Kanakaraj, J. - (1.) THIS writ appeal filed by the Indian Bank, a bank nationalised under the Banking Companies (Acquisition of Undertakings) Act, 1970 poses a challenge to the Bench and the Bar. Whether we rise up to the occasion and meet the challenge, within the four corners of law, will be seen only when we conclude the judgment.
(2.) THE first respondent was working as a Shroff in the Rasipuram Branch of the Appellant Bank. On 17.5.1972 one Sanjeevi acting on behalf of his wife Dhanalakshmi gave a complaint addressed to the Agent of the Rasipuram Branch of the appellant Bank. The gist of the complaint was that Dhanalakshmi was holding an R.P. Account. bearing No. C -51, that Sanjeevi gave the first respondent a sum of Rs.250 per mensem from December, 1968 to January, 1972 to be deposited in the R.P. account of his wife, that when the complainant was desirous of getting a loan from R.P. Account, he learnt that the amounts had not been deposited and when the first respondent was called for and questioned, he had admitted that the deposit was made only for seven months and for the balance of 32 months, the amount totalling to Rs.8,000 had not been deposited in the Bank and that the same had been utilised for his family expenses. The first respondent is said to have promised that the amount will be repaid in instalments of Rs.200 per month. The complainant prayed for action to recover the total sum of Rs.9,570 being the amount meant for depositing in her C -51 account. By a letter dated 7.6.1972, the first respondent was asked by the appellant to show cause as to why disciplinary action should not be taken against him for two acts of misconduct. The first related to the complaint of Sanjeevi given on behalf of Dhanalakshmi and the second related to the alleged false entries made in the pass book of Dhanalakshmi in respect of instalment Nos. 8 to 13 when as a matter of fact, the said instalments had not been received by the bank. On the same day, the first respondent was placed under suspension with immediate effect. The first respondent wrote a letter on 13.7.1972, being his earliest reaction to the charge, stating that he had borrowed money from Sanjeevi and had agreed to repay the loan in insdaments by remitting the instalments in the R.P. Account of his wife Mrs. Dhanalakshmi. He did deposit for a few months and he could not continue the deposit and had told Sanjeevi about his inability to continue the deposits. He had agreed to repay the loan to Sanjeevi after some time and Sanjeevi had agreed to the proposal. The first respondent denied the second charge seeking detailed particulars about the charge. He also prayed for lifting the order of suspension. By letter dated 28.7.1972, the appellant wrote to the first respondent that he was not entitled to any further materials at mat stage and an opportunity will be given to peruse all documents at the time of the enquiry. The first respondent again wrote on 29.7.1972 denying the charges and praying for the lifting of the appellant framed two charges and concluded that the said charges, if proved, will amount to major misconduct as per 29.5.(j) of the Bipartite settlement. An enquiry officer was also appointed. On 11.10.1972, the enquiry commenced and three witnesses were examined on the side of the Appellant -Bank and five documents were marked in support of the charges. On 27.6.1973, the Enquiry Officer submitted his findings, holding that the first charge alone was proved and the second charge relating to the entries in the passbook had not been made out. On 2.8.1973, the second show -cause notice against the proposed punishment of discharge from service was issued. The first respondent gave his explanation to the second show -cause notice on 1.9.1973. By an order dated 22.11.1973 the Disciplinary Authority discharged the first respondent from service with immediate effect. The first respondent filed an appeal to the General Manager of the Appellant bank and the same was dismissed on 20.3.1974. Thereafter, the first respondent filed an appeal T.S.E. case No. 34 of 1975 under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 (hereinafter referred to as "the" Shop Act) seeking to set aside the order of discharge dated 22.11.1973. The appellant contested the appeal on merits but did not raise any objection as to the jurisdiction of the second respondent who was the authority prescribed for hearing appeals under Section 41(2) of the Shop Act. Had the appellant raised the plea of want of jurisdiction on the part of the second respondent, the complexion of the entire case would have been different. Suffice it to say at this stage that the second respondent by an order dated 4.11.1978 held that the order of discharge dated 22.11.1973 was not supported by any satisfactory evidence adduced at the enquiry. He, therefore, set aside the order of discharge dated 22.11.1973.
(3.) THE appellant filed Writ Petition No.4670 of 1979 before this Court challenging the order of the Second respondent, solely on the ground that the order of the Second respondent is vitiated by perverse findings. There is no whisper in the writ petition about the second respondent lacking jurisdiction to hear the appeal under Section 41(2) of the Shop Act. The Second respondent filed a counter affidavit and the learned single Judge of this Court dismissed the writ petition on 21.1.1983. The learned Judge records that the order of the second respondent was challenged mainly on the basis of appreciation of evidence adduced at the time of enquiry and the appellant authority having accepted the case of the first respondent, there was no case made out for interference under Article 226 of the Constitution. The present writ appeal was filed on 26.4.1983. All the grounds of appeal relate only to the factual findings and do not attack the jurisdiction of the second respondent under Section 41(2) of the Shop Act. It is unfortunate, again, that the appeal was not brought up for admission immediately and there was a delay of 606 days in representing the appeal. The first respondent filed a claim petition C.P.No.58 of 1983 under Section 33(c)(2) of the Industrial Disputes Act for recovery of the monetary benefits arising out of the order of the Second Respondent. The appellant filed petitions C.M.P. 3752 and 3753 of 1986 to stay the operation of the order of the 2nd respondent in T.S.E. Case No. 34 of 1975 and to stay all further proceedings in C.P. No. 58 of 1983 respectively. The petition to condone the delay of 606 days in representation was however ordered on 10.3.1986. It was only on 12.3.1986 that a petition C.M.P. No. 4194 of 1986 seems to have been filed for raising additional grounds where for the first time the objection is taken that the appeal filed by first respondent before the second respondent under Section 41(2) of the Shop Act is totally without jurisdiction because the appellant bank is an establishment under the Central Government and therefore exempt from the Shop Act, by virtue of Section 4(1)(c) of the Shop Act. On 20th March, 1986, the writ appeal was admitted by this Court, after granting permission to raise the above additional grounds. On the same day, interim stay was granted 4(a) in C.M.P. Nos. 3752 and 3753 of 1986. It is now relevant to mention that on 15.6.1983, a learned single Judge of this Court in Union Bank of India and Ors. v. Additional Commissioner, Workmen's Compensation : (1984) I LLJ 456 Mad laid down that the Bank of India, a nationalised bank was an establishment under the Government of India with reference to Section 4(1)(c) of the Shop Act, which means the said bank will fall outside the purview of the Shop Act. On 18.4.1984, a Division Bench of this Court in C.V Raman and Ors. v. The Management of Bank of India, Regional Office, Southern Region Represented by the Assistant General Manager, Madras and Ors. : (1984) II LLJ 34 Mad held that nationalised banks are, establishments under the Central Government and therefore are exempt from the Shop Act. It will thus be seen that the appellant Bank had not only raised the plea of want of jurisdiction at any time before 12.3.1986 but has also failed to take note of the decision of this Court on 15.6.1983 in Union Bank of India v. Additional Commissioner Workmen's Compensation : (1984) I LLJ 456 Mad In C.V. Roman Etc. v. Bank of India Etc. : (1988) I LLJ 423 Mad the view taken by this Court in Union Bank of India v. Additional Commissioner, Workmen's Compensation : (1984) I LLJ 456 Mad and in C.V. Raman and Ors. v. The management of Bank of India, Regional Office, Madras and Ors. : (1984) II LLJ 34 Mad have been confirmed by the Supreme Court of India in clear terms. The following lines in the judgment of the Supreme Court are extracted below for the purpose of our guidance: In this view of the matter we are of opinion that no exception can be taken to the view of the Madras High Court in its judgments which are the subject -matters of Civil Appeal Nos. 4291 -4292 of 1984, 4735 of 1984 and 4329 of 1984. The Supreme Court of India then proceeded to set aside the decisions of the Kerala High Court and the Andhra Pradesh High Court holding to the contrary. The Supreme Court, therefore, has laid down the law in clear terms that the State Bank of India and the Nationalised Banks are establishments under the Central Government and therefore under Sub -section (1) of Clause (c) of Section 4 of the Shop Act, they are exempt from the application of the Act.;