Madras High Court
The Management Of Tvs & Sons Ltd vs The Appellate Authority Under Tamil ... on 4 August, 2023
W.P.No.10534 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 28.06.2023
Pronounced On : 04.08.2023
CORAM:
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
W.P.No.10534 of 2013
and
M.P.No.1 of 2013
and
M.P.Nos.2 and 3 of 2014
1.The Management of TVS & Sons Ltd.
7B West Veli Street,
Madurai – 625 001.
2.TVS & Sons Ltd.,
101, Trichy Main Road,
Salamedu, Villupuram – 605 401. ...Petitioners.
Vs.
1.The Appellate Authority under Tamil Nadu
Shops and Establishments Act/
The Deputy Commissioner of Labour
(Minimum Wages), Chennai – 600 006.
2.P.Saravanan ...Respondents.
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
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W.P.No.10534 of 2013
to issue writ of Certiorari to call for the records of the 1st respondent in TSE-
II/8/2009 and quash its award dated 15.2.2013.
For Petitioners : Mr.G.Anand for M/s.T.S.Gopalan
and Co.,
For Respondents :
R1 : Court
R2 : Mr.V.Prakash
Standing Counsel for
M/s.K.Krishnamoorthy
ORDER
The Petitioner challenges the order of the 1st respondent in TSE- II/8/2009 dated 15.02.2013. For the sake of convenience, the writ petitioner will be addressed as the Management and the Second Respondent as Workman.
2.The Workman was appointed as a Probationary Assistant, Machine Operator by the Management on 01.04.1996. He was confirmed in service on 26.03.1997. On 03.08.2004, he was made a Machine operator. Till that time, there was no dispute that he was working in a factory and was enjoying the benefits under the Factories Act, 1948.
3.He, thereafter, moved from the Factory's Division of the Management 2/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 to the Sales Division. He was appointed as a Sales Executive by the Management. He was assigned to promote the sale of heavy vehicles produced by Ashok Leyland Group, in the areas of Cuddalore, Neyveli, Chidambaram, Panrutti and Tindivanam. In other words, he became a Business Promotion Executive for the Management, which had taken dealership with Ashok Leyland Limited. All was well, till the workman procured a sizeable order with M/s. Shree Ramachandra Care Transport. Originally the order was for eight number of vehicles bearing No.AL2516/2TG. The customer was from Hyderabad having operations at Neyvelli. The customer purchased the vehicles taking finance through SREI Equipment Finance Private Limited, Nellore, Andhra Pradesh. The total cost of finance was Rs.1,23,60,000/-. The vehicles, which were actually delivered to M/s. Shree Ramachandra Care Transport was, AL2214/1S. The value of these eight vehicles was only Rs.83,60,800/-.
4.According to the Management, the invoice for eight vehicles of AL2214/1S was raised with the knowledge of the workman. The difference of amount of Rs.33,96,800/- was refunded to the customer by the Management, by means of eight different cheques drawn between 29.02.2008 3/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 to 27.05.2008.
5.As against the invoice raised, eight vehicles of AL2214/1S were also delivered to the aforesaid M/s. Shree Ramachandra Care Transport. Nothing would have happened if M/s. Shree Ramachandra Care Transport had honoured its deal with SREI. The cause of action for this case itself would not have arisen. Unfortunately, for the parties to this writ petition, M/s. Shree Ramachandra Care Transport defaulted in payment which triggered this litigation. On coming to note all the default, SREI initiated proceedings and seized the vehicles.
6.At that time, it came to the notice of SREI, that while finance had been taken for AL2516/2TG, what they had actually taken possession of was AL2214/1S. Therefore, the Management was questioned by the Financier about this difference. To this query, the Management responded that the refund had been given to the aforesaid M/s. Shree Ramachandra Care Transport on the basis of a “No Objection Letter” which is said to have been issued by the Financier. A copy of the letter was also given to the Financier. At that stage, it became evident to the Financier that some fraud had taken place and a forged letter had been submitted to the Management to the effect 4/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 that the Financier has “no objection” for refund of the amount. It is pertinent to point out here that though the letter speaks about Finance Company having “no objection”, there is no difference of opinion between the Management and the Workman that the letter only spoke about “No Objection for refund of discount” and not for the difference of amount. Be that as it may, on basis of this letter, the Management processed the refund. It is on record that the process had taken place in Madurai and that too over a period of three (3) months. The processing happened from Madurai because the Head Office of the Management is situated there.
7. Another fact which is not in dispute is that the Head Office is registered under the Tamil Nadu Shops and Establishments Act, 1947.
8. Having found out about the fraud that have been played, it is the case of the Management that one Sivakumar who was working as a Customer Relations Management Executive, “recollected about the incident”. He pointed fingers at the workman alleging that Saravanan himself will send the invoice to the Finance Company. He also alleged that Saravanan prepared a duplicate invoice and this was the invoice which was handed over to the Financier. He would further allege that he brought the act of Saravanan to the notice of one Dhandapani, who was the Sales Manager, with the Management 5/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 and the said Dhandapani asked him to keep quiet and therefore, he kept quiet.
9.Framing charges as against the workman, a charge memo was issued on 27.03.2009. The charges were as follows:-
I.You were grossly negligent in obtaining the payment from the Finance Company without DO (Delivery Order).
II.You had failed to collect written request from the Customer and N.O.C from the Finance Company, for changing the model.
III. You have arranged to refund the difference amount due to change of model to one customer, whereas it has been mentioned in the N.O.C. Dated 20/02/2008 as discount amount.
IV.You have handed over the invoice copy to the Customer instead of sending the same to the finance company, directly.
V. You handed over the refund cheque to the Customer without getting any acknowledgement and also not communicated to the finance company about refund.
VI.You have failed to maintain direct correspondence/information sharing with finance company, as per our practice.
VII.Considering the above deviations/failures on your part there is a strong suspicion about your involvement in connivance with the customer in this fraudulent act/cheating.
10.On the receipt of the charges, the workman gave a reply on 03.04.2009, denying the same. He stated that the Management was in the 6/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 practice of receiving payments for vehicles without obtaining the delivery order. This practice was being adopted, since the transaction was being financed by other Finance Companies other than the Management's own Finance Company, Sundaram Finance, or that of the Manufacturer’s Finance Company viz., Ashok Leyland Finance.
11.For the second charge, the stand of the workman was that M/s. Shree Ramachandra Care Transport was a dedicated Customer of Tata Motors Limited. During the relevant time, the model AL2516/2TG was not available for immediate delivery. Therefore, he had, as a sales executive, persuaded the customer to buy the lower model AL2214/1S. According to him, he did this in a bona-fide belief so that the customer does not leave the Management and go back to the TATA's for a similar vehicle. On the charge that he had not taken a written request, he stated that after consulting with Sivakumar, the Manager, he obtained a blank signed letter head of M/s. Shree Ramachandra Care Transport and handed it over to the Customer Relations Manager. Thus according to him, the change of model request from the Customer was obtained.
12.Qua the charge that he had not obtained NOC from the Financier, the workman pointed out that he had brought this fact to the notice of the 7/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 customer and the customer assured that he would produce a NOC from the Finance Company. Accordingly, on the production of NOC by the customer, it was acted upon. It was only at a later day that both the Management and the workman came to know that one Yagna Narayanan of M/s. Shree Ramachandra Care Transport had given a forged NOC to them.
13.On the charge that he had arranged for the refund, he pointed out that he was not the decision making authority for the refund. On the receipt of NOC, the same was forwarded to the higher officials at Madurai through the Customer Relations Manager. He would take a categorical stand that he neither approved the refund nor was the person in charge to take a decision on the same.
14.As to the charge that he had handed over the invoice copy to the customer instead of directly sending it to the Financier, the Workman responded that the Customer was an existing Customer of the Finance Co. (SREI) and it was through the Finance Company that the huge order of eight vehicles had been obtained. He pointed out that there being an existing relationship between the Customer and the Financier, the customer had given assurance that he will forward the invoice to the Financier. Considering the relationship between the parties, he had handed over the same to the 8/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 customer. He would refer to a trade practice of the Management of handing over the invoice to the customer to be forwarded to the financier.
15.As to why he had handed over the cheque to the customer without getting an acknowledgement or communication to the Finance Company about the refund, he pointed out that a refund register was being maintained in the office of the Management and signatures of the customers were taken in that book. He further added that, since the refund cheque was based on the Financier's NOC, he was under the said impression that the said transaction was to the knowledge of the Financier.
16.As to the charge, why he had not maintained direct correspondence with the Finance Company, he pointed out that the Finance Company was the one responsible for sending the Customer to the Management, and it was only through them that the orders were obtained. He would also point out that he is working in Tamil Nadu at Cuddalore and the aforesaid areas where the Lingua Franca is Tamil, whereas both the customer as well as the Financier were Telugu speaking persons and possibility of communication was difficult.
17.To the last charge that since there were deviation and failures on his part that he was conniving with the Customer enabling him to indulge in the 9/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 fraudulent act, he denied the charge and pointed out a letter from the customer himself dated 13.09.2009 that it was the Customer who had forged the document and he did not know that he was dealing with such an unscrupulous one.
18.On the basis of the charges and response, an enquiry was conducted by the Management. In the enquiry, three (3) witnesses were examined and seventeen (17) documents were marked. Simultaneously, enquiry was initiated against the Sales manager/Dhandapani. Obtaining the consent of Dhandapani and the workman, a joint enquiry was held against both. The Enquiry Officer found that both the workman and Dhandapani were guilty of the charges framed against them.
19.On the basis of this finding, a show cause notice was issued on 28.09.2009, proposing a punishment of dismissal. Within a week on 05.10.2009, the workman made his representation. Not being satisfied with the same, the Management dismissed him from service on 28.10.2009.
20.Feeling aggrieved over the order of dismissal, the workman preferred an appeal before the first respondent invoking the provisions of Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947. The authority under the said Act recorded evidence on both sides and came to a 10/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 conclusion that the charges were not proved and therefore, set aside the order of dismissal. Challenging the same, the present writ petition has been filed.
21. Mr.Anand Gopalan, learned counsel for the Management would submit that the petitioner having joined the service as a machine operator and working as a sales executive in the office at Villupuram, which is registered as a factory under the Factories Act, would not be entitled to maintain the appeal under Section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947. The basis of this argument is that the Government of Tamil Nadu had exempted permanently all persons employed in any kind of work in factories and governed by the Factories Act from all the provisions of the Shops and Establishments Act. It is his argument that since the Management's service centre at Villupuram is a factory, the writ petitioner is not entitled to maintain the appeal.
22.Per Contra, Mr.V.Prakash, the learned Senior Counsel would submit that the workman was a resident Sales Executive at Cuddalore who had to manage around six areas. His role was only to liaison between the Customer and the Management to ensure good sales of the Ashok Leyland Vehicles. He would draw my attention to Section 2 (l) of the Factories Act which states as follows:-
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2. Interpretation...............
(l). “worker” means a person [employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process [but does not include any member of the armed forces of the Union];
23. He would state that since the workman was not involved in any manufacturing process as defined under the Factories Act, he will not be a worker within the meaning of the Act and therefore, would not fall within the scope of exemption. He would further point out that liaisoning with the customers and the Management to promote sales is not incidental to or connected with manufacturing process or the subject of manufacturing process. He would state that inclusion of the petitioner's name in Form 12 as list of adult workers, does not confer any right. Even as per the Form 12, the nature of work was given as Sales Executive-II. He would state that the workman was designated as Resident Sales Executive with his headquarters at Cuddalore and therefore, the factum that he was working out of Villupuram would not make any difference.
24.On the first submission on jurisdiction, I have to point out that Mr.Anand Gopalan was extremely fair in citing authorities, both for and as 12/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 against him on this point. He would rely upon two judgments namely The State Of Uttar Pradesh vs M. P. Singh AIR 1960 SC 569 and Management Of E.I.D. Parry Vs. Commissioner Of Labour And Ors. (2001) 4 LLN 857 (DB).
25.Mr.V.Prakash would bring to my notice a judgment of Division Bench of this Court in Automac (M) (P) Ltd. Vs. Deputy Commissioner Of Labour and Another reported in (1989) 2 LLN 994.
26.Looking at the facts of the case in State of Uttar Pradesh Vs. M.P.Singh reported in AIR 1960 SC 569 and (2001) 4 LLN 857 and applying it to the present case, one can be clear that they cannot be suitably applied. In the case of State of Uttar Pradesh Vs. M.P.Singh, the institution that was involved was Supervisors and Kamdars who had to guide, supervise and control the growth and supply of sugar cane.
27. The Supreme Court came to the following conclusion which is extracted as hereunder:
5 ....
“It is difficult to hold that field workers who are employed in guiding, supervising and controlling the growth and supply of sugar cane to be used in the factory are employed either in the precincts of the factory or in the premises of the factory; and if these workers are not employed in a factory, the provisions of the Factories Act, 1948 do not apply to then and they evidently fall within the definition of “Commercial Establishment”.
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28.In the case of EID Parry its seen that the workman involved in that case was employed in the fertilizer factory itself and during the relevant time, he was working as a General Manager at the factory premises. He was in- charge of production of fertilizer and therefore, it was held that the Factories Act is applicable to him.
29.I feel that the observations of the Division Bench in Automac’s case directly apply to the facts and circumstances of the present case. The relevant portions are extracted hereunder :-
“ 6. Abdul Latif v. Karamat Ali (1962-II-LLJ-335), is the decision of the learned Judge of the Allahabad High Court holding that the definition of 'worker' in Factories Act not only includes a person employed in the manufacturing process but also includes a person employed in any other kind of work incidental to the manufacturing process, and that keeping of accounts in a factory is a work incidental to such a process. Rohtas Industries Ltd. v. Ramlakhan Sing (1978-I-LLJ-515), is the decision of the Supreme Court which holds that by reading the definitions of 'worker' and 'industry' in the Factories Act together, it is quite reasonable and legitimate to hold that he must be a person employed in the premises of the precincts of the factory.
7. Therefore, all these decisions proceed on the basis of facts and circumstances of each case and on finding out whether the concerned person would be a 'worker' as defined in S. 2(1), and whether he works in a 'factory' as defined in S. 2(m), and whether he is concerned with the manufacturing process, as defined in S. 2(k) of the Factories Act. If the nature of work discharged by him is such that it is incidental to the manufacturing process, then he would be a worker under that Act.
8. In the instant case, it has been found that none of the provisions of the Factories Act has been made applicable to second respondent and right from the beginning, his service conditions had been governed by the Tamil 14/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 Nadu Shops and Establishments Act. As stated earlier, the Office premises had been shifted more than once to different places, and finally, it started functioning in the administrative block in the factory premises. Hence, the contention of the learned counsel for the appellant that because it is located within the area which is registered under the Factories Act, the administrative office could straightway become factory premises, cannot be accepted. It is the particular nature of duties which are discharged and which alone could be taken into account. In The State of U. P. v. M. P. Singh (1960-I-LLJ-270), the Supreme Court held that field workers who are employed in guiding, supervising and controlling the growth and supply of sugarcanes used in the factory are not employed either in the precincts of the factory or in the premises of the factory or in the premises of the factory, and therefore, the provisions of the Factories Act would not apply. Once it is made out that the provision of the Factories Act are not applicable to the second respondent, and when the appellant had not varied his service conditions, the provisions of the aforesaid G.O. cannot be applied to the instant case.”
30. As discussed above, the workman was only a Sales Executive. A Sales Executive has nothing to do with the manufacturing process. It is not a situation where he was a Sales Executive of the Manufacturer but he was a Sales Executive for a dealer of a manufacturer. In other words, the Management was only a dealer for Ashok Leyland Limited and it was the scope of work of the workman to procure business by identifying customers. Merely because the Management has a service centre at Villupuram will not make the work of Mr.Saravanan being connected to a factory. As pointed out by Mr.Prakash, even in Form 12 that had been filed under Ex.M6, the workman was only shown as Sales Executive-II.
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31.The workman is not responsible for filing the same. It is the job of the Management. I am of the clear view that G.O.Ms.No.545 will not apply to the facts of the present case, as the workman was not “employed in any kind of work in factories or governed under the factories act”. I am therefore, constrained to reject the argument of Mr.Anand Gopalan that the first respondent did not have the jurisdiction to entertain the appeal.
32. Now let us proceed to the merits of the case. One aspect which looms large with respect to the enquiry is that the Enquiry Officer, Mr.S.Selvaraj was a Deputy General Manager. Whereas, the Presenting Officer, in the case was in the rank of a Vice President of the Management. In the hierarchical position, a DGM comes way below the Vice President. There is a possibility of bias being involved. It is extremely rare that an Enquiry Officer who is sub-ordinate to the Presenting officer would differ from him. In the matters of likelihood of bias, I only have to see the ordinary prudent course that is followed and not deal with rare instances. Therefore, I am of the view that the fact that enquiry was conducted by a person sub-ordinate to the Presenting officer, vitiates the enquiry by bias.
33.Do I find any likelihood of bias? My answer is yes, I do.
34.If we were to keep aside the aspect of bias and look into the merits, 16/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 there is another lacuna in the enquiry. The enquiry officer gave his report that the petitioner was guilty under Ex.A.14. Thereafter, the enquiry was reopened again by the same Enquiry Officer and yet again a guilty report was given under Ex.A22. The reopening of the enquiry was objected to by the workman, but it was not accepted by the Management. It is pertinent to note that though the workman wanted to examine Yagna Narayanan, the person who had forged the “No Objection” letter, he was not permitted to do so.
35. I have gone through Ex.A7, which is the letter written by Yagna Narayanan, where he has admitted that the invoice in the TVS letter head as well as the NOC of the Finance Company was forged by him. Had the workman been permitted to examine Yagna Narayanan, perhaps, the truth would have come out. But unfortunately in this case, he was not permitted to mark the said document. The relevant portions of the letter of Yagna Narayanan, which were marked as Ex. A7 before the authority are extracted hereunder:-
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Sir, Sub: Sales Transaction thro’ Foreged Documents – reg. I wish to inform that thro’ M/s. Srel Infrastructure Finance Limited, Nellore – we purchased 8 Nos. Ashok Leyland Vehicle. Though the initial discussion with the Finance Company is for purchase of the AL Vehicle Model No 2516/TG, subsequently, I had changed my decision and purchased the AL Venice Model No.2214/15, without the knowledge of the Finance Company.
I am well aware that the Model for which I had arranged for finance with the above Finance Company is of a higher value than the one which, I have purchased.
The Model of the Vehicle purchased by us from TVS & Sons Limited is 2214/IS, the Invoice was also received from TVS & Sons Limited for the Model 2214/15 and the vehicles that were delivered and temporarily registered are also of the same model l.e. 2214/15, only.
The documents (viz. Invoice In TVS Letter Head and N.O.C. in the Finance Company Letter head) required for this transaction were forced by me, only. The refund cheque was collected by me, personally, from M/s. TVS & Sons Limited and did not bring the forgery activity done by me. Eilther TVS or The employees of M/s.TV Sundram Iyengar & Sons Limited, Villupuram Outlet are not involved in this transaction. I shall discuss with the Finance Company and settle the dues with the Finance Company and I assure that I shall set right the loss, if any, Incurred by means of my above said sales transaction and also take steps to withdraw the claim of Finance Company against TVS within a week’s time.
Thanking you, Yours faithfully For Shree Ramachandra Care Transportaton K. Yagna Narayana.
13.02.09 K YAGNANARAYANAN 18/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013
36. I am extracting this document in detail because it shows the following:-
(I). The Customer had in fact changed his decision from purchasing AL2516/2TG model to AL2214/1S.
(II). He was aware that the invoice that was received from TVS was only for AL2214/1S.
(III). He admits that he had forged the NOC of the Finance Company and;
(IV) Most importantly, the invoice which bears the signature of the workman was also forged by him.
37. It is in this light that we have to read the order of the first respondent. The first respondent has rightly come to the conclusion that the Management had failed to prove that it was the workman who had indulged in the acts of forgery. I am aware that the forgery was not a charge directly. However, reading the charge in entirety, one gets an impression as if the Management wanted to hold Saravanan responsible for the forged NOC as well as the forged invoice which was produced by the Customer to the Financier.
38. Had the Management taken efforts to compare the signatures of 19/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 Saravanan found in the admitted records with the invoice, it would have made huge difference. The Management had accused the workman of working in connivance with the Customer. Connivance is a shady activity indulged in secrecy which is known only to the involved two persons, i.e, in this case, Saravanan and the Customer. The least step that the Enquiry Officer could have done is to compare the signatures between the two. However, he failed to do so, but returned the charge that Saravanan was guilty of connivance. Another crucial aspect that I want to point going through the evidence is that, the manipulated invoice was never put to Saravanan at all. During the course of enquiry, he ought to have been confronted with the same, but was not done.
39.This takes us to the next point as to whether the workman was guilty of not having procured a letter from the Financier and from the Customer himself for the change of model. I will deal with the second point first. Admittedly, there is a difference between AL2516/2TG and AL2214/1S. If the consent of the customer had not been taken, the Customer would not have taken delivery of the vehicle. It is not in dispute by either side that AL2214/1S is a model which is fundamentally different from 20/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 AL2516/2TG. Therefore, the question of taking a letter of consent from the customer does not arise. Apart from this, the invoice produced by the Management and signed by Saravanan shows that the Management had only invoiced the Customer, towards the model AL2214/1S and the price that is also given is approximately 11 Lakhs. We have to put this in comparison with the price of AL2516/2TG which is around 15 Lakhs. It is also on record by the statement of one Mr.Nachimuthu, who had examined himself before the authority that the TVS and Sons have a practice of centralized billing, which is placed out of Madurai. The Management has not produced any evidence to substantiate that AL2516/2TG was available for immediate delivery, but due to a secret arrangement between the customer and the workman, instead of delivering AL2516/2TG, what was delivered was AL2214/1S and the balance of amount was pocketed by the workman. It is worthwhile to recollect that the refund had been done over 8 cheques, spread over nearly a period of 3 months. The cheques were processed in Madurai and only handed over at Villupuram. A company like TVS, which is known for its protocols of Management, would have easily found out if something was amiss.
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40.A refund for nearly 1/5th of the value of invoice cannot be treated as a discount amount. However, the Management has proceeded further and had processed the same. It is the statement of the Management witness that prior to refund, the accounts department of the Management verify the details and the documents. If in fact there had been a connivance, it would still be of no avail since, the workman was not the decision making authority. It is on record that the decision was taken at Madurai and merely implemented at Villupuram. Therefore, to place the entire charge on the workman as being responsible for production of a false NOC as well as processing of the refund is too much to swallow. I am not willing to swallow the said story.
41.Apart from this, on the crucial aspect of the other charges, one can see that the Customer Relations Management Executive Sivakumar, was not aware of the transaction. He has stated that he came to know about the said incident in and around February 2009 when SREI brought it to the knowledge of the Management. Sivakumar was not examined before the authority. The reason for keeping Sivakumar away from the first respondent has also not been explained. What I find stunning is that Sivakumar should remember incidents which had taken place two (2) years earlier especially after enquiry is initiated as against Saravanan and Dhandapani. The workman 22/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 has deposed that he had some disputes with Sivakumar and it is not impossible for Sivakumar to tender false evidence in order to escape the liability.
42. There is no cross-examination worth its salt, on the aspect that Mr.Saravanan/the workman had kept the Customer Relations Manager informed of all the transactions. The very fact that he informed the Customer Relations Manager of all the facts shows that he was at the lowest rung of the business model of the Management. I feel that since the matters went South, the Management wanted to fix the responsibility on someone and had focused its attention on Saravanan and Dhandapani. I would like to point out from Ex.A19. Page No.247 of the records, whatever the findings of the investigation by Mr.P.Nachimuthu, has turned out to be the charge-sheet. Mr.Nachimuthu would state that Saravanan and Dhandapani had been grossly negligent in obtaining payment from Finance Company without the delivery order. However, there is no reference to the defence of trade practice as projected by the workman in the enquiry report.
43.The scope of work of a salesman like Mr.P.Saravanan cannot be enlarged to include aspects of refund and loss caused due to the fraud 23/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 committed by the customer. Mr.V.Prakash would point out that the activities of Mr.Saravanan had the approval of the manager and that no evidence has been let in by the Management to prove that AL2516/2TG was available for immediate delivery. This makes a difference because if only AL2516/2TG had been immediately available for delivery, the issue of Saravanan colluding with the customer would arise. This is so because only if the vehicle was available and not delivered, could they had not opted for AL2214/1S which was lesser in price and pocketing the difference.
44.This is not a case of availability of evidence for the Appellate Authority to sustain the case of the Management. On the contrary, it is a case of bias as well as a case of total lack of evidence to support the enquiry report.
45.Under Section 41 of the Shops and Establishments Act, the report is always intact but the satisfaction of the authority must be based on the availability of “satisfactory evidence”. When satisfactory evidence is not available, it is always open to the authority to take a different view and that is 24/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 exactly what has been done in the present case.
46.I have to remind myself of the scope of my jurisdiction under Article 226 of the Constitution of India. The jurisdiction is only to correct an error of law. It must be something more than a mere error. I do not find anything so palpably erroneous with the impugned order for me to interfere. I was constrained to discuss the matter on the merits only in order to satisfy myself on the charges framed against the workman. I am of the view that there is no illegality or perversity in the order of the Appellate Authority.
47.If there are two probable views that are available and one view V.LAKSHMINARAYANAN,J mps/nst has been adopted by the authority, then under Article 226, I am not entitled to interfere. Apart from that, the error not being apparent on the face of the record, I cannot issue a writ of certiorari.
48. Consequently, the Writ Petition is dismissed with no costs. Connected Miscellaneous petition are closed.
25/26 https://www.mhc.tn.gov.in/judis W.P.No.10534 of 2013 04.08.2023 mps/nst Index : Yes/No Speaking Order : Yes/No Neutral Citation Case : Yes/No To: The Appellate Authority under Tamil Nadu Shops and Establishments Act/ The Deputy Commissioner of Labour (Minimum Wages), Chennai – 600 006. Pre-Delivery Order in W.P.No.10534 of 2013 and M.P.No.1 of 2013 and M.P.Nos.2 and 3 of 2014 26/26 https://www.mhc.tn.gov.in/judis