The General Manager (Operations) Tamil Nadu Mercantile Bank Ltd. vs The Deputy Commissioner and C. Kanagasabai

K. Chandru, J.—The Petitioner is the Tamil Nadu Mercantile Bank Limited, represented by its General Manager (Operations). They have

filed the present writ petition, seeking to challenge an order passed by the first Respondent Deputy Commissioner of Labor, Madurai made in I.A.

No. 4/2010 INT.N.S.E. No. 1/2006.

Since this Court was not inclined to entertain the writ petition, no notice was issued to the contesting Respondent.

The facts leading to the filing of the writ petition were as follows:

The second Respondent, who was employed as a Manager in the first Respondent Bank filed an appeal u/s 41(2) of the Tamil Nadu Shops and

Establishments Act, 1947 against the order dated 22.09.2005, wherein and by which, rejected his review application filed against the order of

discharge dated 19.02.2004, which was modified order over the earlier penalty dated 20.11.2003,by which he was dismissed from service. The

second Respondent''s appeal was taken on file as T.N.S.E. No. 1/2006. On notice from the first Respondent Appellate Authority, the writ

Petitioner filed a counterstatement dated 14.06.2006. In the counter statement in Paragraph 32, they reserved their right to adduce evidence in

case the Appellate Authority was to hold that the enquiry was vitiated.

Even before the matter was taken up for hearing, they filed I.A. No. 4/2010 requesting the first Respondent to decide the validity of the

domestic enquiry as preliminary issue. The said IA was supported by an affidavit dated 15.12.2009. The reason for seeking such relief was that

the second Respondent was inclined to lead evidence to disprove the charges and without deciding the validity of the enquiry, no evidence can be

let in.

On notice on the interim application, the second Respondent filed a counter statement dated 27.07.2010opposing the decision to be rendered

on any preliminary issue. It was contended that u/s 41 of the Act, the Appellate Authority has wide power and to take fresh evidence in case, the

enquiry was held to be bad. The second Respondent also filed I.A. No. 9 of 2007 asking them to produce certain records and documents which

was also sought for in the domestic enquiry, but the same were not produced.

The Appellate Authority, by the order dated27.07.2010 agreeing with the stand of the second Respondent decided to hear the application along

with the main appeal. The Petitioner filed a memo dated 09.08.2010and thereafter filed the writ petition.

Mr. R. Sivamanogaran, learned Counsel for the Petitioner relied upon the judgment of this Court in Management of Kodaikanal Cooperative

House Building Society Limited, Represented by its Special Officer v. Deputy Commissioner of Labor reported in 2002 3 LLN 554 to contend

that the authority u/s 41 has power to take additional evidence. He also relied upon another unreported decision of this Court in W.P. Nos. 7754

to 7756of 2005 dated 18.09.2007 for contending the similar proposition.

In the present case, the authority is of the view that it was unnecessary to decide any preliminary issue and all issues can be tried together. This

Court cannot direct the first Respondent as to how he should frame issues in deciding the appeal. Even if he is to decide all issues together and if

on the issue relating to the enquiry, he records a finding that the enquiry was vitiated, in the light of the reservation made by the Petitioner

Management in their counter statement, seeking permission to lead evidence, they will always get an opportunity to lead fresh evidence. By the

impugned order, the Petitioner is not prejudiced. The decisions relied upon by the Petitioner have nothing to do with the present case on hand.

In this context, it is necessary to refer to the judgment of a Division Bench of this Court in S. Pattaraiswamy v. Management of Sundaram

Industries Limited and Anr. reported in 2000 W.L.R.284. The relevant passages found at paragraphs 22 and 24 may be usefully extracted below:

In none of those cases, the issue related to the discretion on the part of the Tribunal to try the validity of the domestic enquiry. Therefore,

without being diverted byte general caution expressed by the Supreme Court in the context of disposal of preliminary issues as regards the matters

other than the right of the Management to adduce evidence at the first instance, we would record our conclusions as follows:

(i)The discretion to try the issue of validity of the domestic enquiry as apreliminary issue is with the discretion of the Tribunal and the Tribunal was

not bound under law to frame such a preliminary issue, soot.

(ii)If the employer chooses to avail an opportunity to let in evidence for the first time before the Tribunal, the Tribunal has no power to refuse. Such

a request should however be made at the earliest opportunity, namely, while filing the written statement itself.

(iii)Any finding on the preliminary issue shall be agitated only after the final award and it would be legitimate for the High Court to refuse to interfere

at the stage ofthe decision over the preliminary issue-vide-paragraph 19 of the judgment in The Cooper Engineering Limited Vs. Shri P.P.

Mundhe,

We are of the view that it is within the discretion of the Tribunal top tried or not to try a preliminary issue as regards the validity of the domestic

enquiry.

In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.