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Judgment
S. Manikumar, J.—Mr. N. Dilipkumar, learned counsel appearing for the appellant has consented for the appeals being taken up for disposal.
Though several grounds have been raised challenging the correctness of the order made M.P. (MD) Nos. 1 & 2 of 2015 in W.P. (MD) No. 15009 of 2015, Mr. N. Dilipkumar, learned counsel for the appellant has contended that prior to passing of the order in TNSE.No.1 of 2012, directing reinstatement of the 2nd respondent with back wages, he was involved in a criminal case in Crime No. 4 of 2014, which was taken on file in C.C. No. 144 of 2014, on the file of learned Judicial Magistrate, Tiruchendur, committing theft of Railway property, and that he is being prosecuted for an offence under Section 3(a) of Railway Property (unlawful Possession) Amendment Act of 2012, and that in the event of conviction, appropriate orders should be passed by the Society and in such circumstances, direction issued by the Writ Court in M.P. (MD) Nos. 1 & 2 of 2015 in W.P. (MD) No. 15009 of 2015, dated 05.01.2016, are to be set aside.
We have heard Mr. N. Dilip Kumar, learned counsel appearing for the appellant and Mr. M. Govindan, learned Special Government Pleader for the 1st respondent and perused the materials available on record and the order impugned.
Writ Court while considering the prayer to grant interim stay of the operation of all further proceedings subsequent to the order, dated 31.12.2014 in TNSE No.1 of 2012, has granted an order of interim stay for a period of three weeks.
Section 41(A) of Tamil Nadu Shops and Establishment Act reads as follows:-
"41-A. Payment of full wages to person employed pending proceedings in Higher Courts:- Where in any case, the appellate authority, by its decision under Section 41, directs reinstatement of any person employed and the employer prefers any proceeding against such decision in a High Court or the Supreme Court, the employer shall be liable to pay such pension employed, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the person employed had not been employed in any establishment during such period and an affidavit by such person employed had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such person employed had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."
Admittedly, in TNSE No.1 of 2012, dated 31.12.2014, the prayer of the respondent for reinstatement has been allowed. Section 41-A is a beneficial provision so as to enable the employee to draw the last drawn wages by him, when the employer has preferred any proceedings against the decision of the appellate authority ventilating grievance of the employee, as against the order of termination. Such a provision can also be construed as analogous to payment of subsistence allowance to a Government servant, placed under suspension, on the registration of any crime or case, pending on the file of a criminal Court, the only safeguard provided to the employer under Section 41(A) of the Tamil Nadu Shops and Establishments Act, 1947 to deny payment of last drawn wages inclusive any maintenance allowance admissible to an employee is that the employer should prove to the satisfaction of the High Court or Supreme Court, that such person is employed and received adequate remuneration during the period in which the proceedings against such decision in the High Court or Supreme Court, as the case may be. Pendency of a case in the criminal Court would not amount to guilt of the respondent, unless and until the court of competent jurisdiction records guilt and presumption is always in favour of the respondent.
Writ Court has also observed that when respondent has filed an affidavit regarding his non-employment during the pendency of the writ petition, Learned counsel for the appellant submitted that the Society has some financial difficulties.
In view of the above discussion, this Court is not inclined to interfere with the order made in the instant appeals. The time for implementation of the order made in M.P. (MD) Nos.1&2 of 2015 in W.P. (MD) No. 15009 of 2015, dated 05.01.2016, is extended six weeks from today.
In the result, the Writ Appeals are dismissed. No costs. Consequently, connected miscellaneous petition are also dismissed.