1. The point for decision in this writ petition is whether it is the date of the order of dismissal passed by the Disciplinary Authority or the date of disposal of the appeal therefrom provided under the contract of employment by the Appellate Authority that has to be considered to be the starting point for reckoning the time within which an appeal is required to be filed under Section 18(2) of the Kerala Shops and Commercial Establishments Act, 1960 (Act 34 of 1960), for short the Act, read with rule 3 of the Kerala Shops and Commercial Establishments Rules, 1961, for short the Rules. Sub-section (1) of Section 18 of the Act lays down the conditions without the compliance of which no employer could dispense with the services of an employee employed continuously for a period of not less than six months. Sub-section (2) of that section reads:
Any employee whose services an dispensed with may 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 by employer.
Sub-rule (1) of rule 3 of the link's provides:
The Additional Deputy Labour Commissioners (A the Labour Department shall be the appellate authorities within their respective jurisdiction for the purpose of Section 18 and any such appeal shall be preferred by the employee within sixty days from the date of delivery of the order terminating his services with the employer. The date of sixty days aforesaid shall be reckoned from the date on which the order is delivered to the employee either personally or, ii that be not practicable, by prepaid registered post or ordinary post to his last known address in which case the date of delivery shall be the date when the letter would arrive in ordinary course of post.
2. Now the facts: The 1st petitioner is the Regional Manager 1, State Hank of India. Trivandrum; and the 2nd petitioner, the Branch Manager, Stale Bank of India, Alleppey, The 1st respondent is the Workmen's Compensation Commissioner (Appellate Authority under the Act), Trivandrum and the 2nd respondent is Sri Sadanandan who was working as a Messenger attached to the Alleppey Branch of the State Bank. The 2nd respondent was dismissed from service as per the order of the 1st respondent dated 14th June. 1976, a true copy of which is Ext.P-1, Ext.P-1 order was communicated to the 2nd respondent who acknowledged the receipt thereof on 21st June, 1976. Ext.P-2 is the copy of the order dated 6th December, 1977 passed by the Chief Regional Manager of the State Bank of India, Bangalore, dismissing the appeal filed by the 2nd respondent under paragraph 521(12) of the Sastry Award read with paragraph 18, 28 of the Desai Award against Ext.P-1 order. Thereafter, on 27th January, 1978 the 2nd respondent filed an appeal under Section 18(2) of the Act. that appeal was allowed by the 1st respondent as per order dated 31st May, 1979 and the petitioners were directed to reinstate the 2nd respondent and to pay him all arrears of salary, allowances and backwages as per rules after deducting the subsistence allowance already paid to him or in the alternative to compensate him by payment of a lump sum amount equivalent to half a month's salary plus DA. for each of the month for all the 24 years of his service. The petitioners challenged the validity of that order in O.P. No. 3313 of 1979 which was disposed of by a single Judge of this Court by the judgment dated 16th December, 1980, a true copy of which is Ext.P-3, remanding the matter to the 1st respondent for deciding the question afresh after considering the evidence adduced by the parties before the 1st respondent. W.A. No. 147 of 1981 filed by the petitioners against Ext. P-3 judgment was dismissed by a Division Bench of this Court by the judgment dated 14th August, 1981, a true copy of which is Ext.P-4. In Ext.P-3 judgment it was specifically stated that the 1st respondent 'shall also dispose of the question regarding limitation with reference to the findings entered by that authority'. On a consideration of the matter in the light of the directions given in Ext.P-3 judgment, the 1st respondent by the order dated 14th September, 1981, a true copy of which is Ext.P-5, allowed the appeal and ordered the reinstatement of the 2nd respondent in service with the benefits of arrears of salary and past service and in the alternative payment of compensation to him,
3. Two grounds are seen to have been raised in this writ petition to challenge Ext.P-5 order passed by the 1st respondent; (1) the conclusion of the 1st respondent that the appeal filed by the 2nd respondent was within the time prescribed was wrong; and (2) the finding in Ext.P-5 that the misconduct alleged against the 2nd respondent was not true had no basis factually or legally. Sri. K.P. Radhakrishna Menon. the counsel for the petitioners, however, correctly, if I may say so, confined his arguments to the contention that the appeal was not filed in time, without touching upon the finding on the proof of misconduct. According to him, the 1st respondent was clearly in error in taking the view that the time for the purpose of Section 18(2) of the Act was to be reckoned from 6th December, 1976 on which date the decision of the Chief Regional Manager on the appeal filed by the 2nd respondent was communicated to him, and, that, in that view the appeal filed by him on 27th January, 1978 was in time. On a reading of Sub-section (2) of Section 18 of the Act and Sub-rule 1 of rule 3 of the Rules what we find is that the right of appeal is conferred on the employee against the employer dispensing with his services and that such appeal 'shall be preferred by the employee within sixty days from the date of delivery of the order terminating his services with the employer''. Ext.P-1 order dated 14th June, 1976 concludes in these words:
Accordingly, you are hereby informed that you have been dismissed from service in terms of paragraph 521(5)(a) of the Sastry Award, with effect from today.
Is it against this order dated 14th June, 1976 or Ext.P-2 order dated 6th December, 1977 dismissing the 2nd respondent's appeal by the Chief Regional Manager the right of appeal is conferred on the employee (2nd respondent)? The competence of the 1st petitioner to terminate the services of the 2nd respondent on proof of misconduct is not in dispute. The only contention raised by the 2nd respondent, and which found favour with the 1st respondent, is that he had a right of appeal to the Chief Regional Manager and for the purpose of Section 18(2) of the Act time has to be reckoned from the date of delivery of the order of the Chief Regional Manager (Ext.P-2), not from the date of delivery of Ext.P-1. In other words, it is obvious that even according to the 2nd respondent the operative order is Ext.P-1 passed by the 1st petitioner, unless annulled or varied by the Chief Regional Manner in appeal This being the position, it would be difficult to read into the sub-section and sub-rule that the right of appeal is conferred against the order on appeal, not against the original order passed by the employer.
4. The object of the Act is stated to be to consolidate and amend the law relating to the regulation of conditions of work and employment in shops and commercial establishments in the State of Kerala; and it is in the nature of a self contained Code to achieve that object. In terms of Section 18(2) of the Act and rule 3(1) of the rules the appeal provided is against the order terminating the services of the employee; and the time for filing the appeal has to be reckoned from the date of delivery of that order on the employee Being a self-contained Code, there would be no scope for importing into the section and the rule anything qualifying the expression 'order of termination', against which the right of appeal is conferred on the employee, to read as 'the order which has become final after disposal of the appeal, if any, filed against the original order of termination'.
5. The Supreme Court had occasion to consider the provisions akin to this in other enactments: Construing the provisions of Section 26A of the Income-Tax Act, 1922, and rule 6(2) of the Income Tax Rules, 1922, the Supreme Court in Subba Rao v. IT. Commissioner : 30ITR163(SC) held that the intention of the Parliament was that a firm should be given the benefit of Section 23(5)(a) of the Income Tax Ad only if it is registered under Section 26A in accordance with the conditions laid down in that section and the rules framed thereunder; and as the word 'personally' in rule 6 required the application to be signed by the partner in person, the signature by an agent on his behalf was invalid. The facts of the case in S.R. Goel v. Municipal Board, Kanpur : 1SCR1148 were as follows: The plaintiff who was a municipal overseer was dismissed by a resolution of the municipal board on 5th March, 1951. On 19th March, 1951 the order of dismissal was communicated to the plaintiff. The plaintiff appealed to the Government against the order on 7th April, 1951. The Government dismissed his appeal on 7th April, 1952 and its order was communicated to the plaintiff on 8th April, 1952. On 8th December, 1952, he filed a suit for compensation for wrongful dismissal. Adverting to these facts and the provision of law prescribing limitation for the filing of the suit in question, in paragraph 13 of the decision the Supreme Court said as follows:
On a plain reading of the provisions of Section 58(1) and (2) we are of opinion that this contention of the appellant is not tenable. One condition of the validity of the order of dismissal made by the Board is that the special resolution in that behalf should he supported by not less than 2/3rd members constituting the Board. Once that condition is fulfilled there is nothing more to be done by the Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Government within 30 days of the communication of that order to him. He may choose to exercise this right of appeal or without adopting that procedure he may straightway challenge the validity of the resolution on any of the grounds available to him in law, e.g., the non-observance of the principles of natural justice and the like. There is nothing in the provisions of Section 58(1) to prevent him from doing so and if without exercising his right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal character of such resolution it could not he urged that such a suit was premature, he not having exhausted the remedies given to him under the statute, The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his(sic) remedies under the special Act does not apply to a suit. There is nothing in Section 58(1) which expressly or impliedly bars his right of suit.
On parity of reasoning it could be seen in this case that when Ext.P-1 order was delivered to him, the 2nd respondent had the option with him either to file an appeal to the Chief Regional Manager, the officer to whom in terms of the contract of service an appeal would lie, or to the 1st respondent invoking Sub-section (2) of Section 18 of the Act; he had taken a calculated risk in waiting indefinitely for the disposal of the appeal by the Chief Regional Manager, unmindful of his right to appeal to the 1st respondent under Section 18(2) of the Act getting time barred. In the decision of the Supreme Court in Syndicate Bunk v. K. Ramnath 1967-II L.L.J. 745 construing the provisions of Sections 33A and 33 of the Industrial Disputes Act, 1947, the Supreme Court held at page 751 of the decision, as follows:The natural and reasonable interpretation, to be placed on Section 33, is, in our opinion, that the order of discharge or dismissal, is the original or the very first order passed by the management....
It has also to he borne in mind, as observed by the Supreme Court in U.P. State v. Mohammed Nooh A.I.R. 1958 SC. 86, in paragraph 13, at page 95:
There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on April 20, 1948 was not suspended by the presentation of appeal by the respondent nor was its operation interrupted when the Deputy Inspector General of Police simply dismissed the appeal from that order or the Inspector General simply dismissed application for revision. The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned....
6. Sri M.V. Joseph, the counsel for the second respondent, brought to my notice the decision of the Madras High Court in Syndicate Bank v. Muniraj 1975-II L.L.J 106 which was also relied on by the 1st respondent in Ext.P-5 order. What came up for consideration before the Madras High Court in that case was the construction to be placed on the question of limitation with reference to Section 41(2) of the Tamil Nadu Shops and Establishments Article 1947. and Rule 9(1) of the Tamil Nadu Shops and Establishments Rules, 1949, corresponding to Section 18(2) of the Act and rule 3(1) of the Rules. In that decision, Ismail J., as he then was, has in paragraph 5 at page 109 of the report, expressed the following opinion:
In my opinion, the order terminating the services with the employer will he the final and ultimate order of the employer terminating the service. It there is an appeal provided for by the Service Rules against the order of one officer of the employer to another officer, then, till the matter is disposed of by the appellate officer, it cannot be said that there is an order of the employer terminating the services of the employee. This conclusion is reasonable for the simple reason that if the appellate officer allows the appeal of the employee there will not be any 'termination of the services', and the question of the employee appealing against the 'dispensing with' of his services under Section 41(1) of the Act will not arise.
In the light of the decision of the Supreme Court cited, to which no reference is seen to Have been made by Ismail, J., I find it difficult to agree with the above opinion expressed by the learned Judge in the passage quoted above.
7. Sri Joseph, finally submitted that the dismissal from service of the second respondent, who had long service in the bank, on the basis of Ext.P-1 order without his deriving the benefit of right of appeal provided under Section 18(2) of the Act on the technical plea that the appeal was filed beyond the period of sixty days from the date of delivery of the order of termination of his service with the employer is too harsh and should shock the conscience of the Court. The sole question now before the Court is whether Ext.P5 order passed by the 1st respondent is liable to be quashed, it being an order passed on an appeal filed alter the expiry of the time prescribed in that behalf; and having found that the appeal was not filed within the prescribed time, all that this Court could do is to quash Ext.P5 order. I would, however, like to add that nothing said in this judgment would preclude the petitioners from granting the 2nd respondent relief, if any, which they deem necessary or desirable on a reconsideration of the matter ii they are inclined to do so.
The writ petition is allowed quashing Ext.P5 order passed by the 1st respondent, however, in the circumstances of the case without any order as to costs.