Madras High Court
Sterling Biotech Staff Co-Operative … vs The Deputy Commissioner Of Labour on 13 March, 2026
W.P.No.16807 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04.03.2026
Pronounced on : 13.03.2026
CORAM:
THE HONOURABLE MR. JUSTICE T.VINOD KUMAR
W.P.No.16807 of 2019
and
WMP.No.16404 of 2019
Sterling Biotech Staff Co-operative Thrift
and Credit Society Limited Complex
Sterling Biotech Factory Complex
Sandynalla, Nilgiris – 643 237
Represented by its Chairman K.Murthy ... Petitioner
vs
1.The Deputy Commissioner of Labour
Authority under the Shops and Establishment Act, 1947
Coimbatore.
2.K.Mohammed Hussain … Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorari to call for the records of the 1 st respondent
relating to the impugned order dated 11.06.2018 and quash the same as illegal and
without jurisdiction.
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For Petitioner : Mr.B.L.Jayakandan
For Respondents : Mr.R.L.Karthika, GA for R1
Mr.P.Gowtham
for Mr.S.Saravanan for R2
ORDER
Heard the learned counsel for the petitioner and the learned Government
Advocate for the 1st respondent and the learned counsel for the second respondent
and perused the records.
2. This writ petition is directed against the order of the 1 st respondent
herein passed under Section 41(2) of Tamil Nadu Shops and Establishments Act,
1947 (herein after referred to as “Act 1947”).
3. The petitioner herein is the respondent in the appeal adjudicated by the
1st respondent herein. The second respondent herein is the appellant in the
impugned order passed by the 1st respondent.
4. The brief facts of the case are that the petitioner herein by order dated
16.12.2015 had removed the second respondent from service of the Society
alleging misconduct.
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5. It is the further case of the petitioner that the 2 nd respondent during the
period 2003-2004 onwards had resorted to various acts of misconduct,
misappropriation, embezzlement and forgery, by which he had caused loss and
brought disrepute to the Society and its members.
6. The petitioner contended that since, the aforementioned acts of the 2 nd
respondent are grave in nature, the petitioner by following due process of law of
issuing charge memo, appointing enquiry officer, conducting enquiry and seeking
explanation, had terminated the service of the petitioner.
7. Petitioner further contends that aggrieved by the dismissal order dated
16.12.2015, the 2nd respondent had availed the remedy of appeal; that on the
appeal being rejected, had approached the 1st respondent authority and filed appeal
under Section 41 of the Act 1947; that the 1 st respondent without considering the
submissions made had allowed the appeal filed by the 2 nd respondent, holding that
the dismissal order is not sustainable in law and therefore the question whether the
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charges levelled against the 2nd respondent are justified or not does not arise for
consideration.
8. It is the further contention of the petitioner that if only the 1 st
respondent authority had found the impugned order is not sustainable in law on
account of procedural violations as noted therein, the 1 st respondent ought to have
remitted the matter back to the petitioner for fresh adjudication or alternatively the
appellate authority ought to have examined the merits of the matter by himself, to
arrive at a conclusion as to whether the charges levelled against the 2 nd respondent
are of grave in nature warranting termination of his service or not.
9. On behalf of the petitioner it is contended that the 1 st respondent
instead of undertaking the said exercise, while holding that the administrative
committee which passed the dismissal order, itself presided over as appellate
authority and rejected the appeal and thus, the said action being contrary to the
rules / bye-laws of the petitioner / Society, had held that the charges levelled
against the 2nd respondent are justified or not need not be gone into.
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10. On behalf of the petitioner it is contended that the action of the 1 st
respondent in passing the impunged order allowing the appeal of the 2nd respondent
in setting aside the dismissal order as affirmed by the first appellate authority is
thus, vitiated and is liable to be set aside.
11. Per contra, on behalf of the 1st respondent it is contended that the said
authority acting as appellate authority has exercised powers under Section 41 of
the Act 1947; that the order of the appellate authority is final and binding and as
such the petitioner cannot assail the same by filing the writ petition.
12. On behalf of the 2nd respondent it is contended that the 2nd respondent
who was working as Chief Executive of the petitioner’s Society was visited with
dismissal order for alleged violation / misconduct relating to a period 2003-2004
and thereafter during the year 2009-2010; that for the alleged misconduct of the
year 2003-2004, the 2nd respondent was awarded with the punishment of
suspension for two days and as such the petitioner cannot make use of said
misconduct once again for proceeding against 2 nd respondent by initiating
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disciplinary action and issuing charge memo dated 18.08.2015, after a lapse of
decade.
13. On behalf of the 2nd respondent, it is further contended that it is only
on account of change in Board of Directors during the year 2014, the 2 nd
respondent has been placed under suspension initially on 31.07.2015 and thereafter
was issued with charge memo; that he had submitted his explanation on
22.08.2015; and that without considering the explanation submitted, he was issued
with the dismissal order.
14. It is further contended by the 2 nd respondent that as the order of
dismissal, mentioned that an appeal can be preferred to the Board of Directors, he
had preferred an appeal on 04.01.2016 and the Board of the petitioner rejected the
appeal on 12.01.2016 by passing a cryptic and non speaking order without
considering the grounds taken in the appeal.
15. It is further contended that aggrieved by the rejection of the appeal
by the Board of Directors of the petitioner, the 2nd respondent availed further
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remedy of appeal under section 41 of the Act 1947 before the 1 st respondent; that
the 1st respondent by considering the matter at length had set aside the dismissal
order; and that the impugned order does not call for any interference.
16. I have taken note of the respective contentions urged.
17. Though on behalf of the writ petitioner submissions were sought to
be made touching upon the merits of the dismissal order as well as the first
appellate authority order and to contend that the 1 st respondent could not have
passed the impugned order setting aside the dismissal of the 2 nd respondent herein
for misconduct, misappropriation and forgery, it is to be noted that the power of
judicial review by the High Court under Article 226 of the Constitution of India is
circumscribed and is limited to correct errors of law or procedural errors leading to
manifest injustice or violation of principles of natural justice.
18. Time and again, it has been held that a writ Court under Article 226
of the Constitution of India while examining the challenge to the orders of
disciplinary authority or appellate authority does not act itself as appellate
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authority by reappreciating or reevaluating the evidence on record; and that the
scope of interference by writ Court in such matters is limited to examine as to
whether the orders of the disciplinary authority by which the delinquent officer is
visited with the punishment shocks the conscious of the Court; and that the
punishment awarded is disproportionate to the proved articles of charges.
19. The scope of interference by a writ Court has been succinctly stated
in the decision of the Hon’ble Apex Court in the case of Deputy General Manager
(Appellate Authority) and others V. Ajai Kumar Srivastava – 2021 SCC Online
SC 4 wherein it is observed as under :-
“22. The power of judicial review in the matters of disciplinary
inquiries, exercised by the departmental/appellate authorities discharged by
constitutional courts under Article 226 or Article 32 or Article 136 of the
Constitution of India is circumscribed by limits of correcting errors of law
or procedural errors leading to manifest injustice or violation of principles
of natural justice and it is not akin to adjudication of the case on merits as
an appellate authority which has been earlier examined by this Court
in State of T.N. v. T.V. Venugopalan [State of T.N. v. T.V. Venugopalan,
(1994) 6 SCC 302 : 1994 SCC (L&S) 1385] and later in State of T.N. v. A.
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W.P.No.16807 of 2019Rajapandian [State of T.N. v. A. Rajapandian, (1995) 1 SCC 216 : 1995
SCC (L&S) 292] and further examined by the three-Judge Bench of this
Court in B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of
India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] wherein it has been held as
under : (B.C. Chaturvedi case [B.C. Chaturvedi v. Union of India, (1995) 6
SCC 749 : 1996 SCC (L&S) 80] , SCC pp. 759-60, para 13)
“13. The disciplinary authority is the sole judge of facts.
Where appeal is presented, the appellate authority has coextensive
power to reappreciate the evidence or the nature of punishment. In a
disciplinary enquiry, the strict proof of legal evidence and findings on
that evidence are not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
court/tribunal. In Union of India v. H.C. Goel [Union of
India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court
held at SCR p. 728 (AIR p. 369, para 20) that if the conclusion, upon
consideration of the evidence reached by the disciplinary authority, is
perverse or suffers from patent error on the face of the record or
based on no evidence at all, a writ of certiorari could be issued.”
23. It has been consistently followed in the later decision of this
Court in H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya,
(2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] and recently by the three-
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Judge Bench of this Court in Pravin Kumar v. Union of India [Pravin
Kumar v. Union of India, (2020) 9 SCC 471 : (2021) 1 SCC (L&S) 103].”
20. As the contours of examination challenging an order are well settled,
the submissions made by the petitioner touching upon the merits of the matter
cannot be considered. Thus, this Court is only required to see as to whether the
impugned order passed by the 1st respondent suffers from error of law or
procedural errors leading to manifest injustice, perversity or suffers from violation
of principles of natural justice.
21. Taking into consideration, the scope of interference by this Court as
noted herein above, if the impugned order passed by the 1 st respondent is
examined, it is to be noted that the 1st respondent while passing the impugned order
had held that the dismissal order dated 16.12.2015 passed by the petitioner herein
was issued contrary to the Clause 62 of certified Bye-laws of the petitioner’s
management which provided for constituting executive committee or other
committee or sub committee as may be considered necessary including forming of
disciplinary proceeding committee as mentioned in Clause 65 of the Bye-laws
which are approved by the Multi State Co-operative Societies Act, 2002.
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The 1st respondent while holding as above ought to have set aside the appellate
authority order impugned in appeal filed before him and remitted the matter back
to the petitioner’s society for initiating proceedings in accordance with the
provisions of the Act 2002 and complying with the Bye-laws of the society.
22. Further, the 1st respondent being the Appellate Authority could have
examined the merits of the matter on his own, as to whether the action of the
petitioner / society in issuing the dismissal order is justified or not.
The 1st respondent however did not delve into the merits of the appeal filed by the
2nd respondent herein. On the other hand, the 1 st respondent while concluding that
the order impugned in appeal before him to be contrary to the Bye-laws, had not
only held the said order is not sustainable in law, but also held that the charges
levelled against the 2nd respondent are justified or not does not arise, without
examining the claim of the writ petitioner/Society.
23. Since, Section 41(2) of the Act 1947 r/w.Rule 9 of Tamil Nadu
Shops and Establishment Rules, 1948 confers power on the 1st respondent authority
to decide an appeal filed by a person employed against notice of dismissal, the 1st
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respondent acting as appellate authority and being a quasi judicial authority, ought
to have considered the appeal filed by the 2 nd respondent herein and also the
defence of the petitioner’s society.
24. A perusal of the impugned order however shows that the 1 st
respondent while allowing the appeal filed by the 2 nd respondent herein did not
consider the merits of the case, and holding that the appellate order under
challenge before him suffers from the procedural error had concluded that the
charges levelled against the 2nd respondent / appellant are justified or not does not
arise, without recording the basis to arrive at the said conclusion.
25. It is trite law that mere procedural irregularity does not wipe out the
charges by themselves. Equally, it is also well settled law that failure to follow
strict procedural guidelines was a negligence and it did not mean that the entire
proceedings were invalid, if the charges were proved. (See – (1) LIC of India V.
A.Masilamani – (2013) 6 SCC 530; (2) Union of India and others V.
P.Balasubrahmanayam – (2021) 5 SCC 662 and (3)Uttar Pradesh through
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Principal Secretary, Department of Panchayati Raj, Lucknow V. Ram Prakash
Singh – 2025 SCC online SC 891).
26. Further, it is also to be noted that the 2 nd respondent herein could
have approached the 1st respondent straight away without availing the remedy of
appeal before the Board of Directors, as the dismissal order states that the aforesaid
order was being issued with the approval of the Board of Directors, in which case a
duty was cast on the 1st respondent to examine the matter on merits which as noted
herein above, the 1st respondent had failed to do.
27. Insofar as the findings of the 1 st respondent that the administrative
committee which passed the dismissal order by itself had presided over in appeal
as appellate authority, the principle of “nemo judex in causa sua” would get
attracted. That being so, the 1 st respondent could have either set aside the
impugned order and remitted the matter back to the petitioner / society or decide
the matter on merits by himself, as to the charges levelled against the 2 nd
respondent are justified or not warranting dismissal from service. The 1 st
respondent however, without examining the matter on merit could not have
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recorded his finding that the charges are justified or not does not arise, without
even considering the case of the writ petitioner /society and also whether the action
of the writ petitioner /society in issuing termination order is justified or not.
28. In view of the above, this Court is of the considered view that the
action of the 1st respondent, holding the action of the writ petitioner/society in
passing the dismissal order and deciding the appeal by itself to be wrong, had itself
committed error in not considering the appeal on merits and allowing the appeal
straightaway without recording reasons. It is settled position of law that the
reasons are the heart beat of the orders and in the absence of the reasons justifying
the conclusion arrived at, the order stands vitiated.
29. Since, the 1st respondent by the impugned order had held that the
charges levelled against the 2nd respondent are ‘justified or not does not arise’
without examining the matter on merit, the impugned order cannot be sustained.
30. Accordingly, the writ petition is allowed by setting aside the
impugned order dated 11.06.2018 passed by the 1 st respondent and the matter is
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remitted back to the 1st respondent to consider the appeal filed by the 2nd
respondent on merits and in accordance with law, after affording an opportunity of
hearing to both the petitioner/Society as well as the 2 nd respondent/appellant. No
order as to costs. Consequently, connected miscellaneous petition is closed.
13.03.2026
Speaking order / Non-speaking order
Index : Yes / No
Neutral Citation : Yes / No
tsh
To
The Deputy Commissioner of Labour
Authority under the Shops and Establishment Act, 1947
Coimbatore.
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T. VINOD KUMAR, J.
tsh
Pre-delivery order made in
W.P.No.16807 of 2019
13.03.2026.
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