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P.M. George Vs. Dy. Labour Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1976)IILLJ14Ker
AppellantP.M. George
RespondentDy. Labour Commissioner and ors.
Excerpt:
- - p6 again, the appellant had complained that the order of the appellate authority had not been complied with. p12 order and apparently endorsed the view that there was substantial compliance with ext. 4. we doubt whether there can be any scope for invoking the doctrine of substantial compliance in reference to an order like ext. nor was compensation offered for failure to effect reinstatement within the time fixed......appellant that the sum of rs. 9,000 decreed as back arrears to the appellant and rs. 6,000 to be paid as compensation for default of reinstatement had not been paid and asked the 2nd respondent to show cause why revenue recovery proceedings should not be initiated. the 2nd respondent replied by ext. rule 2 dated 15-6-1971 pointing out that the 2nd respondent was ready to deposit rs. 9,000 before court and sought instructions as to how and where this was to be done. the 2nd respondent also stated that it had no notice of the pronouncement 0f the ext. p1 order of the appellate authority that the gist of the same was communicated to it only on 26-9-1970 and the certified copy of the order was received only on 29-9-1970. in these circumstances, the 2nd respondent submitted that only.....
Judgment:

Gopalan Nambiyar, J.

1. The appellant was dismissed by the 2nd respondent-Bank under which he was an employee. On appeal preferred by him to the Appellate Authority under the Shops and Commercial Establishments Act, 1960, that Authority by Ext. P1 order dated 5-9-1970 allowed the appeal, set aside the dismissal of the appellant from service and directed as follows:

The dismissal order dated 25-4-1968 served on the appellant by the respondent is vacated. The appellant will be reinstated in service within 30 days of this order, The appellant will also be paid a sum of Rs. 9,000 as compensation for the period of his unemployment from 16-2-1968 to the date of reinstatement. This will be paid within 30 days of this order. In case the appellant is not reinstated as ordered above, he will be paid a further sum of Rs. 6,000 within sixty days of this order.

This order of the Appellate Authority was in accordance with the provisions of Section 18(4) of the Act which reads:

18(4)--In directing the reinstatement of an employee the Appellate Authority shall also direct payment of such amount of compensation as may be specified by him in case the employer fails to reinstate the employee in accordance with the directions.

Under Clause 6 of Section 18, any compensation required to be paid by the employer under Sub-sections (3) and (4) and not paid by him shall be recovered as arrears of land revenue. (Sub-section (3) enables the Appellate Authority to direct reinstatement with or without wages for the period that the employee was kept out of employment or compensation without reinstatement). Exhibit P1 order was not complied with. There was no reinstatement within the period of 30 days fixed by the order. Nor was either the sum of Rs, 9,000 decreed for past arrears or Rs. 6,000 decreed by way of compensation for default of reinstatement within the time specified paid. By Ext. P3 dated 16-11-1970 the 2nd respondent informed the appellant that he may report for duty at the office of the Bank as the Appellate Authority had directed his reinstatement in service. The appellant replied to this by Ext. P4 dated 19-11-1970, in which, while thanking the 2nd respondent for the offer of employment conveyed in its letter, he requested that the same may be kept in animated suspense to enable him to recover from the illness, from which he was then suffering. The letter took care to mention that the appellant was looking forward to payment of the amount which had fallen due under Fxt. P1 order of the Appellate Authority, and which amount remained unpaid. By Ext. P7 communication dated 16-3-1971 from the 2nd respondent a pay order for Rs. 412.15 being the pay and allowance to the appellant from 5th October, 1970 (the deadline for reinstatement fixed by Ext. P1) to 16th November, 1970 (date of Ext. I'3) was enclosed. The appellant replied by Ext. P8 pointing out that there was default in reinstatement and referred the 2nd respondent to his previous letter dated 28th December, 1970. A copy of that letter is Ext. P6. In Ext. P6 again, the appellant had complained that the order of the Appellate Authority had not been complied with. By Ext. P10 letter dated 11-6-1971, the Appellate Authority informed the appellant that the sum of Rs. 9,000 decreed as back arrears to the appellant and Rs. 6,000 to be paid as compensation for default of reinstatement had not been paid and asked the 2nd respondent to show cause why revenue recovery proceedings should not be initiated. The 2nd respondent replied by Ext. Rule 2 dated 15-6-1971 pointing out that the 2nd respondent was ready to deposit Rs. 9,000 before Court and sought instructions as to how and where this was to be done. The 2nd respondent also stated that it had no notice of the pronouncement 0f the Ext. P1 order of the Appellate Authority that the gist of the same was communicated to it only on 26-9-1970 and the certified copy of the order was received only on 29-9-1970. In these circumstances, the 2nd respondent submitted that only substantial compliance with the reinstatement order was possible. By Ext. P11 dated 17-7-1971, as noticed earlier, a pay order for Rs. 412.15 was enclosed. By Ext. P5 dated 14-12-1970 sent in answer to the registered letter of the appellant dated 19-11-1970 (Ext. P4), the 2nd respondent stated that the appellant's demand for a draft is under consideration. The Appellate Authority eventually issued Ext. P12 letter dated 30-8-1971 in which it referred to the previous correspondence and the course of events since the order dated 5-9-1970. It was pointed out that from the appellant's reply dated 19-11-1970 it was plain that he had no objection to join the service of the Bank in pursuance of its offer dated 15-11-1970, and that the Bank had expressed its readiness to remit in Court Rs. 9,000 ordered to be paid, as back arrears decreed by Ext. P1 order. In these circumstances, Ext. P12 stated that the appellant could not be said to be adversely affected and advised the appellant to approach the Bank for instatement in pursuance of Ext. P3 order. It may be noted that even in this communication nothing is mentioned about the sum of Rs. 6,000 payable on default of reinstatement within the period fixed by the order. The appellant filed the writ petition to quash Ext. P12 and for directions to implement Ext. P1 order, by appropriate steps under Section 18(6) of the Kerala Shops and Commercial Establishments Act, 1960.

2. The learned Judge after noticing the facts set out earlier, was of the view that there was no error apparent on the face of the order in Ext. P 12 to justify interference under Article 226. The learned Judge also referred to Ext. P12 order and apparently endorsed the view that there was substantial compliance with Ext. P1 order.

3. With respect, we are unable to share the learned Judge's view. We cannot agree that there was no error apparent on the face of the order Ext. P12 passed by the 1st respondent, in the face of Ext. P1 order, there was no jurisdiction or power in the 1st respondent to waive any of the conditions fixed in the earlier order Ext. P1. The only right and authority which the 1st respondent had, if at all, was to direct the recovery of the amount due as arrears of land revenue under Clause (6) of Section 18 and no more. The direction contained in Ext. P12 that there was substantial compliance with the order, and advising the appellant to take advantage of Ext. P3 order was beyond the jurisdiction and authority of the 1st respondent.

4. We doubt whether there can be any scope for invoking the doctrine of substantial compliance in reference to an order like Ext. P1. Assuming there is scope for invoking the doctrine, we are unable to hold that there has been substantial compliance with the order. Reinsatement was not effected within the date fixed by Ext. P1; nor was compensation offered for failure to effect reinstatement within the time fixed. There was no payment either, of the arrears of back wages, viz., Rs, 9,000. In the circumstances, we cannot subscribe to the view that there was substantial compliance with the order. And the appellant cannot be regarded as having precluded himself merely because by Ext. P4 dated 10-9-1971, he stated that if he were to be treated as an employee of the respondent-Bank he was tendering his resignation.

5. We allow this appeal, set aside the judgment of the learned Judge and quash Ext. P12. The appellant would be at liberty to apply for revenue recovery proceedings of the amounts due to him. in accordance with law. There will be no order as to costs.


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