Madras High Court
P. Vijayarajan vs The Management Of The Coimbatore ... on 9 August, 2005
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Heard the learned counsel appearing for both the parties.
2. The present writ appeal is directed against the order of learned Single Judge in W.P. No. 1290 of 1997. The brief narration of the history of the case is required to be made. The present appellant was an employee under the respondent-Cooperative Stores. On 15-06-1985, an interview of the second respondent was published in a Tamil magazine 'Taluk'. Thereafter, the management thought it fit to initiate the departmental proceedings against the present appellant and an order of dismissal was passed. At that stage, the appellant instead of persuing any statutory remedy under the Co-operative Societies Act filed W.P. No. 13070 of 1986. The learned Single Judge dismissed the writ petition as not being maintainable. The matter was challenged under W.A. No. 1410 of 1987, which was also dismissed on 27-10-1989 on the very same ground. Thereafter, the appellant filed S.L.P. No. 6449 of 1990 and this was also dismissed on 25-10-1 991. However, it was observed, 'it is open to the petitioner to seek such relief as is open to him under law and plead for condonation of delay'. Thereafter, the appellant filed a revision application under Section 153 of the TamilNadu Co-operative Societies Act, 1983. Such revision application was admittedly filed beyond the period of limitation. The Revisional Authority held that there was no power to condone the delay beyond the period of 90 days and accordingly the revision application was not entertained and was dismissed at the threshold. Subsequently, the appellant filed review application under Section 154 of the Tamil Nadu Co-operative Societies Act. However, the authority held that there was no ground to review the earlier order. Thereafter, the appellant filed an appeal under Section 41 of the Tamil Nadu Shops and Establishments Act with a petition for condonation of delay. The long delay in filing such appeal was condoned by the appellate authority and subsequently, the appellate authority allowed the appeal and held that the order of dismissal was invalid. At this stage, the Management filed two writ petitions, one, W.P. No. 1290 of 1997 directed against the final order of the appellate authority allowing the appeal and the other, W.P. No. 1291 of 1997 directed against the order of the appellate authority dated 19-12-1994 condoning the delay in filing the appeal under Section 41 of the Tamil Nadu Shops and Establishments Act. A common order was passed in these writ petitions wherein the learned Single Judge allowed W.P. No. 1290 of 1997 and set aside the order passed by the appellate authority and dismissed W.P. No.1291 of 1997. Against the order passed in W.P. No. 1290 of 1997, the present appeal has been filed by the employee.
3. The learned Senior Counsel appearing for the first respondent has raised a preliminary objection regarding the maintainability of the subsequent proceedings under Section 41 of the Tamil Nadu Shops and Establishments Act. It is contended by him that against the order of dismissal the appellant had filed a writ petition and being unsuccessful before the writ Court, filed Special Leave Petition and on dismissal of such petition filed revision application and review applications under the Co-operative Societies Act and after dismissal of all such matters it is not open to the appellant to pursue any other remedy.
4. On a careful consideration of the materials on record we are unable to agree with the contention of the learned Senior Counsel. We find that the writ petition filed by the present appellant was never decided on merits and it was decided on the ground that it was not maintainable. In fact the order of the Supreme Court also makes it clear that the question of merit was never gone into. On the other hand, the Supreme Court has given opportunity to the appellant to seek any relief available under law. When the merit of the dismissal order was never decided in the writ petition or in the special leave petition it is futile on the part of the first respondent to contend that question of res judicata either constructive or otherwise would be applicable.
5. The next preliminary objection on the part of the learned Senior Counsel for the first respondent is to the effect that after the dismissal of the Special Leave Petition, the appellant had approached the Revisional Authority under the Cooperative Societies Act, 1983 by filing a revision under Section 153 of the Tamilnadu Societies Act and thereafter, such revision having been rejected he had filed a review application under Section 154 of the Tamilnadu Societies Act and the decision or order passed under Section 153/154 had become final and such order could not be challenged any further. It is also contended by him that having elected to approach the forum under the Tamilnadu Cooperative Societies Act, the appellant was precluded from approaching the Appellate Authority under the Tamilnadu Shops and Establishments Act.
6. In our opinion, the abovesaid submission made by the learned counsel is also bereft of substance. Apparently, the revision application filed by the present appellant was filed beyond period of limitation. The Revisinal Authority rejected the revision on the ground that there was no jurisdiction to condone the delay as the application was filed beyond ninety days of the period of limitation. The revision was never considered on merit and was rejected merely on the ground of limitation. Since the order of dismissal was not considered on merit either in revision under Section 153 or in review under Section 154, there was no merger of the order with dismissal order with the revisional order and by challenging the original order before the Appellate Authority under the Shops and Establishments Act it cannot be said that any order under Section 153 or 154 of the Co-operative Act was being challenged and the finality attached to the order under Section 154 was not attached in such a scenario.
7. The 'doctrine of election' cannot be pressed into service for similar reasons. In this context, the learned counsel appearing for the appellant has placed reliance upon the decision of the Supreme Court reported in 1991 (1) LLJ 111(Nirchiliya v. Mgt. of Safire Theatre, MDS). In the said decision the appellant before the Supreme Court had approached the industrial forum under the industrial Disputes Act and had also approached the appellate authority under the Madras Shops and Establishments Act, 1947 (presently known as Tamil Nadu Shops and Establishments Act, 1947). The dispute in the industrial forum was dismissed for default and had not been considered on merits. Subsequently, the appellant has pursued the remedy under the Tamilnadu Shops and Establishments Act wherein relief was granted. However, the order passed in favour of such employee was interfered with by the High Court on the ground that the person had already elected to approach the Labour Court and therefore, he had no right to approach the appellate authority under the Tamilnadu Shops and Establishments Act. While allowing the appeal, the Supreme Court observed:- "We are of the view that once remedy could be worked out in either of the forums, when the proceedings before the Labour Court was not continued, in the absence of any specific bar under either the Madras Act or the Industrial Disputes Act against the alternative forum being moved, the jurisdiction of the authority under the Madras Act would not be barred. In the facts and circumstances appearing on the record, we are of the view that the High Court went wrong in holding that there was a lack of jurisdiction in the competent authority under the Madras Act to entertain the dispute. The decision of the High Court is accordingly set aside and the order of the competent authority under the Madras Act is restored.-
8. The above observation of the Supreme Court squarely applies to the facts of the present case. The appellant herein had approached under Section 153/154 of the Cooperative Societies Act. However, such application proved to be futile as the application was barred by limitation and the authority held that there was no jurisdiction to condone the delay. The grievance of the appellant was never decided on merits. In our opinion, the appellate authority under the Tamilnadu Shops and Establishments Act had jurisdiction to consider the appeal.
9. The stage is now set for considering the grievance of the appellant regarding the order of dismissal on merit. The Appellate Authority under the Tamilnadu Shops and Establishments Act came to the conclusion that there was no specific prohibition regarding publishing of any interview and had also came to the conclusion that because of such interview, the Cooperative Stores had been benefitted. It appears that the disciplinary authority had taken a hyper technical view of the matter and passed an order of dismissal. Even assuming that publishing of interview was a misconduct, keeping in view the nature of misconduct, the order of dismissal can be described as grossly disproportionate. In this connection reference can be made to the decision of the Supreme Court in 2004 (4) LLN 262(Pritam Singh v. Union of India) wherein the Supreme Court observed as follows: "We are of the opinion that the instant case is a glaring example of abuse of discretionary power of the disciplinary authority as the punishment of compulsory retirement imposed on the appellant, who has put in 31 years of long service only because he has supplied the details of absentation to one of the employees, which was neither confidential nor a privileged document. In any event, the appellant bona fide believed that he was right in furnishing the details which the employee had right to ask for. In our opinion, this is a fit case where the High Court and the Tribunal should have held that the punishment imposed is vitiated on account of the disproportionality.-
10. The Appellate Authority under the Tamilnadu Shops and Establishments Act had considered the relevant aspects and had come to the conclusion that the order of dismissal was not justified. While deciding a Writ of certiorari under Section 226 of the Constitution of India the High Court is more concerned with the decision making process rather than the merit of the decision itself. Keeping in view these well-known parameters for interference under Article 226 of the Constitution of India, we are of the opinion that the learned Single Judge has committed an error of law by interfering with the order passed by the Appellate Authority.
11. It is true that the appellate authority was approached after a long delay. It is obvious that, if the appellant would have been vigilant and approached the proper forum, so much of time would not be lost in fruitless litigation from the date of dismissal, 1986 till now. Therefore, it would be unjust to call upon the respondent to pay the entire backwages.
12. During the pendency of the writ petition, there was a direction to deposit a sum of Rs. 75,000/= out of which some amount was withdrawn by the appellant. The appellant was paid a sum of Rs. 1500/- per month,(his last drawn salary) with effect from 01-01-1998 to 31-3-2005.
13. Having regard to all these aspects and particularly, keeping in view that the matter has been delayed more on account of the wrong remedies pursued by the appellant and considering the fact that the appellant has not worked for all these years and also the submissions made by the learned counsel for the first respondent that the cooperative stores had already incurred huge loss, we feel interest of justice would be served by directing reinstatement of appellant and permitting the appellant to withdraw the amount which is lying in deposit. In addition, we also direct the respondent to pay a further sum of Rs. 25,000/-. Apart from the aforesaid amount, the appellant shall not be entitled to any other amount towards backwages. The appellant shall be permitted to rejoin on or before 01-09-2005. It is made clear that the entire period shall be notionally calculated towards increment and after the reinstatement, the appellant would be entitled to the present salary and normal benefits including the benefits towards gratuity.
14. Accordingly, the appeal is allowed to the extent indicated above. There shall be no order as to costs. The connected miscellaneous petitions are closed.
15. We place on record our appreciation for the fair manner in which the matter has been placed before us by the learned counsel appearing for both the parties.