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M. Palaniswami Vs. Madukkarai Cement Works Employees' Co-operative Stores Limited and Anr. (21.06.1974 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1975)IILLJ78Mad
AppellantM. Palaniswami
RespondentMadukkarai Cement Works Employees' Co-operative Stores Limited and Anr.
Cases ReferredZenith Lamps and Electricals v. Additional Commissioner of Workmen
Excerpt:
.....clearly stated that in view of the long probationary period the petitioner had put in, the first respondent was prepared to take a sympathetic view and instead of terminating his services, the first respondent was prepared to offer him an alternative post of clerk on the same salary with the prospect of the petitioner being appointed as assistant accountant, in the event of the petitioner showing sufficient progress in the post of clerk and potentiality for the post of assistant accountant. if, by way of victimisation the first respondent wanted to get rid of the petitioner from the service of the first respondent, the first respondent would not have sent such a communication to the petitioner and given him time till 30th september, 1968, to accept the alternative post of clerk,..........to the additional commissioner for workmen's compensation under section 41(2) of the tamil nadu shops and establishments act, 1947, and that officer by his order dated 16th february, 1971, made in t.n.s.e. appeal no. 36 of 1968 dismissed the appeal preferred by the petitioner. it is to quash this order that the present writ petition has been filed by the petitioner under art. 226 of the constitution of india.2. the learned counsel for the petitioner contends, on the basis of the observations contained in the judgment of the supreme court in utkal machinery ltd. v. santi patnaik 1966 l.l.j. 389, that the termination of the services of a probationer for unsatisfactory work will amount to termination of services for misconduct and that, therefore, in this case the order of the first.....
Judgment:

M.M. Ismail, J.

1. The petitioner was appointed as assistant accountant on probation by the first respondent herein. The probation of the petitioner was periodically extended from time to time for unsatisfactory work and the last of the extension was upto 30th September, 1968. On the ground that the work of the petitioner as assistant accountant was not satisfactory, he was tried on an alternative job as a clerk also. The first respondent on 27th September, 1968, informed the petitioner that he had not cared to put in efforts and prove his suitability for the post and that, however, in view of the long probationary period the petitioner had put in, the first respondent had sympathetically considered and offered the petitioner the post of a clerk instead of terminating his services. This communication asked the petitioner to state whether he was willing to accept the post of clerk on the same salary and send his reply by 30th September, 1968, as otherwise the first respondent would have no other option but to terminate the services of the petitioner as from 1st October, 1968. This communication also pointed out that if the first respondent was satisfied about the progress of the petitioner in the post of clerk and if the petitioner showed potentiality for the post of assistant accountant, he could always expect encouragement from the management. Since the petitioner did not accept the alternative offer, by a communication dated 1st October, 1968, the petitioner's services were terminated by giving one month's pay in lieu of one month's notice, with effect from 1st October,, 1968. It may be pointed out that admittedly before this communication dated 1st October, 1968, the petitioner was not declared to have completed his probation and he was not regularly appointed as an assistant accountant. After this communication was sent by the first respondent to the petitioner, the petitioner preferred an appeal to the Additional Commissioner for Workmen's Compensation under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, and that officer by his order dated 16th February, 1971, made in T.N.S.E. Appeal No. 36 of 1968 dismissed the appeal preferred by the petitioner. It is to quash this order that the present writ petition has been filed by the petitioner under Art. 226 of the Constitution of India.

2. The learned Counsel for the petitioner contends, on the basis of the observations contained in the judgment of the Supreme Court in Utkal Machinery Ltd. v. Santi Patnaik 1966 L.L.J. 389, that the termination of the services of a probationer for unsatisfactory work will amount to termination of services for misconduct and that, therefore, in this case the order of the first respondent dated 1st October, 1968, terminating the services of the petitioner for unsatisfactory work must be taken to be a termination for misconduct and that such termination cannot be effected without conducting an enquiry into the alleged misconduct. The contention was urged before the second respondent and the second respondent rejected the same, in my opinion, rightly, I may immediately point out that that judgment of the Supreme Court did not concern with the Tamil Nadu Shops and Establishments Act, 1947 or any corresponding law and that arose as a result of an adjudication made under the Industrial Disputes Act. In my opinion, the decision of the Supreme Court in that case will have no application to the present case for more than one reason. It has been repeatedly held by this Court commencing from United Commercial Bank Ltd., Matliurai v. Commissioner of Labour, Madras : (1951)ILLJ1Mad , that the provisions of the Tamil Nadu Shops and Establishments Act, 1947, are not in pari materia with the provisions of the industrial Disputes Act, 1947 and that consequently the considerations relevant to the construction of one statute would not be relevant for the construction of the other statute. As a matter of fact, as I have pointed out already, the Supreme Court referred to the absence of standing orders in the case of the factory with which it was concerned. As far as the shops to which the Tamil Nadu Shops and Establishments Act applies, the question of standing orders is not relevant, because the Industrial Employment (Standing Orders) Act, 1946, applies only to factories and not to shops governed by the Tamil Nadu Shops and Establishments Act. Therefore, in my opinion, there is no substance in this contention of the petitioner.

3. As far as Section 41 of the Tamil Nadu and Establishments Act referred to above is concerned, Sub-section (1) thereof states that 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 months notice or wages in lieu of such notice, provided, however, that such notice snail not be necessary where the services ox such person are dispensed with on a charge 0f misconduct supported by satisfactory evidence recorded ax an enquiry held for the purpose. Sub-section (2) thereof provides for an appeal by a person employed, coming within the scope of Section 41(1). In this case, as I have pointed out already, the petitioner was given one month's salary in lieu of notice. The only other question for consideration is, whether the termination of the services of the petitioner, when he was a probationer, on the ground that his work was unsatisfactory can be said to be a termination for a reasonable cause or not. In my opinion, when the services of a probation are terminated on the ground that his work as probationer was not satisfactory, it cannot be held that the services of such a person are terminated for misconduct. As a matter of fact, the very idea of placing a person on probation is for the purpose of testing or finding out his suitability to the post in question. If the services of a probationer are terminated on the ground that the probationer was not found suitable or that his work was not satisfactory in the post in question, it certainly cannot be contended that his services were terminated by way of punishment and that such termination would amount to termination for misconduct. However, the learned Counsel for the petitioner contends that no finding was recorded by the second respondent in the present case with reference to the materials placed before him that there was a reasonable cause for the termination of the services of the petitioner in the form of unsatisfactory work on his part. I am unable to accept this contention for the simple reason that the second respondent has actually referred to the evidence which went to show that the first respondent held that the work of the petitioner was not satisfactory in his post as assistant accountant.

4. Yet another argument advanced by the learned Counsel for the petitioner is that the first respondent was not entitled to adduce any evidence before the second respondent and for that purpose the learned Counsel sought to rely on a judgment of this Court in Zenith Lamps and Electricals v. Additional Commissioner of Workmen's Compensation, Madras 1970-I L.L.J. 103. In my opinion this contention is misconceived. In that case, what was held was that where the services of an employee were terminated for misconduct without holding an enquiry by the employer, it was not open to the employer to convert the appellate authority functioning under Section 41(2) of the Tamil Nadu Shops and Establishments Act into the original authority and to place materials before the Appellate Authority for establishing the misconduct for which the services of the employee wore terminated. In the present case, as I have pointed out already, the termination of the services of (the petitioner was not for misconduct and, therefore, the question of conducting an enquiry into the misconduct of the petitioner does not arise.

5. The last point urged by the learned Counsel for the petitioner is an allegation of victimisation. I am unable to hold that that has got any relevancy to an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, and that has relevancy only to industrial adjudication. Apart from this, with reference to the facts of the case, it cannot be contended that there was any victimisation. I have referred to the two communications dated 27th September, 1968, and 1st October, 1968, addressed by the first respondent to the petitioner. In the former communication, the first respondent clearly stated that in view of the long probationary period the petitioner had put in, the first respondent was prepared to take a sympathetic view and instead of terminating his services, the first respondent was prepared to offer him an alternative post of clerk on the same salary with the prospect of the petitioner being appointed as assistant accountant, in the event of the petitioner showing sufficient progress in the post of clerk and potentiality for the post of assistant accountant. If, by way of victimisation the first respondent wanted to get rid of the petitioner from the service of the first respondent, the first respondent would not have sent such a communication to the petitioner and given him time till 30th September, 1968, to accept the alternative post of clerk, Therefore, the very conduct of the first respondent in sending communication dated 27th September, 1968, to the petitioner will clearly negative the case of victimisation against the petitioner herein.

6. No other point was urged before me.

7. Under these circumstances, the writ petition fails and it is dismissed. There will be no order as to costs.


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