Balakrishna Eradi, J.
1. This writ petition has been brought by a co-operative society--Eraveli Co-operative Consumers' Stores Ltd.--represent by its president. The 2nd respondent was employed as a clerk in one of the ration shops conducted by the petitioner-society. Certain irregularities are said to have been noticed in the conduct of that ration shop and the 2nd respondent was called upon by the society to submit his explanation to the charges communicated to him. He was also placed under suspension pending enquiry as per a memo dated 13-8-1966 issued to him by the president of the society. Thereafter the disciplinary sub-committee of the society met on 23rd September, 1966 and decided to dispense with the services of the 2nd respondent and that decision was communicated to the 2nd respondent by the secretary of the society by a letter dated 24th September, 1966. It would appear that acting on the basis of a complaint preferred before him by the 2nd respondent the Deputy Labour Officer Cochin held a conciliation conference and at that conference it was pointed out that the action taken by the disciplinary sub-committee to terminate the services of the 2nd respondent was not in accordance with the procedure laid down by law. On realising this the matter was placed for consideration before the Board of Directors of the society and at its meeting held on 2nd October, 1966 the Board decided to cancel the order of termination issued to 2nd respondent and to treat the 2nd respondent as continuing under suspension pending enquiry. Exhibit P1 is a copy of the said resolution passed by the Board. On 4-10-1966 the 2nd respondent filed an appeal under Section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as the Act) before the Appellate Authority constituted under the Act challenging the order of termination dated 24th September, 1966 issued to him by the secretary of the society. When notice went to the society in that appeal it entered appearance and contended inter alia before the Appellate Authority that the termination order appealed against had already been cancelled by the society itself and that hence the appeal filed by the 2nd respondent was not maintainable. The Appellate Authority took the view that since the order of cancellation was communicated to the employee (2nd respondent) only on 6-10-1966 and it was actually received by the 2nd respondent only on 26-10-1966 prior to which date the appeal had already been filed by the 2nd respondent, the 2nd respondent had to be treated as an employee who stood dismissed from service as on the date of filing of the appeal and hence he was entitled to proceed with the appeal. In this view the Appellate Authority went into the merits of the other contentions put forward by the parties and ultimately ordered that the petitioner-society should reinstate the 2nd respondent into its service within 30 days of the date of the order and should also pay an amount of Rs. 2,880 to the 2nd respondent as arrears of wages and that in case the society failed to reinstate the employee it should pay to the 2nd respondent a further sum of 1,320 as compensation in lieu of reinstatment. Exhibit P6 is a copy of the order passed by the Commissioner for Workmen's Compensation in his capacity as the Appellate Authority under the Act. This writ petition has been brought by the society seeking to quash Ext. P6.
2. The main contention urged by the writ petitioner is that the society having itself cancelled the order of termination of service passed against the 2nd respondent long prior to the date on which the appeal was taken up for consideration by the Appellate Authority there was no jurisdiction for the, Appellate Authority to proceed to dispose of the appeal on the merits. It is also submitted by the learned advocate appearing for the writ petitioner that the cancellation of the order of termination was effected by the Board of Directors of the society on 2-10-1966 itself whereas the appeal was filed by the 2nd respondent only on 4-10-1966. Counsel for the petitioner contends that the view taken by the Appellate Authority that the relevant date is the receipt of the order of cancellation by the 2nd respondent is incorrect in law and that there is a clear admission by the 2nd respondent himself in the testimony given by him before the Appellate Authority that he had been orally informed about the order of cancellation at the conciliation conference held by the Deputy Labour Officer, Cochin prior to the institution of the appeal.
3. After hearing both sides I have come to the conclusion that the contentions put forward by the petitioner have to be upheld. The Government Pleader produced before Court the file containing the documentary and oral evidence that had been adduced by the parties before the Appellate Authority. A copy of the resolution dated 2nd October, 1966 passed by the Board of Directors of the society canceling the earlier order of termination of service issued to the 2nd respondent and ordering that he should be treated as an employee continuing under suspension was one of the documents produced before the Appellate Authority. It is also clearly seen from the oral testimony given by the 2nd respondent before the Appellate Authority that he had been intimated orally about the order of cancellation and the fact that the order of dismissal passed against him had been cancelled by the society itself was also mentioned by the president of the society at the time of the conciliation conference held by the Deputy Labour Officer. It was, therefore, clearly wrong on the part of the Appellate Authority to think that the cancellation order should be deemed to have become effective only when the communication sent by the society to the 2nd respondent by registered post enclosing a copy of that order was received by him on 26th October, 1966.
4. In V. Ramachadran v. P.K. Soma-sekharan and Ors. : 1983ECR1598D(SC) , it was held by a Division Bench of the Travancore-Cochin High Court that where an order of dismissal passed against an employee was cancelled by the employer during the pendency of an appeal filed under Section 41 of the Travancore-Cochin Shops and Establishments Act the Appellate Authority was not competent to proceed with the appeal filed by the employee. In that case by a notice dated 30th April, 1951 the Trivandrum Branch of a Life Insurance Company terminated services of one of its employees. The employee preferred an appeal under Section41 of the Travancore-Cochin Shops and Establishments Act which corresponds in every material respect to Section 18(2) of the Act. On 28-5-1951 the employer cancelled the order of termination of service of the appellant and placed him under suspension with effect from 30-4-1951 (date of the original order of termination) pending fresh enquiry into the charges of misconduct. Relying on the said fact of cancellation of the order of termination the employer contended before the Appellate Authority that there was nothing to adjudicate upon in the appeal since the order of dismissal had become non-existent. This contention was repelled by the Appellate Authority which passed an order directing the employer to reinstate the appellant in service forthwith. The legality of that order passed by the Appellate Authority was under challenge in a writ petition filed before the Travancore-Cochin High Court. The Division Bench which heard the case allowed the writ petition on the ground that since the order of termination of service had been cancelled by the employer long prior to the passing of the Appellate Authority's order, the Appellate Authority had no jurisdiction to go into the merits of the appeal and pass any order thereon. The learned Judges held that it was fully competent for the employer on this being satisfied that the order of discharge already passed was not a proper order to cancel the defective order and on such cancellation the original order becomes nonexistent and it cannot form the basis of an appeal. It was further observed in that judgment that on the cancellation of the order of termination the Appellate Authority ceased to have any further jurisdiction to deal with the order which had become nonexistent. 1 am in respectful agreement with the above view expressed by the Division Bench of the Travancore-Cochin High Court.
5 In K.P. Hormis, Managing Director, Federal Bank Ltd. Alwaye v. P.A. John and Anr. 1970-II L.L.J. 351, this Court had occasion to consider the question whether during the pendency of a complaint filed by a dismissed employee under Section 33A of the Industrial Disputes Act, 1947 before the Industrial Tribunal it was legally open to the management to issue an order cancelling the earlier order of dismissal. It was held that neither the institution nor the pendency of the complaint under Section 33A will debar the employer from exercising his ordinary right of rectifying a mistake committed by him by cancelling the original defective order and passing a fresh order in accordance with law.
6. In the light of the principle laid down in the above decisions it has to be held that the 1st respondent-Appellate Authority acted wholly without jurisdiction in proceeding to deal with the appeal on the merits after it had been proved to its satisfaction that the order appealed against had been cancelled by the employer long prior to the date on which the appeal was taken up for consideration by the Appellate Authority. Exhibit P.6 will, therefore, stand quashed.
7. The original petition is accordingly allowed but, in the circumstances, without any order as to costs.