Madras High Court
The Management Of Madras Atomic Power ... vs The Deputy Commissioner Of Labour ... on 18 August, 2000
Equivalent citations: 2000(3)CTC738, [2001(88)FLR620], (2000)IILLJ1451MAD
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Madras Atomic Power Project Employees Consumers Co-operative Stores Limited is the petitioner in both the writ petition W, P.No.2050 of 1994 is directed against the proceedings of the first respondent in T.S.N6. 21 of 1992 dated 31.5.93 while Writ Petition No.4459 of 1996 filed by the very same petitioner is against the consequential order in C.P.No.190 of 1994 on the file of the Labour Court, Madras.
2. The case of the petitioner-Management is briefly stated hereunder:-Writ Petition No.2050 of 1994 is preferred against the order of reinstatement of the second respondent made by the first respondent in T.S.No.21 of 1992 dated 31.5.93. The same was ordered, in the appeal preferred by the second respondent against the orders of termination dated 6.7.91 made by the petitioner after having found that he misappropriated a sum of Rs.15,000 belonging to the petitioner. The second respondent who was. working as Assistant Manager at the stores of the petitioner admitted his guilt before the Board of Directors took time to pay the same and gave a bearer cheque for Rs. 15,000 on 1.7.91, Hence, he was terminated with one month salary in lieu of salary. The second respondent challenged the same initially by filing a suit on 10-7-91 before the District Munsif's Court, Chingleput in O.S.Mo.224 of 1991. After some time, he has filed T.S.No.21 of 1992 under the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as "the Shops Act") before the first respondent. This appeal was filed on 30-6-92 against the orders of termination dated 6-7-91 with a delay of about one year under section 41 of the Shops Act. The first respondent entertained the appeal by condoning the delay on the ground that the appellant was pursuing his remedy in a wrong forum. The first respondent allowed the appeal stating that no oral enquiry was conducted so as to terminate the services of the second respondent. Against the said order, having no other effective remedy, the petitioner has filed the present writ petition on various grounds.
3. Based on the order in T.S.C.No.21 of 1992, the second respondent has filed C.P.No.190 of 1994 before the Principal Labour Court, Madras claiming a sum of Rs.93,463.05 under section 33C(2) of the Industrial Disputes Act. Since the petitioner-Management has filed W.P.No.2050 of 1994 challenging the order passed by the Deputy Commissioner of Labour (Appellate authority under the Shops Act) in T.S.C.No.21/92 dated 31-5-93, the petitioner in W.P. No.4459 of 1996 has prayed for issuance of Mandamus forbearing the Principal Labour Court from proceeding further with the claim petition in C.P.No, 190 of 1994.
4. The second respondent has filed a counter affidavit in W.P.No, 2050 of 1994 wherein it is stated that against the order of termination passed by the petitioner herein, on legal advice, he had filed a original suit before the District Munsif, Chingleput. After realising his mistake, he arranged to have the suit withdrawn and preferred an appeal under the Shops Act before the Deputy Commissioner of Labour (Appeals), Madras-6. He also filed an application to condone the delay in filing the appeal explaining the reason for the delay. By the impugned order, the first respondent set aside, the order dated 6.7.91 passed by the petitioner herein dismissing him from service. Since he was not given sufficient opportunity to explain his defence, nor any charge was filed and enquiry was conducted, the first respondent herein rightly set aside the order of termination.The order passed by the first respondent does not suffer any infirmity as claimed by the petitioner-management.
5. In the light of the above pleadings, I have heard the learned counsel for the petitioner and the second respondent in both cases as well as learned Government Advocate for first respondent in W.P No. 2050 of 1994.
6. Mr. N. Jothi, learned counsel for the petitioner-Management, after taking me through the order of termination as well as the impugned order of the appellate authority, would contend that the first respondent has no jurisdiction over the subject matter. He further contended that the second respondent is the "person employed" in a position of Management (Assistant Manager) within the meaning of section 4(1)(a) of the Shops Act, hence he cannot invoke the provisions of the said Act, which can be done only by persons who can fit into Section 2(12) of the Shops Act. According to him, in view of the Tamil Nadu Co-operative Societies Act, 1983 which alone is applicable, the action taken by the authority under the Shops Act cannot be sustainable. The appropriate remedy for the second respondent is to invoke Section 90 of the Tamil Nadu Co-operative Societies Act by referring the dispute to the Registrar to seek redressal. He further contended that without a proper petition to condone delay and without notice to the petitioner-Management, the Appellate authority has committed an error in disposing of the appeal. On the other hand, Mr. V. Santhanam, learned counsel for the 2nd respondent would state that though the second respondent was in the designation of Manager, he is the person employed within the meaning of section 2(12) of the Shops Act and as such he is entitled to claim under the said Act for his illegal termination. He also contended that if any person is entitled to claim under section 2A of the Industrial Disputes Act, he can claim relief under Section 41(2) of the Shops Act also. He further contended that since the second respondent had sufficient cause, the Appellate authority was right in:condoning the delay and disposing of the appeal. He also contended that inasmuch as the second respondent was not given his any opportunity for filing his explanation if any to defend his a case before the enquiry officer, the Appellate authority was right in setting aside the order of termination. He also contended that the proper remedy for the second respondent is to file an appeal before the Authorities under the Shops Act and he cannot go before the Registrar of Co-operative Societies as claimed by the petitioner. As the Appellate authority has rightly set aside the order of termination, the second respondent is entitled to file a claim petition before the Labour Court for computation of his wages and for, other benefits; accordingly he prayed for dismissal of both the writ petitions.
6. I have carefully considered the rival submissions.
7. Now I shall consider the question regarding jurisdiction. Even according to the petitioner, the second respondent herein was working as an Assistant Manager at the stores of the petitioner at the relevant time. Though the 2nd respondent was designated as Manager, it is specifically stated by the second respondent that he is a person employed within the meaning of Section 2(12) of the Shops Act and as such he is entitled to claim relief under the Shops Act for his illegal termination. The Courts have taken a view that any person entitled to claim relief under Section 2A of the Industrial Disputes Act, 1947 can claim relief under section 41(2) of the shops Act also. Initially the second respondent joined the petitioner society in a clerical capacity and thereafter he was promoted as Assistant manager, section 2(6) of the Shops Act defines "establishment" as follows:-
" 2. Definitions ---In this Act, unless there is anything repugnant in the subject of context-
(6) "establishment" means a shop, commercial establishment, restaurant, eating-house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may by notification declare to be an establishment for the purposes of this Act."
Though Co-operative Societies are exempted from certain provisions of the Act, it is clear from the notification of the government of Tamil Nadu No.11 (2)/LE/5671/79, Published in the Tamil Nadu Government Gazette part II, Section 2, dated the 14th October, 1987, at page 774, the Governor of Tamil Nadu exempted permanently all societies registered or deemed to be registered under the Tamil nadu Co-operative Societies Act, 1961(Tamil Nadu Act 53 of 1951) from the provisions of the Tamil Nadu Shops Act XXXVI of 1947, except section 31, 43, 50 and 51 of the Said Act subject to the condition that the said societies shall exhibit their name boards in Tamil and wherever other language are used the versions to those languages shall be belong the Tamil versions. It is clear that Section 41 of the Shops Act, which speaks about dispensation with the services of a person, is applicable to the Co-operative societies. No doubt, Mr.N. Jothi, by pointing out Section 2(19) of the Tamil Nadu Co-operative Societies Act,1983, as well as the fact that second respondent being a manager and class I Officer would contend that and in view, of section 90 and 152 of the Tamil Nadu Co-operative Societies Act, 1983, the only remedy open to the second respondent is to go before the Registrar to ventilate his grievances. The said contention cannot be accepted. I have already stated that even according to the petitioner, at the relevant time, he was serving as Assistant Manager at the Stores. Section 90 of the Tamil Nadu Co-operative Societies Act speaks about disputes as follows:-
" 90 Disputes:- (1) If any disputes touching the constitution of the Board or the Management or the business of a registered society ( other than a dispute regarding disciplinary action taken by the competent authority constituted under sub-section (3) of the Section 75 or the Registrar or the Society or its Board against a paid servant of the Society) arises-
(a) among members, past members and persons claiming through members, past members and deceased members, or
(b) between a member, past member or person claiming through a member, past, members or deceased member and the society, its Board or any officer, agent or servant of the Society, or
(c) between the society or its board and any past board, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased servant of the society, or
(d) between the society and any other registered society, such dispute shall be referred to the Registrar decision."
Before considering the claim of the petitioner, it is also relevant to refer section 4(1)(a) of the Shops Act. As per section 4(1)(a), a person employed in any establishment in a position of Management cannot seek assistance under the provisions of the Shops Act. However, the State Government is competent to include any establishment within the purview of the Shops Act by way of Notification in the Gazette. Even as early as on 5-10-1966 the Government have issued a Notification stating that all the provisions of the Shops Act apply to the class of persons mentioned in clause (a) of sub-section (1) of section 4 of the Act. The said Notification reads as follows:-
"Application of provisions of Tamil Nadu Shops and Establishments Act to certain class of persons.
(G.O.Ms.No. 4074, Industries, Labour and Housing (Labour). 5th October. 1966,) II-1 No. 4489 of 1966,-In exercise of the powers conferred by section 5 of the Madras Shops and Establishments Act. 1947 (Madras Act XXXVI of 1947), the Governor of Madras hereby applies all the provisions of the said Act to the class of persons mentioned in clause (a) of sub-section (1) of section 4."
It is clear that even persons employed in the position of management, are also covered by the provisions of the Shops Act.
8. Now I shall consider whether the contention that the second respondent has to go before the Registrar of Co-operative societies to ventilate his grievances is acceptable? I have already referred to section 90 of the Co-operative Societies Act, Section 152 of the said Act deals with appeals. A reading of Section 90 would clearly show that if the dispute is, with regard to disciplinary action of the person concerned, who is a paid servant of the Society, the same cannot be decided by the Registrar. This aspect was considered by a Division Bench of this Court in the case of A, Natarajan and others v. R.C.S. and others, 1991 (II) LLJ 296. After considering the very same provision viz., section 90 of the Tamil Nadu Co-operative Societies Act, the Bench has concluded thus:-
"13. We would have made our own endeavours to Understand the implications and effect of the qualifying words.
"other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society"
and tried to understand the scope ambit of the word "business, had we not been aware of a Judgment of the Supreme Court in Co-operative Central Bank Ltd. v. Industrial Tribunal, Hyderabad, 1969 (II) LLJ 698 dealing with similar phraseology in section 61 of the Andhra Pradesh co-operative Societies Act, 1964. The Supreme Court made a thorough examination of the law on the subject to hold that a dispute between the employees of the society on the one hand and the administration of the society on the other hand, will not be covered by the expression "touching the business of the society". In the said Judgment, the supreme Court has said (P.705):
"It is true that section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression touching the business of the society, in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression, since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its object, such as laying down the conditions of service of its employees, can be said to be part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society,"
14. Once this is understood that the dispute raised by the petitioners does not fall under Section 73 (1) of the Act, for we are bound to follow the law as stated by the supreme Court, it is obvious that the petitioners made a mistake of law in going to the Registrar or the Deputy Registrar with a petition for adjudication of the dispute under section 73 (1) of the Act. since the Deputy Registrar had no jurisdiction to entertain the dispute, it is obvious, there was no proceeding or order from which any appeal could be preferred before the Tribunal under section 96 of the Act."
It is clear that the question raised by the second respondent is not one touching the constitution of the committee of the management of the society. It is also not a dispute touching the business of the society, accordingly the second respondent cannot be compelled to go before the Registrar. In Somasundaram v. Liyakat Ali, , S.S.Subramani, J., has held that orders regarding inter-se seniority between employees of Co-operative societies is not an order passed under the Act and such seniority cannot be decided under the co-operative societies Act.
9. While considering section 61 of the Andhra Pradesh Co-operative Societies Act, which is similar to section 90 of the Tamil Nadu Co-operative Societies Act, the Hon'ble Supreme Court in Co-operative Central Bank v.
Additional I.T., 1969 (II) LLJ 698; has held that the jurisdiction of the Industrial Tribunal to adjudicate on the industrial disputes under Section 10 (1) (d) was not barred by the provisions of section 61 of the Andhra Pradesh Co-operative societies Act. They further held that Section 61 of the co-operative societies Act requires reference of a dispute to the Registrar, only if the dispute is capable of being resolved by the Registrar or his nominee and further that; such dispute between the co-operative society and employee touches the business of the society; They also held that both the, conditions are not satisfied, accordingly such dispute relief could not possibly be granted by the Registrar.
10. In Oriental Bank v. The Commissioner of Labour, 1982 (I) LLJ.
354 a learned Judge of this Court (E. Padmanabhan, J.,), after considering Section 4(1)(c) of the Shops Act and after referring to a notification issued by the Government of Tamil Nadu pursuant to the power conferred under Section 5 of the Act, has made the following observation: -
" ..... the provisions of the Act (shops Act) are applicable to persons employed in any shop in a position of management...
This was not disputed by the learned counsel for the petitioner. In these circumstances, it must necessarily follow that the 3rd respondent being a person employed within the meaning of section 2(12) of the Act would be entitled to maintain an appeal under sec. 41(2) of the (Shops) Act."
11. In L. Subbien v. The Deputy Commissioner of Labour, Coimbatore, 1993 (I) M.L.J. 9 (SN), Srinivasan, J., (as he then was) has held that, "section 4(1)(a) of the Tamil Nadu Shops and Establishments Act provides that nothing contained the Act shall apply only to the persons employed in any establishment in a position of management. But Section 5 thereof empowers the Government to issue a notification applying all or any of the provisions of the Act to any class of persons or establishments mentioned in Sec.4 of the Act, other than those mentioned in Clauses (e) end (f) of sub-sec. (1). Thus, with regard to section 4(1)(a) of the Act, the Government is entitled to issue a notification to the effect that the Act will apply to persons covered by the said sub-section. The Government has issued a notification G.O.Ms. No. 4074, Industrial Labour and Housing (Labour), dated 5th October, 1966 by exercising the powers conferred under Section 5 of the Act, applying all the provisions of the Act to the clause of persons mentioned in clause (a) of sub-section (1) of section 4. Thus, the Act applied to all persons who are employed in any establishment in a position of management. Hence, the Act will apply to the petitioner also, though he is employed as a supervisor, in a position of management. Hence, the first respondent is clearly wrong in dismissing the appeal of the petitioner on that ground."
12. It is clear that even though at the relevant time, the second respondent was working as Assistant Manager, in view of the Notification of the Government of Tamil Nadu as referred above and in the light of the various decisions mentioned above, I am unable to accept the argument of Mr. N. Jothi, learned counsel for the petitioner and I hold that the provisions of the Shops Act apply to the second respondent though he is employed as an Assistant Manager in a position of management and the appeal filed by him under section 41(2) of the Shops Act is maintainable.
13. Now I shall consider the other decision namely delay in filing appeal before the Appellate authority under Section 41(2) of the Shops Act and the ultimate order passed by him. It is seen that questioning the order of termination, the 2nd respondent has filed a civil suit in O. S. 224 of 1991 before the District Munsifs Court, Chingleput. It is specifically; stated by the second respondent that during the pendency of the civil proceedings, on advice from an Advocate at Madras, he realised his mistake and therefore arranged the suit to have withdrawn and preferred an appeal under the Shops Act before the Deputy Commissioner of Labour, (Appeals), Madras-6, first respondent herein. It is also stated that since he had pursued his remedy in a wrong forum, there has been some delay in filing appeal under Section 41(2) of the Shops Act. Therefore, he had filed an application to condone the delay in filing the appeal explaining the reason for the delay. Now I shall consider the relevant provisions regarding fifing and the procedure to be followed, section 41 of the Shops Act reads thus:-
"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 month's notice or wages in lieu of such notice, s 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) The decision of the appellate authority shall Be' final and binding on both the employer and the person employed."
In exercise of the powers conferred by sub section (1) of Section 49 of the Shops Act. the Governor of Tamil Nadu framed the Tamil Nadu Shops and Establishments Rules, 1948 (hereinafter referred to as "the Shops Rules") Among other Rules, we are concerned with Rule 9 which speaks about Appeals under section 41(1) of the Shops Act.
"Rule 9. Appeals under section 41(1),. (1) The Deputy Commissioners of Labour in their respective areas assigned to them by the Commissioner of Labour shall be the authorities for the purposes of hearing appeals under sub-Section (2) of section 41 of the said Act:
Provided ..........
(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 hot 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, (3) The procedure to be followed by the appellate authority (Deputy Com-missioner of Labour), when hearing appeals preferred to him under sub-section (2) of section 41 shall be summary. He shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. The result of the appeal shall be communicated to the parties as soon as possible. Copies of the orders shall also be furnished to the parties, if required by them." "
As per sub-rule (2) of Rule 9, appeal under Sub-section (2) of section 41 shall be preferred by the aggrieved person within 30 days from the date of service of the order terminating the service with the employer. I have already stated that against the order of termination, on the basis of legal advice, the second respondent had filed a civil suit before the District Munsif's court. Chingleput. Only thereafter, on the basis of fresh legal advice and after realising the mistake that proper remedy for him is to file an appeal under section 41(2) of the Shops Act and after withdrawing the said suit, he filed the appeal before the first respondent. The appeal was presented before the Appellate Authority on 30-6-92. Along with the appeal a petition was filed for condonation of delay of 10 months and 24 days in filing the appeal. In the very same appeal, the second respondent herein has stated that on the wrong advice, he bad filed a civil suit against the order of termination instead of filing appeal before the Appellate authority under Section 41(2) of the Shops Act. Mr. N. Jothi by pointing out that in the absence of a separate petition seeking condonation of delay and an opportunity to contest the said application to the petitioner Stores, the present order passed by the Appellate authority condoning the delay without such petition and its consequential order allowing the appeal cannot be sustained. By referring Rule 9 of the, Shops Rules, he would state that the appeal under sub-section (2) of section 41 shall be preferred within 30 days from the date of such order terminating the service by the employer. According to him, if it is beyond 30 days, as per Proviso to sub-rule (2) of Rule 9, it is open to the Appellate authority to admit the appeal 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 that period. According to him, the Proviso referred to above pre-supposes a separate application has to be filed for condonation of the delay and the appellant has to satisfy the appellate authority by showing sufficient cause. He also brought to my notice Rule 9-A of the Shops Rules which speaks about re-hearing of appeals.
Rule 9-A. Re- hearing of appeals ---(1) In any appeal preferred under the Act, if the employer or his representative fails to appear on the specified date, the appellate authority may proceed to hear and determine the appeal ex-parte.
(2) In any appeal preferred under the Act, if the appellant fails to appear on the specified date, the appellate authority may dismiss the appeal.
(3) Notwithstanding anything contained in sub-rules (1) and (2), an order passed under either of those sub-rules may be set aside and the appeal reheard on good cause being shown within one month of the date of the said order, notice being served on the opposite party of the date fixed for such rehearing."
As per Rule 9-A, it is open to the appellate authority to proceed to hear and dispose of the appeal ex-parte if the employer or his representative fails to appear on the specified date. Like-wise, if the appellant fails to appear on the specified date, it may dismiss the appeal. However, as per sub-rule (3) of Rule 9-A, the appellate authority is competent to set aside the orders passed under sub-rules (1) and (2) if good cause being shown within "one month from the date of the said orders after serving notice on the opposite party. By pointing out sub-rule (3). Mr. N. Jothi. learned counsel for the petitioner, would state that even though similar provision is not provided in sub-rule (2) of Rule 9 the said provision may be extended and it should be construed that before condoning the delay, the appellate authority is expected to issue notice to the opposite party, hear and pass orders thereafter. Even according to Mr. N. Jothi. service of notice to the opposite party for rehearing his provided in sub-rule (3) of Rule 9-A and no such provision is there in Sub-rule (2) of Rule 9 of the Rules. In the absence of such provision in sub-rule (2) of Rule 9, I am unable to accept the argument of the learned counsel for the petitioner. Mr. N. Jothi has also very much relied on the following decisions in support of his contention that separate application has to be filed for condonation of delay and order has to be passed after notice to the petitioner's stores before passing order in the main appeal. He very much relied on the Division Bench decision of this Court in M. Thirunavukkarasu v. The Management of Indian Bank, Madras, 1981 T.L.N.J. 533; S. Varadarajan v. Asst. Commissioner of Labour and another, 1994 (II) L.L.J. 1144; and Tuticorin Alhali Chemicals and Fertilizers Ltd., v. P.M. Parthasarathy, 1993 Lab. I.C. 237, In the light of the contention made, I have carefully considered all the 3 decisions. Though in all these cases in respect of delay in filing appeal separate petition has been/filed for condonation, no-where it is stated that in the absence of separate petition, the appellate authority has no power to condone the delay if sufficient cause is shown as per Proviso to sub-rule (2) of Rule 9. Merely because the parties therein have filed separate application for condonation of delay, in the absence of any such provision as found in sub rule (3) of Rule 9- A, the order of the appellate authority condoning the delay cannot be faulted with.
14. I have already stated that only on the wrong advice, the second respondent instead of approaching the appellate authority under the Shops Act filed a civil suit and after setting a legal advice, has withdrew the suit and filed appeal before the Appellate authority under section 41(2) of the Shops Act. Since the second respondent heroin was prosecuting his case with due diligence in the form of civil proceedings, the time taken by the said Court shall be excluded. This position has been reiterated by the Hon'ble Supreme Court in P. Sarathy v. State Bank of India, 2000 AIR SCW 1978. Apart from this, even though it is stated that the 2nd respondent has not filed separate application seeking condonation of delay and the petitioners stores were not given opportunity to contest the said application, the perusal of the impugned proceedings namely the order passed by the first respondent shows that the petitioner had filed an application seeking condonation of delay of 10 months and 24 days. This is clear from the narration of facts by the appellate authority.
Page 2 of the order shows that, "The appeal was dated 30-6-92. Along with the appeal, a petition was presented for condonation of delay of 10 months and 24 days in filing the appeal. The reason for delay are:...."
It is clear test along with the appeal, the second respondent herein has also prayed for condonation of delay by making a proper application. The persual of the counter statement filed by the petitioner stores before the appellate authority shows that they were aware of the request of the petitioner for condonation of the delay. As a matter of fact, the Appellate authority after narrating the case of both parties, framed the following two issues for consideration:-
(1) whether the reason given for the delay in presenting the appeal can be accepted and delay be condoned? and (2) whether the procedure prescribed in section 41(1) is followed in termi-nating the services of the appellant?
After considering the explanation for the delay namely that the appellant (herein had approached the civil Court on 10.7.91 to get an order of injunction, restraining the stores from implementing the order of termination and in the light of the fact that the appellant therein was prosecuting the suit in good faith, the appellate authority after holding that the reasons are acceptable and the delay is neither wilful nor wanton, condoned the delay in presenting the appeal and thereafter proceeded to consider the merits of the appeal. In such circumstances, the procedure adopted by the appellate authority cannot be faulted with. In this regard, learned counsel for the second respondent has very much relied on the Division Bench decision of Calcutta High Court in E.S. Depot, Kankinara v. Payment of Wages Authority, 1977 Lab, I.C 1228 in that case the Division Bench has held as follows:- (para 17) "17. At this stage we also overrule an objection as to limitation taken by Mr. P.K. Ghosh learned Advocate for the petitioner in some rules which are all heard analogously. It is true that there is no order condoning the delay in filing the applications for claim, even so the. parties fully participated in the proceedings all through without raising any objection as to limitation, which thus must be deemed to have been condoned by implication as also held by authority and cannot now be permitted to be agitated at this stage."
In our case, I have already observed that along with the appeal, the appellant therein has furnished details for the delay in filing appeal and the same was served on the management and they fully participated in the proceedings. In such a circumstance, without raising objection at the appropriate lime before the appellate authority, the present condonation of the learned counsel for the petitioner cannot be accepted: accordingly I am unable to accept the argument of the learned counsel for the petitioner.
15. With regard to merits, through there is no serious argument was advanced, it is clear from the proceedings that no charge-sheet was given to the second respondent, no evidence was let in in his presence and the second respondent herein was not afforded opportunity to cross-examine the witnesses as well as to put-forth his witness. In the light of the language used in sub-section (1) of section 41 of the Shops Act, I am of the view that holding of an enquiry into the charges is a mandatory requirement and I am in agreement with the conclusion arrived at by the appellate authority namely that the Management had failed to comply with the provision of section 41(1) of the Shops Act in dispensing with the services of the second respondent herein.
16. Under these circumstances I do not find any merit in both the writ petitions, accordingly they are dismissed. No costs. All the miscellaneous petitions are closed.