Madras High Court
The Tamil Nadu Forest Department Staff ... vs P. Dhanabal And The Deputy Commissioner ... on 11 April, 2002
Author: C. Nagappan
Bench: C. Nagappan
ORDER C. Nagappan, J.
1. The petitioner has prayed for issuance of a Writ of Certiorari to quash the proceedings of the second respondent in TSE.37/92, dated 1.8.1994.
2. The case of the petitioner are as follows. The petitioner is a Cooperative Thrift and Credit Society and it was also having bunk stalls in which the Forest Products were sold. The first respondent was appointed as sales man on a temporary basis as daily coolie. The stalls have been handed over to the Tamil Nadu Tea Plantation Corporation by virtue of the Government Order in G.O.Ms.No.277 of Environment and Forest (FR.CORPN) Department, dated 20.7.1992. The business in the stalls was wound up with effect from 30.6.1992. The first respondent herein was appointed temporarily even without an appointment order and on coming to know of the proposal to transfer the stalls in favour of TAN TEA, he sent a letter dated 23.6.1992 to the Government with a copy marked to the first respondent requesting the Government to transfer him to TAN TEA along with the bunk. The petitioner has recommended the case of the first respondent by the endorsement dated 24.6.1992. The first respondent has been served with an order dated 1.9.92, wherein, he was informed that pursuant to the Government Order, dated 20.7.1992, for want of vacancy, he has been removed from service on 1.9.1992. The first respondent preferred an appeal before the second respondent in TSE No.37 of 1992 praying for reinstatement under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947. The petitioner herein contended in the appeal that, the first respondent was appointed on a daily temporary basis and the appeal filed by the first respondent was not maintainable. The second respondent allowed the appeal by order dated 1.8.1992. The second respondent failed to appreciate the facts that the first respondent has been appointed orally on a temporary basis and without wages during holidays and therefore, he is not entitled to get the relief. The second respondent has erred in passing the order since he failed to note that the stalls were handed over to TAN TEA and there is no employment available with the petitioner society in view of the Government Order and therefore, there is neither illegality nor irregularity in the order passed by the petitioner, terminating the services of the first respondent. Hence the petitioner has filed the present Writ Petition.
3. The first respondent, in his counter, has contended that, he was appointed in the petitioner society on 9.6.1985 at D.M.S., Complex, Madras-6. Later, he was transferred to the stall at Secretariat Compound, during September 1986 and he was working continuously without any break for nearly eight years. The first respondent has further submitted that, no opportunity was given to him to explain and he was served with the order of dismissal on 1.9.1992. The first respondent has also filed a claim petition under section 33(c)(b) of Industrial Disputes Act seeking direction to the respondent to pay the salary due to him. The first respondent is entitled to reinstatement.
4. The learned counsel for the petitioner mainly contends that, the appellate authority did not consider the ground as to reasonable cause under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 and did not give a finding with regard to that and hence the impugned order of the appellate authority is liable to be set aside.
5. Per contra, the learned Senior Counsel appearing for the first respondent contended that the appellate authority has stated in his order that the management, the petitioner herein, has not fully established that the dispensing with the service was for reasonable cause and that would suffice the legal requirement. Reliance is placed by the petitioner on a decision of the Division Bench of this Court in State Bank of India, repressented by The Agent, Coonoor Branch, v. The Additional Commissioner for Workmen's Compensation and Anr, 1975 1 L.L.J., 159, wherein, it has considered the scope of Section 41(1) and (2) of the Tamil Nadu Shops and Establishments Act, 1947, and laid down as follows. "In our view, therefore, the first ground as to reasonable cause under S.41(2) will cover failure to give notice or pay wages as required by sub.s. (1), and as such, an appeal under S.41(2) on that ground will be on its merits, with the result that mere non-compliance with the requirement of notice or payment of wages in lieu thereof will not by itself render the order invalid or void and still the question of reasonable cause will have to be gone into. If there is a reasonable cause found, but the requirement as to notice or payment of wages in lieu thereof is not complied with, its result will only be not that the order of termination will be void, but the wages due to employee up to date including the period of one month's notice will have to be paid, since there is a statutory direction. With this expression of opinion, the petition will now go before the learned Judge dealing with writ petitions for decision. "
6. In the present case, the appellate authority, did not give a finding as to whether there is reasonable cause for dispensing with the service of the first respondent herein, but he dealt with the question as to whether there was one month's notice or payment of wages in lieu of such notice and concluded that the order of termination was void on account of non-compliance with the requirement of notice or payment of wages in lieu thereof. The non-compliance with the requirement of notice or payment of wages in lieu thereof, will not itself render the order invalid and the question of reasonable cause has to be gone into. In the present case, it is not done and hence the impugned order of the appellate authority is liable to be set aside.
7. The Writ Petition is allowed and the impugned order of the second respondent in TSE No.37 of 1992, dated 1.8.1994 is set aside and the matter is remitted back to the second respondent, namely, The Deputy Commissioner of Labour, Appellate Authority (Appeal Incharge), Madras-6, for fresh consideration on merits, in the light of the observations made supra, and the second respondent is directed to dispose of the same within three months from the date of receipt of copy of this order. No costs.