The Management of Madras AtomicPower Project Employees ConsumersCo-operative Stores LimitedKalpakkam v. 1. The Deputy Commissioner of Labour (Appeal)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 06.11.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYANW.A. NO. 871 OF 2001ANDW.A.M.P. NO. 4714 OF 2004The Management of Madras AtomicPower Project Employees ConsumersCo-operative Stores LimitedKalpakkam, rep. by its Special Officer.. Appellant- Vs -1. The Deputy Commissioner of Labour (Appeal), Madras – 6 The Appellate Authority under Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947.2. A.L.Chidambaram... Respondents Writ Appeal filed against the order dated 18.08.2000 passed bylearned single Judge in W.P. No.2050 of 1994.This Petition presented to this Court Under Article 226 of theConstitution of India to issue a Writ of Certiorari calling for therecords pertaining to the proceedings of the first respondent in TSC.No.21 of 1992, dated 31.5.1993 to as to quash the same.For Appellant: Mr. P.AnbarasanFor Respondent No.1: Mr. K.Balasubramanian GA R-2 -Mr. V. Santhanam.JUDGMENTS.J.MUKHOPADHAYA, J.The Management of Madras Atomic Power Project Employees Consumers Co-operative Stores Limited, having unsuccessfully challenged the orderpassed by the appellate authority under sub-section (2) of Section 41 ofthe Tamil Nadu Shops and Establishments Act, 1947, (hereinafter referredto as 'Shops Act') has preferred this appeal against the order passed bylearned single Judge.2. The case of the appellant management is that the 2nd respondent,who was working as Assistant Manager at the stores of the appellant,admitted his guilt before the Board of Directors and took time to pay the https://hcservices.ecourts.gov.in/hcservices/ amount and submitted a bearer cheque for Rs.15,000/= on 1st July, 1991. Insuch background, the order of termination was issued on 6th July, 1991,giving one month's wages in lieu of notice period. The 2nd respondentchallenged the order of termination by filing a suit on 10th July, 1991 inthe Court of District Munsif, Chengalpet, in O.S. No.224/91. After sometime, the said suit was withdrawn and an appeal under sub-section (2) toSection 41 of the Shops Act was preferred before the 1st respondent, DeputyCommissioner of Labour (Appeals)-cum-Appellate Authority u/s 41 (2)registered in TSC No.21/92. The said appeal was filed against the orderof termination on 30th June, 1992, with a delay of about one year. The 1strespondent condoned the delay, entertained the appeal and allowed theappeal on the ground that the order of punishment was issued without anyenquiry and giving liberty to the 2nd respondent. Against the said order,writ petition, W.P. No.2050/94 was preferred, which gave rise to thepresent appeal.At this stage, it is pertinent to mention that the order was notimplemented and so the 2nd respondent preferred Cont. Petition No.190/94u/s 33 (C) (2) of the Industrial Disputes Act, 1947, on the file of theLabour Court, Madras. A second writ petition, W.P. No.4459/96 was alsopreferred for stay of the said proceeding, which has also been decided bycommon order dated 18th Oct., 2000, but no separate appeal has beenpreferred against the order passed in W.P. No.4459/96.3. Before learned single Judge, the appellant mainly raised two issuesto assail the appellate order, viz. :-(i) that the 2nd respondent is a 'person employed' in a position ofmanagement (Assistant Manager) within the meaning of Section 4 (1) (a) ofthe Shops Act, hence, he cannot invoke the provisions of Section 41 (2) ofthe said Act.(ii) there being delay in preferring the appeal, in absence of apetition for condonation of delay and without notice to the appellant, thedelay could not have been condoned by the appellate authority.On the other hand, according to the 2nd respondent, he is a 'personemployed' within the meaning of Section 2 (12) of the Shops Act and assuch he is entitled to claim the benefit u/s 41 (2) of the said Act.Further, according to him, the delay having been explained and appealhaving been preferred along with petition for condonation of delay, it wasrightly condoned by the appellate authority, being satisfied with theground that the 2nd respondent was pursuing the remedy before the civilcourt.4. We have heard the counsel for the parties who have again takensimilar plea as was taken before learned single Judge and noticed above.From the detailed order passed by learned single Judge, it will beevident that the learned single Judge noticed the factual position of the2nd respondent and came to a definite conclusion that the 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ falls within the definition of "person employed" within the meaning ofSection 2 (12) of the Shops Act. Referring to Section 2 (6), it was alsoheld that the establishment in question also falls within the meaning of'establishment' and, thus, the appellate authority had jurisdiction toentertain the appeal under sub-section (2) to Section 41 of the Shops Act.5. Learned single Judge also noticed Tamil Nadu Shops andEstablishments Rules, 1948, framed by the Governor of Tamil Nadu inexercise of power conferred by sub-section (1) to Section 49 of the ShopsAc, particularly Rule 9, which reads as follows :-"Rule 9. Appeals under Section 41 (1). -(1) The Deputy Commissioners of Labour in theirrespective areas assigned to them by the Commissioner ofLabour shall be the authorities for the purposes ofhearing appeals under sub-section (2) of section 41 of thesaid Act:Provided ...................(2) Any appeal under sub-section (2) of Section 41 shallbe preferred by the person employed within thirty daysfrom the date of service of the order terminating theservice with the employer, such service to be deemedeffective if carried out either personally or if that benot practicable, by prepaid registered post to the lastknown address when the date of such service shall bedeemed to be the date when the letter would arrive inordinary course of post.Provided that an appeal may be admitted after the saidperiod of thirty days if the appellant satisfies theappellate authority that he had sufficient cause for notpreferring the appeal within that period.(3) The procedure to be followed by the appellateauthority (Deputy Commissioner of Labour), when hearingappeals preferred to him under sub-section (2) of Section41 shall be summary. He shall record briefly the evidenceadduced before him and then pass orders giving his reasonstherefor. The result of the appeal shall be communicatedto the parties as soon as possible. Copies of the ordersshall also be furnished to the parties, if required bythem."Having noticed sub-rule (2) to Rule 9 including the proviso thereto,learned single Judge held that the appellate authority was well withinjurisdiction to entertain the appeal, being satisfied with the sufficientcause for not preferring the appeal in time. https://hcservices.ecourts.gov.in/hcservices/ It is not in dispute that the respondent had shown sufficient causefor not preferring the appeal in time, as noticed by the appellateauthority and the fact that the respondent was pursuing the matter beforea court of law, in such a case, if delay has been condoned, nointerference is called for merely on the ground that a separate petitionwas not filed for condonation of delay. In fact, there is no law laiddown under the provisions of the Shops Act or Rules framed thereunder thata separate petition for condonation is to be filed or filing of separatepetition is mandatory.6. So far as the jurisdiction is concerned, we have noticed thedetailed reasoning given by learned single Judge to come to a definiteconclusion that the appellate authority had jurisdiction to decide theappeal u/s 41 (2) of the Shops Act. In the present case, in fact, it isnot necessary to decide such issue as admittedly the order of terminationwas not passed in accordance with law. It has already been noticed thatthe order of termination was issued by way of punishment. It has beenalleged that he had admitted his guilt, though no charge was framed norany proceeding was initiated against the employee. In absence of anycharge, it cannot be accepted that the employee had accepted the guilt andthereby enquiry was dispensed with. Now it is settled law that if setting aside an order of High Courtgives rise to revival of another illegal order, in such case, the HighCourt should not exercise its discretionary jurisdiction under Article 226of the Constitution of India. In this background, the order oftermination being penal in nature, having been passed without givingopportunity to the respondent, we are not inclined to interfere with theappellate order or the order passed by learned single Judge, as otherwiseit will revive the illegal order of termination.7. So far as backwages is concerned, the management had not taken anyplea before the appellate authority or before learned single Judge thatthe respondent is not entitled for backwages, being in job in some otherorganisation during the intervening period. No such plea having beentaken before the appellate authority or before the learned single Judge,or before this Court, we are not inclined to give any finding in thisregard. 8. In the circumstances, no interference is called for in this appeal.There being no merit, the writ appeal is dismissed. Consequently,connected miscellaneous petition is also dismissed. However, there shallbe no order as to costs.GLNSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Deputy Commissioner of Labour (Appeal), Madras – 6 The Appellate Authority under Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947.+ One cc to Govt Pleader SR 66589+ One cc to Mr. P. Anbarasan, Advocate SR 66381+ One cc to Mr. V. Santhanam, Advocate SR.66639AKR (co)sg 13/11/07 PRE-DELIVERY JUDGMENT IN W.A. NO. 871 OF 2001Pronounced on 06.11.2007