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Judgment
K. Chandru, J.—The Petitioner is the Management of Primary Agricultural Cooperative Bank at Srivilliputhur. Aggrieved by the order
passed by the first Respondent Appellate Authority under the Tamil Nadu Shops and Establishment Act (for short Shops Act) in T.N.S.E. No.
1/05, the writ petition was filed. By the impugned order, the first Respondent Appellate Authority set aside the order dated 15.12.2004 dismissing
the second Respondent from service.
Notice of motion was ordered on 01.11.2006. Pending the notice of motion, an interim stay was granted which was extended from time to time
and on 19.02.2007, it was extended until further orders.
The case of the Petitioner Management was that the second Respondent joined the Co-operative Stores as a Weigh man on28.09.1995.
Subsequently, since cooperative stores running the liquor shop incurred heavy loss instead of terminating the services of the second Respondent, he
was redeployed to work in the bank from01.06.1998. He worked as a salesman in the liquor shop from01.06.1998 to 30.09.1999. After winding
up of the Stores, an enquiry u/s 81 was conducted in respect of the affairs of the Stores. The Enquiry officer by a report dated 07.03.2002 found
that the Petitioner along with another salesman Kandasa my committed irregularities regarding several transactions during the period between
1998-99 and caused loss for Rs. 2,66,325/-and for the period between 1999-2000, it was 1,72,688/-. Based upon the enquiry report, surcharge
proceedings were initiated against 10 employees including the second Respondent in S.C. Case No. 1/03. The second Respondent was placed
under suspension on 30.11.2002. Subsequently a charge memo dated 09.01.2004 was issued to him. An enquiry was held against the Petitioner
and the enquiry officer gave his report on 28.10.2004. Accepting the enquiry report, the second Respondent was dismissed from service on
15.12.2004. As against the said dismissal, the second Respondent preferred an appeal to the first Respondent Appellate Authority u/s 41(2) of the
Shops Act.
The Appellate Authority registered the appeal as T.N.S.E. No. 1/2005. Before the Appellate Authority, on the side of the Petitioner
Management, 19 documents were filed and were marked asExs.R1 to R19. On the basis of the said documentary evidence, the Appellate
Authority found that there is no legal evidence in the domestic enquiry and the role of the workman being Salesman was not proved beyond
reasonable doubt. Since the charges were not proved,the order of dismissal dated 15.12.2004 was set aside.
Mr. S. Seenivasagam, learned Counsel for the Petitioner Management submitted that the Appellate Authority did not decide the preliminary
issue regarding the validity of the domestic enquiry and once that was done, then they could have had an opportunity to lead fresh evidence to
justify the charges. In fact in the counterstatement, in paragraph 3.2, they have sought for an opportunity to lead fresh evidence, in case the enquiry
was held to be vitiated. It was contended that there was no necessity to attack the enquiry report rendered u/s 81 of the Shops Act as incomplete.
If the authority had any doubt, he should have called for the entire report and should have satisfied himself with the said report. If the first
Respondent was not satisfied, he had liberty to call for any document. The Enquiry Officer appointed by them dealt with each aspect of the case
and the Appellate Authority unfortunately referred to bits and pieces of the report and found that the evidence was hearsay.
Per contra, Mr. G. Thalaimutharasu, learned Counsel for the second Respondent submitted that there is no necessity to interfere with the order
passed by the Authority and the Authority has rightly held that the evidence was nothing but hearsay.
Mr. Seenivasagam, learned Counsel for the Petitioner also contended that after the introduction of Section 2A(2) of the I.D. Act, the second
Respondent ought to have raised an Industrial Dispute. The Supreme Court in Rajasthan State Road Transport Corporation and Another Vs.
Krishna Kant and Others, has laid down the jurisdiction of the Labour Courts vide the Industrial Disputes Act vis-a-vis the Civil Courts and had
laid down several principles. If those principles were applied, then the remedy by way of an appeal is not available. As the Tamil Nadu Shops and
Establishment Act was not constituted to resolve disputes between the parties, it can be done only through the machinery provided under the
Industrial Disputes Act. Because of the machineries provided under the Shops Act providing for an appeal directly by parties, the remedy by way
of conciliation provided under the Industrial Disputes Act is taken away. An authority under the Shops Act has not been given powers akin to
Section 11A of the I.D. Act. While the Labour Court is presided over by a District Judge, the authority under the Shops Act was only Deputy
Commissioner of Labour, who is an Administrative Officer. Therefore, the Shops Act authority lacks jurisdiction to deal with the appeal.
However, it is rather unfortunate that the counsel who is having vast experience addressed arguments which were concluded three decades ago
by this Court and the Supreme Court. When the provisions of Section 41 of the Shops Act came to be attacked as being repugnant to the
provisions of Section 2A of the I.D. Act, a Full Bench of this Court vide judgment in The Management of Safire Theatre, Madras Vs. The
Additional Commissioner for Workmen''s Compensation, Madras and Others, held that there is no repugnancy between the two enactments. An
aggrieved person can approach both the forums and remedies are available under both forums. The matter was taken before Supreme Court by
the aggrieved Management which appeal was rejected in Nirchiliya and Others Vs. Management of Safire Theatre and Another, . Therefore, the
present contention raised by the Petitioner is only rehash of the old arguments. This Court is not inclined to accept the same.
The second argument that the Court lacks power similar to Section 11A of the I.D. Act and therefore, the forum under Shops Act is superior
also does not stand to reason in the light of the judgment of the Supreme Court in United Planters Association of Southern India v. K.G.
Sangameswaran and another reported in 1997 (2) LLN 73. Further, the reliance placed upon the judgment of the Supreme Court in Rajasthan
Road Transport Corporation''s case (cited supra) is also misconceived.
The Supreme Court subsequently considered the same issue in Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund
Bairwa, in which the Supreme Court has held that the power of the Civil Court is still available and it is not completely ousted by the provisions of
the I.D. Act. Therefore, the preliminary contention raised by the Petitioner will have to be rejected.
On the merits of the case, the Appellate Authority found that the witness examined on the side of the Management were refusing to give
answers to certain pertinent questions and certain crucial witnesses were not examined including one Shiva kumar, who wrote the accounts, at the
direction of the Enquiry Officer u/s 78. No receipts containing the signature of the second Respondent was produced. Even the statement recorded
by the Enquiry Officer shows that it was only hearsay evidence. It was also held that one P. Ravindran, Cashier was given additional charge and
since liability was fixed on the second Respondent only on the basis of hearsay, it cannot be said to be substantial evidence.
The contention that a preliminary issue should be framed and in case the enquiry is held to be vitiated, the Management would have satisfied
the authority with appropriate evidence also does not stand to reason. In the present case, the Appellate Authority didn''t hold that the enquiry held
against the second Respondent was unfair. On the other hand, in appreciating the evidence, he found that there was no legal evidence to hold the
second Respondent guilty of the charges. Hence, the Petitioner Management cannot make a grievance out of the same.
Under the above circumstances, this Court is not inclined to interfere with the order passed by the Appellate Authority. Hence, the writ petition
stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.