Judgment : S. Palanivelu, J. This Writ Appeal is directed against the portion of the order contained in paragraph 8 on the question of res judicata and against that portions of the order in paragraph 19, 20 and 21(ii) to (iv) directing the first respondents case to be tried by the Appellate Authority under Tamil Nadu Shops and Establishments Act, 1947, passed by His Lordship Mr. Justice K.P. SIVASUBRAMANIAM, J. in W.P. No. 21269/1994 dated August 22, 2003. 2. The factual background of the case is as follows: a. The first respondent joined as Supervisor in the Appellants Society on May 1, 1961. Thereafter, he was promoted to the category of Secretary Gr.II.On October 9, 1971 he was served with a charge memo and on account of the same, the President of the Society warned him and the said order of warning was forwarded to the Assistant Registrar, Ranipet, who in turn responded to the President of the Cooperative Society stating that the punishment awarded should be enhanced and then it was altered into one of placing him under suspension for 15 days and stoppage of increment for one year. He preferred an appeal and during the pendency of the appeal, persons close to the President of the Society preferred several complaints against the first respondent and therefore, a charge sheet was laid against him for which he submitted his explanation. Since it was not convincing, a domestic enquiry was ordered, in which, the first respondent was found guilty of the charges and the Board of Directors imposed a penalty of removal from the service. The first respondent was terminated from service on June 22, 1973. B. He preferred an appeal to the Appellate Authority, The Tamil Nadu Co-operative Central Housing Mortgage Society, Madras, which was dismissed on August 22, 1974. Then he raised Industrial Dispute before the Labour Court at Vellore, which did not yield any favourable result and the President Officer sent a failure report to the Government. C. By means of G.O. Rt. No. 2525 of Labour & Employment Department, dated December 4, 1975, the Government of Tamil Nadu refused to refer to the Industrial Dispute for adjudication. In spite of his request for reconsideration, the Government did not change its view. C. By means of G.O. Rt. No. 2525 of Labour & Employment Department, dated December 4, 1975, the Government of Tamil Nadu refused to refer to the Industrial Dispute for adjudication. In spite of his request for reconsideration, the Government did not change its view. D. So the first respondent, filed W.P. No. 3095/1981 before this Court to direct the Tamil Nadu Government to refer to the Industrial Dispute for adjudication. The petition was allowed directing the Government of Tamil Nadu to reconsider the claim of the first respondent within two months. After the said direction, the Government of Tamil Nadu referred the Industrial Dispute to the Labour Court for adjudication as per G.O. Ms. No. 1650, Labour Department, dated July 27, 1987. E. The Labour Court after going through the materials on record concluded that the removal of the first respondent from service is not sustainable and directed the management to reinstate him in service with continuity of service and backwages in the same post with other attendant benefits. F. Aggrieved over this, the management preferred a Writ Petition before this Court in W.P. No. 21269/1994. After analysing the contentions of both the parties, in the light of the legal position, the learned single Judge has disposed of the Writ Petition with the following directions. "21. In the result, I am inclined to dispose of the writ petition with the following directions: (I) The first respondent is not a workman and hence the dispute raised by him before the Labour Court is not maintainable and hence the impugned award of the Labour Court is set aside. (ii) The records will be sent to the Deputy Commissioner of Labour (Appellate Authority) under the Shops and Establishments Act, 1947, Chennai, to deal with the dispute raised by the first respondent/employee as an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act. (iii) The Appellate Authority is directed to treat the pleadings before the Labour Court as pleadings under Section 41 of the Act and if necessary give opportunity to both sides to file additional pleadings and also permit both sides to let in oral and documentary evidence afresh, after returning the exhibits filed before the Labour Court in any of its orders. (iv) The Appellate Authority is directed to complete the enquiry and pass final orders in accordance with law within a period of four months from the date of receipt of a copy of this order along with the connected records. The writ petition is disposed of subject to the above observations. No costs." 3. The management, in the appeal, contended that the order of the learned. single Judge referring to the matter to be disposed of under Section 41(2) of Tamil Nadu Shops & Establishments Act is without jurisdiction and as the matter arising under the Industrial Dispute Act cannot be brought under other enactments and that even if appeal lies before the Deputy Commissioner of Labour, the appeal is barred by limitation. 4. It is the further contention of the management that having observed that the present first respondent by his own conduct was prosecuting before the wrong forum even after the proper objection raised from the management side as to the jurisdiction, the learned single Judge should not have directed him to approach the Deputy Commissioner of Labour by way of appeal. 5. The subsequent events after the dismissal of the Writ Petition came to light from the affidavit filed by the first respondent before this Court in W.A.M.P. No. 107/2007 praying this Court to fix an early date on January 25, 2007 for hearing the Writ Appeal. 6. It is stated therein that the first respondent is aged about 69 years and that in pursuance of the order of the learned single Judge he has preferred an appeal under Section 41(2) of the Shops and Establishments Act and because of the stay granted by this Court, the matter was not taken up. 7. The learned single Judge after scanning the rival submissions has decided that the first respondent is not at all a workman under Section 2(s) of the Industrial Disputes Act. Under Section 2(19) of the Tamil Nadu Cooperative Societies Act, 1983, the expression "officer" is defined as including the President, Vice-President, Managing Director, Secretary, Assistant Secretary, Member of the Board and any other person empowered under the "Rules of Bylaws." 8. He also observed that a perusal of clause 27(b) or Bye-laws would make it clear that the "Secretary shall be responsible for executive administration of the Bank" subject only to the control of the President. He also observed that a perusal of clause 27(b) or Bye-laws would make it clear that the "Secretary shall be responsible for executive administration of the Bank" subject only to the control of the President. He is the officer to sue or be sued on behalf of the Bank and all bonds in favour of the Society shall be in his name. All applications for loans shall be made to the Secretary in the prescribed form and that he shall be the competent authority to sanction leave to all the employees in the Bank and in the case of Secretary alone, the President shall be the authority. 9. Even though, he raised Industrial Dispute before the labour officer as well as the Labour Court depicting him as a workman defined under the Industrial Dispute Act, as per the observation and conclusion of the learned single Judge of this Court as he would come within the category of Secretary, he preferred an appeal before the appellate authority, namely, the Deputy Commissioner of Labour under Section 41(2) of the Shops and Establishments Act. 10. It is the definite stand of the first respondent that he was the Secretary and that he cannot be governed by the provisions of the Industrial Dispute Act. Insofar as the management is concerned, they have preferred this appeal challenging the propriety of the order of the learned single Judge leaving the matter to be decided by the appellate authority under the Tamil Nadu Shops and Establishments Act (hereinafter referred to as "Act"). 11. The learned single Judge has also opined that even though the objections were raised by the management as early as 1987, that the first respondent was not at all a workman, but a person who was exercising supervisory capacity as provided in the byelaws of the society, he has to blame himself for this episode as he was proceeding in the wrong direction and before a forum which has no jurisdiction. 12. Now, we have to consider whether the Deputy Labour Commissioner is a competent forum to decide the matter as per Section 41(2) of the Act. 13. 12. Now, we have to consider whether the Deputy Labour Commissioner is a competent forum to decide the matter as per Section 41(2) of the Act. 13. The Tamil Nadu Government exercising powers under Section 6 of the Act enabling the State Government by notification either permanently or for any specific period any establishments or class of establishments or person or class of persons from all or any of the provisions of the Act subject to such conditions which may be specified, by a Government Order, G.O. Ms. No. 5780 Industries, Labour and Cooperation, dated December 11, 1963, exempted permanently every Society registered or deemed to have been registered under the then Madras Cooperative Societies Act, 1961, and the exemption granted is in the following terms: "In exercise of the powers conferred by Section 6 of the Madras Shops and Establishments Act, 1947 (Madras 36 of 1947) (hereinafter in this notification referred to as "the 1947 Act"), the Government of Madras hereby exempts permanently every society registered or deemed, to be registered under the Madras Cooperative Societies Act, 1961 (Madras Act 53 of 1961) (hereinafter in this notification referred to as the "The 1961 Act") from the provisions of clause (a) of sub-section (2) of Section 34, Section 35 and Section 41 of the 1940 Act- .(a) on and from January 1, 1964, if the registered bye-laws for the time being in force or the registered amendment of the bye-laws of such society contain the model bye-laws appended to this notification; and .(b) on and from the date on which the model bye-laws aforesaid are incorporated in the registered bye-laws of the society and registered under Section 11 of the 1961 Act, if the registered bye-laws of the society do not contain the model bye-laws aforesaid; and all the other provisions of the 1947 Act on and from January 1, 1964." 14. By means of aforesaid notification, the ` jurisdiction conferred under Section 41 of the Act, was exempted from the provisions of the Madras Cooperative Societies Act, 1961. Thereafter, by virtue of G.O. Ms. No. 1239 Labour and Employment, dated January 4, 1979, the notification aforementioned was superseded and a fresh notification came to the filed with following effect: "The Governor of Tamil Nadu hereby! Thereafter, by virtue of G.O. Ms. No. 1239 Labour and Employment, dated January 4, 1979, the notification aforementioned was superseded and a fresh notification came to the filed with following effect: "The Governor of Tamil Nadu hereby! exempts permanently all societies registered or deemed to be registered under the Tamil Nadu Cooperative Societies Act, 1961 (Tamil Nadu Act 53 of 1961) from the provisions of the Tamil Nadu Shops and Establishments Act 1947 (Tamil Nadu Act 36 of 1947) except Sections 31, 41, 43, 50 and 51 of the said Act subject to the condition that the said societies shall exhibit their name boards in Tamil and wherever other languages are used the versions in those languages shall be below the Tamil version." 15. So from December 11, 1963 onwards, the jurisdiction exercisable by the appellate authority under the Tamil Nadu Cooperative Societies Act, was excluded by the earlier G.O. and later in view of the subsequent G.O. with effect from August 4, 1979 onwards, the exemption was continued barring Sections 31, 41, 43, 50 and 51 of the Act. 16. On account of the subsequent G.O., the jurisdiction of the appellate authority under the Act was restored. 17. Now, the question arises as to who was the competent authority to adjudicate the disputes which had arisen during the interregnum period between the above said Government Orders, which had no retrospective effect. 18. The cause of action for the first respondents case arose on June 22, 1973 on which date he was removed from service. 19. The date being much earlier than the passing of subsequent G.O., dated August 4, 1979, it is comprehensible that earlier G.O. would take effect. If so, the appellate authority under Section 41(2) of the Act would have jurisdiction during the relevant time. 20. In this context, the relevant appropriate bye-laws of the Society have to be; borne in mind to ascertain the appellate forum before which the aggrieved party would get redressal. The bye-laws of the Society provides that President of Tamil Nadu Housing Cooperative Societies, Madras is the competent) authority for dealing and disposing of the appeals preferred by the aggrieved person from the order of dismissal by the Board of Directors. The first respondent had already exhausted the remedy of preferring the appeal before the said authority, whose proceedings came to be passed on August 22, 1974 which was adverse to him. The first respondent had already exhausted the remedy of preferring the appeal before the said authority, whose proceedings came to be passed on August 22, 1974 which was adverse to him. 21. That be so, the conundrum to be answered is whether if any further appeal could be preferred before the Deputy Commissioner of Labour under Section 41(2) of the Act, challenging the final order of the above said President. The answer would be emphatic `No, for the reason that the bye-laws of the Society does not at all provide any second appeal from the order of the President of the Tamil Nadu Cooperative Housing Society. 22. This observation is fortified by the findings in the Judgment of Division Bench of this Court in Dhakshinamoorthy v. Management, Kancheepuram Central. Cooperative Bank and Others, 1996-I-LLJ-33 8 wherein Their Lordships held in an identical matter, when had an occasion to go through the two Government Orders aforenoted, that it is alien to the procedure to prefer second appeal, before Deputy Commissioner of Labour, against the order passed on appeal by the competent appellate authority as provided in the byelaws governing conditions of service of the employees of Society. 23. It is made clear by Their Lordships in unequivocal terms that in the absence of specific stipulation providing for such an appeal as provided under Section 41(2) of the Act, no appeal would lie before the said authority. 24. The operative portion of the said decision has been culled out as follows: "As a matter of fact, the appeal as per the said bye-law was to a State level Officer of the Government and the Registrar of the Cooperative Societies, who was the designated Appellate Authority also dealt with the appeal and disposed of the same by his order dated April 15, 1980, confirming the order of the first respondent-Management. While that be the position, it would be futile for the appellant to contend that he is entitled to file a further appeal. It is only in that context, the learned single Judge was of the view that countenancing the plea of the appellant would tantamount to providing for a second appeal. While that be the position, it would be futile for the appellant to contend that he is entitled to file a further appeal. It is only in that context, the learned single Judge was of the view that countenancing the plea of the appellant would tantamount to providing for a second appeal. The provisions for the appeal contained in sub-section (2) of Section 41 of the Act contemplates the filing of an appeal against the orders of the Management and on taking advantage of the bye-laws, which governed the conditions of the service of the appellant, an appeal has been preferred to the designated Authority and as such Appellate Authority also disposed of finally the appeal, thereafter, it would be untenable in law to contend that the appellant can choose to challenge the orders passed on appeal also by invoking the powers under sub-section (2) of Section 41 of the Act. Not only that the entitlement as per the law applicable as on the date of passing of the order of dismissal did not warrant recourse to the appellate provisions in sub-section (2) of Section 41 of the Act, but the appellant could not be held to be entitled to avail of the appellate forum constituted under the Act, merely because long after the order of dismissal, the notification exempting the institutions like the first respondent-Management from the provisions of Section 41 was superseded and prospective notification which had the effect of applying Section 41 to such institutions came to be issued." 25.The next question that arises for consideration is that what remedy the first respondent is entitled to? 26. If he was precluded from taking the matter in further appeal before the Deputy Commissioner of Labour from the order of the appellate authority, definitely he could espouse his cause before the Labour Court. 27. It appears that neither the above said two G.Os. nor the decision of the Division Bench of this Court aforementioned was brought to the notice of the learned single Judge and hence he directed the first respondent to approach the Deputy Commissioner of Labour. 28. 27. It appears that neither the above said two G.Os. nor the decision of the Division Bench of this Court aforementioned was brought to the notice of the learned single Judge and hence he directed the first respondent to approach the Deputy Commissioner of Labour. 28. It is reiterated that during the relevant period namely at the time of termination, the Cooperative Societies were exempted from the provisions of Section 41 of the Tamil Nadu Shops and Establishments Act and hence the said authority was not competent to grant any relief to the first respondent and the first respondent also could not seek any relief from the said authority as it would be against law. 29. After touching the merits of the matter as discussed by the Enquiry Officer, the Labour Court came to the conclusion that the management had not proved its contention and charges against the claimant/workman. Hence, it was ordered that the workman should be reinstated in service together with continuity of service and full back wages. 30. In this view of the matter, we do not find any infirmity in the award of the Labour Court. After a careful consideration of the pleadings of both the parties and taking into account the passage of time since the dismissal of the first respondent, we are of the view that the award passed by the Labour Court has to be confirmed, subject to modification regarding payment of 50% back wages to the first respondent. Since the first respondent who is the septuagenarian, is aged about 70 years by now, he cannot be reinstated in service at this juncture. However in view of the above, the management is directed to treat the first respondent as if he retired on attaining the age of superannuation while in service, with continuity of service and pay 50% of back wages with all attendant benefits from the date of his dismissal. With the above said modification in the award of the Labour Court the Writ Appeal is allowed partly and in other respects it is dismissed. No costs. Consequently, the connected W.A.M.P. is closed.