IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10010 of 2002 The Management A.1663, Andipatti Co-operative Stores Limited Andipatti, Theni District. .. Petitioner Vs. 1. The Appellate Authority Tamil Nadu Shops and Establishment Act Tribunal Dindigul. 2. V.Ramar .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records in pursuant to the order dated 24.12.2001 passed in T.N.S.E.A.No.11 of 2000 on the file of the first respondent and to quash the same. For Petitioner : Mr.R.Subburaj for M/s.S.M.Subramaniam For Respondents : Mr.N.Damodaran for 2nd respondent ORDER The petitioner is a co-operative society. Aggrieved by the order passed by the first respondent/Appellate Authority under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (for brevity "the Shops Act"), the petitioner has come forward with the present writ petition. 2. The first respondent/Appellate Authority entertained an appeal filed by the second respondent against the order of termination dated 27.7.1998. The appeal filed by the second respondent was entertained as T.N.S.E.A.No.11 of 2000 and notice was issued to the petitioner/society. The petitioner/society filed a detailed counter statement dated 11.5.1999. In the counter statement, the petitioner/society raised a preliminary objection, viz., non maintainability of the appeal on two grounds. The first ground was that the second respondent was a Manager of https://hcservices.ecourts.gov.in/hcservices/ the Store and therefore, he, not being a workman, is not entitled file an appeal. The second objection was that the Tamil Nadu Co- operative Societies Act provides for remedies and therefore, the appeal provision under the Shops Act is not maintainable. 3. Before the first respondent, the petitioner/management filed 30 documents and they were marked as Exs.R1 to R30. On the side of the second respondent/workman, the summon issued by the criminal court in Crime No.9 of 93 was marked as Ex.P1. 4. Insofar as the objection raised by the management was concerned, the first respondent has not given any findings. Therefore, in the affidavit filed in support of the writ petition, the petitioner/ management raised a ground that the second respondent is not a "workman" within the meaning of Section 2(s) of the Industrial Disputes Act as he was a Manger and he was doing supervisory work and hence, the appeal is not maintainable. The said objection raised by the petitioner/ management has no substance. Section 2(12) of the Shops Act defines the term "person employed". Though under Section 4(1)(a) of the Shops Act a person employed in any establishment in a position of management is exempted, the said exemption has been removed by the Government notification issued under Section 5 of the Shops Act vide G.O.Ms.No.4074, Industries, Labour and Housing (Labour) Department, dated 5.10.1966 and therefore, even a person in a position of management is entitled to move the authority under Section 41(2) of the Shops Act. 5. With reference to the non-applicability of the provisions of the Shops Act in respect of the co-operative societies, the State Government by notification No.II(2)/Labour and Employment Department/5671/1979 had applied the provisions of Sections 31, 41, 43, 50 and 51 of the Shops Act in relation to all co- operative societies. Therefore, notwithstanding the remedy by way of a revision available under Section 153 of the Tamil Nadu Co-operative Societies Act, the workman has a right to file an appeal under the Shops Act. Therefore, both the objections raised by the petitioner/management are clearly not maintainable and on that ground, the order of the first respondent cannot be set aside. 6. But insofar as the merits of the case are concerned, the petitioner/society has conducted an enquiry in respect of the nine charges leveled against the second respondent. The Enquiry Officer himself found that Charge Nos.4 and 7 have been proved. Charge No.4 states that the second respondent, being a Manager, did not notice the shortage of stock and is thereby responsible for the salesman misappropriating the amounts. Charge No.7 https://hcservices.ecourts.gov.in/hcservices/ relates to the second respondent's negligence in causing heavy loss to the petitioner/society to the tune of Rs.4 Lakhs. 7. The first respondent/Appellate Authority, in the impugned order, gave a finding that the enquiry held against the second respondent was fair and proper and the findings of the Enquiry Officer are also acceptable and it is based upon the witnesses examined and documents filed and therefore, the report of the Enquiry Officer is legal and justified. Having come to the conclusion, the Appellate Authority held that the two proven charges are ordinary misconducts and for that the punishment of dismissal should not have been passed. He also held that when a show cause notice was given to the second respondent proposing the punishment of dismissal, in the show cause notice they had mentioned that they have accepted the report of the Enquiry Officer and for the proven misconduct the punishment of dismissal was proposed. This, according to the Appellate Authority, is amounting to coming to a prior conclusion and therefore, it is opposed to the principles of natural justice. Therefore, on these grounds the authority held that the action of the petitioner/management was illegal. 8. The first respondent/Appellate Authority also held that out of 9 charges, 7 charges were not proved and the two charges which are proved cannot be held to be grave in nature and considering the past service of the second respondent, the punishment of dismissal was excessive. In such view of the matter, he allowed the appeal filed by the second respondent and set aside the order of dismissal. It is against this order, the present writ petition has been filed. 9. The writ petition was admitted on 22.3.2002 and on the same day this Court granted interim stay of the order of the first respondent/ Appellate Authority. Subsequently, this Court made the stay absolute on 26.8.2003. 10. The only issue that arises for consideration is whether the first respondent/Appellate Authority has passed a proper order and it is legal and justified. 11. In the present case, the first respondent/Appellate Authority did not even discuss the case against the second respondent. On the contrary, he made a perfunctory remarks in one paragraph of the order. He extracted the charges leveled against the second respondent and having accepted the finding of the Enquiry Officer and fairness of the enquiry, he on an ipse dixit came to the conclusion that the two proven charges are not serious enough warranting dismissal of the second respondent. Even for holding so, the authority has not discussed the nature https://hcservices.ecourts.gov.in/hcservices/ of the charges. 12. The other finding that the second show cause notice was issued on a preconceived notion also does not stand to reason. If the petitioner/ Society has a bye-law under which an employee is entitled for a second show cause notice proposing penalty, necessarily the authority will have to agree with the Enquiry Officer before prescribing any penalty. But, that does mean an employee is precluded from making submission both on the finding as well as on the proposed penalty. In fact, that was the position of law vis-a-vis a government servant before the introduction of 42nd Amendment to the Constitution of India, wherein the provision of second show cause notice stood deleted. After the deletion of the second show cause notice, when the same was challenged as denial of the violation of the principles of natural justice, the Supreme Court vide judgment in Union of India v. Tulsiram Patel, [1985] 3 SCC 398 upheld the constitutional validity of the said amendment. Thereafter, the Supreme Court in Union of India v. Mohd. Ramzan Khan, [1991] 1 SCC 588 held that if the Enquiry Officer is different from that of the disciplinary authority, then a government servant is entitled to have prior notice before the report is accepted by the authority. This was held to be a part of the principles of natural justice. 13. That question of law is not applicable in cases where the provision for second show cause notice is applicable either in the Standing Orders or in the Service Rules or in the Bye- Laws. In those cases, the interest of workman is amply taken care of. Because, in response to the second show cause notice, a workman can always file a representation both on the findings as well as on the penalty, which facility is not available to a government servant as on date. Therefore, the first respondent/Appellate Authority failed to make a distinction between a case involving a second show cause notice and the case which does not have any second show cause notice provision. 14. Even otherwise, the Supreme Court in ECIL v. B.Karunakar, [1993] 4 SCC 727 has held that non-furnishing of such a notice will not invalidate the proceedings initiated by the employer and the workman will have to prove prejudice. In the present case, along with the show cause notice, the petitioner has been given a copy of the report of the Enquiry Officer, as set out in the counter statement filed by the petitioner/ management in paragraphs 9(ii) and 10(iii). Therefore, to that extent the first respondent/Appellate Authority was wrong in holding that the petitioner/management has committed any misconduct. https://hcservices.ecourts.gov.in/hcservices/ 15. Insofar as the other findings, namely that the two proven charges were not grave enough warranting dismissal, this Court finds that there is no discussion on the modality adopted by the first respondent/ Appellate Authority. Without making any discussion on the proved charges, the authority on an ipse dixit cannot grant any relief. On this ground, the writ petition stands allowed. The impugned order of the first respondent in T.N.S.E.A.No.11 of 2000, dated 24.12.2001 will stand set aside and the matter is remanded to the first respondent for appropriate disposal in accordance with law. Since the matter is ten years old, the first respondent shall give preference for the disposal of the appeal and in any event, shall dispose it of within three months from the date of receipt of a copy of this order, after due notice to the parties. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: The Appellate Authority Tamil Nadu Shops and Establishment Act Tribunal Dindigul. +1cc to M/s. S.M.Subramaniam, Advocate Sr 15677 AKR(CO) km/17.3. W.P.No.10010 of 2002 https://hcservices.ecourts.gov.in/hcservices/