VIJAYA HOME LOANS LTD Vs. BYJU

JUDGEMENT

(1.) Petitioner is challenging Exhibit P-5 order issued under Section 18(2) of the Kerala Shops and Commercial Establishments Act, hereinafter called the "Act" by which the Deputy Labour Commissioner cancelled the termination of service of the first respondent and directed reinstatement and in the alternative payment of compensation by the petitioner. I heard counsel appearing for the petitioner, and counsel appearing for the first respondent.

(2.) The main contention raised is that house building finance company run by the petitioner is not a commercial establishment within the meaning of Section 2(4) of the Act. While the contention of the petitioner is that the activity of the petitioner is not banking business or any of the activities referred to in the definition clause, counsel for the first respondent contended that petitioner is engaged in advancing loans for; house construction and therefore is an establishment engaged in banking business and in the alternative engaged in commercial activity which also answers the definition of "commercial establishment" for the purpose of the Act. In order to appreciate the contentions, definition Clause 2(4) has to be referred to and accordingly it is extracted hereunder for easy reference:

(3.) The next ground of challenge raised 1 against Exhibit P-5 is that Exhibit P-4 order of appointment of the first respondent entitles the petitioner to terminate the service of the first respondent by giving one month's notice pay or after giving 30 days notice. However, it is well settled position that a "term" contained in the appointment order cannot override statutory provision. Section 18(1) of the Act prohibits an employer from dispensing with the service of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee at least one month's notice or wages in lieu of such notice. It is clear from the above Section that termination was called for only for reasonable cause. Factually in this case, petitioner has no claim that there is reasonable cause for termination of first respondent's service at the time when he was removed from service. On the other hand. Exhibit R-4 certificate issued by the petitioner itself shows that first respondent completed training successfully and was found good in work by the petitioner. In the circumstances, the condition in the appointment order in Exhibit P-4 does not stand in the way of the Deputy Labour Commissioner ordering reinstatement of the first respondent as termination of his service was against Section 18(1) of the Act.