the view that so far as the claim of the Appellant is concerned, there could be no further appeal by way of a
second appeal against the order passed on an appeal by the Registrar of Co-operative Societies in the absence of any specific stipulation,
providing for such an appeal. Hence, we see no reason to interfere with the order of the learned Single Judge in this appeal.
emphasis supplied
Relying on the decision cited supra, the learned Counsel appearing for the Petitioner would contend that when there is a statutory remedy
available for an individual employee to work out under various enactments and if he has chosen to work out his remedy under one enactment,
thereafter, he cannot be permitted to approach the Authority under the other enactment, as such course will allow endless and multiplicity of
litigations.
The learned Counsel would further submit that an appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act, is maintainable as against
an order of termination passed by the Management and not as against the order of termination passed by the Appellate Authority or Revisional
Authority under the Tamil Nadu Co-operative Societies Act.
The learned Counsel would further point out that raising this legal issue I.A. No. 2 of 1991 was filed and the same has been erroneously
rejected by the first Respondent-Authority. It is on this main ground, the learned Counsel would pray for interference in the order of the first
Respondent-Authority impugned in this writ petition.
On the other hand. Mr. S. Silambannan, the learned Senior Counsel appearing on behalf of the second Respondent would vehemently contend
that there is a vast difference between an appeal and a revision (sic) as appeal is concerned, the learned Senior counsel would contend that it is the
right of an employee, whereas, the revision does not confer any such right. He would further point out that in the judgment cited supra, the Division
Bench has considered the appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act, in a case, where already the statutory appeal filed
under Tamil Nadu Co-operative Societies Act has been rejected by the Appellate Authority. The learned senior counsel would further contend
that in the case on hand, there was no such appeal disposed of by any Authority as against the order of Management. What was rejected was only
a revision u/s 153 of the Tamil Nadu Cooperative Societies Act, which cannot be equated to an appeal provided u/s 152 of the Tamil Nadu Co-
operative Societies Act or an appeal provided under the Special Bye-law No. 44, as dealt with by the Division Bench in the judgment cited supra.
Therefore, he would contend that there is no bar at all for the Authority under the Tamil Nadu Shops and Establishment Act to entertain an appeal
even after the dismissal of the revision by the Revisional Authority u/s 153 of the Tamil Nadu Co-operative Societies Act.
The learned Senior Counsel would further bring to the notice of this Court that during the earlier round of litigation when the Management sought
to quash the proceedings pending before the Authority under the Act, in this case under examination, a learned Single Judge of this Court in W.P.
No. 2704/1980 dismissed the writ petition filed by the Management holding that the appeal before the Authority under the Tamil Nadu Shops and
Establishments Act, is maintainable, de hors the fact that the revision filed u/s 153 of the Tamil Nadu Co-operative Societies Act had been rejected
by the Revisional Authority. The learned senior counsel would further point out that subsequently, the writ appeal filed in W.A. No. 1001/1986
was also dismissed by a Division Bench, thereby, confirming the order of the learned Single Judge holding that the appeal u/s 41(2) of the Tamil
Nadu Shops and Establishments Act, is still maintainable, notwithstanding the fact that the revision filed u/s 153 of the Tamil Nadu Co-operative
Societies Act had already been dismissed by the Revisional Authority. In this regard, the learned Senior Counsel would take me through
paragraphs 2 and 3 of the said judgment dated June 12, 1989, wherein, the Division Bench has held as follows:
2 In this appeal by the Society, it is urged that as on the date of the lis, there was no right of appeal and the subsequent confirmation of such a right
cannot take away the finality attached to the original order. This contention was urged by Mr. R. Sundaravaradan based on the decisions in
Examiner of Local Fund Accounts Vs. C. Subramania Mudaliar and Others, and Abdul Rasak Rowther Vs. Abdul Rahim Rowther and Another, .
This is the only contention'' urged before us. We are unable to uphold this contention.
At the relevant point of time, one has to reckon his right to file the appeal. Normally, an appeal would have been available. It was only by a
reasonable exemption relating to Co-operative Societies, Section 41 of the Tamil Nadu Shops and Establishment Act seems to be applicable.
However, once that exemption is withdrawn, the normal position is restored. Therefore, the two decisions cited above would have no application
to this case as they are clearly distinguishable.
In this regard, I have to state that in view of the order passed in this very same case by the Division Bench, I have to hold that the appeal
before the Authority u/s 41(2) of the Tamil Nadu Shops and Establishments Act is maintainable notwithstanding the fact that the revision filed u/s
153 of the Tamil Nadu Co-operative Societies Act, has been dismissed. As it is pointed out by the learned Senior Counsel for the second
Respondent, it is not as though the Division Bench, which decided the Dhakshinamoorthy v. Management Kancheepuram Central Co-operative
Bank and Ors. (supra) was not aware of the judgment of this Court in the present case in W.A. No. 1001/1986.
In my opinion too, the facts stated in Dhakshinamoorthy v. Management Kancheepuram Central Co-operative Bank and Ors. (supra) are
distinguishable from the facts of the present case. That was a case, where an appeal preferred and disposed of under Special Bye-law No. 44 was
considered to be a bar for the Authority under the Shops and Establishments Act to entertain an appeal u/s 41(2) of the Tamil Nadu Shops and
Establishments Act. A close reading of the judgment of the Division Bench would make me to understand that the Division Bench has held that
entertaining an appeal by the Authority under the Tamil Nadu Shops and Establishments Act would amount to entertaining a second appeal, which
is not provided for in the Act. The Division Bench has held that an appeal u/s 41(2) of the Tamil Nadu Shops and Establishments Act, can be only
by way of challenging an order passed by the Management, but not an order passed by the Appellate Authority under the Tamil Nadu
Cooperative Societies Act.
As rightly pointed out by the learned Senior Counsel appearing for the second Respondent I am also of the same view that there is a vast
difference between an appeal and a revision. It is needless to point out that appeal is a statutory right created in and by the statute itself, whereas,,
a revision does not create any right to any individual. In the matter of jurisdiction also, between the Appellate Authority and the Revisional
Authority, there is a vast difference. The power of appeal is so vast when compared to that of the power of revision.
Having taken note of the above only, the Division Bench in W.A. No. 1001/1986 has held that appeal u/s 41(2) of the Tamil Nadu Shops and
Establishments Act is still maintainable de hors the fact that already the revision filed u/s 153 of the Tamil Nadu Co-operative Societies Act, had
been dismissed. Therefore, I have no hesitation to hold that the appeal filed u/s 41(2) of the Tamil Nadu Shops and Establishments Act, by the
second Respondent before the first Respondent-Authority, is maintainable. In this regard, I reject the objections raised by the learned Counsel for
the Petitioner.
The next important question raised by the learned Counsel appearing for the Petitioner is that the first Respondent-Authority ought to have
decided the question as to, whether the enquiry was held fairly and properly by the Enquiry Officer. He would further add that if only he holds that
the enquiry was not held fairly and properly, he can permit the Management to let in evidence. In this case, according to the learned Counsel, the
Authority has not decided this question as a preliminary issue and therefore, the impugned order needs interference.
For this proposition, the learned Counsel appearing for the Petitioner relied on the judgment of this Court rendered by me (S.
NAGAMUTHU, J.) in The Management of Catter Pillar India Private Ltd. Vs. The Presiding Officer, Principal Labour Court, T. Soundararajan
and The Management of Hindustan Motors Earth Moving Equipments Division, , wherein, while dealing with a dispute raised under the Industrial
isputes Act, I have held that it is incumbent upon the Labour Court to decide upon the question as to whether the enquiry was held fairly and
properly as a preliminary issue. I have further held that without deciding such preliminary issue, it is not at all proper for the Labour Court to go into
the merits of the main issues. The judgment in Management of Catter Pillar India Private Limited v. Presiding Officer, Principal Labour Court,
Chennai (supra) case was based on several judgments of the Hon''ble Supreme Court, wherein the law has been so laid down by the Hon''ble
Supreme Court. Regarding this legal proposition, there can be no second opinion at all. But, at the same time, I have to state that the law laid down
by the Hon''ble Supreme Court and followed by me in Management of Cater Pillar India Private Limited v. Presiding Officer, Principal Labour
Court, Chennai (supra) case have no application to a case falling under the Tamil Nadu Shops and Establishments Act.
The power and jurisdiction of the Labour Court u/s 2-A of the Industrial Disputes Act read with 11-A of the said Act are quite different from
the power and jurisdiction vested to an Authority u/s 41(2) of the Tamil Nadu Shops and Establishments Act. In the Industrial Disputes Act, there
is a specific, provision, which mandates that it is incumbent on the Labour Court to decide the question as to, whether the enquiry was held fairly
and properly by the Enquiry Officer, if the same is raised by the workman. There is also a mandatory provision under the said Act, which
mandates that in the event of the Labour Court holding that the enquiry was not held fairly and properly, then the Labour Court has to call upon the
Management to let in fresh evidence. Once the Labour Court holds that the enquiry was not held fairly and properly, thereafter, the Labour Court
cannot look into the evidence recorded before the Enquiry Officer, instead, the Labour Court is required to consider the evidences, which are let in
before it alone. In a case where the Labour Court holds that the enquiry was held fairly and properly, thereafter, the Labour Court cannot allow
the parties to let in any any fresh evidence on the merits of the issues and instead, the Labour Court has to consider the evidences let in before the
Enquiry Officer alone to decide the issues. But, there is no such a similar provision available under the Tamil Nadu Shops and Establishments Act.
A close reading of Section 41(2) of the Tamil Nadu Shops and Establishments Act would go to show that in order to find out whether there
was any misconduct on the part of the employee and whether the order of termination is proper, the Authority under the Act can allow the parties
to let in additional evidence. There is no requirement to frame any preliminary issue in respect of the fairness of the enquiry held by the Enquiry
Officer. De hors the fact as to whether the enquiry was held fairly and properly, the parties, both the Management as well as the workman, have
got right to let in additional evidence. Here, what is let in before the Authority is not fresh evidence, but, it is only additional evidence. Regarding
this legal proposition, there can be no controversy before this Court as the same is so well settled. Therefore, after allowing the parties to let in
additional evidence if any, the Authority is required to consider all the evidences, viz., the evidences originally collected and recorded before the
Enquiry Officer as well as the additional evidence let in before the Authority and to decide the core question as to, whether the employee had
committed any misconduct and whether the order of termination from service is sustainable or not. In the Tamil Nadu Shops and Establishments
Act, there is no legal bar for the Authority to consider the materials already collected in evidence before the Enquiry Officer, like the legal bar
contained in the Industrial Disputes Act.
Now coming to the facts of the case, a perusal of the order of the first Respondent-Authority impugned in this writ petition would go to show
that he has held that the enquiry was not conducted by the Enquiry Officer adhering to the principles of natural justice. Having held so, it would
have been appropriate on his part to call upon the workman, viz., the second Respondent herein, to let in further evidence and also to cross-
examine the witnesses already examined before the Enquiry Officer, who were not earlier allowed to be cross-examined by the second
Respondent. The first Respondent-Authority ought to have allowed the Management also to let in additional evidence, if any, to substantiate the
termination. The first Respondent-Authority has not done so. On this ground alone, I may interfere with the impugned order of the first
Respondent-Authority, which came to be confirmed by the Joint Registrar of Co-operative Societies.
The first Respondent has gone farther. He has narrated the charges and has also extracted the explanation offered by the second Respondent,
but without discussing the evidence already available on record, he has simply held that the charges have not been proved. It is not understandable
as to how the first Respondent would have come to such a conclusion that charges have not been proved without any reference to the evidences
let in before the Enquiry Officer. To cite one example, as it has been rightly pointed out by the learned Counsel for the Petitioner, the first charge
relates to a serious misconduct of misappropriation of the funds relating to the Petitioner-society. Before the Enquiry Officer, evidences have been
let in in respect of the same. But, the first Respondent has held that the said charge has not been proved by making a simple observation that there
was no complaint made to the police by the Management in respect of the said misappropriation. I am at a loss to find any justification behind the
said finding. Had this finding been arrived at after analyzing the entire evidence let in before the Enquiry Officer relating to the said allegation of
misappropriation, then this Court would have found justification in the said conclusion arrived at by the first Respondent, but, it is not so. Similar, is
the conclusion arrived at by the first Respondent under the other charges too. Thus, the conclusion arrived at by the first Respondent in respect of
the merits of the charges cannot be sustained at all. Therefore, I am of the view that the matter needs reconsideration on remand.
The learned senior counsel appearing for the second Respondent would however submit that at this length of time if the matter is remitted back
to the first Respondent, it would not be in the interest of justice as the second Respondent would be highly prejudiced. There may be some
justification in the said submission made by the learned Senior Counsel, but for that matter, this Court cannot refrain from remitting the matter back
to the Shops and Establishments Act Authority. It is not as though the charges leveled against the second Respondent are simple in nature. There
are several charges of which many are serious charges. When there was charge of misappropriation, on a technical ground of delay and possibility
of prejudice, this Court cannot refrain from remitting the case back to the first Respondent. In my deep consideration of the whole charges and
other materials available on record, I am of the firm view that no prejudice would be, caused to the second Respondent by allowing him to face the
appeal before the first Respondent.
In this regard, I would also say that it is not a case where the entire proceeding is set aside and the matter is remitted back to the Enquiry
Officer to hold fresh enquiry, in which case, there may be possibility of prejudice being caused to the second Respondent on account of the delay.
But here, I intend to remit the matter only to the first Respondent for fresh disposal in accordance with law.
I am also to state that if the second Respondent wants to let in any additional evidence or wants to cross-examine any witnesses already
examined on the side of the Petitioner-Management either before the Authority or before the Enquiry Officer, he shall be permitted to do so.
Similarly, if the Petitioner-Management wants to let in any additional evidence or wants to cross-examine any witnesses already examined on the
side of the second Respondent either before the Authority or before the Enquiry Officer, the Management shall also be permitted to do so.
In view of all the above,
i. this writ petition is allowed, the impugned order of the first Respondent is set aside and the matter is remitted back to the first Respondent for
fresh disposal in accordance with law.
ii. It is directed that the question relating to the maintainability of the appeal before the first Respondent shall not be allowed to be reopened by the
Petitioner-Management.
iii. The first Respondent shall permit both the parties to let in additional evidence if any or to cross-examine the witnesses already examined before
the Authority under the Act or Enquiry Officer by the opposite party as indicated above, after affording sufficient opportunity to the parties.
iv. The first Respondent shall pass final order in the appeal, within a period of two months from the date of receipt of a copy of this order.
v. Both the parties are directed to co-operate with the first Respondent for the disposal of the appeal within the time frame.
vi. No costs.