Radhakrishnan S. vs Tamil Nadu Agro Engineering and Service Co-operative Federation Ltd. and Another

V.S. Sirpurkar, J.—The only question that arises for consideration in this appeal, which is filed on behalf of the employee

appellant/petitioner, is as to whether the order passed by the appellate authority upholding the termination of the petitioner and the order passed by

the learned single Judge confirming the order of the appellate authority are correct in law?

The appellant was appointed in the post of Assistant Manager (Costing). At the time when he was appointed i.e. on August 20, 1990, the order

suggests that his appointment was to be purely temporary and he was to be placed on probation for a period of two years from the date of his

joining. The appellant, however, came to be terminated by an order dated April 11, 1991, in which the reason stated was that the post of Assistant

Manager (Costing) was itself abolished due to administrative reasons. An appeal came to be filed against this order u/s 41 of the Tamil Nadu

Shops and Establishments Act, 1947 hereinafter referred to as ''the Act'' for short). The Appellate Authority took the view that the termination was

for good reason. It further held that though the notice was not given u/s 41(1) of the Act, the reinstatement could not be ordered, as the post itself

was abolished. However, since the notice was not given, the Appellate Authority ordered payment of salary upto the date of passing of the order

i.e. on December 5, 1991.

Two petitions came to be filed, one, at the instance of the Tamil Nadu Agro Engineering Service Co-operative Federation, the Employer,

against the direction to pay the wages upto December 5, 1991, and the other, at the instance of the present appellant challenging the finding that

the termination was justified and good and that there was no right of reinstatement since the post itself was abolished. The learned single Judge has

taken the view that the Employer-Federation was justified in terminating the service of the petitioner and that the termination order was for good

reason. The learned Judge has also endorsed the finding that the said termination order was passed without giving the notice u/s 41(1) of the Act

and, therefore, u/s 41 of the Act, the Appellate Authority was justified in ordering the payment of salary upto December 5, 1991.

It is this confirming order of the learned single Judge which is challenged in this appeal by the employee.

There is no appeal, atleast brought before us, filed by the Employer-Federation against the order of the learned single Judge confirming the

appellate order in so far as the direction of the payment of salary upto December 5, 1991 is concerned.

Very significantly also, today when the matter is called out, there is nobody present on behalf of the Federation-Employer nor is there any

Vakalatnama filed on their behalf.

The only question that will have to be considered today is as to whether the learned single Judge was right in confirming the appellate order u/s

41 of the Act holding that the termination was for good reason and that the appellant was not entitled to be reinstated, since the post itself stood

abolished.

The learned counsel appearing on behalf of the appellant very vehemently argues that firstly the post itself could not be abolished, because that

post was created by the Board and the decision to abolish was taken by the Managing Director and, as such, that decision was beyond the

powers of the Managing Director. The second contention raised by the learned counsel is that in fact there was no abolition of the post and it was

merely an eyewash to anyhow terminate the petitioner and, therefore, the termination of the petitioner suffered from the vice of colourable exercise

of powers.

We are afraid that the learned counsel is not right in both his submissions. Firstly, it will have to be seen as to whether was there in fact an

abolition of the post. There is material on record to suggest that the fact of abolition was in fact an established fact. In their counter before the

appellate authority itself, the employer has very specifically raised a plea that this was not a manufacturing unit and, therefore, the appointment of a

Cost Accountant, like the present appellant, was felt unnecessary and was proving to be a drain on the coffers of the Employer-Federation and,

therefore, a decision was taken to abolish this post. There is nothing to suggest that factually I this was an incorrect plea. On the other hand, it is

specifically found by both the Appellate Authority as well as the learned single Judge that there was nothing brought on record at the instance of the

appellant to suggest that this was a mala fide action on the part of the Managing Director. Therefore, one thing is certain that there was in fact an

order of abolition of the post. Once that position is obtained, it cannot be argued by the appellant that the said abolition was bad in law or beyond

the powers of the Managing Director. In fact, it would not be for the learned single Judge or the Appellate Authority to examine as to whether the

decision to abolish the post was legally correct or not. We hasten to add that even if such a plea was available, nothing has been brought to our

notice to suggest that the decision in this case was in any manner bad in law. In fact, the learned single Judge appears to have confirmed the

decision by holding that under the bye-laws there was enough power vested in the Managing Director. The approach of the learned single Judge

has been that in this case the appellant''s Appointing Authority was the Managing Director and, therefore, the Managing Director alone could be

the terminating authority also and since the termination order has been passed by the Managing Director himself, nothing would be wrong with the

termination. The only other thing to be seen would be to see whether in fact there has been an abolition of the post giving a reason to the said

Managing Director to act and terminate the service of the appellant. On facts, it has been found that in fact the post has actually been abolished. In

our opinion, the learned single Judge was right in observing that it was not the task of the learned single Judge to see the legality or otherwise of the

decision to abolish the post. We endorse that view. We also do not find any reason to hold that the decision is in any manner illegal, because there

are no facts established to suggest that the Managing Director who abolished that post did not have the power to do so. That was the burden on

the part of the appellant. He not having discharged the same, must fail and it was rightly held by the learned single Judge that his termination was

correct and reasonable. We are also in total agreement with the view taken by the learned single Judge as also the Appellate Authority in holding

that since there is no post available, there was no question of reinstatement of the appellant.

In short, we are of the clear opinion that the learned single Judge as well as the Appellate Authority were right in taking that view. We hold that

the appeal has no merits and it is dismissed, but without any order as to costs.