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In a dispute pertaining to the dismissal of a manager of the Tamil Nadu Mercantile Bank Ltd., Thoothukudi, the Madurai Bench of the Madras High Court recently held that it could not direct the Deputy Commissioner of Labour, Madurai 625 020 (Appellate Authority) under Sec 41(2) of TN Shops & Establishments Act, 1947 as to how he should frame issues in deciding the appeal by the employee.
The bank manager (R-2) filed an appeal under Sec 41(2) of the Shops & Establishments Act against order dated September 22, 2004 wherein and by which rejected his review application filed against the order of discharge dated February 19, 2004 by which he was dismissed from service.
On notice from R-1, the writ petitioner (Bank) filed a counter statement reserving their right to adduce evidence in case the Appellate Authority (R-1) was to hold that the enquiry was vitiated.
Even before the matter was taken up for hearing, they filed an appeal requesting R-1 to decide the validity of the domestic enquiry as a preliminary issue. The reason for seeking such a relief was that R-2 was inclined to lead evidence to disprove the charges and without deciding the validity of the enquiry, no evidence could be let in. On notice on the interim application, R-2 filed a counter statement dated July 27, 2010 opposing the decision to be rendered on any preliminary issue. It was contended that under Section 41, the Appellate Authority had wide powers and to take fresh evidence in case the enquiry was held to be bad. The Appellate Authority by order dated July 7, 2010 agreeing with the stand of R-2 decided to hear the application along with the main appeal. The petitioner filed the writ petition.
Mr Justice K. Chandru, hearing the case, noted that the Authority was of the view that it was unnecessary to decide any preliminary issue and all issues could be tried together. This Court, the Judge ruled, could not direct R-1 as to how he shouId frame issues in deciding the appeal. Even if he was to decide all issues together and if on the issue relating to the enquiry, he recorded a finding that the enquiry was vitiated, the petitioner-management would always get an opportunity to lead fresh evidence. By the impugned order, the petitioner was not prejudiced.
Citing a judgment of this Court in Kodaikanal Co-op House Building Society Ltd vs Dy Commissioner of Labour (reported in 3 LLN 554), the Judge dismissed the writ petition.
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