Judgment :- The Management of Lakshmi Vilas Bank Ltd., has prayed for the issue of a writ of certiorari calling for the records of the first respondent/Deputy Commissioner of Labour(Appeals) (Appellate Authority) under section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947 in TSC Case No.8/94 and quash its order dated 13.3.1997. 2. Heard Mr.V.Karthik, for M/s.T.S.Gopalan and Co., appearing for the petitioner, Mr.S.Ayyadurai, learned counsel appearing for the second respondent and Mrs.D.Malarvizhi, learned counsel appearing for the first respondent. 3. The petitioner, a Banking company had its registered office at Jawahar Bazaar, Karur intially and shifted to Sengunthapuram village Karur. The petitioner bank put up its own building at Kathupalayam Village outside Karur Municipality in the year 1992 and shifted its registered office as well as administrative office to its premises at Kathuparai. The second respondent was appointed as a clerk during the year 1980 and worked in various Branches and lastly posted to Kandili Branch, Thirupathur Taluk. The Tamil Nadu Shops and Establishments Act applies to shops, commercial establishments and certain other establishments according to the petitioner. According to the petitioner the said enactment applies to whole State of Tamil Nadu. Section 1(3)(a) provides that the Act shall come into force on such date as the State Government may notify and appoint authority, respectively (1) for the City of Madras (2) All Municipalities stated under the District Municipalities Act and (3) All areas within the jurisdiction of Panchayats. 4. Karur Town where the petitioner's registered office and its administrative office is functioning and Kandili Village where the second respondent was working are not covered by the Tamil Nadu Shops and Establishments Act. According to the petitioner Kathuparai and Kandili village would not fall within the scope of the Act, nor the State Government issued any notification under section 1(3)(b) of the Act extending the provisions of the Act to the said two villages. 5. Since 1991 onwards the second respondent was not really interested in the job. But at the same time wanted his employment to be put an end by the petitioner. The second respondent was not making himself available for employment continuously for long periods. During 1991, the second respondent reported for work only for 11 days. During 1992, the second respondent worked for 22 days and during the year 1993, he had worked for 12 days. The second respondent was not making himself available for employment continuously for long periods. During 1991, the second respondent reported for work only for 11 days. During 1992, the second respondent worked for 22 days and during the year 1993, he had worked for 12 days. The bipartite settlement governing the service conditions of the workmen in the Banking Industries provides that an employee who is absenting himself without leave for more than 90 days and does not report for duty within 30 days of notice, his name can be struck off from the Rolls. Invoking the said provision, the petitioner issued a communication dated 26.2.1994 to the effect that the second respondent has left the employment. 6. Aggrieved by the same, the second respondent preferred an appeal before the first respondent under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947. The petitioner-Bank raised objections as to the maintainability of the Appeal as well as jurisdiction. The petitioner examined its Branch Manager. On 23.5.1996, the parties submitted their arguments and orders were reserved. The first respondent did not pass orders and the officer who heard the arguments was transferred. The next incumbent to the office of the first respondent posted the appeal for fresh enquiry. At that stage during July 1998, the petitioner came to know that the provisions of the Act has not been extended to Kandili Village as well as Kathuparai Village and therefore an additional counter statement was filed on 16.7.1996 raising objection as to jurisdiction and the maintainability of the Appeal. The second respondent filed an additional counter statement. The petitioner produced Ex.R.36, a certificate which would show that to Kandili village the provisions of the Tamil Nadu Shops and Establishments Act has no application. The petitioner requested the first respondent to decide the maintainability of the appeal at the first instance as a preliminary issue. The hearing on the preliminary objection was concluded on 14.2.1997 and the first respondent reserved orders on the preliminary issue. 7. On 13.3.1997 the first respondent held that the second respondent had worked in various other branches, finally posted to Kandili Branch to which place the Act has not been extended. But the Act applies to other Branches where the second respondent worked. 7. On 13.3.1997 the first respondent held that the second respondent had worked in various other branches, finally posted to Kandili Branch to which place the Act has not been extended. But the Act applies to other Branches where the second respondent worked. According to the first respondent, the second respondent was covered under the provisions of the Act and merely because the second respondent was transferred to a place where the provisions of the Act has not been extended, it cannot be contended that the second respondent was not governed by the provisions of the said Act. It is also the view of the first respondent that when the colleagues of the second respondent who are working in other branches were covered by the provisions of the Act, if the second respondent is not covered by the said Act, then it would amount to discrimination. The second respondent was working in other branches and therefore it shall be deemed that the Act continue to apply even though he has been posted at Kandili to which place the Act has not been extended. According to the first respondent, the second respondent is covered by the provisions of the Act and he is continued to be covered as well though he has been posted at Kandili branch. 8. After holding that the Act is applicable, the first respondent proceeded to consider the merits of the case and held that the termination is bad and allowed the appeal, set aside the order of termination dated 28.2.1994. According to the petitioner no arguments were advanced with respect to the merits and arguments were confined only with respect to the jurisdictional issue and maintainability of the appeal. Yet, the first respondent has proceeded to decide the claim of the second respondent on merits. In the circumstances, to avoid technical objection, the petitioner moved a Review Petition before the first respondent submitting that no arguments were advanced on merits and the appeal should be reopened for further hearing. The said Review Petition was returned with an endorsement that the first respondent has no power of review. Hence the present writ petition. 9. In the circumstances, to avoid technical objection, the petitioner moved a Review Petition before the first respondent submitting that no arguments were advanced on merits and the appeal should be reopened for further hearing. The said Review Petition was returned with an endorsement that the first respondent has no power of review. Hence the present writ petition. 9. It is contended that the order of the first respondent is totally without jurisdiction in that the first respondent having held that the provisions of the Tamil Nadu Shops and Establishments Act has not been extended to the place where the second respondent was working at the time of issuing of impugned communication, the first respondent exceeded in his jurisdiction in entertaining the appeal and deciding the appeal on merits. The second respondent has no right of appeal as the Act has not been extended to the place where the second respondent was posted and the appeal is not maintainable. The provisions of Section 41(2) of the Act has no application and the second respondent should have been directed to raise a dispute under section 2(A) of the Industrial Disputes Act. 10. It is also contended that the applicability of the Act has to be decided with reference to the cause of action and not with reference to the earlier posting or places where the second respondent worked and merely because other colleagues of the second respondent are covered by the provisions of the Tamil Nadu Shops and Establishments Act, it cannot be contended that the Act applies, lest it would amount to discrimination. Such a view is a misconception of law. The provisions of the Tamil Nadu Shops and Establishments Act cannot be enforced by the second respondent against the writ petitioner-bank. It is contended that the first respondent has exceeded in its jurisdiction in examining the merits of the appeal when the parties have addressed arguments only in respect of preliminary issue as to maintainability of the appeal. It is contended that the order of the first respondent is liable to be quashed and the writ petition is to be allowed. 11. It is contended that the order of the first respondent is liable to be quashed and the writ petition is to be allowed. 11. It is also contended that no appeal is maintainable as it is a deletion of the second respondent's name with effect from 26.2.1994 for his failure to report to duty for a minimum number of days in terms of the bipartite settlement and it is not a termination but it is striking of the name of the second respondent from the rolls of employment. It is further contended that when there is reasonable cause calling upon to issue one month notice does not arise at all even on merits of the case. 12. Per contra, the second respondent contended that no interference is called for with the impugned order passed by the first respondent and the appeal is maintainable. It is further contended by the second respondent that no interference is called for in respect of the order passed by the first respondent on merits as well. It is claimed by the second respondent that that the secodn respondent who is covered by the provisions of the Tamil Nadu Shops and Establishments Act will continue to be covered irrespective of place of posting and irrespective where the Head Office or Administrative Office of the petitioner-Bank is located and whether to such location the provisions of the Act is notified or not. 13. On 28.1.1994 the petitioner Bank sent a communication to the second respondent which reads thus:- "Ref: Your absence from 27.10.1993 As you have been absenting from duty without sanction of leave since 27.10.1993, we are constrained to presume that you do not have any interest in your employment as well as you do not have any willingness to report for duty. Under these circumstances, we are compelled to invoke para XVII of V bi-partite settlement dated 10.4.1989. You are therefore called upon to report for duty within 30 days of this notice along with your satisfactory explanation and substantiating proof for your above absence. In case, you fail to comply with the above requirements you will be deemed to have voluntarily retired from Bank's service on the expiry of this notice in terms of para XVII of the V bi-partite settlement dated 10.4.1989. In case, you fail to comply with the above requirements you will be deemed to have voluntarily retired from Bank's service on the expiry of this notice in terms of para XVII of the V bi-partite settlement dated 10.4.1989. Your name will be deleted from the rolls of the Bank automatically on expiry of 30 days of this notice without any further communication in this regard." 14. The second respondent did not report for duty as called upon. However, the second respondent through his Advocate sent a telegram alleging that he had reported for duty on 24.2.1994 and willing to join duty, but the Manager refused to allow him inside the Bank premises. 15. On 28.2.1994 the following communication was sent:- "Dear Sir, Ref: Ist Notice under Para XII of the Bipartite settlement dated 10.4.1989 ..... Please refer to the above. As per our notice, you have not reported for duty till 16.2.1994. Hence your name stands deleted from the rolls of the Bank with effect from 26.2.1994 (closing off office hours) as per the aforesaid notice". 16. There is also no dispute that the second respondent attended the Bank for 11 days out of 291 working days during the year 1991; 22 days out of 294 days in the year 1992 and 12 days out of 290 days during the year 1993 and in all 47 days up to 26.2.1994 during the year 1994. The said details is not in controversy. On receipt of the communication dated 28.2.1994 the second respondent moved the first respondent, namely the Deputy Commissioner of Labour, Madras under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 contending that the order is illegal and unjust and that the Bank has not complied with the provisions of the said Act. 17. Before the first respondent-Appellate Authority, the petitioner-Management of the Bank contended that the appeal is not maintainable as the Act has not been extended to the place where the first respondent is employed, nor the Act has been extended to the Head Office of the Appellant Bank so that the Appeal could be maintained. It was also further contended that there are no merits in the Appeal. The said jurisdictional issue was raised by the Appellant-Bank as a preliminary issue. 18. Before the first respondent, namely Deputy Commissioner of Labour, (Appeals) a memo was filed raising preliminary objection. It was also further contended that there are no merits in the Appeal. The said jurisdictional issue was raised by the Appellant-Bank as a preliminary issue. 18. Before the first respondent, namely Deputy Commissioner of Labour, (Appeals) a memo was filed raising preliminary objection. The first respondent-appellate authority took a view that the Appeal is maintainable on the sole ground that there should not be any discrimination between the employees working under the same employer when one set of employees is enjoying the right and another set of employees may not be denied the same on technical reasons. It was also the view of the first respondent that the employee was governed earlier by the provisions of the Tamil Nadu Shops and Establishments Act as the employee was earlier employed in a place where the provisions of the said Act had been extended and therefore it should be construed that the employee continue to be governed by the provisions of the said Act even after transfer to a place where the provisions of the Tamil Nadu Shops and Establishments Act is not applicable. According to the first respondent, the coverage is nothing but notional extension and therefore the Appeal is maintainable and the appellant before it is governed by the provisions of the Act and the Appeal is maintainable. Such a finding has been recorded by the first respondent on the first issue, namely Whether the provisions of The Tamil Nadu Shops and Establishments Act, 1947 would apply to the respondent-Establishment? 19. Mr.Karthick, learned counsel appearing for the petitioner contended that the Tamil Nadu Shops and Establishments Act, 1947 will not apply as the second respondent employee is not employed at the time of termination in a Branch or Head Office of the Bank where the provisions of the Act have not been extended, nor been applicable. Admittedly, the second respondent-workman was employed in Kandili Branch, over which area, the provisions of The Tamil Nadu Shops and Establishments Act, has not been extended. It is also supported by Ex.M.36. It is also the contention that even the Head Office of the Bank is located at a place where the provisions of the Tamil Nadu Shops and Establishments Act has not been notified or extended. 20. It is also supported by Ex.M.36. It is also the contention that even the Head Office of the Bank is located at a place where the provisions of the Tamil Nadu Shops and Establishments Act has not been notified or extended. 20. In this respect, Mr.Karthick, learned counsel further contended that the contention advanced before the first respondent is with respect to jurisdictional issue and not on merits. But the first respondent had decided the Appeal on merits as well and this is an illegality, besides it is violative of principles of natural justice. In this respect, Mr.Karthick, learned counsel pointed out that the writ petitioner filed a memo stating that only jurisdictional issue was argued and no argument was advanced on merits and therefore the matter may be heard afresh. But the first respondent even after filing of a memo, had taken the above view. Therefore there is no controversy that the arguments were advanced only with respect to the jurisdictional issue and not on merits. Yet, the first respondent had gone into the merits of the Appeal and this has prejudiced the writ petitioner. 21. In the present Writ Petition, we have to examine the jurisdictional issue and in case if the jurisdictional issue is answered in favour of the writ petitioner, then it may not be necessary to examine the merits of the case and counter case. In the event of the jurisdictional issue is answered in favour of the second respondent, this court may consider for remanding the matter to the first respondent herein for de novo consideration on merits of the Appeal as the parties did not advance arguments on merits of their respective claims. This is clear from the records. 22. The following points arise for consideration:- (i) Whether the second respondent could maintain an appeal and whether the first respondent has jurisdiction to maintain the appeal under Section 41 of The Tamil Nadu Shops and Establishments Act? (ii) Whether the second respondent could claim any relief against the petitioner-bank under Section 41 of The Tamil Nadu Shops and Establishments Act? (iii)To what relief, the parties are entitled to on merits of their case advanced by the respective parties? 23. (ii) Whether the second respondent could claim any relief against the petitioner-bank under Section 41 of The Tamil Nadu Shops and Establishments Act? (iii)To what relief, the parties are entitled to on merits of their case advanced by the respective parties? 23. Taking up the first two points, which are jurisdictional issues, this Court has to consider as to whether the second respondent could invoke Section 41 and whether the second respondent could maintain an appeal, it is to be seen that Section 1(2) of the Tamil Nadu Shops and Establishments Act, 1947 provides that the Act shall come into force on such date as the State Government by Notification appoint in respect of various places. In respect of the first area being City of Madras and the second being all Municipalities, while the third category being Panchayats. The fourth category being those areas other than the City of Madras, Municipalities, and Panchayats classified as major panchayats or Class-I Panchayats as notified. 24. Concedingly, Kandili Branch where the second respondent was employed on the date when he was intimated that his name has been struck off, the Act has not been extended It is also not in dispute that the Head Office of the petitioner-Bank and its administrative office is located outside Karur Municipality and in respect of that area also in terms of Section 1(b) no Notification has been issued extending the provisions of The Tamil Nadu Shops and Establishments Act. Therefore, in respect of Kandili branch as well as the petitioners Registered and Administrative Offices, the provisions of The Tamil Nadu Shops and Establishment Act has not been extended. There is no dispute that the second respondent, if he had been posted in a Branch located within the City of Madras or located in any Municipal Town or in a Major Panchayat or Class-I Panchyat, then he could maintain an Appeal under Section 41 of the Act. There is no controversy in this respect. In the view of the first respondent, merely because the second respondent has been posted to Kandili Branch and his services were terminated otherwise while he was working in Kandili Branch, it cannot be contended nor it could be held that he is not covered by the provisions of the said Act, nor it could be contended that he could not invoke Section 41 of the Act. 25. 25. Mr.Karthick, learned counsel appearing for the petitioner relied upon the earlier pronouncements of this court in this respect and pointed out that on the date of the order which is sought to be challenged by way of appeal under Section 41, which is the crucial or material date, the second respondent should have worked in a place or a Branch, where the Tamil Nadu Shops and Establishments Act has been extended. In other words, the cause of action has arisen while the second respondent was employed in Kandili Branch and therefore when The Tamil Nadu Shops and Establishments Act has not been extended by a Notification, no Appeal is maintainable. Alternatively it was contended that the Head Office of the petitioner-Bank is also located outside the municipal limit and therefore the provisions of The Tamil Nadu Shops and Establishments Act has not been extended to the area within which the petitioner's Head Office or Registered Office is located. 26. The point advanced by Mr.Karthick, learned counsel, in my considered view is supported by two earlier pronouncements of this Court, namely (i) Management of Punjab National Bank Vs. S.C.Guptha, reported in 1990 (I) LLJ, 605 (D.B) and that of N.V.Balasubramanian,J., in Ravirajan Vs. Deputy Commissioner of Labour and another, reported in 1999 (II) LLJ page 221. 27. In Management of Punjab National Bank Vs. S.C.Guptha, reported in 1990 (I) LLJ, 605 (D.B) Their Lordships went into the question of jurisdiction with reference to the maintainability of the appeal preferred under Section 41(2) of the Tamil Nadu Shops and Establishments Act for consideration. In that case, an employee of the Bank who was posted at Madras was transferred to Central Office of Kanpur, in which office the employee of the Bank joined, thereafter the services of the bank was terminated. The employee moved the appellate authority namely the Deputy Commissioner of Labour Madras as if the appeal is maintainable under section 41 of the Tamil Nadu Shops and Establishments Act. In that context, the Division Bench held that to invoke the jurisdiction of the authority the relationship of employer and employee should exist to maintain a complaint or appeal under Section 41(2). In that context, the Division Bench held that to invoke the jurisdiction of the authority the relationship of employer and employee should exist to maintain a complaint or appeal under Section 41(2). In that case on the date when the order of termination was passed or served on the employee, the employee was outside the State of Tamil Nadu and he was an employee of the Bank of the particular branch and therefore the employee cannot invoke the jurisdiction under section 41. The Division Bench held thus:- "So looked at, the communication dated 12th September, 1983 not only put an end to the relationship of employer and employee between the appellant and the first respondent in its Branch at Madras, but also had the effect of obliging the first respondent to report at the Central Office at Kanpur in order to enable the Central Office to utilize his services in any manner it thought fit. It, therefore, follows that at the time when the termination order was served on the first respondent, he was not an employee of the Madras Branch, but was an employee of the Central Office at Kanpur and as such the termination of his services was effected at Kanpur, while he was an employee of the Central office. Even on the footing that the communication dated 12th September 1983 cannot be construed as an order of transfer of the first respondent to the Central Office at Kanpur, as pointed out already, he could not have had anything to do with the Madras Branch as its employee after 29th October 1983 and though he might have remained even thereafter in the State of Tamil Nadu, he could not be considered as an employee of the Bank during the interval between his handing over charge and his reporting at the Central Office at Kanpur on 8th November, 1983. Therefore, looked at from any point of view, the first respondent cannot be regarded as an employee of the Bank in Madras after 29th October, 1983." 28. N.V.Balasubramanian,J., in Ravirajan Vs. Deputy Commissioner of Labour and another, reported in 1999 (II) LLJ page 221, after analysing the case law on an identical issue, held thus:- "9. Mr.Narayanamurthy, learned counsel for the petitioner sought to distinguish the decision in the case of Punjab National Bank rep. by its Chairman and Managing Director V. S.C.Gupta and others. N.V.Balasubramanian,J., in Ravirajan Vs. Deputy Commissioner of Labour and another, reported in 1999 (II) LLJ page 221, after analysing the case law on an identical issue, held thus:- "9. Mr.Narayanamurthy, learned counsel for the petitioner sought to distinguish the decision in the case of Punjab National Bank rep. by its Chairman and Managing Director V. S.C.Gupta and others. No doubt, the employe in that case pursuant to the order of transfer had handed over the charge to his successor and this court, in that factual situation, held that on his handing over charge to his successor, he can no longer be considered either wholly or principally employed in connection with the business establishment in Madras. Though on facts there is some distinction, yet the ratio of the Division Bench is that the essential requisite for a dismissal contemplated in Section 41(1) of the Shops and Establishments Act is subsistence of the relationship of employer-employee on the date of termination of the service in an establishment or commercial establishment in the State of Tamil Nadu to close the appellate authority with the jurisdiction to entertain the appeal. Applying the ratio of the Division bench of this Court to the facts of this case, it is clear that on the date of termination of services of the writ petitioner, it cannot be stated that there was a subsisting employer-employee relationship between the petitioner and the second respondent-management in an establishment at Chennai and the petitioner cannot be regarded as employed in a commercial establishment of the second respondent situate in the State of Tamil Nadu. The fact that the petitioner requested time to join duty at Chandigarh shows that he has admitted that he would join duty in the new place of posting on or before April 10, 1990 and the effect of the same is that he has accepted the order of transfer and he has decided to proceed to the new place of posting to joint duty. It is significant to notice that the second respondent has not granted the extension of joining time as prayed for, nor has it extended the leave applied for. It is significant to notice that the second respondent has not granted the extension of joining time as prayed for, nor has it extended the leave applied for. Since in my view, the relationship of employer-employee with reference to the establishment of the second respondent at Chennai had snapped with effect from February 10, 1990, the first respondent was justified in holding that he has no jurisdiction to entertain the appeal against the order of termination passed subsequently on March 13, 1990." 29. This court is also fortified by the pronouncement of the Apex Court in Arka Bikas Chakravorty Vs. State Bank of India and others, reported in 1997 (1) SCC 417, where the Supreme Court held thus when an identical situation arose:- "1. The appellant was an employee of Respondent 1 State Bank of India. His services were terminated on 1-8-1977. He made an application under Section 26(2) of the Bihar Shops and Establishments Act, 1954 (8 of 1954) to the statutory authority constituted thereunder on 26-6-1978. On 13-8-1985, during the pendency of that application, a notification was issued under Section 4(2) of the Act amending the Schedule to the Act which resulted in excluding all branches of public sector banks situated in the State of Bihar from the purview of all the provisions of the Act. Admittedly, from that date, the remedy provided in Section 26(2) of the Act was not available to the employees of the State Bank of India in any branch situated in the State of Bihar like the appellant. Notwithstanding this change, the authority under the Act proceeded to decide the appellant's claim under Section 26(2) of the Act and granted relief to the appellant by setting aside the order of termination and directing his reinstatement. The Bank filed a writ petition in the High Court challenging that order which was dismissed by the learned Single Judge. A Letters Patent Appeal filed against that judgment to the Division Bench of the High Court has been allowed and the order of the authority under Section 26(2) of the Act has been set aside. Hence, this appeal by special leave. 2. It is clear from the above facts that the remedy provided in Section 26(2) of the Act was abolished as a result of the notification issued under the Act in the year 1985. Hence, this appeal by special leave. 2. It is clear from the above facts that the remedy provided in Section 26(2) of the Act was abolished as a result of the notification issued under the Act in the year 1985. The only question is whether in respect of a pending application, the authority under Section 26(2) of the Act continued to have the jurisdiction to decide the same on merits. 3. It is well settled in law, as under: "Where, however, the remedy is repealed, the Court loses its jurisdiction to enforce that remedy and the pending cases must terminate at the stage they have reached when the repeal occurs, since statutes affecting remedies are retrospective." [Sutherland - Statutory Construction (5th Edn.)] 4. It is, therefore, obvious that the authority under Section 26(2) of the Act ceased to have jurisdiction to decide any pending application from the date of issue of the notification under Section 4(2) of the Act whereby the Act ceased to apply to the employees of any branch of the State Bank of India situated within the State of Bihar. The order made by the authority in favour of the appellant was, therefore, without jurisdiction. The High Court has rightly reached that conclusion. 5. Consequently, the appeal is dismissed. No costs." 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 Section 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. 31. In the light of the above discussion, the impugned proceedings of the firs respondent is quashed and consequently the appeal preferred by the second respondent will stand dismissed as one filed without jurisdiction. 32. Since the first point has been answered in favour of the writ petitioner, it is not necessary to go into the third point namely merits of the case. 33. 32. Since the first point has been answered in favour of the writ petitioner, it is not necessary to go into the third point namely merits of the case. 33. In the circumstances, the writ petition is allowed and the proceedings of the first respondent in T.S.E.8/94, dated 13.3.1997 is quashed. The parties shall bear their respective costs.