Spencer and Company vs B. Vajravelu and Another

S. Mohan, O.C.J.

It has become the settled law as far as this court is concerned that having regard to the unambiguous language of Section 41 of the Tamil Nadu Shops and Establishments Act, 1947 it is not permissible for the authority who is competent to decide the appeal under the said section to take evidence. It has been so laid down in Zenith Lamps & Electricals v. Addl Commissioner (1973)2 L.LJ.445; Similar is the view expressed in another decision in Zenith Lamps & Electricals v. Addl Commissioner (1970) 2 L.L.J.103. This is a case where no enquiry was conducted by the management even though the employee came to be dismissed on a charge of misconduct.

We may now extract the provisions of Section 41 of the Tamil Nadu Shops and Establishments Act, 1947:

Section 41 Notice of dismissal: (1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at least one months notice or wages in lieu of such notice, provided however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.

(2) 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.

(3) ...

On a reading of the above provision it is clear that the service of no employee can be dispensed with except for a reasonable cause and without giving such person at least one month''s notice or wages in lieu of such notice. These are the basic requirements of the section. Where therefore the requirement is sought to be dispensed with, the section itself provides that it shall be only on a charge of misconduct supported by satisfactory evidences recorded at an enquiry held for the, purpose. It is therefore clear that ho person charged of misconduct could be discharged unless there was satisfactory evidence recorded at an enquiry held for the purpose. This makes it imperative on the part of the management to hold the enquiry if the services of the person are to be dispensed with on a charge of misconduct. The action of the management in dispensing with the services of the first respondent on a charge of misconduct without holding an enquiry is a strange one not supported by the provisions of the section. It will be incongruous to state that a man is found quality of misconduct without an enquiry. All the more it is so when in the earlier part of the section two basic requirements have been stipulated, as we have pointed out earlier.

However, what is contended before us is that the decisions referred supra requires a second lock having regard to the decision of the Supreme Court in Remington Rand of India Ltd. v. R. Jambulingam (1975) 1 L.LJ. 450. We are not persuaded to accept the submission because that was not a case of not holding an enquiry. The question was whether the Appellants Authority u/s 41 of the Act could take additional evidence and the Supreme Court answered in the affirmative. The Supreme Court held that there is no legal bar in entertaining additional evidence if that is necessary in the interests of justice. But here is a case where the services of the employee have been dispensed with on a charge of misconduct without holding an enquiry in utter disregard of the provisions of Section 41(1) of the Act.

The next argument that is advanced is based on the language of Section 11-A of the Industrial Disputes Act,1947. u/s 11-A of the Industrial Disputes Act, as is well known, it is the quantum of punishment that is decided by the Labour Court or the Tribunal as the case may be. It is now well settled that the scope of Section 11-A, enquiry is the same as a dispute referred to u/s 10(1) of the ''Industrial Disputes Act. In such an event, where in the Labour Court or the Tribunal to which reference has been made of a dispute, the enquiry is found to be defective or opposed to the principles of natural justice or again if no enquiry was held, in more than one decision, this court and the Supreme Court had permitted the parties to let in evidence, instead of remitting the matter back to the management. The obvious purpose is, as provided in the preamble of the Act, for investigation and the settlement of Industrial disputes In other words, the main object is to preserve industrial amity and peace. But that is not the position here at all. In the guise of interpretation of the section, we cannot impart a concept which is alien to the very language of the section nor can we expand the scope of the section beyond what the Legislature itself thought fit. In this view of the matter, we hold that the learned Judge has correctly appreciated the matter. No other point was argued before us.

The Writ Appeal fails and is dismissed. No costs.