IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :21.07.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.32430 & 33304 of 2006 G.Anandakumar ... Petitioner in W.P.No.32430/06 G.Koteeswaran ... Petitioner in W.P.No.33304/06 Vs. 1.The Deputy Commissioner of Labour, Chennai – 600 006. 2.M/s.Vanavan Exports, 54/109, Boradway, II Floor, Chennai – 600 018. ..Respondents in both W.Ps. Common Prayer : This writ petitions are filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus to call for the records in TSE No.IA/17/05 & TSE No.IA/18/05 and quash the order dated 21.03.2006 passed by the first respondent and consequently direct the first respondent to hear the appeal A.P.No. (unnumbered) of 2005 filed by the petitioner and dispose of the same on merits. For Petitioners : Mr.S.Prabakar for Mr.W.M.Abdul Majeed For Respondents : Mrs.M.Sneha Govt. Advocate for R1 Mr.S.M.Hameed Mohideen and Mr.V.E.Feroz Khan for R2 ORDER Since the issue involved in both the writ petitions raise a common point and the facts are interconnected with the consent of both parties, they are disposed of by this common order. 2. Both the writ petitioners filed an appeal petition before the first respondent under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 (hereinafter referred to “as the Act”), challenging their order of dismissal by the second respondent. The petitioners filed I.A.Nos.17 & 18/2005 for condonation of delay of 1186 days in preferring the appeal before the first respondent. The first respondent by order dated 21.03.2006, dismissed the https://hcservices.ecourts.gov.in/hcservices/ applications filed for condonation of delay stating that the petitioners have miserably failed in justifying the inordinate delay and the reasons assigned by them is not acceptable. 3. The learned counsel appearing for the petitioners had submitted that the first respondent being an authority functioning under a Labour Welfare Legislative cannot adopt such an approach and ought to have condoned the delay by liberally construing the matter. The learned counsel further would submit that the petitioners have shown sufficient cause for not able to file the appeal within the time permitted and this has not been properly construed. 4. The learned counsel appearing for the second respondent by relying upon the counter affidavit, made elaborate submissions on the merits of the matter and would contend that there is no record to show, there was any employer-employee relationship as defined under the Act and that the second respondent organization cannot be stated to be a commercial establishment or an establishment under the Act and it will not fall under the definition "shop". Further, it is contended that mere pendency of the criminal case will not be a ground for condonation of delay and prayed for dismissal of the writ petition. The learned counsel relied on the decision of the Hon’ble Division Bench of this Court in Tamil Nadu Mercantile Bank, Ltd Vs. Appellate Authority., Shops Act 1991 1 LLN page 457 in support of his contentions. 5. I have carefully considered the submissions made on either side and perused the materials available on record. 6. The law of limitation is founded on public policy and not meant to destroy the rights of parties, but to see that the parties do not resort to dilatory tactics. The cases on hand are alleged, cases of dismissal from the service. In the appeal filed before the first respondent, the petitioners have stated that on account of pendency of the criminal case, they could not approach the first respondent earlier and only after the criminal case concluded in July 2005, they were aware of the dismissal and therefore they had approached the first respondent along with an application to condone the delay in preferring the appeal. It is stated that the petitioner in W.P.No.33304/2006 was an employee of the second respondent and the second respondent preferred a complaint against him before the Muthaialpet Police Station in crime No.377/2002, alleging that the petitioner had stolen a sum of Rs.1,65,000/-. The case was taken on file as CC.No.6759/2003 on the file of the 16th Metropolitan Magistrate, Chennai and on 04.07.2005, the petitioner was acquitted of the charge. The petitioner in W.P.No.32430/2006, who is close relative of the other writ petitioner was also dragged into the criminal proceedings and the statements was recorded from him and only at the time of conclusion of the criminal trial, it is stated https://hcservices.ecourts.gov.in/hcservices/ that the petitioners became aware about their dismissal from service. Therefore, at that stage, the petitioners approached the first respondent by filing an appeal under Section 41 (2) along with the application of condone the delay. 7. The first respondent, by the impugned order by placing reliance on the Division Bench Judgment in the case of Tamil Nadu Mercantile Bank, referred supra, refused to condone the delay. In the case of Tamil Nadu Mercantile Bank, it was stated by the workmen that since, he was suffering from Jaundice, he could not move the application earlier. The Hon’ble Division Bench, on facts concluded that there was no evidence to show that the employee in the said case was ill and accordingly, on facts held that the delay cannot be condoned. However, in the instant case, the petitioner has assigned reasons for not being able to approach the forum earlier and further the pendency of the criminal case has not been denied by the second respondent. In fact, the learned counsel appearing for the petitioner referred to various paragraphs in the Judgment of the criminal Court and submitted that the second respondent admitted that the petitioners were their employees. However, at this stage of the matter, this Court is not concerned about the merits of the claim. As held by the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Ananinag and another Vs. Mst. Katiji and others, AIR, 1987 SC 1154, that the expression 'sufficient cause' employed by the Legislator is elastic enough to be applied in a meaningful manner which subserves ends of justice and when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in, injustice being done because of a non-deliberate delay. As referred above the petitioner has given cogent reasons for not being able to approach the forum earlier and considering the purpose for which the Shops Act was enacted, in my view, it has to be held that the petitioners have shown sufficient cause for condonation of delay and the first respondent ought to have condoned the delay and allowed the parties to agitate the matter on merits. 8. For the above reasons, the petitioners are entitled to succeed. In the result, the writ petitions are allowed and the impugned orders are set aside and the delay in filing the appeal before the first respondent under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 is condoned and the first respondent is directed to number the appeals issue notice to the second respondent and decide the matter after hearing both parties and pass orders on merits and in accordance with law. It is made clear that this Court has not made any observations on the merits of the contentions raised by the petitioners nor on the defence raised https://hcservices.ecourts.gov.in/hcservices/ by the second respondent. The first respondent shall decide the matter independently based on the evidence placed before it. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar pbn To The Deputy Commissioner of Labour, Chennai – 600 006. 1 cc to Government Pleader, Sr.No.53042 2 cc to Mr.S.M.Hameed Mohideen, Advocate, Sr.No.52697,52696 2 cc to Mr.W.M.Abdul Majeed, Advocate, Sr.No.53292, 53293 Order in W.P.Nos.32430 & 33304 of 2006 MSM {CO} TP/27.7.2010. https://hcservices.ecourts.gov.in/hcservices/