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2016 DIGILAW 644 (MAD)

Secretary v. Appellate Authority

2016-02-18

A.SELVAM

body2016
ORDER : This Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari or any other appropriate writ order to call for records relating to the order passed by the first respondent in T.N.S.E.5/2006 dated 25.10.2007 and quash the same. 2. It is averred in the writ petition that the second respondent herein has served as Manager in Ramanathapuram District Sarvodya Sangh. During his tenure of office, he has committed so many irregularities and also misappropriation of funds. Under the said circumstances, charges have been framed against him and subsequently enquiry has been conducted and consequently dismissed from service. Against the dismissal order, he filed Case No.T.N.S.E.5/2006 on the file of the first respondent, wherein a detailed counter has been filed that Sarvodya Sangh does not come within the purview of Tamil Nadu Shops and Establishments Act, but the first respondent without considering the vital objections raised on the side of the writ petitioner has erroneously allowed the appeal filed by the second respondent and set aside the dismissal order by way of passing the impugned order and in order to quash the same, the present petition has been filed. 3. The learned counsel appearing for the petitioner has sparingly contended that as per G.O.Ms.No.1496(Lab) dated 03.04.1959, the then Government of Madras by virtue of Section 6 of the Madras Shops and Establishments Act, 1947 have exempted the said Act from its operation to all Sarvodya Sangh and therefore no appeal will lie before the first respondent against the impugned dismissal order, but the first respondent has failed to consider the same and therefore the order passed by the first respondent is totally erroneous and the same is liable to be quashed. 4. The learned counsel appearing for the second respondent has contended that in the statute itself appeal provision is maintainable and since an appeal provision is maintainable and also the Act is applicable, Government have had no power to overwrite the provisions of the statute by way of passing G.O.Ms.No.1496(Lab), dated 03.04.1957 and therefore the order passed by the first respondent is perfectly correct. 5. 5. For considering the rival submissions made on either side, the Court has to look into Section 6 of the Tamil Nadu Shops and Establishments Act, 1947, wherein it is stated like thus : “The [State] Government may, by notification, exempt either permanently or for any specified period, any establishment or class of establishments, or person or class of persons, from all or any of the provisions of this Act, subject to such conditions as the [State] Government deem fit”. 6. Even a cursory look of the said Section would go to show that the concerned Government is having unfettered power of declaring exemption of application of provisions of this Act either permanently or temporarily. Therefore the Court cannot say that the concerned Government have no power to give such kind of exemption. 7. Even in G.O.Ms.No.1496(Lab), dated 03.04.1957, it has been clearly mentioned to the effect that only by Section 6 of the Madras Shops and Establishments Act, 1947. Therefore, it is quite clear that for giving exemption from the operation of the Tamil Nadu Shops and Establishments Act, 1947, the State Government is having absolute power. 8. As rightly pointed out on the side of the petitioner, in the counter filed on his side, it has been clearly mentioned that the appeal in question is not legally maintainable. But the first respondent without considering the vital objection made in the counter has erroneously allowed the appeal. The first respondent ought to have considered the maintainability of the appeal as a preliminary issue. But the first respondent has not done the same and therefore the order passed by the first respondent is liable to be quashed and the matter is liable to be remitted to the file of the first respondent. 9. In fine, this Writ Petition is allowed. The impugned order dated 25.10.2007 passed in T.N.S.E.No.5/2006 by the first respondent is quashed and T.N.S.E.No.5/2006 is remitted to the file of the first respondent. The first respondent is strictly directed to consider the plea maintainability of the appeal raised on the side of the respondent therein/ petitioner herein and dispose of the same within a period of four months from the date of receipt of records. No costs.