(Prayer: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to call for the records of the first respondent in TNSE Appeal IA.No.1 of 2009 in TNSE 1/2008 and quash its order dated 02.09.2009.

Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to call for the records of the first respondent in TNSE Appeal IA.No.2 of 2009 in TNSE 1/2008 and quash its order dated 02.09.2009.

Common Order:

1. 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.

2. Nutshell facts necessary for the disposal of both these writ petitions, are set out thus:

2.1. 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.

2.2. 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.

2.3. 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.

2.4. 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.

3. 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 reported in 1975-2-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) The Management of Punjab National Bank v. S.C.Gupta and another reported in 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 reported in 2004(1) L.L.N. 621. 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 reported in 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 reported in 12007-1-L.W. 825. 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."

4. 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) Regulations, 2004, he contended that the second respondent ought to have preferred the appeal within the limitation period of 30 days, however, the first respondent had erroneously allowed the second respondent to pursue the appeal before him. He, therefore, submitted that the appeal filed by the second respondent is barred by limitation and that he had not made out either sufficient or acceptable cause to condone the delay in preferring the appeal and in order to fortify his plea, he relied on the following decisions:

(i) T.N.M. Bank Ltd. v. Appellate Authority, Shops Act reported in 1990-I-LLN 457. Paragraph 25 is extracted thus:

"25. We have already found that the order of the first respondent is wholly unjustified and is not warranted by the evidence on record. Even on the footing that the acceptance of the entire evidence placed by the second respondent before the Court is correct, we are of the view that there is no explanation for the inordinate delay in filing the appeal. There is no explanation for not preferring the appeal during one of the periods in which he was not ill. When there is "no cause" for the delay, it cannot be treated as "sufficient cause".

(emphasised by me)

(ii) Post Master General and others v. Living Media India Limited and another reported in (2012) 3 Supreme Court Cases 563 [LQ/SC/2012/212] . Paragraphs 28 to 30 would read as under:

"28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

(emphasis supplied.)

5. The next limb of arguments of the learned Counsel for the petitioners, is that when there is already a civil suit pending before the competent civil Court for the same relief, the second respondent was not justified in approaching the first respondent by way of his appeal petition and that the first respondent had erred in entertaining the same, despite the pending civil suit. He, accordingly, concluded that the first respondent had failed to consider the above aspects and erred in rejecting the applications filed by the petitioner Bank raising the preliminary issues and therefore, he prayed for setting aside the impugned orders passed by the first respondent by allowing these writ petitions.

6. On the contrary, Mr.Paul Varied Cheruvathoor, the second respondent, who appeared in person, submitted that the cause of action had arisen within the jurisdiction of the first respondent as the Chennai Regional Office had administrative and territorial jurisdiction over Anandavadi Branch and therefore, the contention of the petitioners that the appeal filed by him was not sustainable, is liable to be rejected.

7. Insofar as the limitation aspect, he submitted that he had rightly filed the appeal before the first respondent within the limitation and that as per the provisions of the Act, he ought to have filed the appeal on or before 10.08.2008, however, he had filed the appeal on 11.08.2008 for the reason that 10th August 2008 fell on sunday and that the Act is a beneficial legislation and that the stand of the petitioner Bank would not be tenable at any score.

8. Regarding the pendency of the civil suit, he contended that the civil suit was filed by him before the competent civil Court as against the same parties and that no question of suppression the pendency of the civil suit would arise. Moreover, he submitted that the said civil suit had already been dismissed as not pressed on 24.09.2012. Hence, he prayed for the dismissal of the writ petitions.

9. To strengthen his submissions, the party-in-person relied on the following decisions by way of voluminous typed set of papers:

1. Harjinder Singh v. Punjab State Warehousing Corporation reported in 2010(1) SCR 591.

2. Cooper Engineering Limited v. P.P.Mundhe reported in 1975-II-LLJ 379.

3. D.P.Maheswari v. Delhi Administration and others reported in 1983-II-LLJ 425.

4. S.K.Verma v. Mahesh Chandra and another reported in 1983-II-LLJ 429.

5. Neslin Joseph Prim v. P.O., Central Government Industrial Tribunal cum Labour Court, Chennai and another reported in 2002-III-LLJ 686.

6. Lakshmi Vilas Bank Ltd. v. Deputy Commissioner of Labour reported in 2004(1) L.L.N. 621.

7. Srinivasa Rice Mills v. ESI Corporation reported in (2007) 1 Supreme Court Cases 705 [LQ/SC/2006/1080] .

8. T.N.M. Bank Ltd. v. Appellate Authority, Shops Act reported in 1990-I-LLN 457.

9. Madhavan N. v. Deputy Commissioner of Labour, Coimbatore and another reported in 2001-I-LLJ 1290.

10. State Bank of Travancore v. Deputy Commissioner of Labour, Coimbatore and another reported in 1981-I-LLJ 393.

11. B.Subbiah v. Andhra Handloom Weavers Co-op Society Limited, and others reported in 1978-I-LLJ 37.

12. M/s.Juggat Pharma (P) Ltd. v. Deputy Commissioner of Labour, Division - I, Madras - 6 and others reported in 1982-II-LLJ 71.

13. Om Prakash Srivastava v. Union of India and another (S.C) [Appeal (Crl.).786 of 2006, decided on 24.07.2006].

14. Selvin Abraham v. Punjab and Sind Bank reported in 2013(3) KLT 481.

15. Workmen v. Rangavilas Motors (P) Ltd. reported in AIR 1967 Supreme Court 1040.

16. Rallis India Limited v. Additional Commissioner for Workmens Compensation, Madras and another reported in 1982-II-LLJ 328.

17. Parry & Co. Ltd. v. R.J.Stephen reported in 1977(2) LLJ 186.

18. Palat Achuthan v. Management, Citi Bank N.A., Mumbai reported in 2004-I-LLJ 147.

19. Management of P.N.Bank v. S.G.Gupta and another reported in 1990-I-LLJ 605.

20. The Laxmi Vishnu Textile Mills Ltd. Bombay v. M.R.Balakrishnan and others reported in 1977 (90) LW 601.

21. T.Devadason v. G.W. & Co. reported in AIR 1972 SUPREME COURT 1479.

22. Khatija v. National Tobacco Co. reported in 1972 LAB. I. C. 1544.

23. Dr.Devendra M.Surti v. State of Gujarat reported in AIR 1969 SC 63 [LQ/SC/1968/151] .

24. Madras State Electricity Board v. Commissioner of Labour and others reported in 1960-II-LLJ 357.

25. Madras State Electricity Board v. Commissioner of Labour and others reported in 1961-I-LLJ 297.

26. In re Chandrasekaran reported in 1960-II-LLJ 569.

27. S.Ramanathan v. Saroja Mills Ltd. Madurai and others reported in 1977-II-LLJ 202.

28. N.S.Srinivasamurthy and others v. Registrar of Cooperative Societies in Karnataka, Bangalore and others reported in 2004 (1) L.L.N. 1096.

29. South India Bank Ltd., Tirunelveli v. T.D.Pichuthayappan and another reported in AIR 1954 Mad 377 [LQ/MadHC/1953/212] .

30. D.Paul David v. State of Madras reported in AIR 1970 Mad 432 [LQ/MadHC/1969/81] .

31. V.Ramesh v. The General Manager, UCO Bank and another reported in 2012 Writ L.R. 82.

32. Syndicate Bank v. R.Muniraj and others reported in 1975 II LLJ 106.

33. Sadanandan v. State Bank of India reported in 1994 II L.L.N 399.

34. H.Shafi v. R.Thakur reported in AIR 1970 PATNA 89.

35. Haridas Malakar v. Jay Engineering Works reported in 1975 II LLJ 26.

36. Nirchiliya and others v. Management of Safire Theatre, Madras and another reported in 1991 I LLJ 111.

37. National Council for Cement and Building Materials v.State of Haryana and others reported in (1996) 3 Supreme Court Cases 206 [LQ/SC/1996/409] .

38. Workmen Employed by Hindustan Lever Ltd. v. Hindustan Lever Limited reported in (1984) 4 Supreme Court Cases 392 [LQ/SC/1984/226 ;] ">(1984) 4 Supreme Court Cases 392 [LQ/SC/1984/226 ;] [LQ/SC/1984/226 ;] .

39. Agro Cargo Transport Ltd., M/s., etc. v. E.Murugan and another reported in 1994-2-L.W. 83 S.N.

40. Shri Narakesrai Prakasham Ltd. v. E.S.I. Corporation reported in AIR 1984 Supreme Court 1916.

41. P.Sarathy v. State Bank of India reported in (2000) 5 Supreme Court Cases 355 [LQ/SC/2000/978] .

42. Joesph Sam v. Caltex (India) Ltd., and another reported in (1960) I LLJ 794 (Mad).

43. Management of Akkur Primary Agricultural Co-op. Bank Ltd., represented by its Special Officer, Akkur v. Gnanasekaran and another reported in 1997-II-LLJ 959.

44. The Management, represented by Special Officer, RA.385, Sadhananthapuram Primary Agricultural Co-operative Bank Ltd., Sadhananthapuram, Virudhunagar District v. The Appellate Authority [W.P(MD)No.3630 of 2006, decided on 03.08.2011].

45. Lodi I.K. v. Appellate Authority under Tamil Nadu Shops & Establishments Act, Chennai and another reported in 2007-II-LLJ 45.

46. S.Ravirajan v. Deputy Commissioner reported in 1998 (3) CTC 561. [LQ/MadHC/1998/1511]

47. T.Prem Sagar v. The Standard Vaccum Oil Company, Madras and others reported in 1965 AIR 111.

48. State (NCT of Delhi) v. Ahmed Jaan reported in (2008) 14 Supreme Court Cases 582 [LQ/SC/2008/1650] .

49. Santosh v. Jagat Ram and another reported in 2010(2) CTC 489.

50. S.P.Chengalvaraya Naidu v. Jagannath reported in AIR 1994 SUPREME COURT 853.

All the above decisions are related to the limitation as well as the jurisdiction issues.

10. I have considered the rival contentions and perused the materials available on record.

11. Having scrutinised the pleadings and on analysing the submissions on either side, this Court is of the view that since the civil suit filed by the second respondent before the civil Court was dismissed as not pressed on 24.09.2012, the following issues would alone arise for consideration before this Court:

(i) Whether the second respondent could maintain an appeal and whether the first respondent has jurisdiction to entertain the appeal under Section 41 of the Act

(ii) If so, whether the appeal filed by the second respondent is barred by limitation

Issue No.(i):

12. First of all, it would be just and necessary for this Court to refer to the relevant provisions of the Act. Section 1(2) of the Act extends the provisions of the Act to the whole of the State of Tamil Nadu. As per Section 2(3) of the Act, a "commercial establishment" has been defined to mean an establishment which includes, among others, a Bank. Section 2(6) of the Act defining an "establishment" includes a commercial establishment as defined in Section 2(3). Under Section 2(12)(iii) of the Act, a "person employed" means, in the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in connection with the business of the establishment, and includes a peon. The term "Shop" is defined in Section 2(16) of the Act as the premises where trade or business is carried on or services are rendered to customers and includes offices. Section 41 of the Act is reproduced hereunder for ready reference:

"41. Notice of dismissal.

(1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person atleast one months notice or wages in lieu of such notice, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.

(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.

(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed."

13. On a mere perusal of the aforesaid definitions, this Court is of the considered opinion that there cannot be any doubt that for the purposes of the Act, the bank would be a commercial establishment as well as an establishment. Section 41(1) of the Act contemplates that an employer cannot dispense with the services of a "person employed" continuously for a period of not less than six months, except for a reasonable cause and without giving at least one months notice or one months wages in lieu of such notice, barring cases where such service is dispensed with on proof of misconduct established by evidence at an enquiry held for that purpose. The necessary pre-requisite for a dismissal as contemplated under Section 41(1) of the Act is the subsistence of the relationship of employer and person employed on the date of the termination of services in an establishment or commercial establishment in Tamil Nadu.

14. The second respondent relied upon the decision in The Management, represented by Special Officer, RA.385, Sadhananthapuram Primary Agricultural Co-operative Bank Ltd., Sadhananthapuram, Virudhunagar District v. The Appellate Authority [W.P(MD)No.3630 of 2006, decided on 03.08.2011], wherein this Court had an occasion to deal with the similar issue and held thus:

"14. The question to be decided is whether the first respondent had the jurisdiction to entertain the Appeal.

15. The term "Commercial Establishment" is defined under Section 2(3) of the Tamil Nadu Shops and Establishments Act, to reads as under:-

"2(3) "Commercial Establishment" means an establishment which is not a shop but which carries on the business of advertising, commission, forwarding or commercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, brokers office or exchange and includes such other establishment as the State Government may by notification declare to be a commercial establishment for the purposes of this Act".

The petitioner admittedly fall within the definition of "commercial establishment".

16. The contention of the learned counsel for the petitioner, that in view of Section 1(3)(iii) of the Act, the establishment of the petitioner will not be covered under the Act, as it is situated in the village panchayat, which is not classified by the State Government, as Class I Panchayats under Section 5(1)(a) of the Madras Village Panchayats Act, 1950.

17. This contention of the learned counsel for the petitioner cannot be accepted, as after coming into force of Tamil Nadu Panchayat Act 1994, the earlier Acts stood repealed by the new Act. In this Act, there is no categorisation of panchayats in different classes. The Tamil Nadu Panchayat Act 1994, defines the Panchayat to mean a Village Panchayat, a Panchayat Union Council or a District Panchayat constituted under the Act.

18. The Bank establishment within the Panchayat would be covered under the Panchayat Act 1994, and in view of the definition of industrial establishment, the petitioner will fall within the jurisdiction of the Appellate Authority. The contention of the learned counsel for the petitioner, therefore, deserved to be rejected."

(emphasised by me)

15. In yet another decision relied by the second respondent in State Bank of Travancore v. Deputy Commissioner of Labour, Coimbatore and another reported in 1981-I-LLJ 393, this Court has laid down thus:

"2. Mr. S. Jayaraman, the learned counsel for the petitioner urges two grounds for invoking the writ jurisdiction of this Court to quash the said order. The first ground is that the proceedings under S. 41 of the Act before the first respondent are incompetent because the petitioner has passed the order of termination against the second respondent under paragraph 522(1) of the Sastri Award. His submission is not tenable because it cannot be disputed that so far as the employment in question is concerned, the provisions of the Act are definitely attracted. The petitioner satisfies the definition of an employer and the second respondent satisfies the definition of a person employed within the meaning of the Act and any contract between the employer and the person employed cannot override the express provision of the Act, or, in particular, S. 41 thereof. The learned counsel for the petitioner is not in a position to cite any direct authority that wherever there is a contract governing the relationship between the employer and the person employed the provisions of the Act will have to be ignored and there is no necessity to adhere to and satisfy the formalities laid down under S. 41 of the Act. Hence, I am not able to appreciate and accept the first contention of the learned counsel for the petitioner."

(emphasis added.)

16. The second respondent further placed reliance on the decision in Rallis India Limited v. Additional Commissioner for Workmens Compensation, Madras and another reported in 1982- II-LLJ 328, the First Bench of this Court held as under:

"3. Section 41 (2) of the Act provides that the person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his service or on the ground that he had not been guilty of misconduct as held by the employer. The term "person employed" is defined under S. 2 (12) of the Act. A reading of these two provisions would indicate that the right of appeal is provided under S. 41 (2) of the Act to the "person employed" and the ground on which the right of appeal is given is dispensation of service without reasonable cause, or he is not guilty of misconduct. The Head Office of the appellant is at Bombay and the Regional Office is at Madras. There is no office in Nellore where the second respondent was working as a Medical Representative.

Pursuant to the discussion with the Regional Manager, the second respondent was promoted as a Medical Representative with effect from 1-7-1964. The evidence shows that the monthly working progress and monthly reports were submitted by the second respondent only to the Regional Office of the appellant at madras. The second respondent in his cross-examination has stated that his salary was paid at Madras, that he used to discuss with the Regional Manager about the promotion of sales and that they used to give him advice. The Regional Office at Madras was thus exercising administration and supervision over the work of the second respondent. The evidence of the second respondent further shows that the order of termination was passed on the recommendation of the Regional Manager at Madras and it was served at Madras. The companys properties and records in the possession of the respondent were directed to be handed over to the Regional Office at Madras. The Regional Office at Madras is exercising control and supervision over the work of the second respondent and the order of termination was served in Madras would show that at least a part of cause of action arose in madras and that is enough to confer jurisdiction on the first respondent to adjudicate the claim.

4. In the two cases relied on by the learned counsel for the appellant and referred to supra, dispute was raised at the place where the order of termination was served. Since the order of termination in the present case was served in the Regional Office at Madras, the first respondent gets clothed with the territorial jurisdiction to adjudicate the dispute and the claim of the second respondent. So long as there is no conferment of sole and exclusive territorial jurisdiction on any single authority and the territorial jurisdiction of the first respondent to deal with the case is not excluded either expressly or by necessary implication, the conclusion is inescapable that the first respondent has the territorial jurisdiction to deal with the claim or the dispute claimed by the second respondent. We have, therefore, no hesitation in holding that the first respondent has territorial jurisdiction to deal with the appeal filed by the second respondent under S. 41 (2) of the Act."

(underlined by me.)

17. The second respondent also relied on the decision in Palat Achuthan v. Management, Citi Bank N.A., Mumbai reported in 2004-I-LLJ 147, wherein it has been held as follows:

"14. I am inclined to hold that though learned counsel for the petitioner had raised a few other points also, the above enlisted features are more than sufficient to hold that part of cause of action subsisted at Chennai and hence the appeal filed at Chennai is maintainable. The very basis of the dispute between the petitioner and the Bank from the point of view of the Bank itself, is the refusal of the petitioner to go to Mumbai. The fact that there was such a dispute may or may not be a justification for the Bank to terminate the service which issue has to be considered by the Appellate Authority on the merits of the order of termination. But the fact that he was stationed at Chennai cannot be disputed. The Appellate Authority appears to have been carried away by the fact that there was no office room or cabin for the petitioner at Chennai branch which is totally irrelevant. Let us take the simple case of an employee at Chennai being served with an order of transferring him from Chennai to Mumbai. He refuses to join at Mumbai and this is followed by an order of termination which is also addressed to Chennai and served at Chennai. In such a case part of cause of action survives at Chennai and the authority will have definite jurisdiction over the order of termination, even ignoring the additional factors in this case as pointed out above.

15. It is rather a matter of surprise that a mighty organisation like the respondent with all their official set up at Chennai should raise such an objection against a dismissed employee knowing fully well that he is stationed at Chennai and would be put to very much hardship in being forced to go over to Mumbai, engage a counsel and attend series of hearings at Mumbai, which is totally unfair.

16. In the result, the finding of the Appellate Authority on the issue of jurisdiction is set aside and the Deputy Commissioner of Labour (Appellate Authority) under the Tamil Nadu Shops and Establishments Act, Chennai, is directed to take the appeal on merits and dispose of the same within a period of four months. No costs."

(emphasis supplied.)

18. In The Management of Punjab National Bank v. S.C.Gupta and another reported in 1990-I-LLJ 605 (Mad), it is laid down thus:

"... Applying the aforesaid definitions, there cannot be any doubt that for purposes; of the Act, the bank would be a commercial establishment as well as an establishment. Under Section 41(1) of the Act, an employer cannot dispense with the services of a "person employed" continuously for a period of not less than six months, except for a reasonable cause and without giving atleast one months notice or one months wages in lieu of such notice, barring cases where such service is dispensed with on proof of misconduct established by evidence at an enquiry held for that purpose. The essential requisite for a dismissal contemplated by Section 41(1) of the Act is the subsistence of the relationship of employer and person employed on the date of the termination of services in an establishment or commercial establishment in Tamil Nadu. Under Section 2(12)(iii) of the Act, before a person can be a "person employed", such person should be wholly or principally employed in connection with the business of the establishment. Under Section 41(2) of the Act, the person employed is conferred the right of appeal to the appellate authority against the order of termination of service on the ground that there was no reasonable cause for dispensing with his services or that he had not been guilty of misconduct.

A careful consideration of the aforesaid provisions in the Act clearly establishes that the relationship of employer and employee in a business or commercial establishment in Tamil Nadu is a pre-requisite for the termination of the services of the employee and for the employee to complain about it by preferring an appeal under Section 41(2) of the Act."

19. In the light of the aforesaid decisions, this Court is of the view that as per Section 2(12)(iii) of the Act, before a person can be a "person employed", such person should be wholly or principally employed in connection with the business of the establishment. Likewise, Section 41(2) of the Act provides that the person employed is conferred the right of appeal to the appellate authority against the order of termination of service on the ground that there was no reasonable cause for dispensing with his services or that he had not been guilty of misconduct.

20. Further, a deep scrutiny of the above provisions as enunciated under the Act would manifestly prove that the relationship of employer and employee in a business or commercial establishment in Tamil Nadu is a pre-requisite for the termination of the services of the employee and for the employee to complain about it by preferring an appeal under Section 41(2) of the Act.

21. Coming to the case on hand, this Court finds that the second respondent was appointed as Industrial Officer in the year 1994 in the petitioner Management and became Senior Manager in the year 2002 and when he had been working in the Regional Office in Mumbai, the petitioner Management levelled certain charges against the second respondent and after a domestic enquiry, the second respondent was dismissed from service on 24.03.2005. It is the admitted fact that at the time of dismissal from service, the second respondent was working at Anandavadi Branch at Ariyalur District.

22. Further, 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 and the same was rejected and thereafter, he filed a second appeal before the Board of Directors, but, with a delay and ultimately, it was also rejected on 28.06.2008. Later, 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. During the pendency of the said appeal, the petitioners filed two interlocutory applications seeking to raise three preliminary issues to be decided before going into the merits of the appeal, however, 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.

23. It is also pertinent to note that the second respondent, who was working as Senior Manager, at Mumbai Branch of the petitioner bank, was transferred to Anandavadi Branch in Tamil Nadu. The question regarding the applicability of the Act to the petitioner bank, has to be examined in detail, in the light of the provisions of the Act. According to the second respondent, the administrative control over Anandavadi Branch is the Regional Office at Chennai and therefore, the Act would very well apply to the petitioner bank. More so, it is the consistent stand of the second respondent that no discrimination could be drawn among the employees of various Branches of the respondent bank in the State and that the remedy under the Act is always available to the second respondent and that the first respondent has rightly entertained the appeals filed by him, while rejecting the interlocutory applications filed by the petitioner bank.

24. It is the main plea of the petitioner bank that the first respondent had erred in entertaining the appeals filed by the second respondent as he has no jurisdiction at all to do so and that the second respondent has to work out his remedy, if any, before the appropriate forum.

25. However, on a perusal of the typed set of papers filed on the side of the petitioner Bank, it is seen that on a query raised under the Right to Information Act, the Deputy Commissioner of Labour and Authority under Tamil Nadu Shops and Establishments Act, Trichirappalli, replied by his communication in Na.Ka.No.Aa3/12248/08, dated 20.11.2008, to the effect that the provisions of the TNSE Act would not apply to Anandavadi Branch. Therefore, this Court is not in a position to understand as to how the very same authority had entertained the appeal filed by the second respondent and rejected the interlocutory applications filed by the petitioner bank. If the provisions of the TNSE Act would not be applicable to Anandavadi Branch, then, the first respondent authority has not assigned reasons as to maintainability of the appeal filed by the second respondent. These contradictions amidst the information furnished under the Right to Information Act and the rejection of the interlocutory applications filed by the petitioner Bank, would clearly exhibit the non-application of mind on the part of the first respondent who did not even discuss and arrive at a finding as to the maintainability of the appeal filed by the second respondent.

Therefore, this Court finds force in the contention raised by the petitioner bank that the first respondent erred in rejecting the plea of maintainability and the matter needs consideration by the first respondent, on remand. Accordingly, Issue No.(i) is answered in favour of the petitioner bank and as against the second respondent.

Issue No.(ii):

26. Insofar as the limitation aspect is concerned, it is the plea of the petitioner bank that the second respondent had failed in preferring the appeals before the first respondent within the limitation and that the appeals filed by him are liable to be rejected on that score also, however, the first respondent had not considered all these aspects and dismissed the interlocutory applications filed by the petitioner bank.

27. It could be seen that the second respondent was appointed as Industrial Officer in the year 1994 in the petitioner Management and he became Senior Manager in the year 2002. Consequent to certain charges levelled against the second respondent while he was working in the Regional Office in Mumbai, a domestic enquiry was conducted, which ended in dismissal of the second respondent from service on 24.03.2005. No doubt, it is the admitted fact that at the time of dismissal from service, the second respondent was working at Anandavadi Branch at Ariyalur District, in Tamil Nadu. Aggrieved by 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. However, the said appeal was rejected and the said order was served on the second respondent on 18.06.2005. Thereafter, he filed a second appeal before the Board of Directors, however, with a delay. Therefore, the second appeal was also dismissed on 28.06.2008. The copy of the order made in the second appeal was received by the second respondent on 11.07.2008. Thereafter only, the second respondent filed an appeal petition as contemplated under Section 41(2) of the Act before the first respondent.

28. On consideration of the materials placed on record, this Court finds that the second respondent ought to have filed the appeal on or before 10.08.2008, however, he had filed the appeal on 11.08.2008 for the reason that 10th August 2008 fell on sunday and therefore, the first respondent, condoned the delay in filing the appeal taking into account the fact that there is no wilful or wanton delay on the part of the second respondent. Therefore, this Court also opines that the finding of the first respondent regarding the limitation aspect finds favour with this Court. Accordingly, Issue No.(ii) is answered in favour of the second respondent and as against the petitioner bank.

29. In the result,

(i) W.P(MD)No.1733 of 2010 is dismissed, observing that in the event of the first respondent holding that the appeal filed by the second respondent is maintainable in law, the finding of the first respondent in condoning the delay in filing the appeal, as confirmed by this Court, shall hold good and if otherwise, it is for the second respondent to work out his remedy in accordance with law.

(ii) W.P(MD)No.1734 of 2010 is allowed and the impugned order dated 02.09.2009 passed in I.A.No.2 of 2009 in TNSE.No.1 of 2008, by the first respondent, is set aside and the matter is remitted back to the first respondent for fresh consideration on the plea of maintainability of the appeal filed by the second respondent under the TNSE Act. Accordingly, the first respondent is directed to take up I.A.No.2 of 2009 in TNSE.No.1 of 2008, filed by the petitioner bank afresh and consider the same on merits and in accordance with law, in the light of the provisions of the TNSE Act, within a period of eight weeks from the date of receipt of a copy of this order. It is also made clear that the first respondent shall deal with the said interlocutory application without being influenced by any of the observations made by this Court in these writ petitions. Further, the parties are at liberty to agitate their claims before the first respondent in the manner known to law and co-operate with the first respondent for the early disposal of the application.

(iii) Consequently, the connected miscellaneous petitions areclosed. No costs.