IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.15127 of 2001 R.M.Kannapan (Deceased) 1. K.N.Visalakshi 2. Ramanathan Kannapan 3. K.M.Sundar 4. K.N.Arunachalam (Petitioners 1 to 4 are substituted in the place of the deceased sole petitioner by order dated 16.12.2004 made in WMP.No.44188/2004) .. Petitioners Vs. 1. The Deputy Commissioner of Labour Madurai. 2. The Management Bank of Madura Door No.32, North Chithirai Street Madurai – 625 001. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records of the first respondent dated 20.12.2000 made in I.A.No.29 of 1999 in TNSE 21 of 1999. For Petitioners : Mr.N.Umapathi For Respondents : Mr.R.Murali Government Advocate for 1st respondent Mr.Sanjay Mohan for M/s.Ramasubramanian Associates for 2nd respondent ORDER The original petitioner is no more. His legal heirs have been brought on record by order dated 16.12.2004 made in W.M.P.No.44188 of 2004. The original petitioner was an employee of the second respondent/ Bank, which has subsequently merged with ICICI Bank. The writ petition is filed against the order passed by the first respondent/Deputy Commissioner of Labour, who is also the Appellate https://hcservices.ecourts.gov.in/hcservices/ Authority under the Tamil Nadu Shops and Establishment Act, 1947 in I.A.No.29 of 1999 in T.N.S.E.No.21 of 1999, dated 20.12.2000. 2. The original petitioner filed an appeal against the order of the second respondent/Bank dated 22.9.1999 removing him from the service of the erstwhile Bank of Madura. The appeal was numbered as T.N.S.E.No.21 of 1999 by the first respondent, who is the statutory Appellate Authority, and notice was issued to the second respondent/Bank. The second respondent contended that such an appeal is not maintainable, as the original petitioner was no longer in service in any of the branches of the second respondent/Bank in Tamil Nadu, he having been transferred to the Chembur Branch at Mumbai as early as 31.3.1996. Therefore, the second respondent/Bank wanted the issue relating to jurisdiction to be determined first. 3. The said interim application in I.A.No.29 of 1999 was taken up for arguments and the authority found that as per Ex.R1, the petitioner was transferred from Karaikudi Branch to Chembur Branch at Mumbai on 31.3.1996 and he was relieved from his duty at Karaikudi Branch on 29.6.1996. He also sent a letter to the Regional Manager at Mumbai dated 22.5.1996, marked as Ex.R2, requesting to arrange for a flat at Mumbai. He expressed his willingness to joint duty at Mumbai and later he changed his mind and went on leave. In all the leave applications, his designation was mentioned as "Assistant Manager Incharge of Chembur Branch". Therefore, having gone to Mumbai on transfer, an appeal under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 is not maintainable. In this context, reliance was placed upon the judgment of this Court in Ravirajan v. Deputy Commissioner of Labour (Appeal) and Mahindra Nissan Allwyn Ltd., 1999 II LLJ 205. 4. The first respondent/Appellate Authority held that though the termination order was served in his native place, that, by itself, cannot grant any jurisdiction, since admittedly he is an employee attached to the Chembur Branch of the second respondent/Bank and therefore, he cannot be said to be a "person employed" within the meaning of Section 2(12) of the Tamil Nadu Shops and Establishment Act, 1947. On the rejection of his appeal by a preliminary order dated 20.12.2000, the present writ petition was filed. 5. The writ petition was admitted on 21.8.2001. On notice from this Court, the second respondent/Bank has filed a counter affidavit dated 22.12.2003. It is stated that the concept of Section 20 of the Code of Civil Procedure will not apply to an appeal under Section 41 (2) of the Tamil Nadu Shops and Establishment Act, 1947 and merely because the headquarters is situated within the State of Tamil Nadu, the Act will not apply. Further, it is also claimed that the petitioner had received salary from the Regional Office at Chembur, Mumbai and therefore, for all practical purposes, he was an employee doing his duty at Mumbai and the provisions of the Tamil Nadu Shops and Establishment Act, 1947 cannot be extended to the employees who are working in Mumbai. In support of these contentions, the transfer order and subsequent leave applications sent by the petitioner were https://hcservices.ecourts.gov.in/hcservices/ filed in the form of a type set. Oral submission was also made justifying the order passed by the first respondent/ Appellate Authority. 6. In this context, attention of this Court was drawn to the judgment of the Division Bench of this Court in The Management of M.R.F. Ltd., rep. by its Chairman and Managing Director and the Senior General Manager (Human Resources and Services) M.R.F. Ltd. v. S.N.D.Sampath and others, 2008 [2] CTC 359 : [2008] 2 MLJ 161 wherein an identical issue came up for consideration. The Division Bench presided over by A.P.Shah, C.J. (as he then was) after analyzing the provisions of the Tamil Nadu Shops and Establishment Act, 1947, in paragraphs [12] and [14] observed as follows: "12. We are in respectful agreement with the view taken by the Division Bench in The Management of Punjab National Bank v. S.C. Gupta and Anr. 1990 (1) LLJ 605 (Mad) case that the relationship of employer and employee with reference to a commercial establishment in Tamil Nadu is a prerequisite for preferring an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act The Tamil Nadu Shops and Establishments Act is expected to apply to establishments in the State of Tamil Nadu alone and to employees employed to work in such establishments. In the case at hand, there is no dispute that the first respondent was employed in the Goa establishment of the Company, an' establishment governed by the Goa Shops and Establishments Act. It is also not in dispute that while working at Goa, the first respondent submitted his resignation letter dated 18.01.2007. The first respondent in his resignation letter has given his temporary address as residing at Goa, while his permanent address is at Kolar Gold Fields, which is in the State of Karnataka. On receiving the said resignation letter, the Senior General Manager - Human Resources and Services, Chennai relieved him vide his letter dated 21.1.2003 and the acceptance of resignation was despatched on 24.01.2003. The acceptance letter was sent to the first respondent to his Goa address as well as to his permanent address at Karnataka. The acceptance letter was received by him at both the addresses on 31.01.2003, as evident from the postal acknowledgments produced by the management. When there is no employer employee relationship subsisting with regard to an establishment situate in the State of Tamil Nadu, the mere fact that the resignation letter was accepted at Chennai would not be enough or sufficient to clothe the appellate authority under Section 41(2) of the Act to entertain the appeal filed by the first respondent. We are unable to agree with the view taken by the learned single Judge that both the authorities namely, the authority under the Goa Shops and Establishments Act https://hcservices.ecourts.gov.in/hcservices/ and the authority under the Tamil Nadu Shops and Establishments Act had concurrent jurisdiction to deal with the case of die first respondent. 14. ...... In our view, notwithstanding the fact that the resignation letter of the first respondent was accepted in Chennai, his situs of employment being at Goa, he ought to have approached the appellate authority under the Goa Shops and Establishments Act and the appellate authority under the Tamil Nadu Shops and Establishments Act had no jurisdiction to entertain the appeal preferred by the first respondent When a person is employed to work in an establishment in Goa, it must be held that he was employed wholly in connection with the business of Goa establishment. Merely because, the Corporate Office was in Chennai or because the resignation letter has been accepted in Chennai would not confer jurisdiction on the appellate authority under Section 41(2) of the Act." In the light of the same, no case is made out for entertaining the writ petition against the impugned order. The writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: The Deputy Commissioner of Labour Madurai. 1 cc To The Government Pleader, SR.22353 W.P.No.15127 of 2001 AKR(CO) sra 09/04/2010 https://hcservices.ecourts.gov.in/hcservices/