C R RAMASWAMI Vs. NEEDLE INDUSTRIES I LTD

JUDGEMENT

(1.) THIS is an appeal against the order of Mohan, J. dated 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, dated 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 section 4 (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 matter filed by the appellant herein under section 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 jurisdition 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.

(2.) SECTION 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 of 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-section (1) contemplates an employer dispensing with the services of a person employed, and sub-section (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 section 41 (1) can be invoked the employer must have dispensed with the services of the person employed and subsection (2) merely follows sub-section (1) and consequently, any appeal that may be preferred under sub-section (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 bis 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 the 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 the 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 sections 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 section 41 (2) of the Tamil Nadu Shops and Establishments Act, 1947, in fact, the foundation for invoking the jurisdiction of the second respondent under section 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, normally the first respondent herein, dispensing with the services of the employee, namely, the appellant herein.