Madras High Court
The Special Officer vs The Deputy Commissioner Of Labour on 26 April, 2021
W.A.No.1160/2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.1160 of 2012 and
M.P.No.1/2012
The Special Officer,
Tamil Nadu Silk Producers Federation Limited,
Ind. No.944,
522, Gandhi Road,
Kancheepuram. ... Appellant
-vs-
1. The Deputy Commissioner of Labour
(Minimum Wages),
The Appellate Authority under Tamil Nadu
Shops and Establishment Act, 1947,
Chennai-6.
2. T.Veliappan ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 15.12.2011 passed in W.P.No.32118/2007 by a
learned Single Judge of this Court.
For Appellant : Mr.B.Hari Babu
For 1st respondent : Mrs.Reehana Begum,
Government Advocate
For 2nd Respondent : Mr.V.Lakshminarayanan
1/12
W.A.No.1160/2012
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The Special Officer, Tamil Nadu Silk Producers Federation
Limited, Kancheepuram, has filed this Writ Appeal, questioning the
order passed by a learned Single Judge in W.P.No.32118/2007 dated
15.12.2011 wherein it has been held that the appeal filed against the
retrenchment order passed against the 2nd respondent herein, namely,
T.Veliappan, under Section 41 (2) of the Tamil Nadu Shops and
Establishments Act, 1947, (hereinafter referred to as, 'the Act') is
proper and valid.
2. Mr.B.Hari Babu, learned Counsel for the appellant would
submit that when the 2nd respondent Mr.T.Veliappan being a workman
with the appellant joined the service on 08.11.1993 on daily wages
basis and his services were retrenched by letter dated 19.09.2003,
aggrieved thereby, he has wrongly preferred an appeal before the 1st
respondent, namely, the Deputy Commissioner of Labour (Minimum
Wages), The Appellate Authority under Section 41(2) of the Tamil
Nadu Shops and Establishment Act, 1947. The 1st respondent also,
after examining the claims made by the 2nd respondent and also the
objections raised by the appellant along with marking of three
documents as Ex.A.1 to Ex.A.3 on behalf of the 2nd respondent and
W.A.No.1160/2012
examining one witness on the side of the appellant as R.W.1 along
with marking of 17 documents as Ex.R1 to 17, came to a conclusion
that the 2nd respondent can invoke the provisions of Section 41(2) of
the Act even without resorting to the provisions of the Industrial
Disputes Act, 1947 and that approach adopted by the 2 nd respondent
was unknown to law, therefore, this was overlooked by the learned
Single Judge. Hence, the present appeal has been filed. The learned
Counsel for the appellant would further submit that when the appeal
was not even maintainable and not covered under the provisions of the
Act, the 1st respondent has committed illegality in passing the order
under the Tamil Nadu Shops and Establishments Act, 1947, therefore,
the present appeal deserves to be allowed.
3. Arguing further, learned Counsel for the appellant would
submit that the 2nd respondent was only a daily wage worker,
therefore, he was retrenched for the reasons mentioned therein.
When the retrenchment order passed against the 2nd respondent was
proper and valid, more particularly, after following the procedure laid
down in Section 25(F) of the Industrial Disputes Act, the remedy that
would be resorted by the 2nd respondent is only under the Industrial
Disputes Act, but not filing appeal under the provisions of the Tamil
Nadu Shops and Establishment Act, therefore, the impugned order
W.A.No.1160/2012
passed by the learned Single Judge is liable to be set aside by allowing
the present Writ Appeal.
4. Per contra, Mr.V.Lakshminarayanan, learned Counsel for
the 2nd respondent supporting the impugned order pleaded that the
issue raised both before the 1st respondent and subsequently before
the learned Single Judge has already been adjudicated and decided
not only by a Division Bench of Our High Court but also Full Bench in
the case in The Management of Safire Theatre, Madras, vs. The
Additional Commissioner for Workmen's Compensation, Madras
and Others reported in (1978) AIR (Madras) 14. Learned Counsel
for the 2nd respondent again referring to paragraph 8 of the Division
Bench Judgment in the case of Ms.T.N.Chandra vs. South India
Corporation (Agencies) Limited and another reported in (1992)
1 CLR 951 = (1992) 1 LLJ 739 = (1992) 1 LLN 868, pleaded that
the Division Bench, while considering a similar and identical issue
taking reliance from the judgment of the Apex Court in Mohan Lal vs.
Management of Bharat Electronics Limited held that termination
in violation of Section 25 of the Industrial Disputes Act would be ab
initio void and the workman would be entitled to a declaration that he
continues to be in service with all consequential benefits.
W.A.No.1160/2012
5. Learned Counsel for the 2nd respondent also referred to
yet another decision of the Apex Court in Krishna District Co-
operative Marketing Society Limited, Vijayawada vs.
N.V.Purnachandra Rao and Others reported in AIR 1987 SC 1960
in which it has been held that if the employees are workmen and the
management is an industry as defined in the Industrial Disputes Act,
and thereupon, the action taken by the Management amounts to
'retrenchment', that the rights and liabilities of the parties are
governed by the provisions of Chapter V-A of the Industrial Disputes
Act and that the said rights and liabilities may be adjudicated upon and
enforced in proceedings before the authorities under Section 40(1) and
(3) of the Andhra Pradesh Shops and Establishment Act, 1966. In this
regard, it is useful to refer to the ratio laid down by the Full Bench of
our High Court, in the case in The Management of Safire Theatre,
Madras vs. The Additional Commissioner for Workmen's
Compensation, Madras and Others reported in (1978) AIR
(Madras) 14. Therefore, when the issue raised by the appellant
before the learned Single Judge and also before this Court has already
been decided long time back in Safire Theatre case cited supra,
nothing survives for adjudication in this appeal, he pleaded.
W.A.No.1160/2012
6. We also find some merits on the submissions made by the
learned Counsel for the 2nd respondent. The reason being that when
the 2nd respondent was serving as a workman with the appellant from
08.11.1993 on daily wages basis, his service was retrenched by letter
dated 19.09.2003. Aggrieved by the said retrenchment order passed
against him, the 2nd respondent went before the 1st respondent
invoking the appellate power given under Section 41(2) of the Tamil
Nadu Shops and Establishments Act. The 1st respondent taking first
issue as to whether the 2nd respondent who attained retrenchment
from service can seek relief under Section 41 of the said Act, rightly
answering the same, has come to the conclusion that when the 2nd
respondent was a workman and had put in nearly 10 years of
continuous service from 08.11.1993 on daily wages basis, considering
the fact that he was retrenched from service vide letter dated
19.09.2003, he can also seek remedy under Section 41(2) of the Tamil
Nadu Shops and Establishment Act. Further, taking reliance from the
judgment of Our High Court in Ms.T.N.Chandra vs. South India
Corporation (Agencies) Limited and another reported in (1992)
1 CLR 951 holding that the appellate Authority under Section 41(2)
of the Act can adjudicate the matter arising under Chapter V-A of the
Industrial Disputes Act has rightly held that the appeal filed by the 2 nd
respondent was maintainable under Section 41(2) of the Act.
W.A.No.1160/2012
7. In this regard, since serious objection has been raised by
the learned Counsel for the appellant, we deem it fit to refer to the
ratio laid down by the Division Bench of Our High Court in the case in
Ms.T.N.Chandra vs. South India Corporation (Agencies) Limited
and another reported in (1992) 1 CLR 951 here under :
''8. We have carefully considered the respective
submissions of the learned counsel appearing on either
side but unable to subscribed to the views expressed by
the learned single Judge or uphold the order under appear
before us. In the decision reported in Mohan Lal Vs.
Management of Bharat Electronics Ltd., the Supreme Court
held that a termination in violation of S.25 of the Industrial
Disputes Act, would be ab initio void and the workman
would be entitled to a declaration that he continues to be
in service with all consequential benefits. In Krishna
District Co-operative Marketing Society Limited,
Vijayawada Vs. N.V.Purnachandra Rao and Others, the
Supreme Court held that if the employees are 'work men'
and the management is an 'industry' as defined in the
Industrial Disputes Act, and the action taken by the
Management amounts to 'retrenchment' then the rights
and liabilities of the parties are governed by the provisions
of Chapter V-A of the Industrial Disputes Act and the said
rights and liabilities may be adjudicated upon and enforced
W.A.No.1160/2012
in proceedings before the authorities u/s.40(1) and (3) of
the Andhra Pradesh Shops and Establishment Act, 1966.
The Management of Safire Theatre, Madras vs. The
Additional Commissioner for Workmen's Compensation,
Madras and Others, a Full Bench of their Court held that
Section 2-A of the Industrial Disputes Act does not fully
bar the remedy under S.41 of the Shops Act, and if
decision is rendered under S.41(2) of the Shops Act,
before the Government had made a reference under S.10
of the Industrial Disputes Act, that decision would be final
between the parties and that the remedies under both the
Acts, subject to a worker. In State Bank of Travancore Vs.
Dy.Commissioner of Labour, Coimbatore and another, a
learned Single Judge of this Court held that where the
worker satisfied the definition of a person employed and
the management satisfied the definition of an employer
within the meaning of the Act, any contract between the
employer and the person employed cannot over ride the
express provisions of the Shops Act, particularly, S.41
thereof. The decision in M.Palaniswami Vs. Madukkarai
Cement Works Employees' Co-operative Stores Limited
and Another, of a learned Single Judge of this Court was
referred to in order to show that even in respect of a
probationer, this High Court considered the question of
termination in the light of S.41 though ultimately on merits
the claim of the worker was rejected.''
W.A.No.1160/2012
8. Likewise, it is pertinent to extract the relevant paragraphs
19 and 20 of the Full Bench Judgment of Our High Court in The
Management of Safire Theatre, Madras vs. The Additional
Commissioner for Workmen's Compensation, Madras and
Others reported in (1978) AIR (Madras) 14 here under :
''19. On a careful consideration of the cases cited
and the various provisions of the two Acts, we answer the
questions referred to by Koshal J., as follows:
20. Section 2-A of the Industrial Disputes Act does
not fully bar the remedy u/s.41 of the Madras Shops and
Establishments Act 1947. If a decision is rendered
u/s.41(2) of the Madras Act before the Government had
made a reference u/s.10 of the Industrial Disputes Act, the
decision would be final between the parties. But before
the conclusion of the enquiry u/s.41 of the Madras Act, if
the Government makes a reference u/s.10 of the Industrial
Disputes Act, the pending proceedings u/s.41 of the
Madras Act cannot be continued.''
Therefore, when both the learned Division Bench and the Full
Bench of our High Court mentioned supra have rightly held that
Section 2A of the Industrial Disputes Act does not fully bar the remedy
under Section 41 of the Madras Shops and Establishments Act, 1947,
W.A.No.1160/2012
with a small aberration that if a decision is rendered under Section
41(2) of the said Act, before the Government had made a reference
under Section 10 of the Industrial Disputes Act, that decision would be
final between the parties. However, before the conclusion of the
enquiry under Section 41 of the Madras Act, if the Government makes
a reference under Section 10 of the Industrial Disputes Act, the
pending proceedings under Section 41 of the Madras Act cannot be
continued.
9. In the present case, before any decision is taken by the
Government to refer the industrial dispute to the Labour Court, the 2nd
respondent having approached the 1st respondent, we are of the view
that the findings of the learned Single Judge supporting the
conclusions reached by the 1st respondent is fully in order. Therefore,
we find no merit in the present Appeal.
10. In the result, the Writ Appeal fails and the same is
accordingly dismissed. No costs. Consequently, connected
Miscellaneous Petition is also dismissed.
(T.R.J.,) (V.S.G.J.,)
26.04.2021
W.A.No.1160/2012
tsi
To
The Deputy Commissioner of Labour
(Minimum Wages),
The Appellate Authority under Tamil Nadu
Shops and Establishment Act, 1947,
Chennai-6.
W.A.No.1160/2012
T.RAJA, J.
and
V.SIVAGNANAM, J.
tsi
W.A.No.1160 of 2012
26.04.2021
