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Judgment
This writ petition coming on for hearing on Wednesday 1st June 1986 and on this day, upon perusing the petition and the affidavit filed in
support thereof, the order of the High Court, dated 7th October 1983, and made herein, and the counter and reply-affidavits filed herein and the
records relating to the order in T.S.E. Case No. 5/80 dated 19th August 1983 on the file of the 1st Respondent comprised in the return of the
respondents to the writ made by the High Court, and upon hearing the arguments of Mr. M. R. Narayanasami, for M/s. S. Jayaraman and M. R.
Raghavan, Advocates for the petitioner, and of Mr. C. Selvaraj, Government Advocate (Writs) on behalf of the 1st Respondent and of Mr. S.
Venkataraman, for M/s. Aiyer and Dolia, Advocates for the 2nd respondent, the Court made the following order :-
The management is aggrieved against the order passed by the 1st respondent in T.S.E. No. 5 of 1980 u/s 41(2) of the Tamil Nadu Shops and
Establishments Act, hereinafter referred to as the Act, whereby the 1st respondent set aside the order of termination of the 2nd respondent made
by the management. Hence, this proceeding by the management under Article 226 of the Constitution of India.
The 2nd respondent was working as Executive Grade III in the capacity of a Manager of the Testing Machine Department on a monthly basic
salary of Rs. 1,890/- apart from other allowances and other perks. The service was terminated on 3rd January 1980 by the management''s letter
dated 3rd January 1980 which was later enclosed along with the management''s letter dated 14th January 1980. The 2nd respondent therefore
approached the Additional Commissioner for Workmen''s Compensation u/s 41(2) of the Act. The petitioner''s defence is that as the 2nd
respondent was not favoured with the promotion as he sought for, i.e., from Grade III to Grade V, he became disgruntled and therefore, did not
attend to his duties properly. It is useful to quote from the answer statement of the petitioner filed in T.S.E. No. 5 of 1980 and it is as follows :-
The appellant was not, however, satisfied with this and started behaving as a disgruntled employee. He continued to do so despite being advised
against it and counselling that it would be against his own interests and that continuance of such behaviour would be incompatible with his
employment. The appellant did not show any improvement and continued to show indifference and irresponsible attitude in the execution of his
duties.
It is the specific case of the petitioner that it is at the request of the 2nd respondent, the petitioner did not disclose the reasons for 2nd
respondent''s termination of service in the order of termination dated 3rd January 1980. The 1st respondent following the decision in State Bank of
Travancore Vs. Dy. Commissioner of Labour, Coimbatore and Another, held that as the order of termination did not disclose the reasons for
termination of service, the order is bad in law and consequently directed reinstatement. In other words, the 1st respondent set aside the order of
termination dated 3rd January 1980 on the preliminary ground and therefore, it had no necessity to go into the merits. It is this order that is assailed
in this writ proceeding.
Learned counsel for the petitioner would submit that the reason for termination was not disclosed only at the specific request of the 2nd
respondent when the management had discussion with the 2nd respondent on 3rd January 1980 and therefore, the petitioner is estopped from
contending that the order is bad for absence of the reasons for termination of service. The factual contention as urged by the management can
hardly be accepted on the facts in this case. There is intrinsic evidence in the letter of the management itself dated 14th January 1980 to repel the
above contention of the management. The management''s letter dated 14th January 1980 was according to the management necessitated, because
the 2nd respondent would not turn up as promised to receive the letter of termination dated 3rd January 1980 in person. In that letter dated 14th
January 1980, there is no whisper that the reasons were not disclosed in the order of termination as specifically requested by the 2nd respondent.
If there was such a request by the 2nd respondent to the management, certainly, the management would not have failed to refer to it in its letter
dated 14th January 1980. This circumstance alone is sufficient to reject the management''s contention as an after-thought. Further the management
examined one H. B. Advani, Vice-President. Southern Region, as its witness before the 1st respondent. Nothing was elicited from the said witness
to prove the above allegation; on the other hand, the evidence of the Vice-President will run counter to the above stand taken by the management.
It is therefore useful to extract that portion of the evidence of the Vice-President.
The demand is so unreasonable and cannot be accepted and suggested that he be told that either he accepts Management''s offer Grade IV or to
resign. I called Mr. Sundaram and told him that the stand was not acceptable, that his behaviour of disgruntled Manager was not conducive for the
smooth functioning and morale of the department. I therefore asked him to leave the organization. I offered the letter. It was refused. He was upset
and he therefore asked me time, till next day to say, he would return and take the letter. Reasons were verbally informed and not stated in the
letter. It is management''s practice to do so in respect of Managers. Petitioner knows the reason. As promised, he has not returned. He rang up to
say, he wanted more time as he was unwell. This went on for few days. Finally I posted the letter to him. He had not written to me after termination
order.
From the above evidence, It is clear it is the practice of the management not to put down the reasons in writing in respect of Managers, but to
inform verbally and according to that practice, reasons were verbally stated not stated in the letter. Thus, not only the documentary evidence
emanated from the management but also the evidence of the management itself will give a direct lie to the stand taken by the management that it is
because of the specific request made by the 2nd respondent, the reasons for termination were not disclosed in the order of termination dated 3rd
January 1980. If so much is established, it follows that the order has to be struck down as illegal in view of the decision of this Court in State Bank
of Trvancore v. Deputy Commissioner of Labour, Coimbatore and another (supra) which in turn followed the decision of this Court in Tata Iron
and Steel Co. Ltd., 1950 LLJ 1043 Mr. Justice Nainar Sundaram in State Bank of Travancore Vs. Dy. Commissioner of Labour, Coimbatore
and Another, :
If the termination is to be on the ground of reasonable cause, it is incumbent on the part of the employer to disclose the reasonable cause in the
order of termination and in the absence of such a disclosure it is not possible for any Authority and in particular the Appellate Authority under S.
41(2) of the Act, to determine as to whether the grounds put forth by the employer can be stated to constitute a reasonable cause and as to
whether the order of termination has been passed bonafide.
In Tata Iron and Steel Co. Ltd. v. G. Ramakrishna Aiyer. 1950 LLJ 1043, the Division Bench held as follows :
The employer passes an order dispensing with the service of an employee. That order is carried on appeal to a higher authority. That authority
reverses the decision of the employer and the result is that the order of the employer is set aside. It is no longer in existence. It follows that the
effect of the original order of the employer also disappears and it is as if the order is non esse. Though, therefore it may not be quite accurate to
say that the employee will be entitled to reinstatement in service, yet the result of the order of the appellate authority is virtually the same. Probably,
the result of the appellate order is even better than an order of reinstatement. It is as if the employee had never been properly dismissed from
service.
I am bound by the decision of Division Bench of this Court and consequently, I am unable to follow the decision of a single Judge of Andhra
Pradesh High Court reported in National Insurance Co. Ltd. Vs. M. Viswanath and Another, and also the decision of a single Judge of Bombay
High Court in J. V. Shah & Gulf Air Co. v. R. P. Tripathi (1983) Lab I.C. 605. relied on by the petitioner.
Even on merits, I find the management has no case at all. According to the management, they had terminated the service, because the 2nd
respondent was not attending to his duties properly as he was refused promotion from Grade III to Grade V straightway. According to the
management, this is a reasonable cause which would enable them to dispense with the service of the 2nd respondent and therefore, the 2nd
respondent can have no grievance in law particularly to claim reinstatement. I did ask the learned counsel for the petitioner whether there is any
document which would support their above charge as against the 2nd respondent. No document was ever filed. On the other hand, H. B. Advani
who gave evidence on behalf of the management, has stated in the course of cross examination that
There was nothing to show that he was dominating mediocre record (sic) but it will be noted only in the confidential dossier.
But the confidential dossier is also not produced. If the 2nd respondent was not attending to his duties as efficiently as before, the petitioner
ought to have called upon him to explain and this should be borne on record. Admittedly, no memo was ever issued to the 2nd respondent by the
management and indeed, the evidence of H. B. Advani is to the effect that
We issue internal memos to point out the deficiencies and not to applaud him for the efficiency. We have not issued any to Mr. Sundaram."" (2nd
respondent herein)
Besides, the said Advani has admitted in the course of cross-examination that the 2nd respondent was sent to training programmes and
development courses and was being promoted from time to time and that the management wanted to promote him to still higher post. These are
not all. A reference to the answer statement filed by the petitioner in T.S.E. No. 5 of 1980 shows that the relevant particulars as to when the
promotion as sought for by the 2nd respondent was rejected and as to when he started functioning inefficiently or in a passive way, are not
disclosed in that statement. It is significant to notice that as recently as 7th April, 1978, the management in recognition of good work the 2nd
respondent had been doing, was pleased to give him an increment of Rs. 70/- with effect from 1st April 1978 and to raise his basic salary at Rs.
1,820/- per month. The termination was on 3rd January 1980. In the absence of such relevant particulars, it is too difficult to accept the
petitioner''s stand that the 2nd respondent began to behave as a disgruntled officer. Thus, the petitioner could not produce any evidence worth its
name to substantiate their charge that the 2nd respondent was performing his duties not efficiently and therefore, his service deserves to be
dismissed. The result is, even on merits, the petitioner has no case. In other words, there is no reasonable cause for the management to dispense
with the 2nd respondent''s service.
In either view of the matter, the petition deserves to be dismissed and is accordingly dismissed with the costs of the 2nd respondent.
Advocate''s fee fixed at Rs. 500/- (Rupees five Hundred only).
MEMORANDUM OF COSTS.
2nd Respondent (2nd Respt.) Costs. Rs. P.
Stamp for Vakalatname 3.00
Advocate''s Fee (as fixed by court) 500.00
Translation and Printing
or Typing charges. Nil.
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To be paid by the Petitioner to the
2nd Respondent. 503.00
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(Rupees five hundred and three only)