IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.2.2010 C O R A M : THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE K.K. SASIDHARAN W.A.No.158 of 2010 and M.P.No.1 of 2010 The George Town Co-operative Bank Limited, rep.by its Secretary, No.62, Krishnappa Agraharam Street, George Town, Chennai-79. ... Appellant/Petitioner -vs- 1.The Deputy Commissioner of Labour (Appellate Authority under Tamil Nadu Shops and Establishments Act), Teynampet, Chennai-600 006. 2.N.G.Seetharaman (Deceased) No.8-A, Thangavelu Pillai Garden I Street, Old Washermanpet, Chennai-600 021. 3.N.S.Rani 4.N.S.Gunalan .. Respondents/Respondents (R3 and R4 substituted in the place of R2 vide order of court dated 29.1.2010 made in M.P.No.2 of 2009) PRAYER : Appeal filed under Clause 15 of the Letters Patent against the order dated 14.7.2008 made in W.P.No.9657 of 1999 on the file of this Court. Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorari calling for the records of the first respondent in TSE No.22/1997 dated 10.7.1998 and quash the same. For appellant : Mr.V.M.Venkatramana For respondents : Mr.Balan Haridas for R3 & R4 *** https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE) Heard Mr.V.M.Venkataramana, learned counsel in support of this appeal. Mr.Balan Haridas, learned counsel appears for respondents 3 and 4. 2. The appellant seeks to challenge the order passed by a learned Single Judge, whereby the learned Single Judge has dismissed the petition filed by the appellant bank, which sought to challenge the order passed by the Deputy Commissioner of Labour (Appellate Authority under the Tamil Nadu Shops and Establishments Act, 1947) setting aside the order of dismissal of the original respondent No.2 herein. 3. The short facts leading to this appeal are this-wise:- The respondent No.2 was working as an Assistant Manager in the appellant bank. He was proceeded in a departmental enquiry for certain charges. The enquiry led to a dismissal order, dated 27th May 1997. The second respondent challenged that dismissal order by taking proceedings under Section 41 of the Tamil Nadu Shops and Establishments Act, 1947, which is otherwise applicable to the Tamil Nadu Co-operative Societies Act. The Appellate Authority under that Act passed an order in favour of the second respondent and set aside the dismissal order by its order, dated 10th July 1998. That order was challenged by filing a writ petition, which has been dismissed by the learned Single Judge and, therefore, this appeal. 4. The learned counsel for the appellant submitted that the learned Judge had erred in recognizing that the Madras Co-operative Societies Act, 1912 was outside the purview of the Tamil Nadu Shops and Establishments Act, 1947. As far as this submission is concerned, Mr.Balan Haridas has pointed out that although the Co- operative Societies are exempted from the applicability of certain provisions of the Tamil Nadu Shops and Establishments Act, 1947, the notification bearing No.II(2)/LE/5671/79 does not exclude Section 41 of the Tamil Nadu Shops and Establishments Act from its applicability to the Co-operative Societies. Section 41 of the Tamil Nadu Shops and Establishments Act, 1947, reads as follows:- ''41. Notice of dismissal.- (1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at https://hcservices.ecourts.gov.in/hcservices/ least one month's notice or wages in lieu of such notice, provided however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. (2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. (3) The decision of the appellate authority shall be final and binding on both the employer and the person employed. 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 drink 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 (State) Government by general or special order; vi.in the case of an establishment not falling 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 https://hcservices.ecourts.gov.in/hcservices/ 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, 1947. It is another matter that as far as those who fall in the workman category are concerned, for them the forum would be the one under the Industrial Disputes Act, 1947. Inasmuch as the appellant was not falling in the workman category, the forum available to him will be the one under the Tamil Nadu Shops and Establishments Act, 1947. In the circumstances, there was no error on the part of the Appellate Authority in exercising the jurisdiction, which it did exercise. 7. The other question is whether the Authority and the learned Single Judge came to the correct conclusion on facts as to whether the misconduct was established or not? 8. As far as this aspect is concerned, the learned counsel for the appellant did not say anything particularly with respect to the findings rendered by the Authority as well as by the learned Single Judge. We have also gone through the charge memo and the findings and we do not see any reason to take a different view. The Authority has applied its mind, considered the material on record and thereafter came to the conclusion that none of the charges framed against the appellant had been proved and, therefore, the Authority set aside the order of dismissal. 9. It so happened that subsequently the original second respondent, who was working as the Assistant Manager, had expired and his legal heirs have come on record as respondents 3 and 4 in his place. The Authority set aside the order of dismissal on 10th July 1998. The appellant filed the writ petition on 19th April 1999, whereafter it has been pending in this Court until it is decided. The heirs of the second respondent will, therefore, be entitled to the amount of backwages that would be payable to the second respondent from the date of the order of the Authority, i.e. from 10th July 1998 until he retired sometimes in 2007. He passed away thereafter. The heirs of the second respondent will also be eligible to the amount of gratuity and provident fund, which the second respondent would have got. The amounts will, however, be paid within three months from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 10. The writ appeal stands dismissed with the above observations and directions. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed. js Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Deputy Commissioner of Labour (Appellate Authority under Tamil Nadu Shops and Establishments Act), Teynampet, Chennai-600 006. + 1 cc to Mr. Balan Haridas, Advocate SR No.7878 + 1 cc to Mr. Sugumar R. Rajulu, Advocate SR No.7110 SSK(CO) SR/12.2.2010 W.A.No.158 of 2010 and M.P.No.1 of 2010 https://hcservices.ecourts.gov.in/hcservices/