IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.06.2010 CORAM : THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.19196 of 2006 and M.P.No.2 of 2006 P.Nagappan ... Petitioner Vs. 1.The Deputy Commissioner of Labour (Minimum Wages)/, Appellate Authority under the Tamilnadu Shops and Establishments Act, Teynampet, Chennai-600 006, 2.Management, Vadakailasam Primary Agricultural Cooperative Bank Ltd., (Rep.by Special Officer), Kamaraj Nagar, Panruti-607 106, ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari, calling for the records of the first respondent relating to his order No.TSE- II6/03, dated 09.03.2006 and the order dated 21.06.2003 passed by the second respondent and quash the orders dated 9.3.2006 and 21.6.2003. For Petitioner : Mr.P.Anbarasan For Respondents: Mr.A.Edwin Prahbakar, AGP, for R1 Mr.S.Balasubramanian, for R2 O R D E R The writ petition is filed under Article 226 of the Constitution of India seeking writ of certiorari calling for records pertaining to the order of the first respondent passed in his proceeding No.TSE-II 6/03 dated 09.03.2006 confirming the order dated 21.06.2003 passed by the second respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was working as the Secretary of the Vadakailasam Primary Agricultural Cooperative Bank Ltd., Panruti, from the year 1976. The Joint Registrar of Cooperative Societies, Cuddalore, as per his order No.Rc.7674/2000 Po.Pa.Ni.1, dated 19.09.2000, suspended the petitioner from service on 19.09.2000 and pursuant to the same a charge memo No.Rc.7674/2000 Po.Pa.Ni.3, dated 10.07.2001 was issued on the petitioner. 3. Aggrieved by the said order dated 19.09.2000, the petitioner preferred an appeal before the Deputy Commissioner of Labour, the first respondent herein, however the same was dismissed without considering the appeal on merits. It was also contended that the Secretary of the Cooperative Bank would not come within the purview of managerial category as he was only a workman, and he could not invoke the jurisdiction of the Labour Court. Hence he had to file the appeal under the Shops and Establishment Act and Rule 149 (18)(b) of the Tamilnadu Cooperative Societies Rules, 1988, as it was before July 1995, provided a right to the employees to have the opportunity of personal hearing. However, the second respondent society has not adopted the bye-laws and that the second respondent, based on the biased report of the enquiry officer, issued show cause notice dated 19.12.2002, proposing the punishment of dismissal of the petitioner from service. Though the petitioner submitted his reply on 17.01.2003, without a proper appraisal of the explanations offered by the petitioner, the second respondent passed the order on 21.06.2003 dismissing the petitioner from the service of the bank. 4. The petitioner has further stated that he was also not provided with subsistence allowance at the admissible rate and thereby the petitioner was put a disadvantageous position while the enquiry was conducted. Payment of subsistence allowance was paid only at the rate of 50% though he was entitled to 75% upto 18.12.2000 and for 100% 18.03.2001. There is a slight difference in the entire cash of Rs.5,39,859/- handed over to the cashier at the office of the respondents on 15.09.2000 and that the enquiry conducted was also incomplete and liable to set aside. 5. According to the petitioner, the MW1 has admitted in the course of cross-examination that the cashier was responsible for the cash balance. However, the second respondent without considering the aforesaid facts passed the impugned order dated 09.03.2006. However, the first respondent dismissed the appeal preferred by the petitioner on the ground that the provisions of Tamilnadu Shops and Establishments Act are not applicable to the case. Aggrieved by which, the writ petition has been preferred by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel appearing for the petitioner has relied on the following decisions in support of his contention: 1. 2010 Writ L.R. 199, The George Town Co-operative Bank Limited v. The Deputy Commissioner of Labour (Appellate Authority), 2. Order passed in W.P.No.22632 of 2009 & M.P.Nos.1 & 2 of 2009, dated 04.02.2010, the Special Officer, Poonamallee Primary Agricultural Co-operative Bank Ltd., Poonamallee, Chennai-600 056 Vs. J.Kumaravelu and another, 7. In 2010 Writ L.R. 199, The George Town Co-operative Bank Limited v. The Deputy Commissioner of Labour (Appellate Authority), A Division Bench of this Court has held as follows: "reading Section 41 and Section 2(12) together, the forum of the Authority under Section 41 would be available to a person employed and the persons employed under a Co- operative Society would have the access to the Authority under Section 41 of the Tamil Nadu Shops and Establishments Act" and further held that "5.Mr.Balan Haridas pointed out that the definition of the "person employed" under the Tamil Nadu Shops and Establishments Act, 1947 is a wide definition. This definition under Section 2(12) of the Act reads as follows:- "2(12) "person employed" means -- i.In the case of a shop, a person wholly or principally employed therein in connection with the business of the shop; ii.in the case of a factory or an industrial undertaking, a member of the clerical staff employed in such a factory or undertaking; iii.in the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in connection with the business of the establishment, and includes a peon; iv.in the case of a restaurant or eating- house, a person wholly or principally employed in the preparation or the serving of food or dring or in attendance on customers or in cleaning utensils used in the premises or as a clerk or cashier; v.in the case of a theatre, a person employed as an operator, clerk, door-keeper, usher or in such capacity as may be specified by the https://hcservices.ecourts.gov.in/hcservices/ (State) Government by general or special order; vi.in the case of an establishment not failing under paragraphs (i) to (v) above, a person wholly or principally employed in connection with the business of the establishment, and includes a peon; vii.in the case of all establishments, a person wholly or principally employed in cleaning any part of the premises; but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer who lives with and is dependent on such employer." 6.Thus when we read Section 41 and Section 2(12) together, the forum of the Authority under Section 41 would be available to a person employed and the persons employed under a Co-operative Society would have the access to the Authority under Section 41 of the Tamil Nadu Shops and Establishments Act, 1974." It is made clear in the light of the aforesaid decisions that in as much as the appellant was not falling in the workman category, the forum available to him would be the one under the Tamil Nadu Shops and Establishments Act, 1947. On the aforesaid circumstances, it was held that there was no error on the part of the Appellate Authority in exercising the jurisdiction, which it did exercise. With the above observations, the writ appeal preferred by the George Town Co-operative Bank Limited, rep.by its Secretary was dismissed. 8. In the unreported Judgment, W.P.No.22632 of 2009 & M.P.Nos.1 & 2 of 2009, dated 04.02.2010, in the Special Officer, Poonamallee Primary Agricultural Co-operative Bank Ltd., Poonamallee, Chennai-600 056 Vs. J.Kumaravelu and another, this Court has held as follows: "12.The second ground is that since the first respondent was the Secretary of the Co-operative Society, he cannot get any relief under the Tamil Nadu Shops and Establishments Act, 1947. As far as this is concerned, as per G.O.No.4074, Industries, Labour and Housing (Labour) Department dated 05.10.1966 which is extracted above, the provisions of the Shops and Establishments Act are applicable to the persons employed in the position of Management and even in the judgment of this Court reported in 1982 1 LLJ 354, https://hcservices.ecourts.gov.in/hcservices/ Oriental Bank of Commerce vs. The Commissioner of Labour, Madras 6 and others, this Court has held as follows: "In the other words, the provisions of the Act are applicable to persons employed in any shop in a position of management. This was not disputed by the learned counsel for the petitioner. In these circumstances, it must necessarily follow that the third respondent being a person employed within the meaning of S.2(12) of the Act would be entitled to maintain an appeal under S.41(2) of the Act." 9. Therefore, it has been made clear that the view taken by the first respondent in the impugned order that the Tamil Nadu Shops and Establishments Act, 1947 not applicable in this case, cannot accepted, in the light of various decisions rendered by this Court. The petitioner herein is not falling in the category of workman, hence his alleged grievance cannot be raised as dispute under the Industrial Disputes Act, 1947. As the petitioner could not be construed as a workman under the Industrial Disputes Act, the Forum available to him would be one under the Tamil Nadu Shops and Establishments Act, 1947. 10. It is seen that the first respondent has not disposed the appeal on merits. As the relief sought for in the writ petition is a mixed question of law and facts, the same has to be decided by the appellate authority, based on appreciation of evidence following principles of natural justice. Therefore, to meet the ends of justice, the first respondent has to decide the same after providing reasonable opportunity to both the parties, according to law, on merits. 11. On the aforesaid facts and circumstances, this Writ petition is allowed and the impugned order is set aside and the first respondent is directed to dispose the matter according to law within three months from the date of receipt of a copy of this Order, after providing reasonable opportunity to both sides. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. krk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Deputy Commissioner of Labour (Minimum Wages)/, Appellate Authority under the Tamilnadu Shops and Establishments Act, Teynampet, Chennai-600 006, 2.The Special Officer, Management, Vadakailasam Primary Agricultural Cooperative Bank Ltd., Kamaraj Nagar, Panruti-607 106 W.P.No.19196 of 2006 MSM(CO) SR/1.10.2010 https://hcservices.ecourts.gov.in/hcservices/