MANAGEMENT OF VIVEKANANDA Vs. DEPUTY COMMISSIONER OF LABOUR

JUDGEMENT

(1.) The petitioner in both the writ petitions is the Vivekananda Kendra Rural Development Programme, Vivekanandapuram and the challenge in both the cases is to a common order passed by the first respondent under the provisions of the Tamil Nadu Shops and Establishment Act, 1947 (The Shop Act), in the appeals filed by the second respondents against the order dispensing with their services from the Rural Development Programme. The petitioner would contend that they are part of the activities of Vivekananda Kendra Rural Development Programme, which was established with the object of propagating the philosophy of Swami Vivekananda. The institution itself is a charitable and service organisation without any profit motive and several young men and women rendered selfless service through out the country in pursuit of the objectives of the institution. It is further stated that as a part of their activities, education is given to poor children, nutritious food is provided to them, free medical camps are conducted and in addition to these charitable activities, rural development is undertaken in various parts of the country like Tamil Nadu, Karnataka and Bihar. In Tamil Nadu the programme is conducted in five southern Districts, namely, Kanyakumari, Tirunelveli, Tuticorin, Ramanathapuram and Virudhunagar. According to the petitioner, the Rural Development Programme is centered around Tuticorin District and for administrative convenience, the petitioner's office was shifted to Tuticorin. The second respondent in W.P. No. 8738 of 2006, was working as a Compounder on a monthly payment of Rs. 2090/- and the second respondent in W.P. No. 8739 of 2006, was working as a Graduate Social Worker (Pattathari Thondar) and receiving a monthly payment of Rs. 3580/-. On 11.02.1999, an office order was issued by transferring the second respondent in W.P. No. 8738 of 2006 to Valliyur to assist the Doctor in the Medical Centre in that area and by a subsequent order, he was transferred to Sathankulam to assist the Doctor which also comes under Valliyur area. Similarly, the second respondent in W.P. No. 8739 of 2006, was transferred to Madurai District and advised to do his service in the rural area in Madurai District. Both the respondents did not obey the order of transfer and one of them sent a letter dated 28.02.2000, questioning the transfer with a copy of the letter marked to the Assistant Commissioner of Labour. Thereafter, both the respondents did not report for work, though the petitioner had sent communication to them calling upon them to report for work. The second respondent sent a reply stating that a suit has been filed before the District Munsif Court, Nagercoil, questioning the transfer and till the disposal of the suit they cannot insist him to join duty in the transferred place. Thereafter, the petitioner issued a charge memo dated 30.01.2001/30.09.1999 to the respondents respectively. The second respondent in W.P. No. 8738 of 2006 did not submit any explanation, whereas the other respondent submitted his explanation. The petitioner decided to conduct a domestic enquiry and sent a notice of enquiry to both the second respondents. As both of them did not participate in the domestic enquiry stating that civil suit was pending, they were set exparte and after considering the oral and documentary evidence placed by the petitioner, the enquiry officer submitted a report holding that the charges were proved. Thereafter, second show cause notice was issued to both the second respondents along with the copy of the enquiry officer's report as earlier, only the second respondent in W.P. No. 8739 of 2006 submitted his further explanation and thereafter, the petitioner by orders dated 01.10.2002/11.12.2001 respectively dismissed them from service.

(2.) Aggrieved by such order both the respondents preferred appeals under the Provisions of the Shop Act before the first respondent along with application for condonation of delay. The delay was condoned by the first respondent and the appeals were taken on file as TNSE No. 6 of 2002, and TNSE No. 1 of 2003. The petitioner filed counter statement setting out the factual details and also raising a preliminary objection stating that the provisions of the Shop Act are not applicable to the petitioner, it is a charitable organisation and it is neither an establishment or commercial establishment under the Shop Act nor it is an 'industry' as defined under the Industrial Disputes Act (I.D. Act).

(3.) The first respondent by a common order dated 07.07.2006, allowed the appeals and held that there was violation of principles of natural justice in the conduct of the domestic enquiry, since the domestic enquiry could have been conducted at Kanyakumari and the enquiry appears to have been hurriedly closed. So far as the question as to whether the petitioner would fall within the definition of 'commercial establishment' as defined under the Shop Act, the first respondent held that provident fund contribution has been deducted from the second respondents and from the deposition of the Management witness, it is seen that though the petitioner is a Charitable organisation, the petitioner is operating with a profit motive and therefore, they would be amenable to the provisions of the Shop Act. Accordingly, the appeals were allowed by common order dated 07.07.2006 and the order of dismissal was set aside. The said order passed by the first respondent is impugned in the writ petitions.