w w w . L a w y e r S e r v i c e s . i n



The General Manager, Indian Overseas Bank, Anna Salai & Another v/s S. Ganesan (Deceased) & Others


Company & Directors' Information:- R P G OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC035238

Company & Directors' Information:- M K OVERSEAS PRIVATE LIMITED [Active] CIN = U25209DL1987PTC029976

Company & Directors' Information:- P K OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059051

Company & Directors' Information:- U & M OVERSEAS PRIVATE LIMITED [Active] CIN = U25200DL2007PTC165258

Company & Directors' Information:- B R K OVERSEAS PRIVATE LIMITED [Active] CIN = U51311DL2002PTC117390

Company & Directors' Information:- A V I OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059014

Company & Directors' Information:- INDIAN OVERSEAS CORPORATION PRIVATE LIMITED [Active] CIN = U51900DL2010PTC203948

Company & Directors' Information:- J C OVERSEAS LIMITED [Active] CIN = U65993WB1999PLC090116

Company & Directors' Information:- J S OVERSEAS PVT LTD [Active] CIN = U74899DL1994PTC058039

Company & Directors' Information:- H A OVERSEAS PRIVATE LIMITED [Active] CIN = U55101CH1999PTC032886

Company & Directors' Information:- B. R. OVERSEAS LIMITED [Active] CIN = U24111MP1973PLC001244

Company & Directors' Information:- A T OVERSEAS LTD [Active] CIN = U17115PB1995PLC015815

Company & Directors' Information:- A L OVERSEAS PRIVATE LIMITED [Active] CIN = U15300DL2013PTC250975

Company & Directors' Information:- D R OVERSEAS PRIVATE LIMITED [Active] CIN = U15122DL2013PTC253214

Company & Directors' Information:- M R OVERSEAS PRIVATE LIMITED [Active] CIN = U01111DL1998PTC092787

Company & Directors' Information:- B C C OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC058775

Company & Directors' Information:- R B OVERSEAS PVT LTD [Active] CIN = U24200MH1982PTC028320

Company & Directors' Information:- S L OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1999PTC099800

Company & Directors' Information:- B L OVERSEAS PRIVATE LIMITED [Active] CIN = U51109DL2008PTC177039

Company & Directors' Information:- G D R OVERSEAS LIMITED [Strike Off] CIN = U51909TN1994PLC028831

Company & Directors' Information:- S. B. OVERSEAS PVT LTD [Active] CIN = U27101WB1994PTC065565

Company & Directors' Information:- G B OVERSEAS PRIVATE LIMITED [Active] CIN = U51109WB2007PTC116567

Company & Directors' Information:- G B OVERSEAS PRIVATE LIMITED [Active] CIN = U74110DL2007PTC317094

Company & Directors' Information:- AT OVERSEAS INDIA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276303

Company & Directors' Information:- M D OVERSEAS LIMITED [Active] CIN = U52110DL1980PLC011099

Company & Directors' Information:- R C OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045610

Company & Directors' Information:- S. R. O. OVERSEAS PRIVATE LIMITED [Active] CIN = U51101DL2014PTC268846

Company & Directors' Information:- K P OVERSEAS LIMITED [Active] CIN = U51311DL2004PLC125574

Company & Directors' Information:- M I OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1987PTC026966

Company & Directors' Information:- R F OVERSEAS PRIVATE LIMITED [Active] CIN = U51909PB1997PTC019643

Company & Directors' Information:- M R K OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018631

Company & Directors' Information:- L & W OVERSEAS PRIVATE LIMITED [Active] CIN = U17221PB2013PTC037343

Company & Directors' Information:- C D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909DL1997PTC085553

Company & Directors' Information:- J D OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC038866

Company & Directors' Information:- A A P OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909KA2007PTC042105

Company & Directors' Information:- K G OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC054832

Company & Directors' Information:- OVERSEAS CORPN. PVT LTD [Active] CIN = U67120WB1947PTC014910

Company & Directors' Information:- G R OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050950

Company & Directors' Information:- A M D OVERSEAS PRIVATE LIMITED. [Active] CIN = U52110DL1980PTC010622

Company & Directors' Information:- M S D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC069001

Company & Directors' Information:- R K G OVERSEAS PRIVATE LIMITED [Active] CIN = U51229DL1997PTC086734

Company & Directors' Information:- N D OVERSEAS PRIVATE LTD [Converted to LLP] CIN = U51900MH1994PTC076787

Company & Directors' Information:- N W OVERSEAS PRIVATE LIMITED [Active] CIN = U51507HR1999PTC034265

Company & Directors' Information:- R. G. OVERSEAS LIMITED [Strike Off] CIN = U27104TN1981PLC008963

Company & Directors' Information:- P M OVERSEAS PRIVATE LIMITED [Active] CIN = U51909DL1991PTC045126

Company & Directors' Information:- J M B OVERSEAS PRIVATE LIMITED [Active] CIN = U51909WB1997PTC085224

Company & Directors' Information:- S C J OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052913

Company & Directors' Information:- M C S OVERSEAS PVT LTD. [Strike Off] CIN = U51909WB1994PTC063666

Company & Directors' Information:- B. J. OVERSEAS PVT. LTD. [Strike Off] CIN = U24134WB1994PTC063846

Company & Directors' Information:- A H OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51109UP1977PTC004421

Company & Directors' Information:- R M OVERSEAS LTD [Active] CIN = U51909PB1992PLC011971

Company & Directors' Information:- L O P OVERSEAS PRIVATE LIMITED [Active] CIN = U51109UP2001PTC026011

Company & Directors' Information:- R R OVERSEAS LTD [Active] CIN = U51909DL1993PLC054909

Company & Directors' Information:- U D OVERSEAS PRIVATE LIMITED. [Strike Off] CIN = U74999DL2000PTC105257

Company & Directors' Information:- S A OVERSEAS PRIVATE LIMITED [Active] CIN = U51909DL2001PTC112769

Company & Directors' Information:- A H R OVERSEAS PRIVATE LIMITED [Active] CIN = U51909DL2000PTC103069

Company & Directors' Information:- H S OVERSEAS PRIVATE LIMITED [Active] CIN = U51909DL2008PTC182147

Company & Directors' Information:- S G OVERSEAS PRIVATE LIMITED [Active] CIN = U18101DL2000PTC105649

Company & Directors' Information:- R AND R OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U18101DL1987PTC030154

Company & Directors' Information:- D & D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51420OR2009PTC010779

Company & Directors' Information:- A TO Z OVERSEAS PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031342

Company & Directors' Information:- J P OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059744

Company & Directors' Information:- R Q OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909MH2012PTC230840

Company & Directors' Information:- J M OVERSEAS PRIVATE LIMITED [Active] CIN = U51909WB2008PTC128957

Company & Directors' Information:- D N OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U24119DL1999PTC102409

Company & Directors' Information:- A-3 OVERSEAS PRIVATE LIMITED [Active] CIN = U36900HR2016PTC063750

Company & Directors' Information:- D M OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74900DL1995PTC072532

Company & Directors' Information:- OVERSEAS (INDIA) LTD [Strike Off] CIN = U51909WB1945PLC012624

Company & Directors' Information:- B N OVERSEAS PVT LTD [Strike Off] CIN = U74899DL1991PTC042764

Company & Directors' Information:- S N R OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U00063KA1996PTC019873

Company & Directors' Information:- GENERAL BANK PRIVATE LIMITED [Dissolved] CIN = U93090TN1935PTC000845

Company & Directors' Information:- M H OVERSEAS LIMITED [Strike Off] CIN = U36911UP2000PLC025118

Company & Directors' Information:- V. R. OVERSEAS PRIVATE LIMITED [Active] CIN = U51109WB2006PTC107676

Company & Directors' Information:- I E S (OVERSEAS) PVT LTD [Active] CIN = U31200WB1974PTC029343

Company & Directors' Information:- V B OVERSEAS PRIVATE LIMITED [Active] CIN = U28995DL1996PTC077049

Company & Directors' Information:- J N OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC060359

Company & Directors' Information:- V C OVERSEAS PRIVATE LIMITED [Active] CIN = U51900DL2007PTC166741

Company & Directors' Information:- T M K OVERSEAS LIMITED [Strike Off] CIN = U51223KL1992PLC006416

Company & Directors' Information:- V E OVERSEAS PVT LTD [Strike Off] CIN = U31909DL1981PTC011849

Company & Directors' Information:- S R D OVERSEAS PRIVATE LIMITED [Active] CIN = U52209DL2008PTC178806

Company & Directors' Information:- C M D OVERSEAS PVT LTD [Active] CIN = U74899DL1995PTC073068

Company & Directors' Information:- M B OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC061016

Company & Directors' Information:- B G OVERSEAS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74899DL1990PTC038859

Company & Directors' Information:- M N OVERSEAS PRIVATE LIMITED [Active] CIN = U51909WB2004PTC099257

Company & Directors' Information:- R L K OVERSEAS PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1991PTC043115

Company & Directors' Information:- J S R OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U52399DL2009PTC190839

Company & Directors' Information:- K D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U18101DL1982PTC013342

Company & Directors' Information:- S S B OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74120WB1997PTC086041

Company & Directors' Information:- C J OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL1991PTC045545

Company & Directors' Information:- A AND P OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74999DL1992PTC048780

Company & Directors' Information:- V & D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909DL2009PTC186537

Company & Directors' Information:- P G OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74999DL1982PTC013479

Company & Directors' Information:- S N OVERSEAS PRIVATE LIMITED [Active] CIN = U74996DL2006PTC150004

Company & Directors' Information:- D. T. OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U36911UP1996PTC020289

Company & Directors' Information:- A R C OVERSEAS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036343

Company & Directors' Information:- T D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U52590DL2013PTC257410

Company & Directors' Information:- V K OVERSEAS PVT LTD [Strike Off] CIN = U18209CH1990PTC010214

Company & Directors' Information:- J B OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U17220DL1983PTC016197

Company & Directors' Information:- K H OVERSEAS PVT LTD [Strike Off] CIN = U51496CH1989PTC009704

Company & Directors' Information:- A. A. OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909PB2008PTC032010

Company & Directors' Information:- Z H OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51909MH2005PTC155819

Company & Directors' Information:- E B OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51101DL2007PTC157263

Company & Directors' Information:- A P OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51101DL2014PTC271288

Company & Directors' Information:- S H OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U18101DL2002PTC116516

Company & Directors' Information:- S D S OVERSEAS PRIVATE LIMITED [Active] CIN = U51909DL2013PTC249539

Company & Directors' Information:- L T OVERSEAS PRIVATE LIMITED [Active] CIN = U15122DL2014PTC272665

Company & Directors' Information:- R P OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U74899DL2000PTC108954

Company & Directors' Information:- S V OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U52100DL2013PTC258278

Company & Directors' Information:- T & Y OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51505HR2012PTC047468

Company & Directors' Information:- G R D OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U80301HR2012PTC046968

Company & Directors' Information:- T & T OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51900GJ2015PTC083022

Company & Directors' Information:- S K P OVERSEAS PRIVATE LIMITED [Active] CIN = U51909GJ2013PTC076553

Company & Directors' Information:- P R OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U27310GJ2014PTC079227

Company & Directors' Information:- G T C OVERSEAS PVT LTD [Strike Off] CIN = U18101PB1993PTC013743

Company & Directors' Information:- D AND P OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U18109DL1989PTC038623

Company & Directors' Information:- B G S OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U51101PB2007PTC031400

Company & Directors' Information:- I P S OVERSEAS PRIVATE LIMITED [Strike Off] CIN = U63030DL1976PTC008356

Company & Directors' Information:- INDIA AND OVERSEAS CORPORATION LIMITED [Dissolved] CIN = U99999MH1947PTC005626

    W.A. No. 554 of 2013 & MP. No. 1 of 2013

    Decided On, 26 April 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN & THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Appellants: Anand Gopalan, M/s. T.S. Gopalan & Co., Advocates. For the Respondents: R1 to R3, Balan Haridas, Advocate.



Judgment Text

(Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside the order passed by this Court in WPMP No.38 of 2013 in W.P.No.3738 of 2005 dated 22.02.2013.)

K.K. Sasidharan, J.

Introductory Note

Whether the legal representatives of a deceased workman are entitled to continue the legal proceedings initiated by him challenging the order of dismissal from service and the related order passed by the Appellate Authority under the Tamil Nadu Shops and Establishments Act, 1947, by filing an application for impleading them as parties is the core legal issue raised in this intra court appeal.

Brief Facts

2. The predecessor-in-interest of the respondents 1 to 3 was an employee of Bharat Overseas Bank Limited, which was subsequently merged with the Indian Overseas Bank. The employee was dismissed from service. The order was confirmed in appeal. Thereafter, the employee filed a statutory appeal before the Appellate Authority constituted under Section 41 of the Tamil Nadu Shops and Establishment Act, 1947. The appeal was dismissed by order dated 31 August 2004. The order was challenged by the employee before the Writ Court in W.P.No.3738 of 2005. During the currency of the writ petition, the employee died. The legal representatives filed an application for impleading, which was allowed by the learned single Judge. Subsequently, the management filed an application to recall the order impleading the respondents 1 to 3 as parties, by placing reliance on a decision in Molysaramo Lukose (Smt) v. Spencer & Co., Ltd., Madras and another [1986 (1) LLN 469]. The application was dismissed. The order is under challenge at the instance of the management in this appeal.

Submissions of Parties

3. The learned counsel for the appellants by placing reliance on a Division Bench Judgment in V.Veeramani v. Madurai District Co-operative Supply and Marketing Society Ltd., and another [1983 1 LLN 426], contended that the scope of an industrial adjudication cannot be enlarged by impleading the legal representatives. According to the learned counsel, the writ petition would abate consequent to the death of the employee and it cannot be continued by the legal representatives.

4. The learned counsel for the respondents 1 to 3 contended that the right to sue would survive even after the death of the employee and such being the position, the litigation can be continued by the legal representatives.

Analysis

5. The writ petition in W.P.No.3738 of 2005 was filed by the predecessor-in-interest of the respondents 1 to 3 with a prayer to set aside the order imposing punishment of dismissal from service and the related appellate order and directing his reinstatement with backwages. The order passed by the Appellate Authority under the Tamil Nadu Act XXXVI of 1947 was the order impugned in the writ petition.

6. The employee died pending disposal of the writ petition. The legal representatives filed an application and got them impleaded as parties to prosecute the writ petition. The petition filed by the Management subsequently to recall the order was dismissed by the learned single Judge, resulting in filing this appeal.

7. The view taken by the Division Bench in V.Veeramani (cited supra) is relied on by the appellants to contend that the legal representatives have no right to continue the legal proceedings initiated by the employee, challenging the order of dismissal from service.

8. The Division Bench in V.Veeramani (cited supra) considered the provisions of the Industrial Dispute Act and taking into account Section 2(1) of the Act, defining the term "Industrial Dispute" held that only the dispute between the employer and employee could be the subject matter of adjudication before the Labour Court. To put it otherwise, the Division Bench was of the view that since the legal representatives were not included specifically, it would not be possible for them to enter the field of adjudication of industrial dispute.

9. The dispute in the subject case though related to dismissal would also involve a question as to whether the legal representatives would be entitled to the consequential benefits in case the order of dismissal is set aside. It is worth mentioning here that the employee has made a specific claim for back wages in his writ petition.

10. The Tamil Nadu Shops and Establishments Act, 1947 was enacted to provide for the regulation of conditions of work in shops, commercial and other establishments. Section 41 of the Act provides for filing an appeal to the competent authority by a workman challenging the order of dismissal. The Appellate Authority is empowered to set aside the order of dismissal and to direct reinstatement with or without back wages.

11. The order passed by the Appellate Authority could be subjected to judicial review by filing a writ petition as there is no other alternative remedy available to the aggrieved.

12. Section 2A of the Industrial Disputes Act conferred right on the workman to agitate his grievance caused by his dismissal before the Industrial Tribunal or Labour Court. Similarly, Section 41(2) of the Tamil Nadu Shops and Establishments Act, provides for an avenue to the workman to challenge the illegal termination before the competent authority under the Act.

13. The question is whether such right can be agitated by the legal representatives by stepping into the shoes of the deceased employee.

14. The legal representative of a deceased is not a stranger or a different person from the deceased. By impleading as a party to the pending proceedings, he would be continuing the "persona" of the deceased.

15. The Hon'ble Supreme Court in Girijanandini v. Bijendra Narain [AIR 1967 SC 1124] observed that the maxim 'actio personalis moritur cum persona' meaning a personal action dies with the person, has a limited application. The Supreme Court was of the view that the maxim would operate in a limited class of actions, such as actions for damages, for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party, the relief could not be enjoyed or granting it would be nugatory.

16. Section 306 of the Indian Succession Act recognises the survival of the cause of action and the right of the heirs and legal representatives.

The provision reads thus:

306. Demands and rights of action of or against deceased survive to and against executor or administrator.-All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, (45 of 1860.) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

17. The Appellate Authority under the Tamil Nadu Shops and Establishments Act is well within its jurisdiction to decide the legality and correctness of the order of termination and in case the order is set aside to grant the appropriate relief including payment of backwages. To put it otherwise, in case, the competent authority is of the view that the order of termination is illegal, it is open to the said authority to direct reinstatement. In case the employee has already attained superannuation, the authority is empowered to mould the relief. The jurisdiction would continue even after the death of the employee pending adjudication, inasmuch as in the event of termination being declared illegal, the legal representatives would be entitled to receive the monetary benefits.

18. The courts are now flooded with litigation. In view of the Himalayan arrears and docket explosion, it would not be possible for the Courts to dispose of the proceedings within a reasonable period. The litigants are not responsible for the delay in the disposal of cases. In case, the proceedings are declared as abated consequent to the death of the employee, long after his initiation of litigation, and without permitting the legal representatives to continue the litigation, it would be a travesty of justice.

19. The Hon'ble Supreme Court in 1990 (1) SCC 109 indicated that with the passage of time and with the consequent change of circumstances, the continued operation of an act which was valid when enacted may become arbitary and unreasonable.

20. While interpreting a Labour Legislation enacted to preserve the industrial peace and harmony and welfare of the workmen, the Courts must approach it from a holistic perspective. Even an individual dispute would later become an industrial dispute, resulting in industrial unrest. The disputes must be settled for preserving industrial peace. Therefore, the Courts must adopt a justice oriented approach in a matter of this nature.

21. The Courts must interpret the law taking into account the social changes that has taken place with the passage of time.

22. The right to reputation is part of Article 21 of the Constitution of India. In case the employee was dismissed from service and pending adjudication of the dispute raised by him, or writ petition filed challenging the decision of the Labour Court, the employee died and the legal representatives are not permitted to continue the proceedings to give a clean chit to the delinquent,

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the employee would be denied of an opportunity to prove his innocence. Even after death, he would be branded as a person involved in a serious misconduct. The legal representatives got a right to prosecute the matter to remove the stigma. Such a right would be denied to them, in case they are not permitted to be impleaded in the pending proceedings. 23. There is a pious obligation to discharge the liability of the deceased. Similarly, there is a corresponding right to seek the benefits due to the deceased, if he is legally entitled. 24. We therefore make the position clear that on the death of the workman, his heirs and legal representatives, representing the estate are entitled to continue the legal proceedings. 25. The learned single Judge was correct in negativing the plea taken by the appellants on the question of impleading the legal representatives as party to the pending proceedings. 26. For the reasons aforesaid, we dismiss the intra court appeal. No costs. Consequently, connected miscellaneous petition is closed.
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