Madras High Court
Management Of Akkur Primary ... vs Gnanasekaran And Anr. on 5 December, 2006
Equivalent citations: (2007)IILLJ959MAD
Author: K. Chandru
Bench: A.P. Shah, K. Chandru
JUDGMENT K. Chandru, J.
1. This writ appeal is directed against the order of the learned single Judge dated June 28, 2006 made in W.P. No. 17285 of 2001.
2. The appellant is a Primary Agricultural Co-operative Society functioning in Akkur Panchayat in Nagapattinam District. The first respondent was working as a Secretary of the said Society and he was charge sheeted by an order dated October 24, 1996 which finally resulted in his dismissal vide order dated September 1, 1997. As against the said order of dismissal, the first respondent filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act (for short. 'Shops Act'). The said appeal was taken on file by the appellate authority (Deputy Commissioner of Labour, Tiruchirappalli) as T.N.S.E. No. 5 of 1997 and notice was ordered to the appellant Society. Before the appellate authority (second respondent herein), the appellant Society resisted the appeal on several grounds including the ground of lack of jurisdiction. The appellant Society claimed that it is functioning in Akkur Village Panchayat and no notification under Section 1(3)(a)(iii) of the Shops Act was given. This contention was rejected by the second respondent authority on the ground that Akkur must have been a major panchayat even as early as on September 1, 1949 and that the appellant Society did not by oral and documentary evidence prove the fact that the Act does not apply to them. Thereafter, he went into the merits of the case and held that there was no reasonable cause for terminating the services of the first respondent and hence, the order of dismissal dated September 1, 1997 was bad in law. Against the said order, the appellant filed writ petition being W.P. No. 17285 of 2001 and challenged the order passed by the second respondent appellate authority vide order dated May 7, 2001. Even in the writ petition, in paragraph 9(c), the ground was taken by the appellant that the Shops Act will not apply and it has not been extended to Panchayat where the appellant Society is functioning. The first respondent filed a counter and did not meet this ground in his counter statement.
3. The learned single Judge, by order dated June 28, 2006, dismissed the writ petition. According to the learned Judge, all Co-operative Societies are covered by the provisions ofthe Shops Act and as per G.O. Ms. No. 5780 dated December 11, 1963, the provisions of Section 41 of the Shops Act applies to all Co-operative Societies. Subsequently, the Government, by an order dated October 14, 1987, issued another notification and even though all Co-operative Societies are exempted permanently, Section 41 provided for appeal has not been extended for the Co-operative Society. The learned Judge heavily relied upon the judgment of this Court reported in Management of Madras Atomic Power Project Employees Consumer Co-operative Stores Ltd. v. Deputy Commissioner of Labour and Ors. 2000-II-LLJ-43 to drive home the point that the Co-operative Societies are covered by the provisions of the Act and, therefore, he declined to interfere with on the merits of the case as found by the second respondent appellate authority. It is against this order, the appellant Society has come forward with this writ appeal.
4. We have heard the arguments of Mr. A. Muthukumar, learned Counsel appearing for the appellant and Mr. K. Kumar, learned senior counsel appearing for Mr. P.N. Peruvaludhi, learned Counsel for the first respondent and Mr. Raja Kalifullah, learned Government Pleader taking notice for the second respondent and have perused the records.
5. The appellant in ground No. 8 has clearly pleaded that the Akkur village has not been notified under Section 1(3)(a)(iii) of the Shops Act. The respondent contended that by virtue of the notification under Section 6 of the Shops Act issued in the year 1987, the provisions of Section 41 of the Act are made applicable to Co-operative Societies. In view of the diametrical opposite stand taken by the parties, it has become necessary to deal with the issue that has been raised before us.
6. Section 1(3)(a)(iii) of the Shops Act reads as follows:
(3)(a) It shall come into force in the following areas on such date as the State Government may, by notification, appoint:
(i) the City of Madras,
(ii) all the municipalities constituted under the Madras District Municipalities Act, 1920 (Madras Act V of 1920), and
(iii) all areas within the jurisdiction of panchayats which, under Rule 2 of Schedule III to the Madras Village Panchayats Act, 1950 (Madras Act X of 1950), should be deemed to be constituted under that Act, and which immediately before the commencement of that Act, were classified by the State Government as major panchayats and all areas within the jurisdiction of panchayats constituted or reconstituted under that Act which, for the time being, are classified by the State Government as Class I Panchayats under Section 5(1)(a) of that Act.
(b) The State Government may, by notification, direct that all or any of the provisions of this Act shall come into force in any other area on such date as may be specified in such notification.
7. While the appellate authority held that the Act applies solely on negative reasoning, viz., the appellant did not prove the non-applicability of the Act by oral and documentary evidence, the learned Judge went by notification issued under Section 6 by which the provisions of the Co-operative Societies are made applicable to the Co-operative Societies in general. However, the pre-requisite for the application of the Act is Section 1(3) and unless and until that is satisfied, the question of exemption or revocation of exemption made under Section 6 of the Shops Act will have no force in the application of the Act in question.
8. A learned Judge of this Court vide his order reported in Management of Lakshmi Vilas Bank Ltd., Personnel Department, Administrative Office, Karur v. Deputy Commissioner Of Labour (Appeals) and Anr. 2004-IV-LLJ (Suppl)-456 (Mad) dealt with a similar question and paragraphs 23 and 30 of the said judgment are extracted below at pp.461 & 463:
23. Taking up the first two points, which are jurisdictional issues, this Court has to consider as to whether the second respondent could invoke Section 41 and whether the second respondent could, maintain an appeal, it is to be seen that Section 1(2) of the Tamil Nadu Shops and Establishments Act, 1947, provides that the Act shall come into force on such date as the State Government by notification appoint in respect of various places. In respect of the first area being City of Madras and the second being all municipalities, while the third category being panchayats, the fourth category being those areas other than the City of Madras, municipalities, and panchayats classified as major panchayats or Class I panchayats as notified.
30. In the light of the above pronouncements, it is clear that on the date when the termination order was passed, either to the branch in which the second respondent was employed or the head office of the petitioner-bank where the head office is located, the provisions of the Tamil Nadu Shops and Establishments Act, 1947, has not been notified or extended. Therefore, it follows that the second respondent cannot maintain an appeal under Section 41....
9. Therefore, the issue that should be decided is whether the Act applies to the appellant society, which is situated in Akkur Panchayat. It is, in this context, relevant to refer to Section 51 of the Shops Act, which is extracted below:
51. Commissioner of Labour to decide certain questions : If any question arises whether all or any of the provisions of this Act apply to an establishment or to a person employed therein or whether Section 50 applies to any case or not, it shall be decided by the Commissioner of Labour and his decision thereon shall be final and shall not be liable to be questioned in any Court of Law.
10. As it is the only point loomed around to be decided, we directed the learned Government Pleader to refer the matter to the opinion of the Commissioner of Labour, who is the authority under this Act to decide the applicability of the said Act to any other institution and passed an order dated November 3, 2006, which is as follows:
Let Commissioner of Labour file an affidavit on the following aspects:
1. Whether the Akkur Panchayat is a major panchayat or a Class I Panchayat in terms of Section 1(3)(iii) of the Tamil Nadu Shops and Establishments Act, 1947?
2. If the said Panchayat is not a major panchayat or not classified as Class I Panchayat. whether the panchayat has been notified under Section 1(3)(b) of the above said Act?
3. Whether the provisions of the Tamil Nadu Shops and Establishments Act are applicable to the Akkur Panchayat?
11. Pursuant to our direction, the Commissioner of Labour had filed an affidavit dated November 15, 2006 wherein it is stated as follows:
3. For the above queries. I submit as follows:
a) The Akkur Panchayat is a Village Panchayat.
b) The notification Under Section 1(3)(iii)(b) of the Tamil Nadu Shops & Establishments Act has not been issued, notifying that the provisions of Tamil Nadu Shops & Establishments Act are applicable to the said Akkur Panchayat.
c) The provisions of the Tamil Nadu Shops & Establishments Act are not applicable to the said Akkur Panchayat.
12. After the authoritative statement is made by the competent authority under the Act. there is very little that could be argued by the learned Counsels on both sides. However, Mr. K. Kumar, learned senior counsel appearing for the first respondent argued that on the basis of the notification issued under Section 6 of the Shops Act, the Act will apply to the appellant Society. We are unable to agree with the said submission. When the intention of the legislature is to apply the provisions of the Act on a stage by stage basis, firstly to the Corporations in the State and thereafter to all the Municipalities and only thereafter, to the Panchayats, which were notified as major panchayats under the Madras Village Panchayats Act, 1950 and also reserved further power to notify to any other area by a specific notification, we cannot agree with the submission made by the learned senior counsel appearing for the first respondent that the notification issued under Section 6 will be equated to a notification under Section 1(3)(b) of the Shops Act. Unfortunately, this issue has not been properly dealt with by the second respondent appellate authority as well as by the learned single Judge, which forced this Court to exercise such a power as the issue related to jurisdiction.
13. In view of the fact that the Act does not apply to the Akkur Panchayat wherein the appellant Society situated, the writ appeal shall stand allowed and the order passed by the second respondent dated May 7, 2001 confirmed by the learned Judge vide order dated June 28, 2006 in the writ petition, is hereby set aside. In view of the fact that the writ appeal is allowed, it is open to the first respondent to work out his remedy in accordance with law by making appropriate petition before appropriate forum. Consequently, M.P. No. 1 of 2006 will stand closed. However, the parties are allowed to bear their own costs.