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Judgment
Ismail, C.J.—This is an appeal against the order of Mohan, J. dt. 28th October, 1980 allowing W.P. No. 5141 of 1980, filed by the first
respondent herein. For the purpose of understanding the prayer in the writ petition, it is necessary to refer to only a few facts. Admittedly, the
appellant herein was the employee of the first respondent. On 12th January, 1979, he wrote a letter addressed to the Secretary of the first
respondent as follows�
I shall be thankful if you will kindly relieve me from services from 12th January, 1979. This may be treated as a formal letter of resignation from
me.
On 12th January, 1979, itself the first respondent wrote the following letter addressed to the appellant�
We are in receipt of your letter of today''s date tendering your resignation from the services of our company. Your resignation has been accepted
and in view of your special request we are pleased to enclose herewith cash of Rs. 2,960 representing two months'' salary for notice period.
Thereafter, the accounts of the appellant were settled. However, on 20th January, 1979, the appellant wrote to the first respondent herein stating
that the letter of resignation, dt. 12th January, 1979 was obtained from him by coercion and threat. Then the appellant purported to file an appeal
before the second respondent herein under S. 41(2) of the Tamil Nadu Shops and Establishments Act, 1947. At that stage, the first respondent
herein filed the present writ petition praying for the issue of a writ of prohibition prohibiting the second respondent from proceeding further with the
hearing of the appeal or incidental matters filed by the appellant herein under S.41 of the Tamil Nadu Shops and Establishments Act, 1947. The
case of the first respondent was that on the facts of this case, the second respondent had no jurisdiction to entertain the appeal purported to have
been filed by the appellant herein and deal with the same. Mohan, J. allowed the writ petition holding that the second respondent had no
jurisdiction to entertain the appeal purported to have been preferred by the appellant herein and deal with the same. It is against this order of
Mohan, J. the present writ appeal has been preferred.
S.41 of the Tamil Nadu Shops and Establishments Act, 1947 reads as follows�
Notice of dismissal�(1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months,
except for a reasonable cause and without giving such person at least one month''s notice or wages in lieu of such notice, provided, however, that
such persons are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose;
(2) The person employed shall have a right of appeal to such authority and within such time as may be prescribed either on the ground that there
was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer.
(3) The decision of the appellate authority shall be final and binding on both the employer and the person employed.
Thus, merely from a reading of the section it is clear that sub-S.(1) contemplates an employer dispensing with the services of a person employed,
and sub-S.(2) contemplates the said person employed after such dispensing with his services preferring an appeal before the second respondent
herein on the ground that there was no reasonable cause for dispensing with his services on the ground that he had not been guilty of misconduct as
held by the employer. Consequently, before S.41(1) can be invoked, the employer must have dispensed with the services of the person employed
and sub-S.(2) merely follows sub-S.(1) and consequently, any appeal that may be preferred under sub-S.(2) must be based upon the employer
dispensing with the services of the person employed, and there, being no reasonable cause for such action or the employee not being guilty of
misconduct as held by the employer. In the present case as we have pointed out already, the appellant herein was relieved from his post in the
service of the first respondent not on the basis of any initiative taken by the first respondent to dispense with the services of the appellant, but at the
request of the appellant himself who tendered his resignation on 12th January, 1980. The contention is that even though the resignation letter was
admittedly submitted by the appellant herein and pursuant to that letter he was relieved from the services on that date itself, still, in view of the stand
taken by the appellant herein that that letter was obtained from him by coercion and threat, it will amount to the employer dispensing with the
services of the appellant and consequently, the Appellate Authority, namely, the second respondent has jurisdiction to go into that question in the
appeal preferred by the appellant herein. We are unable to accept this contention. The second respondent is a creature of the statute and any
power which he can exercise has to be traced to the statutory provisions which had created him and conferred powers on him. We have already
indicated that having regard to the language of Ss.41(1) and 41(2) there must be first an action on the part of the employer dispensing with the
services of an employee and if that action is absent, there is no question of a person like the appellant filing an appeal under S.41 (2) of the Tamil
Nadu Shops and Establishments Act, 1947, In fact, the foundation for invoking the jurisdiction of the second respondent under S.41 (2) is the fact
that the first respondent has dispensed with the services of the appellant. When the appellant sent his resignation letter, he requested the first
respondent to relieve him on that date itself and the first respondent accepted the resignation letter and relieved him from his duties. Certainly, that
will not constitute the employer, namely, the first respondent herein, dispensing with the services of the employee, namely, the appellant herein.
However, strong reliance was placed before the learned Judge as well as before us on a decision of one of us reported in the Lakshmi Vilas
Bank Ltd. v. Pattabhi Chettiar. In that case, the question that arose for consideration was when an employee had been retired from service on the
basis that he had attained the age of superannuation, whether the Appellate Authority under S.41 (2) of the Tamil Nadu Shops and Establishments
Act, 1947, had jurisdiction to entertain any appeal by the retired employee. In that context, after referring to the statutory provision and the
obligation imposed upon the employer to dispose with the services of an employee only for a reasonable cause after holding an enquiry into the
misconduct of the person employed, the judgment pointed out�
It may happen in a particular case, the retirement was used by the employer as a cloak for dispensing with the services of an employee where the
motive for dispensing with the services was something different. In that event, a different position may possibly result because no person will be
allowed to evade the obligation imposed on him by law by having recourse to a cloak or guise under which he can take refuge in order to escape
from such an obligation.
We are of the opinion that the above observation has no bearing on the point that arises for consideration in this particular case. Even in that case
the initiative came from the employer by retiring the employee and it was not concerned with the present case of resignation by the employee
himself. In such a context, we are of the opinion that the said decision is not of any assistance whatever to the appellant herein.
Another decision, on which reliance was placed before the learned Judge as well as before us, is M/s. Southern Roadways Ltd. v.
Padmanabhan 1979 Lab and Ind. Cases 234. That case was concerned with the jurisdiction of the Government to refer a dispute to the Labour
Court under S.2-A of the Industrial Disputes Act, 1947. The said section reads as follows�
2-A. Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman any, dispute or
difference between that workman and his employer connected with, or arising out of such discharge, dismissal, retrenchment or termination shall be
deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
The question that came to be considered by the Karnataka High Court in that case was whether the expression ''otherwise terminates the services
of an individual workman'' occurring in S.2-A will take in a case where an employee contends that his resignation was obtained by force. The
Karnataka High Court held that the expression ''otherwise terminates the services of an individual workman'' was wide enough to take in such a
case. The learned Judge, Mohan, J., expressed his disagreement with that view, but at the same time pointed out�
Nonetheless, it is not for me to examine whether some other interpretation on the language of S.2-A of the Industrial Disputes Act is permissible,
because no such language occurs in S.41 of the present Act (Tamil Nadu Shops and Establishments Act, 1947).
We are of the opinion that S.2-A of the Industrial Disputes Act, having regard to the language in which it was couched and the context in which it
was enacted, cannot be of any assistance whatever to the appellant in the present case. Here, we are considering only one question, namely,
whether the expression ''employer shall dispense with the services of a person employed'' will take in the case of an employer relieving an
employee on the basis of the Letter of resignation submitted by him, if he subsequently contends that the letter of resignation was obtained from him
under coercion or threat. We are of the opinion that having regard to the language of sub-S.(1) and (2) of S.41, the said section cannot
comprehend such a case.
Lastly, the learned Judge has pointed out�
There is some force in the contention of Mr. Govind Swaminathan, that if jurisdiction were to be denied to the appellate authority in this case,
frequent resort to this questionable method will be had by the employers and thereby deprive the employee of the benefit of the social welfare
legislative measures. But it is a matter in which the Legislature must bestow its urgent attention and it is worthwhile to remember that Courts are to
interpret law on the plain language of the statute and not to legislate.
Though we agree with this observation of the learned Judge, we may also point out that the moment it is held that S.41 (2) of the Shops and
Establishments Act, 1947, does not apply to a particular case, the employee is not without any remedy and the remedy in a Civil Court is always
open to him. Under these circumstances, the appeal fails and is dismissed.