W.P. (MD) No. 1733 of 2010 and M.P. (MD) Nos. 2 of 2010 and 1 of 2013 and W.P. (MD) No. 1734 of 2010 and M.P. (MD) No. 2 of 2010. Case: South Indian Bank Ltd. Vs Deputy Commissioner of Labour. High Court of Madras (India)
| Case Number | W.P. (MD) No. 1733 of 2010 and M.P. (MD) Nos. 2 of 2010 and 1 of 2013 and W.P. (MD) No. 1734 of 2010 and M.P. (MD) No. 2 of 2010 |
| Counsel | For Appellant: Karthik for T.S. Gopalan and Co. and For Respondents: Aayiram K. Selvakumar, Govt. Advocate, Paul Varied Cheruvathoor and Party-in-Person |
| Judges | R. Mahadevan, J. |
| Issue | Madras Village Panchayats Act, 1950 - Section 5(1)(a); Tamil Nadu Shops and Establishments Act, 1947 - Sections 1(2), 1(3)(b), 1(3)(iii), 2(12), 2(12)(iii), 2(16), 2(3), 2(6), 41, 41(1), 41(2), 6 |
| Citation | 2015 (I) LLJ 171 Mad |
| Judgement Date | December 02, 2014 |
| Court | High Court of Madras (India) |
Order:
R. Mahadevan, J.
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Since both the writ petitions arose out of the common order passed by the first respondent in TNSE I.A. Nos. 1 and 2 of 2009 in TNSE 1/2008, dated 02.09.2009, they are taken up together for hearing and decided by this common order. Nutshell facts necessary for the disposal of both these writ petitions, are set out thus:
1.1. The second respondent was appointed as Industrial Officer in the year 1994 in the petitioner Management. He became Senior Manager in the year 2002 and while he was working in the Regional Office in Mumbai, the petitioner Management levelled certain charges against him. A domestic enquiry was conducted, as a result of which, the second respondent was dismissed from service on 24.03.2005. At the time of dismissal from service, the second respondent was working at Anandavadi Branch at Ariyalur District.
1.2. Challenging the order of dismissal, the second respondent filed the appeal before the Chairman of the petitioner Bank as per the provisions of the South Indian Bank Officers' Conduct (Discipline and Appeal) Regulations, 2004. The said appeal was rejected and the said order was served on the second respondent on 18.06.2005. He also preferred a second appeal before the Board of Directors, however, with a delay. But, the second appeal also came to be rejected by the Board of Directors on 28.06.2008. The copy of the order passed in the second appeal was received by the second respondent on 11.07.2008.
1.3. Thereafter, the second respondent preferred an appeal petition under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (in short "the Act") before the first respondent. Pending the appeal filed by the second respondent, the petitioners filed two interlocutory applications seeking to raise three preliminary issues to be decided before going into the merits of the appeal, viz., (i) whether the provisions of the Act and Rules made thereunder are applicable to Anandavadi Branch? (ii) Whether the appeal petition shall be dealt with as per the limitations prescribed under the Act? and (iii) Whether the appeal petition is barred by the civil suit already filed before the civil Court?.
1.4. The first respondent, on consideration of the materials available on record, dismissed the said applications. Aggrieved over the same, the petitioners have come before this Court with the present writ petitions.
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The learned Counsel for the petitioners submitted that the first respondent had failed to appreciate applicability of the Act with the petitioner Bank and that in the absence of any notification extending the provisions of the Act, the first respondent could not assume jurisdiction to invoke the provisions of the Act in the case of the second respondent. In support of the said submission, he placed reliance on the following decisions:
(i) Premier Automobiles Ltd. v. K.S. Wadke AIR 1975 SC 2238: (1976) 1 SCC 496: LNIND 1975 SC 299: 1975-II-LLJ-445, wherein the Honourable Supreme Court had dealt with the jurisdiction of the civil Courts in regard to the applicability of the Industrial Disputes Act, 1947.
(ii) Management of Punjab National Bank v. S.C. Gupta and Another LNIND 1989 MAD 12: 1990-I-LLJ-605 (Mad). The relevant portion in paragraph 6, reads thus:
We may now refer to the decision reported in Workmen of Sri Ranga Vilas Motors v. S.R.V. Motors 1967-II-LLJ-12 relied on by the learned counsel for the first respondent. In that case, the employee working at the Bangalore branch office of a company having its head office at Krishnagiri in Tamil Nadu was transferred by the orders of the head office. But the order of transfer was not obeyed, which resulted in the removal of the employee from service, upon which a reference was made under the provisions of the Industrial Disputes Act by the State of Karnataka and on an objection being raised that the reference was incompetent, the Supreme Court pointed out that the concerned employee was working in Bangalore at the time of his transfer and the subject-matter of dispute arose within the jurisdiction of the Karnataka Government and, therefore, the reference was competent. That decision cannot have any application on the facts of this case, where the first respondent had ceased to be an employee in an establishment in Tamil Nadu on and from 29th October 1983 and the order of termination of his services was passed on 8th November 1983 at Kanpur and during the interval the first respondent could at best be regarded either as an employee of the bank called upon to report at the Central office at Kanpur or an employee of the Central office at large, and not of any establishment of the bank within the State of Tamil Nadu. In other words, the first respondent did not have any connection whatever with the State of Tamil Nadu on and from 29th October 1983 and at the time when the order of termination was passed and there is, therefore, no question of any part of the cause of action arising within State of Tamil Nadu. We are of the view that there is absolutely no nexus between the prior proceedings and the order of termination of the services of the first respondent and we cannot, therefore, accept the argument of the learned counsel for the first respondent that the prior proceedings in Madras resulted in the order of termination being passed at Kanpur and, therefore, atleast some part of the cause in Madras enabling the first respondent to maintain his appeal under Section 41(2) of the Act before the second respondent at Madras. We may also add that neither side supported the liberal interpretation of the provisions of the Act adopted by the learned Judge in the course of his order or the other reasons given for the deemed employment of the first respondent under the bank. We, therefore, hold the appellate authority functioning under Section 41(2) of the Act within the State of Tamil Nadu did not have jurisdiction to entertain the appeal filed by the first respondent herein. We, therefore, allow the writ appeal and dismiss W.P. No. 7528 of 1984. There will be, however, no order as to costs.
(iii) Lakshmi Vilas Bank Ltd. v. Deputy Commissioner of Labour 2004 (1) L.L.N. 621: LNIND 2003 MAD 1968: 2004-IV-LLJ-456. Paragraph 30 would run thus:
30. In the light of the above pronouncements, it is clear that on the date when the termination order was passed, either to the branch in which the second respondent was employed or the head office of the petitioner-bank where the head office is located, the provisions of the Tamil Nadu Shops and Establishments Act, 1947, has not been notified or extended. Therefore, it follows that the second respondent cannot maintain an appeal under S. 41. While following the Division Bench judgment of this Court and Supreme Court, the points 1 and 2 are answered in favour of the writ petitioner and against the second respondent.
(iv) Srinivasa Rice Mill v. ESIC (2007) 1 SCC 705: LNIND 2006 SC 954: 2007-I-LLJ 625, wherein the Honourable Supreme Court laid down the law relating to the Employees' State Insurance Act, 1948, that the applicability of the Act would be a jurisdictional question and the employer was entitled to raise such a question.
(v) Management of Akkur Primary Agricultural Co-op., Bank Ltd. v. Gnanasekaran and Another 2007-1-L.W. 825: LNIND 2006 MAD 2905: (2007) 2 MLJ 461: 2007-II-LLJ-959. Paragraphs 12 and 13 are reproduced hereunder for ready reference:
12. After the authoritative statement is made by the competent authority under the Act, there is very little that could be argued by the learned counsels on both sides. However, Mr. K. Kumar, learned Senior Counsel appearing for the first respondent argued that on the basis of the notification issued under Section 6 of the Shops Act, the Act will apply to the appellant Society. We are unable to agree with the said submission. When the intention of the legislature is to apply the provisions of the Act on a stage by stage basis, firstly to the Corporations in the State and thereafter to all the Municipalities and only thereafter, to the Panchayats under the Madras Village Panchayats Act, 1950 and also reserved further power to notify to any other area by a specific notification, we cannot agree with the submission made by the learned Senior Counsel appearing for the first respondent that the notification issued under Section 6 will be equated to a notification under Section 1(3)(b) of the Shops Act. Unfortunately, this issue has not been properly dealt with by the second respondent appellate authority as well as by the learned single Judge, which forced this Court to exercise such a power as the issue related to jurisdiction.
13. In view of the fact that the Act does not apply to the Akkur Panchayat wherein the appellant Society situated, the writ appeal shall stand allowed and the order passed by the second respondent dated 07.5.2001 confirmed by the learned Judge vide order dated 28.6.2006 in the writ petition, is hereby set aside. In view of the fact that the writ appeal is allowed, it is open to the first respondent to work out his remedy in accordance with law by making appropriate petition before appropriate forum. Consequently, M.P. No. 1 of 2006 will stand closed. However, the parties are allowed to bear their own costs.
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The learned Counsel for the petitioners further added that the first respondent had not properly dealt with the limitation aspect and unilaterally condoned the delay in filing the appeal petition before the first respondent, which would cause prejudice to the petitioner Bank, as no opportunity of hearing was afforded to them. Drawing the provisions of the South Indian Bank Officers' Conduct (Discipline and Appeal)...
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