The provisions of the Tamil Nadu Shops and Establishments Act, 1947 apply to a person employed under a contract of service, and the termination of such a person's services for a reasonable cause, as per the contract of service, does not amount to termination on a charge of misconduct.

1. The petitioner claimed that he was a person employed' within the meaning of the Tamil Nadu Shops and Establishments Act, 1947, herein after referred to as the Act, with the Tamil Nadu Dairy Development Corporation, hereinafter referred to as the Corporation, as a Sales Assistant. There was an inspection of the depot in which the petitioner was working on 15th December, 1975 and he was found absent, leaving the transactions of the depot in charge of an outsider. On this basis, the petitioner's services were terminated on 29th December, 1975. The petitioner approached the third respondent under S. 41(2) of the Act. The Corporation put forth two contentions before the third respondent. One is, the services of the petitioner were governed by a contract, marked in the case as Ex. R. 1. and hence he cannot be deemed to be a 'person employed' within the meaning of the Act and the provisions of the Act would not apply to his case. The second contention is that the petitioner was, admittedly absent during the inspection on 15th December, 1975 and hence the Corporation was justified in terminating his services. The third respondent went into these questions and on the first contention raised by the Corporation, held that the provisions of the Act would apply to the case of the petitioner, but the second contention of the Corporation was upheld by the third respondent. The result was, the appeal of the petitioner was dismissed. The petitioner challenges the order of the third respondent in the present writ petition.

2. Mr. Fenn Walter T., learned counsel for the petitioner relying on the ratio of a Division Bench of this Court, consisting of Veeraswami, C.J., and Varadarajan, J., as he then was, in Zenith Lamps and Electricals v. Additional Commissioner [1973-II L.L.J. 445] would urge that when the Corporation did not hold an enquiry at all, the third respondent erred in holding an enquiry and relying on the evidence placed before him to uphold the order of termination passed by the Corporation against the petitioner and coming to the conclusion that the petitioner is guilty of misconduct.

3. Mr. N. G. R. Prasad, learned counsel appearing for respondents 1 and 2 wants to sustain the order of the third respondent by pointing out that Act would not apply to the case of the petitioner and submits that the finding of the 3rd respondent that the Act would apply to the case of the petitioner is not based on an analysis of the salient features of the contract, marked in this case as Ex. R-1, and the evidence placed in this case, and the discussions on this aspect by the third respondent are very cursory and far from satisfactory. Learned counsel for respondents 1 and 2 would further submit that since the petitioner was not found at the depot, which was put in his charge, during the inspection on 15th December, 1975, the Corporation terminated his services for a reasonable cause and such termination cannot be equated to dismissal on a charge of misconduct so that it can be stated that it ought to have the support of satisfactory evidence recorded at an enquiry held for the purpose. In this view. learned counsel for respondents 1 and 2 would state that the ratio of the Division Bench of this court, referred to above, has no application to the facts of this case.

4. On going through the order of the 3rd respondent, I find that he has not discussed the salient features of Ex. R. 1 the contract entered into between the petitioner and the Corporation, to find out as to whether the petitioner can be characterised as a person employed' within the meaning of the Act, Equally so, the third respondent has not discussed the evidence placed by the parties on this aspect. It is contended on behalf of the petitioner that the Corporation cannot, in the present writ petition canvass the findings which have gone against it before the third respondent, and on that ground, sustain the order of the third respondent. I am not able to sustain this approach of th