V. Ramabhadran vs P.K. Somasekharan and Others

The Trivandrum branch of the Oriental Government Security Life Assurance Company Ltd., is the Petitioner. Respondent 1 is an employee under the Petitioner company, having been appointed in the branch office at Trivandrum. Respondent 2 is the Labour Commissioner under the Travancore-Cochin State. Respondent 3 is the State itself. By a 1''s services as a typist in the branch office were dispensed with. Against that order Respondent 1 preferred an appeal u/s 41, Travancore-Cochin Shops and Establishments Act (Act 9 of 1125) before Respondent 2 who has been constituted as the appellate authority under that section. Respondent 1 had prayed for a cancellation of the order dispensing, with his services and also for a mandate to the Petitioner company to reinstate him in service. On getting notice of the appeal, the Petitioner company entered appearance and objected to the sustainability of the appeal on several grounds.

One objection was that the order under appeal had become non-existent and that therefore there was no further necessity to consider the appeal on its merits. It was stated that under instructions from the Head Office the Petitioner company had withdrawn and cancelled the order dated 30-4-1951 and had issued Anr. order dated 28-5-1951 intimating Respondent 1 of the withdrawal and cancellation of the order dated 30-4-1951. In the same communication he was intimated that he was placed under suspension from 30-4-1951 onwards pending investigation by the Head Office into the allegations of rude and insubordinate conduct on the part of Respondent 1 towards his official superiors in the branch office. He was also called upon to submit in writing his explanation regarding the said allegation. Other objections raised by the Petitioner company were that the Shops and Establishments Act under which Respondent 2 purported to act has no application to the instant case, which, if at all, could be dealt with only by the Industrial Tribunal appointed under the Industrial Disputes (Banking and Insurance Companies) Act, 1949 (Central Act 54 of 1949). The Shops and Establishments Act, 9 of 1125 passed by the State Legislature and brought into effect on 1-8-1950 was also impeached as being illegal and void by virtue of the provisions contained in Article 254 of the Constitution.

Respondent 2 repelled, all these objections and proceeded to enquire into the complaint made by Respondent 1 which has been filed as appeal S.E. No. 11 of 1951, and ultimately passed an order on 30-11-1951 holding that Respondent 1 was discharged from service as per the notice issued to him dated 30-4-1951, without any reasonable cause. The Company was also directed to reinstate the Appellant in service forthwith. The Company has filed the present petition under Article 226 of the Constitution praying that this Court may be pleased to call for the records in Appeal Petition S.E. No. 11/51 on the file of Respondent 2 and to issue a writ of certiorari quashing the order passed by Respondent 2 on 30-11-1951. The said order is impeached as being illegal and ultra vires. It is also contended that Respondent 2 was acting without jurisdiction in passing the said order. The other objections which had been urged before him by way of objections to the sustainability of the appeal have also been reiterated in this Court. Respondents 1 to 3 have entered appearance and have filed objections to the present petition. They have contended that the order passed by Respondent 2 on 30-11-1951 is proper, legal and valid and that it is not liable to be interfered with by this Court in the exercise of its jurisdiction under Article 226 of the Constitution.

On hearing both sides, we are satisfied that this petition has to be allowed on the short ground that the order of dispensation of the services of Respondent 1 in the branch office of the Petitioner company at Trivandrum with effect from 30-4-1951, having been cancelled and withdrawn by the company itself long prior to the passing of the order dated 30-11-1951 by Respondent 2, he had no jurisdiction to pass the impugned order. In this view of the matter, the other objections directed against the validity and constitutionality of the Travancore-Cochin Shops and Establishments Act, Act 9 of 1125, do not call for any decision in the present petition. Accordingly we are not in these proceedings going into the merits of these objections. On the other hand we proceed to examine the question whether Respondent 2 had anything to adjudicate upon in appeal S.E. No. 11 of 1951 as the appellate authority constituted u/s 41, shops and Establishments Act. For this purpose we are assuming that the said Act is valid and that Respondent 2 has been properly constituted as the appellate authority u/s 41 of that Act. Section 49 of the Act empowers the State Government to make rules to carry out the purposes of the Act. Accordingly the necessary rules were framed and published by the State Government in the Gazette dated 29-5-1950. It was by virtue of the authority conferred by Rule 9 of the said rules that Respondent 2 was constituted as the appellate authority as contemplated by Section 41, Shops and Establishments Act. Clause (1) of Section 41 states that

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 notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.

Clause (2) of the same section provides that

the person employed shall have a right to 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 service or on the ground that he had not been guilty of misconduct as held by the employer.

The notice dated 30-4-1951 served on Respondent 1 is to the following effect:

Please take notice that your services are hereby dispensed with and stand terminated as from today.

On your returning to us duly discharged the form of receipt enclosed herewith you will receive a month''s salary in lieu of notice.

As already stated, Respondent 1''s appeal is directed against this order and the appeal was filed by him on 17-5-1951. When the matter reached the notice of the Head Office, the authorities there appear to have been convinced that the order dated 30-4-1951 was not properly passed by the Branch Office. Accordingly instructions were issued to the Branch Office to withdraw and cancel that order and to place Respondent 1 under suspension pending final orders after a proper inquiry into the allegations against him. As a consequence of such instructions, Anr. communication dated 28-5-1951 was issued to Respondent 1 from the branch office intimating him as follows:

We write to inform you, under our Head Office instructions, that the letter dated 30th Ultimo issued by me to you dispensing with your services is withdrawn and cancelled and that you are placed under suspension from that date pending Head Office investigations in the matter. You are also required to submit your explanation at once in writing as to why your services should not be terminated for your misconduct in the office on 28th ultimo and for having acted in a wilfully rude and insubordinate manner towards the Branch Secretary and the Asst. Branch Secretary.

This communication was served on Respondent 1 on 28-5-1951 itself, and that fact is conceded on behalf of the Respondents. It is also seen from the order passed by Respondent 2 on 30-11-51 on the appeal petition S.E. No. of 1951 that the above-mentioned facts had been brought to his notice and that on the basis of these facts a specific objection has been raised as to the competency of the appeal itself and also as to the jurisdiction of Respondent 2 to go into the merits of the appeal and pass on order thereon. This matter is dealt with by him in para 7 of his order, and the view taken by him is that as the appellate authority he was only concerned, with the question whether the order of discharge served on the Appellant was for a reasonable cause and that the fact that the order was subsequently withdrawn and cancelled cannot, in any way affect his jurisdiction to deal with the appeal.

This view is certainly erroneous. It cannot be said that the employer, on himself being satisfied that the order of discharge passed is not a proper order, had no authority to cancel the same. When once the order is cancelled it becomes non-existent and hence it cannot form the basis of an appeal. When the appeal has thus become infructuous and unnecessary, the appellate authority had only to dismiss the appeal on that ground. The appeal provided u/s 41 is only against an order dispensing with the services of an employee without reasonable cause and without giving him the notice as contemplated by the section. No appeal is provided against an order of suspension for the obvious reason that it is not a final order. The employee is placed under suspension pending enquiry into the allegations of misconduct against him. If, as the result of such an enquiry, the employer is entitled that such allegations are not true or well-founded, the order of suspension will be cancelled and the employee permitted to continue in service without loss of pay or forfeiture of any of the legitimate privileges arising out of the position which the employee was occupying at the time of his suspension. What Respondent 2 has done in the present case was to himself conduct the inquiry into the allegations against the Appellant and to substitute his own conclusions regarding the matters for the independent conclusion which the employer company was entitled to arrive at as the result of their own investigation. Respondent 2 was acting without any justification or jurisdiction in thus intervening in the inquiry which the employer had undertaken and to anticipate what the decision as the result of such enquiry should be. If the decision of such an enquiry happens to be against the employee, it will then be open to him to prefer an appeal before the competent authority u/s 41, Shops and Establishments Act.

What Respondent 2 has done in the present, case was to assume that he had jurisdiction u/s 41, Shops and Establishments Act to interfere even with the suspension order of 28-5-1951 which the company had served on their employee. Respondent 2 has evidently assumed such a jurisdiction by virtue of the appeal which had been filed before him against the order dated 30-4-51 dispensing with the services of the employee even though that order has subsequently become non-existent with its cancellation as per the second order of 28-5-1951. With such cancellation Respondent 2 had ceased to have any further jurisdiction to deal with the order which had become non-existent. It is thus clear that in passing the order dated 30-11-1951 Respondent 2, was really acting without jurisdiction. In purporting to act u/s 41 , Shops and Establishments Act, directing the employer company to reinstate the employee even during the stage of the investigation into the allegations of misconduct against him, Respondent 2 was wrongly assuming jurisdiction which was not available to him under the said Act. Since he was acting without jurisdiction and in excess of his legal authority in passing the order dated 30-11-51, the employer company is entitled to invoke the Jurisdiction of this Court under Article 226 of the Constitution, to issue the writ of certiorari to quash the said orders.

In the result this petition is allowed and the order passed by Respondent 2 on 30-11-1951 is hereby cancelled. In the circumstances of this case, all the parties are directed to bear their own costs.