Indian Kanoon - Search engine for Indian Law

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.

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 After realising his mistake, he arranged to have the suit withdrawn and preferred an appeal under the Shops Act before the Deputy Commissioner of Labour (Appeals), Madras-6.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.

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.