Heard Mr.M.P.Senthil, for Mr.T.Lenin Kumar, learned counsel appearing for the appellants and Ms.R.Meenakumari, learned counsel appearing for the respondent.
2.This appeal is filed against the Judgment and Decree passed in A.S.No.10 of 2017 dated 22.02.2017 on the file of the learned IV Additional District Judge, Madurai confirming the decree and Judgment in O.S.No.702 of 2012 dated 11.02.2016 on the file of the learned Principal Subordinate Judge, Madurai.
3.The appellants herein are the defendants and the respondent herein is the plaintiff in the suit. The respondent has filed a suit in O.S.No.702 of 2012 before the learned Principal Subordinate Judge, Madurai for a prayer of mandatory injunction and the respondent is claiming a sum of Rs.3,25,870/- with interest at the rate of 9% from the appellants herein. The trial Court has decreed the suit. Against which the appellants has filed an appeal in A.S.No.10 of 2017 before the learned IV Additional District Judge, Madurai and the same was dismissed by confirming the Judgment and Decree passed by the trial Court. Against the Judgment and Decree, the appellants have preferred this second appeal before this Court.
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4.The case of the plaintiff/respondent herein is that on 25.11.2006, the 3 plaintiff has joined duty in Madurai Depot of M/s. Shalimar Paints Limited and on 03.05.2011, the plaintiff submitted his resignation before the third defendant. The third defendant was not inclined to accept the resignation and advised the plaintiff to continue his service. Due to some family problems, the plaintiff was again forced to give his resignation on 17.08.2011. But the defendants have not issued the relieving order in spite of several requests. During the month of February 2011, the stock verification was done at Madurai and that the stocks were found correct. On 15.09.2011 again, the Commercial Manager of Shalimar Paints, Chennai came to Madurai Depot and called the respondent herein for stock verification, after the respondent herein has filed his resignation letter. During the verification, it was found that there was a shortage of stock to the tune of Rs.7,83,617.33/- which consists of 6,032.5 litres. The plaintiff asked them to verify the invoice, lorry receipts and chellan to rectify the apparent shortage. The Commercial Manager asked the plaintiff to sign in the Stock Verification Report and to send e-mail if he had any grievance. The plaintiff requested for re-checking the stock which was not considered by the defendants.
5.It is further stated that the computer operator of Madurai was having the store key and he used to prepare the invoice and he maintained the stock in the system. The store keeper received the materials from other Depots and the computer operator is in charge of the stock and the store keeper is the daily wages Labourer. The plaintiff as an Area Sales Manager has to visit eight Districts and to meet 80 dealers along with Company http://www.judis.nic.in Sales Officer of the respective Districts and that the plaintiff is not incharge of 4 stock. His duty is only to promote the sales. The Store Keeper used to take delivery of the materials and sign the lorry receipts and the Computer Operator accepts the materials and makes entry in the system.
6.The plaintiff was not given an opportunity to recheck the alleged shortage of the stock. The second defendant had sent a letter in December 2011 stating that there is shortage of materials worth about Rs.7,83,617.33/-. However, the defendants did not give any opportunity to the plaintiff to verify the stock and the documents. The plaintiff had sent a reply dated 25.02.2012 and requested one month time to verify the record. The plaintiff has sent another notice on 19.03.2012 and claimed a sum of Rs. 3,16,270/- and requested the defendants to pay the same. The third defendant came to Madurai on March 2012 and asked the plaintiff to verify the records. While verifying the records, the plaintiff found out that by mistake there was 4,512 litres shortage and it was due to shortage of supply of materials through lorry receipt and invoice bills and he has sent a letter to the Managing Director on that date itself.
7.The supply by way of cartons could not be ascertained due to lapse of time. The supply of cartons will show that there is no shortage of materials. While in service, the plaintiff met office expenses out of his pocket from October 2010 till May 2011 for eight months and he has sent relevant vouchers and claimed bills and the payment was not made to the plaintiff so far. In the year 2009, BSNL broadband disconnected their service http://www.judis.nic.in throughout Madurai and it took one month to get BSNL network. During that 5 period, the defendant was using the plaintiff's broadband for the office works with the approval of the head office, and the expenses of Rs.10,000/- was not paid to the plaintiff. The travelling expense incurred by the plaintiff for 13 months from the month of April 2010 to May 2011 which comes to Rs.1,21,570/- was also not paid. The plaintiff had sent retirement benefit claim form on 31.03.2012 which consists of Form No.19 and Form No.3-A and the same were not forwarded by the defendants to the concerned Department for further action. It is stated that the plaintiff was not given relieving order and the provident fund claim cannot be entertained. The plaintiff has sent a letter dated 17.08.2011 and request the defendants to issue the relieving order.
8.The case of the defendants/appellants herein is that this Court has no jurisdiction under Section 33(c)(2) of the Industrial Dispute Act. The provision under Industrial Dispute Act contemplates as “any question arise due to the dispute between the employer and employee which should be decided by the Labour Court.” It is stated that the plaintiff submitted his resignation on 03.05.2011 but the same was not accepted. The plaintiff was very irregular in work and he committed misappropriation. As per the physical stock verification done on 15.09.2011, there was some discrepancies in stock for about 5,991.87 litres. The plaintiff himself has admitted that there is a difference in the stock to the tune of 4,691.87 litres. Apart from that, there are several complaints against the plaintiff by the dealers in respect of the debit balance in their account and service. One Jeevanantham was appointed to take over the Madurai Depot with effect http://www.judis.nic.in from 12.08.2011. The plaintiff even after several reminders, has not 6 accepted to set right the shortage in stock to the tune of 6,032.5 litres which is worth about Rs.6,53,813.86/-.
9.Moreover, the plaintiff had also committed misappropriation of amounts by billing materials to one dealer and supplied to another dealer and not credited the same to the company. He has not credited a sum of Rs.61,512/- due from M/s.Lakshmi Traders and the plaintiff has billed materials to M/s. R.S.Agencies and not supplied the same. The plaintiff has also accepted that he had taken paints for his personal use and agreed to make payment of Rs.35,441.47/-. The plaintiff has collected amount from one dealer and deposited the same in different account. He has credited the payment made by Sri.Meenakshi Associates in the account of M/s. Krishna Paints and on enquiry Krishna Paints informed the defendants that they had already made payment to the plaintiff and in this transaction the plaintiff has cheated a sum of Rs.29,895/-, similarly a sum of Rs.2,955/- was paid by M/s.Sri Meenakshi Associates and it was credited to Sri Kamatchi Hardwares. Only with a view to escape from the criminal liability, the plaintiff has filed resignation.
10.It is stated that on 15.09.2011 while the stocks were verified in the presence of Commercial Manager, the plaintiff was not in a position to give proper explanation for the said shortage of 5,991.87 litres and he has also admitted the same and signed the Stock Verification Report. The petitioner is estopped from claiming to be innocent http://www.judis.nic.in contra to the Stock Verification Report. The plaintiff alone is responsible for 7 the stocks and accounts and the others are still working in the company and there is no fault on their part. The plaintiff has caused severe loss to the defendant company to the tune of Rs.7,83,617.33/-. Sufficient opportunity was given to the plaintiff to recheck the stock, but it was not at all utilised by the plaintiff. On 29.06.2012, the defendants were constrained to file a complaint to the Commissioner of Police, Madurai regarding the misappropriation committed by the plaintiff, since the plaintiff's father is an Advocate, the complaint was not registered by the police.
11.The plaintiff's claim is that there is no shortage and he is not in charge of the stock and accounts and he has filed the suit. Since the trial Court and the first Appellate Court decreed the suit in favour of the respondent, the appellants have filed the present second appeal. This Court by its order dated 17.07.2018, has admitted the second appeal and has framed the following substantial questions of law, which are as follows:
“(a) whether the Courts below are right in law in entertaining the very suit itself without adverting to the implied bar provided under Section 9 of C.P.C., having regard to the provisions of the Tamil Nadu Shops and Establishments Act?
(b) Have not the Courts below committed serious error in law in granting the relief sought for, completely overlooking the very suit filed is a premature one in a way to stall the entire proceedings initiated against the respondent?” Issue No.1:
12.On the side of the appellants, it is stated that there is bar under
Section 9 http://www.judis.nic.in 8 of C.P.C., having regard to the provisions of the Tamil Nadu Shops and Establishment Act. It is stated that the trial court has framed an issue whether the suit was bared under
Section 33(c)(2) of Industrial Disputes Act.
13.On the side of the respondent, it is stated that the amount claimed by the plaintiff is not for settlement of an award amount. The amount claimed was spent for the company by the plaintiff. The Appellate Court framed an issue whether the Civil Court has jurisdiction to entertain the suit. The Appellate Court came to the conclusion that the Industrial Disputes Act will be applicable only to the workman when the employer was liable to pay settlement or award. Whereas in this case, the claim of the plaintiff is for re-impursement of money which he spent for the company and the lower Courts came to the conclusion that the recovery of money spent is a civil case and the Civil Court is having jurisdiction.
14.On the side of the appellants, it is stated that the appellants have sent notice calling for explanation regarding the shortage of stock and the respondent counter signed the document Ex.B2 which reveals the shortage of stocks. In Ex.A7 it is specifically stated that there is deficiency in the balance and in service. The remission available to the respondent is that he has to approach only the Labour Court by paying Rs.10,000/-, the respondent has admitted that he swindled the amount. The respondent has not made any such claim as to the usage of BSNL network prior to the suit. The suit itself is http://www.judis.nic.in not maintainable.
15.The learned counsel appearing for the appellants relied on the Judgment passed by this Court in the case of Management of Madras Atomic Power Project Employees Consumer Co-operative Stores Ltd. v. Deputy Commissioner of Labour and Others in W.P.No.2050 of 1994, which reads as follows:
“It is clear that even persons employed in the position of management are also covered by the provisions of the Shops Act.”
16.The learned counsel appearing for the appellants relied on the Judgment passed by this Court in the case of Cholan Roadways Corporation Limited, Kumbakonam v. P.N.Karuppaiyan reported in (2002) 2 MLJ 83, which reads as follows:
“If there is any dispute arising under the Industrial Disputes Act or its sister enactments such as Industrial Employment (Standing Orders) Act, they shall be adjudicated by any of the forms created by the Industrial Disputes Act, and the jurisdiction of the Civil Court in such matters is barred.”
17.The learned counsel appearing for the appellants relied on the Judgment passed by this Court in the case of M/s.Madura Coats Ltd., v. Ambasamudram reported in (2003) 3 MLJ 261, which reads as follows:
“Industrial dispute-meaning of-suit by the employee against the management for a declaration that transfer order passed against the http://www.judis.nic.in employee cannot be sustained-civil Court-whether has jurisdiction to try 10 such suit-Preliminary issue regarding the maintainability -no jurisdiction to entertain disputes concerning workman and the employer with regard to service condition.”
18.The learned counsel appearing for the appellants relied on the Judgment passed by this Court in the case of Rajasthan State Transport Corporation and others v. Zakir Hussain reported in 2005 (4) CTC 269, which reads as follows:
“Therefore, it was not obligatory on the part of the Corporation to hold an enquiry before terminating the service.
For the foregoing reasons, we hold that the respondent ought to have approached the remedies provided under the Industrial Disputes Act.”
19.The learned counsel appearing for the appellants relied on the Judgment passed by this Court in the case of V. Vijaya Kumar v. M.Murugadoss and others reported in 2014 (3) CTC 266, which reads as follows:
“When there is a doubt as to whether Civil Court has jurisdiction to try a suit or not, the Courts shall raise a presumption that it has such jurisdiction.
When there is dispute involving enforcement of right of workman, same can be adjudicated only in forums constituted under ID Act.”
20.On the side of the respondent, it is stated that to attend the sick mother of the plaintiff, the plaintiff has sent his resignation letter. The defendants accepted http://www.judis.nic.in the resignation letter but refused to give the relieving order. The plaintiff is the Area 11 Sales Manager and he is not connected with the stock and there is no cash transaction.
The store keeper and the accountant used to keep the lorry receipt and not the respondent. Ex.B2 is not a statement of shortage based on documents. The variations in the documents is wrongly stated as shortage of stock. What should have been the pendency as per the stock register was not stated. The Accountant incharge of account and biling have not filed any report. The sales Manager is not a worker and that the dispute is not an industrial dispute and that the plaintiff resigned his job voluntarily.
21.The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of M/s. Unichem Laboratories Ltd. v. Rani Devi and another reported in AIR 2017 Supreme Court 2050, which reads as follows:
“Claim for eviction is suit of civil nature-No bar to try civil suits by any special enactment”
22.The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of The Madras Race Club and others v. M.Victor and others reported in 2013 (6) CTC 481, which reads as follows:
“Presumption arises in favour of existence of jurisdiction of Civil Court to entertain suits.”
23.The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of H.R.Adyanthaya and others v. Sandoz and others http://www.judis.nic.in 12 reported in AIR 1994 Supreme Court 2608, which reads as follows:
“workman-definition under
Section 3(18) is same as under Industrial Disputes Act -word “operational” in definition under I.D. Act-
Does not include kind of work done by Sales Promotion employees and medical representatives-thus medical representatives are not workmen within meaning of Maharashtra Act.”
24.The learned counsel appearing for the respondent relied on the Judgment passed by this Court in the case of C.Gupta v. Glaxo Smithkline Pharmaceutical Ltd., in Appeal Nos.1379/1999 and 170/2000, which reads as follows:
“By so applying, person engaged to provide advice and guidance in industrial matters of company, held to be performing managerial duties and therefore not workman”
25.On the side of the appellants, it is stated that in the letter of the plaintiff, he has admitted that an amount of Rs.10,000/- is to be paid. The word 'kindly' denote that the plaintiff is guilty of misappropriation. On the side of the respondent, it is stated that the word 'kindly' denotes respect and it cannot be named as an acceptance of guilt.
26.A perusal of the records reveals that the respondent was working as a Sales Manager in the appellant's Company. The respondent filed a suit in O.S.No.702 of 2012 claiming a sum of Rs.3,25,870/- and the suit was decreed by the trial Court.
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27.The contention of the appellants is that though the respondent worked as Manager, he has to seek remedy only through the Labour Court. On the side of the appellants, it is stated that there is deficiency in the stock and the respondent is liable for the deficiency of the stock. There is no document to show that it is the duty of the respondent to keep the accounts and to keep the stock. The allegation of the respondent is that the stock is to be noted by the Shop Keeper and the Accountant. This statement was not denied by the appellants. Admittedly the stocks were verified only after the filing of the resignation letter. The respondent filed the resignation letter on 17.08.2011 but the stocks were verified only on 15.09.2011. There was deficiency in the stock. No other document was filed on the side of the appellants to prove the deficiency of stock. Admittedly the stock was verified after one month from the date of the resignation letter.
28.On the side of the respondent, it is stated that the respondent has filed so many petitions for permission to verify the registers regarding the shortage of stocks but the same was negatived by the defendants. Only on 17.05.2012, the plaintiff has verified the register. The claim of the plaintiff is that the transfer expenses, maintenance charges, check charges, etc., are not within the limit. The contention of the appellants in this appeal is that the suit is bared under Section 9 of C.P.C., as it is not maintainable with regard to Tamil Nadu Shops and Establishment Act. The contention of the appellants in the lower Court is that the suit is bared under
Section 33(c)(2) http://www.judis.nic.in of Industrial Disputes Act. The case of the plaintiff is not within the ambit of 14 these two Sections and the new contention raised by the appellants is not pleaded in his written statement. Hence, the points raised by the appellants are not maintainable. Issue No.2:
29.On the side of the appellants, it is stated that the both lower Courts have failed to consider that the suit is a premature one. The contention of the appellants is that the definition of the respondent is not acceptable and no relieving order was given to the respondent and the respondent cannot claim provident fund and other things also. It is not the case of the appellants that they are not paying salary to the respondents. The claim of the appellants is that they are not issuing the relieving order and that the appellants have filed criminal complaint against the respondent for misappropriation.
30.Whether the respondent is liable for misappropriation cannot be decided in this case. The contention of the respondent is that he spent money for the maintenance of the office and that the company used his network connection from April 2010 till May 2011 and he was claiming those charges and there is no specific denial of these facts. The appellants has vaguely admitted that the workers used to spent money for the Company. It is admitted that it is duty of the respondent to visit various districts and to meet various customers. The plaintiff/respondent is entitle for claiming back the amount spent by him. The lower Courts have not erred in law in granting the relief sought http://www.judis.nic.in for by the plaintiff.
31.In the above circumstances, the question of law raised are not maintainable and this Second Appeal is dismissed as devoid of merits and the order passed in A.S.No.10 of 2017 dated 22.09.2017 on the file of the learned IV Additional District Judge, Madurai is confirmed. No Costs. Consequently, C.M.P.(MD)Nos.6173, 9454 and 7693 of 2018 are closed.