Madras High Court
Management, T.N. Special 139 ... vs The Deputy Commissioner, Tirunelveli ... on 22 November, 2002
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The respondent No. 2 was employed as Secretary under the petitioner bank, a co-operative society, constituted under the Tamil Nadu Co-operative Societies Act, 1983. For the alleged misconduct of the respondent No. 2, departmental proceeding was initiated and enquiry was held. In the enquiry report the respondent No. 2 was found guilty in respect of some of the charges. On the basis of such finding, the bank dismissed the respondent No. 2 from service by order dated 1.8.1997. Thereafter the respondent No. 2 filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, which was numbered as T.N.S.E. No. 5 of 1997, before the Deputy Commissioner (Appellate Authority under the Tamil Nadu Shops and Establishments Act). The Appellate Authority set aside the order of dismissal on the findings that the conclusions of the enquiry officer were perverse and were against the principles of natural justice. The aforesaid order is being challenged in the present writ petition.
2. Learned counsel appearing for the petitioner has raised two submissions, one relating to the jurisdiction of the first respondent to deal with the appeal and the other relating to the justification of the conclusions reached by the respondent No. 1.
3. The first question relates to interpretation of the provisions contained in Tamil Nadu Shops and Establishments Act, 1947, in short T.N.S.E. Act, and the Tamil Nadu Co-operative Societies Act, 1983. It has been submitted that in exercise of power under Section 6 of the T.N.S.E. Act, the State Government has issued notification dated 4.10.1987 to the effect that the co-operative society is exempted from the provisions contained in the said Act except Sections 31,41,43,50 and 51 of such Act. For the purpose of the present writ petition, only Section 41 of the Tamil Nadu Shops and Establishments Act is relevant and it is extracted hereunder :-
" 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, 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 a right to appeal to such authority and within such time as may 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 at held by the employer.
(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.
4. Learned counsel for the petitioner has submitted that Section 41 of the T.N.S.E. Act, which has been made applicable to Co-operative Society, only provides the right of filing appeal against the order of dismissal but the forum for filing such appeal must be in accordance with Section 152 of the Co-operative Societies Act, 1983.
5. The provisions contained in Section 152 of the Co-operative Societies Act is extracted hereunder :
" Appeals - (1) Any person aggrieved by -
(a) any decision or award passed or order made or proceedings taken under sub-section (1) of Section 87, sub-section (2), sub-section (3) or sub-section (4) of section 90, section118, section 119, section 143, section 144 or section 167; or
(b) any award of an arbitrator or arbitrators under sub-section (2) or sub-section (3) of section 90; or
(c) any award of an arbitrator under section 100, may appeal to the Tribunal:
Provided that nothing contained in clause (a) or clause (b) of this sub-section shall apply to -
(i) any decision, order or award under sub-section (2), sub-section (3) or sub-section (4) of section 90 in respect of any matter relating to, or in connection with, the constitution of a board including any election thereto; or
(ii) any decision, order or award under sub-section (2), sub-section (3) or sub-section (4) of section 90 in respect of any matter relating to, or in connection with, any matter not being a money claim;
(iii) any order of transfer, reference, withdrawal or re-transfer of a dispute under sub-section (2) or sub-section (3) of section 90.
(2) (a) Any person aggrieved by any -
(i) decision under section 7, sub-section (4) of section 23, sub-section (6) of section 34; or
(ii) refusal to register the society under section 9 or the amendment of the by-laws under section 11; or
(iii) registration of amendment of the by-laws under sub-section (2) of section 12; or
(iv) approval of or refusal to approve the expulsion of expulsion of a member under sub-section (2) of section 25, the proposal to take loan under clause (c) of sub-section (1) of section 105, the decision of the board under clause (ii) of sub-section (1) of section 106, the regulations under section 108 or the removal of a member under the proviso to section 109; or
(v) order under section 14, clause (ii) of sub-section (2) of section 21, section 36, sub-section (1) of section 88, sub-section (1) of section 89, section 137 or section 181, may appeal if such decision, refusal, registration, approval or refusal to approve or order is that of -
(A) the Registrar for the State, to the Government; or (B) any other person, to the Registrar.
Explanation - For the purposes of this clause, "person aggrieved" means in relation to section 11 or section 12, the registered society.
(b) Any person who is refused admission to a registered society under sub-section (2) of section 21 or who is aggrieved by any order of the liquidator under section 139, may appeal to the Registrar.
(3) to (7) . . . ."
6. A perusal of Section 152 of the Co-operative Societies Act makes it clear that appeal is to be filed before the Tribunal under section 152(1) in respect of any decision or award under Sections 87, 90, 118, 119, 143, 144 or 167. Evidently the order of dismissal passed by the petitioner does not come within any of the provisions referred to in Section 152(1) of the Co-operative Societies Act. Similarly under Section 152(2), appeal is maintainable either before the State Government or before the Registrar in respect of decision under Section 7, 9, 11 or relating to registration of by-laws or relating to approval or refusal to approve, expulsion of any member under Section 25, etc. The order of dismissal does not come within the scope of Section 152(2).
7. The contention that Section 41 of the T.N.S.E. Act only provides the remedy of appeal, but the Forum has to be found under Section 152 of the Co-operative Societies Act does not appear to be sound. On the other hand Section 41(2) of the T.N.S.E Act makes it clear that the appeal is to be filed before such authority as may be prescribed. Section 2(13) defines "prescribed" means prescribed by rules made under this Act. Therefore, Section 41(2) not only provides the right, but also envisages the forum for filing of appeal. There is no dispute that the Deputy Commissioner has been prescribed as the appellate authority.
8. It is of course true that co-operative society is exempted from T.N.S.E Act except in relation to Sections 31,41,43,50 and 51 of the said Act. Even though the provisions contained in Section 2, which is the definition section, is not specifically included in the notification, it is evident that the definition clause has to be kept in view while applying the provisions contained in Sections 31,41,43,50 and 51 of T.N.S.E. Act, which have been made applicable to co-operative societies. For the aforesaid reasons, the first contention raised by the counsel for the petitioner is to be rejected.
9. The next contention of the counsel for the petitioner relates to merit of the findings arrived at by the appellate authority. It is well known that the High Court while dealing with Writ of Certiorari does not sit as an appellate authority over the decision of the inferior tribunal. The scope of writ of Certiorari is well defined in the decision of the Supreme Court in 1964 SC 477 (SYED YAKOOB v. K.S. RADHAKRISHNAN AND OTHERS) and 1989 SC 997 (STATE OF UTTAR PRADESH vs. MAHARAJA DHARMENDER PRASAD SINGH). These decisions make it clear that the High Court cannot sit as the appellate authority over the decision of the inferior tribunal. The court is only required to see only the decision making process, but it is not authorised to reverse the findings arrived at by the inferior tribunal on the basis of fresh analysis of evidence.
10. Learned counsel for the petitioner tried to assail the findings on the ground that the observations of the appellate authority are not justified and the order passed by the disciplinary authority was reasonable. The appellate authority has considered the relevant materials and has come to a particular conclusion. By no stretch of imagination it can be said that the conclusions of the appellate authority are perverse. Even though another view of the materials is possible, that by itself is not a ground to interfere with the order passed by the appellate authority.
11. For the aforesaid reasons, I do not find any merit in the writ petition which is accordingly dismissed. There would be no order as to costs. Consequently, W.M.P. NOs. 12918 & 19348 of 1998 are closed.