IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.30232 of 2002, 37898 of 2004 and 7358 of 2009 The Management of Arasoor Primary Agrl. Co-operative Bank Ltd., rep. By its Special Officer, Arasoor Post, Ulundurpet Taluk, Villupuram District. .. Petitioner in W.P.Nos.30232 of 2002 and 37898 of 2004 T.Ramalingam .. Petitioner in W.P.No.7358 of 2009 Vs. 1.The Appellate Authority Tamil Nadu shops and Establishment/ Deputy Commissioner of Labour, Chennai-600 006. 2.T.Ramalingam .. Respondents in W.P.No.30232 of 2002 1.The Presiding Officer, Labour Court, Cuddalore. 2.T.Ramalingam .. Respondents in W.P.No.37898 of 2004 1.The Presiding Officer, Labour Court, Cuddalore. 2.The Special Officer, Arasur Primary Agricultural Cooperative Bank Ltd. Arasur, Ulundurpet Taluk, Villupuram District. .. Respondents in W.P.No.7358 of 2009 W.P.No.30232 of 2002 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent made in T.S.E.II-13 of 2001 dated 28.3.2001 and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.37898 of 2004 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorari to call for the records of the first respondent in respect of proceedings dated 9.9.2004 made in C.P.No.984 of 2003 and to quash the same. W.P.No.7358 of 2009 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records relating to the order dated 13.3.2008 made in I.A.No.209 of 2005 in C.P.No.262 of 2004 on the file of the Labour Court, Cuddalore first respondent herein and to quash the same and further direct the Labour Court, Cuddalore to dispose of C.P.No.262 of 2004 on merits and in accordance with law. For Petitioners : Mr.M.S.Palaniswamy – WP No.30232 of 2002 Mr.G.Sankaran – WP No.37898 of 2004 Mr.D.Pradeep Kumar – WP No.7358 of 2009 For Respondents : Mr.A.Arumugam for R2 in W.P.No.7358 of 2009 Mr.D.Pradeep Kumar for R2 in W.P.Nos.37898 of 2004 and 30232 of 2002 Mr.R.Neelakandan, GA for R1 in W.P.No.30232 of 2002 COMMON ORDER The first two writ petitions were filed by the Management of Arasur Primary Agricultural Cooperative Bank. The third writ petition was filed by the contesting respondent, who is an employee of the Bank. 2.In the first writ petition, the challenge was to the order, dated 28.3.2001 made in TSE Case No.II.13/2001 passed by the first respondent, appellate authority under the Tamil Nadu Shops and Establishments Act, 1947. By the said order, the first respondent being the appellate authority set aside the dismissal made against the second respondent workman, dated 09.10.1999. The said writ petition was admitted on 24.7.2002. Pending the writ petition, this court granted an interim stay. The contesting respondent filed a vacate stay application. The stay application as well as vacate stay application were heard together and were disposed of by this court on 28.8.2003. This Court held that since the petitioner Bank was not interested in paying any amount and also arrears of salary, the stay application was rejected and the vacate stay application was closed. 3.In view of there being no interim order, the contesting respondent filed a claim petition under Section 33-C(2) of the Industrial Disputes Act, claiming benefit of the order passed by the appellate authority. He claimed a sum of Rs.3,33,851/-. The claim statement was taken on file as C.P.No.984 of 2003. After trial, the CP was ordered directing payment of wages from July, 1997 to November, 2003, amounting to Rs.3,33,851/-. It is against https://hcservices.ecourts.gov.in/hcservices/ this order, the second writ petition was filed by the management. It was admitted on 21.12.2004 and was directed to be taken along with the other writ petition. 4.The workman in the absence of any interim order in the writ petition moved the Government for Revenue Recovery certificate under Section 33-C(1) of the I.D. Act. The State Government, by G.O.Ms.No.105, Labour and Employment Department, dated 2.2.2005 directed the District Collector, Villupuram to collect the amount as arrears of land revenue. The workman also filed a writ petition being W.P.No.37818 of 2005, seeking for a direction to the District Collector to take action. A direction was also issued to the District Collector. But the management filed a writ appeal being W.A.No.88 of 2006 against the order passed by this court and pleaded financial inability. The said writ appeal came to be dismissed by a division bench on 7.3.2006. Since the District Collector was pressurizing and threatening to take revenue recovery proceedings, another writ petition was filed by the management being W.P.No.38909 of 2006. In that writ petition, this court directed deposit of sum of Rs.3,33,851/- before this court and it was in turn taken by the workman on 7.1.2007. 5.In the meanwhile, the workman also filed an another claim statement before the Labour Court, claiming benefit of the subsequent wages for the period from December, 2003 to September, 2004 amounting to Rs.60,922/-. That claim petition was taken on file as C.P.No.262 of 2004. The management Bank filed a counter statement, dated 11.4.2005, stating that no claim petition will lie arising out of the order passed by the Shops Act authority. Hence the claim petition is not maintainable. They also filed an I.A.No.209 of 2005 to try that as a preliminary issue. The Labour Court upon the same, issued notice to the workman. He also filed a counter statement, stating that as long as the order of the Shops Act authority was not implemented, he is entitled to move the Labour Court for computing his backwages. The Labour Court rejected the case of the workman stating that the workman was estopped from raising such contention. The Labour Court held that since the petitioner did not raise any dispute under Section 2A against his non employment and there was no reference to his non employment under Section 10(1) for adjudication, any claim petition based upon the order of the Shops Act authority is not maintainable. Even for contravention of the order passed under Section 41, penalties are provided under Section 45 of the Tamil Nadu Shops Act. Therefore, in the absence of any Award in favour of the workman and there being no direction to reinstate the workman, the Labour court dismissed the claim petition. As against that the workman had come to challenge the same in W.P.No.7358 of 2009. That writ petition was admitted on 22.4.2009 and was directed to be posted along with the other two writ petitions. 6.In the light of these developments, it has to be seen whether the order passed by the Labour Court in I.A.No.209 of 2005 in C.P.No.262 of 2004 challenged in W.P.No.7358 of 2009 is legally valid. https://hcservices.ecourts.gov.in/hcservices/ 7.It is rather unfortunate that the Labour Court did not even appreciate its own jurisdiction by referring to the legal precedents which are available in abundance. A Full Bench of this court in Safire Theatre Vs. The Commissioner for Workmen's Compensation and others reported in 1977 (2) LLJ 312 has held that the remedy under Section 2A of the ID Act and the appeal under Section 41(2) though both parimateria, the remedies were not mutually exclusive and a workman has a right to choose either of the remedies. The said view of the Full Bench was upheld by the Supreme Court vide its judgment in Nirchiliya and others Vs. Management of Safire Theatre, Madras and another reported in 1991 (1) LLJ 111 (SC). 8.It must also be noted that when the appellate authority under Section 41(2) allows an appeal and set aside an order of termination, it is as if that there is no order of termination in the eye of law. Hence there was no necessity for any further direction to reinstate the workman. Even though his non employment may result in a penalty, that is not a consolation for the workman. On the other hand, in the present case, the employer had filed a writ petition, challenging the order of the appellate authority. The initial stay order was also rejected by this court, in which case there is no impediment for the workman to enforce the provisions of the Shops Act authority. Therefore, the Labour Court was wrong in stating that in the absence of any positive direction for reinstatement like the Labour Court Award, the workman cannot enforce his right under the Shops Act and that the Shops Act only provides for a penalty cannot be accepted. 9.The Supreme Court in more than one occasion has pointed out that when there is provision in favour of the workman and the non compliance results in penalty, then such action or order is mandatory. Therefore, the impugned order of the Labour Court in I.A.No.209 of 2005 in C.P.No.262 of 2004, dated 13.3.2008 stands set aside. The I.A. filed by the management in I.A.No.209 of 2005 stands struck off from the Labour Court and the labour court is hereby directed to take up C.P.No.262 of 2004 and decide the matter after due notice to the parties. 10.W.P.No.37898 of 2004 arose out of the order passed by the labour court in C.P.No.984 of 2003. Though the writ petition challenges the said order, there was no interim order. Hence the workman got a revenue recovery certificate. Thanks to the order passed by this court in W.P.No.38909 of 2006, the said amount has been deposited which was taken by the workman. Therefore, in W.P.No.37898 of 2004, nothing survives. Hence that writ petition stands dismissed. 11.The only surviving writ petition is W.P.No.30232 of 2002. In that writ petition, the Shops Act appeal filed under Section 41(2) by the contesting respondent was taken on file as TSE.II-13/2001 and notice was ordered to the management. The management filed a counter statement resisting the claim of the employee. Before the Labour court, the contention raised by the https://hcservices.ecourts.gov.in/hcservices/ management was that three charges were framed against the workmen, i.e. he failed to produce the original educational certificates and that he indulged in stock deficit by making bogus entry and he misbehaved with staff and management. However, the labour court found that the management did not indicate the relevant rule and bylaw under which charges were framed. They have not conducted any domestic enquiry to prove the charges. Since they have not conducted a domestic enquiry, the principle of adi alteram partem was violated. Further, they have not paid any subsistence allowance during the period of suspension. There was retrospective nature of dismissal order from the date of suspension, which is also illegal. Since due enquiry was not conducted for recording evidence, the punishment of dismissal was set aside as it contravened Section 41 (2) of the Shops Act. 12.There is no case made out for interfering with the order passed by the Shops Act authority. The Supreme Court vide its judgment in United Planters Association of Southern India Vs. K.G.Sangameswaran and another reported in 1997 (2) LLN 73 (SC) held that the power of the authority to take evidence is akin to the power under Section 11A of the I.D. Act. In the present case, such a request of the management cannot be conceded. In the counter statement filed before the authority dated 5.9.2000, no such plea was taken by them and hence no further opportunity need to be given. 13.The Supreme Court in Karnataka State Road Transport Corporation Vs. Lakshmidevamma (Smt) reported in 2001 (5) SCC 433 has held that in the absence of plea by the management, it is not open to the authority to permit them to lead evidence afresh before the authority. If only the management had asked for such relief, this court would have granted such a request in the light of the judgment of the Supreme Court and in the light of the judgment of the division bench of this court in Santhanaraman v. Management of Needamangalam, Co-operative Agricultural Bank Ltd., rep. by its President, Needamangalam, Tiruvarur reported in 2007 (8) M.L.J. 96. Hence, W.P.No.30232 of 2002 deserves to be dismissed. 14.In the light of the above, W.P.Nos.30232 of 2002 and 37898 of 2004 stand dismissed. W.P.No.7358 of 2009 stands allowed and the I.A. filed by the management in I.A.No.209 of 2005 stands struck off from the Labour Court and the labour court is hereby directed to take up C.P.No.262 of 2004 and decide the matter after due notice to the parties. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Appellate Authority Tamil Nadu shops and Establishment/ Deputy Commissioner of Labour, Chennai-600 006. 2.The Presiding Officer, Labour Court, Cuddalore. 3.The Special Officer, Arasur Primary Agricultural Cooperative Bank Ltd. Arasur, Ulundurpet Taluk, Villupuram District. 1 cc to Mr.T.Dhanyakumar, Advocate, Sr.No.27286 ORDER IN W.P.NOs.30232 of 2002, 37898 of 2004 and 7358 of 2009 RSN {CO} TP/27.4.2010. https://hcservices.ecourts.gov.in/hcservices/