Madras High Court
The Special Officer Tiruppur ... vs The Appellate Authority Under The Tamil ... on 26 April, 1990
Equivalent citations: (1990)1MLJ505
ORDER J. Kanakaraj, J.
1. The second respondent in the W.P.No. 5942 of 1981 and the second respondent in W.P.No. 5943 of 1981 were working in the Civil Supplies Section of the Tiruppur Co-operative Sale Society Limited, the petitioner herein. Certain allegations were made against them by the writ petitioner. After purporting to hold an enquiry, the petitioner came to the conclusion that the second respondent in each of the above cases was guilty of misconduct and accordingly dismissed them from service by order dated 4-10-1978. The second respondent in each of the above cases filed appeals to the Special Officer under by-law No. 13(1) on 11-10-1978. The Special Officer rightly returned the appeals on the ground that he cannot act as an appellate authority because he had himself passed the order of dismissal. The second respondent in each of the cases therefore filed appeals to the Joint Registrar of Co-operative Societies. The Joint Registrar rejected the appeals. It is under these circumstances, that the second respondents in the above writ petitions filed appeals under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as "Act").
2. The appeals under the Act were filed before the first respondent in each of the writ petitions and they were numbered as T.N.S.E.No. 15 of 1979 in the case of the writ petitioner in W.P.No. 5942 of 1981 and as T.N.S.E.No. 21 of 1979 in, the case of the writ petitioner in W.P.No. 5943 of 1981. By an order dated 14.9.1979, the first respondent held that merely because the workman had been designated as Manager, he had to hold that the second respondent in each of the cases is not an employee within the meaning of the word "person employed" under Section 2(12) of the Act. However, the second respondent in each of the cases filed review petitions on the ground that the plea of not satisfying the definition under Section 2(12) of the Act had not been taken by the petitioner and therefore, the appeals must be taken on file. By an order dated 10.3.1980 the first respondent reviewed his, own order and held that the earlier order dated 14.7.1979 is liable to be set aside and the main appeals would be taken up for hearing. Thereafter the question of limitation was argued as a preliminary point before the first respondent. By an order dated 18.5.1981, the first respondent passed a common order in both the appeals holding that the appeal petitions had been preferred in time and the objections of the writ petitioner in this regard were liable to be rejected.
3. It is against the said common order dated. 18.5.1981 the petitioner Society has filed the above writ petitions.
4. Writ petitions 5944 and 5945 are seeking a Writ of Prohibition to prohibit the first respondent from taking up the appeal, on the ground that the appeals had been preferred out of time and on the ground that the appeals are not maintainable.
5. Mr. S. Ettikkan, learned Counsel appearing for the petitioner-Society has argued that the order of the first respondent is vitiated by errors of law. According to the learned Counsel for the petitioner, the appeals are clearly out of time. Secondly it is argued that the first respondent having held on 14.9.1979 that the appeals were not maintainable because the second respondent in each of the cases are designated as managers and not employees within the meaning of Section 2(12) of the Act, had erred in reviewing its own order and holding that the appeals are maintainable by a subsequent order dated 10.3.1980. It is further argued that while reviewing his own earlier order, the first respondent had not considered the merits of the case, but has merely proceeded on the footing that in the proceedings dated 14.9.1979 the second respondent in each of the cases was not represented. In other words, the first respondent had proceeded as if he was setting aside an ex parte order and had not considered the question whether the second respondent in each of the cases was a person employed within the meaning of Section 2(12) of the Act.
6. It is unfortunate that the appeals filed before the first respondent in the year 1979, are still kept pending and the parties are fighting on preliminary questions, without going into the merits of the case. In this connection, it has to be pointed out that this Court in W.M.P.Nos. 8181 and 8182 of 1981 had directed on 24.5.1987 that the enquiry should be proceeded with. I am now told that inspite of that direction no enquiry has been conducted. Taking now the points urged by the petitioner I am of the opinion that the first objection that the appeals under Section 41(2) of the Act are barred by limitation is without any substance. Rule 9(2) of the Tamil Nadu Shops and Establishments Rules, 1949 prescribes the period within which an appeal should be filed. For the purpose of a proper understanding of this case, the rules and the proviso are extracted below:
(2) Any appeal under Sub-section (2) of Section 41 shall be preferred by the person employed within thirty days from the date of service of the order terminating the service with the employer, such service to be deemed effective if carried out either personally or if that be not practicable, by prepaid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary course of post:
Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
In this case, the second respondent in each of the cases was dismissed by an order dated 4-10-1978. It is not disputed that the second respondent in each of the cases had filed an appeal before the special officer and the same was returned. Thereafter they filed appeals before the Joint Registrar, of Co-operative Societies. The Joint Registrar rejected the appeals by an order dated 18.7.1979. The appeals were filed before the first respondent on 3.8.1979. Though the appeals are definitely beyond the period of one month prescribed under the rules there is power vested in the first respondent to excuse the delay provided, the appellants satisfied the authority that they had sufficient cause for not preferring the appeal within the prescribed time. It is argued on behalf of the petitioner that for exercising the power under the proviso to Rule 9 of the Rules there must be a separate application supported by an affidavit. Further the party, if necessary, must give evidence in support of his case, that there is sufficient cause for excusing the delay. I do not accept this argument for two reasons. Firstly, in the grounds of appeal filed under Section 41(2) of the Act, the second respondent in each case has given elaborate reasons as to why they are filing appeals, after the period prescribed under this Rules. Secondly, the Rule by itself does not refer to any separate application. It only says that an appeal may be admitted after the said period of 30 days if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within the prescribed period. The appellate authority can be satisfied even without a separate application as in this case because the grounds for excusing the delay are set out in the memorandum of appeal itself. A careful perusal of the order of the first respondent shows that he has exercised his discretion validly mentioning adequate reasons for execusing the delay. In fact, the first respondent holds that from the date of the order of the Joint Registrar appeals had been filed in time and for this purpose he relies on a decision reported in Syndicate Bank v. Muniraj (1973) 2 L.L.J. 109. On the question whether the second respondent in each of the cases was guilty of laches because there was a delay of three months and nineteen days in filing appeals to the Joint Registrar, the first respondent says that the said period had been sufficiently explained in the memorandum of appeal. I am unable to find any error in the order of the first respondent. Having regard to the facts and circumstances of this case, I am not inclined to interfere with the order of first respondent exercising jurisdiction under Article 226 of the Constitution of India. So far as the second ground, that the order of the first respondent dated 10.3.1979 reviewing his earlier order is illegal, I have only to quote the averments in the affidavit which are as follows:
The petitioner-Society wanted to invoke the jurisdiction of this Hon'ble court under Article 226 of the Constitution of India against the said decision of the first respondent restoring the appeal to its file, but was advised by their counsel at Madras that, since there was a delay of more than 8 months in the filing of the appeal, the petitioner-Society might raise the question of delay as a preliminary issue and that, if the contention was upheld-as it was likely that there would be no need to invoke the extraordinary jurisdiction of this Hon'ble Court.
Whatever be the reason for not challenging the order dated 10-3-1979, the fact remains that the said order has become final. It is not open to the petitioner now to challenge this case.
7. The prayer in W.P.Nos. 5944 and 5945 of 1981 seeking a Writ of Prohibition has to be dismissed for the reasons already given. There is no other argument as to how the appeals filed before the first respondent are not maintainable.
8. For all the above reasons, I dismiss all the writ petitions. However, there will be no order as to costs. I direct the first respondent to take up the appeals and dispose of the same within three months from the date of receipt of a copy of this order. Except the question of limitation, the parties will be entitled to argue all other points relating to maintainability or otherwise of the appeals.