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Syndicate Bank Vs. B. Muniraj and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1975)IILLJ106Mad
AppellantSyndicate Bank
RespondentB. Muniraj and ors.
Excerpt:
- - provided that an appeal may be admitted after the said period of thirty days if the appellant satisfied the appellate authority that he had sufficient cause for not preferring the appeal within that period......to the second respondent would arise only if he did not get any relief from the departmental appellate-authority. it is to quash this order of the second respondent dated october 15, 1973, taking up the appeal of the first respondent for disposal on merits, the present writ petition has been filed.2. mr. sampathkumar, the learned counsel for the petitioner, contend that the provision vesting a discretion in the appellate-authority to condone the delay, embodied in the proviso to rule 9(1) of the madras shops and establishment rules, 1948, is ultra vires of the statute. rule 9(1) of the madras shops and establishments rules, 1948, states--the commissioner for workmen's compensation shall be the authority for the purpose: of hearing appeals under sub-section (2) of section 41 and any.....
Judgment:

M.M. Ismail, J.

1. The first respondent herein was an employee of the petitioner-bank and his services were terminated by the General Manager by an order dated May 25, 1972. That order stated that if the first respondent so desired he might prefer an appeal against the order to the Custodian within thirty days from the date of serving of the order. Such an observation happened to be made in the order in view of the provisions contained in the Syndicate Bank Officers (Conditions of Service) Rules, 1966 (hereinafter referred to as the rules). Rule 36(g) of the rules specifically provides that--

Every officer against whom disciplinary action has been taken is entitled to appeal to the Chairman/Custodian in writing within 30 days of the receipt of the original order by him.

Under these circumstances, the first respondent preferred an appeal to the Custodian and that appeal was dismissed on August 29, 1972, and the same was communicated to the first respondent on September 1, 1972. Thereafter, the first respondent preferred an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Act), before the second respondent herein. There was some controversy as to whether the appeal petition was sent on September 21, 1972, at all; but the second respondent has held that it was so sent, and the same was not disputed before me. However, before the second respondent, the petitioner took up the stand that the appeal preferred by the first respondent was barred by limitation and that the second respondent ought not to condone the delay in the presentation of the appeal. The second respondent took the view that the first respondent preferred the appeal under Section 41(2) of the Act after having exhausted the departmental appeal provided for in the Rules and that the appeal preferred on September 21, 1972, was within time with reference to the appellate order of the Custodian and even if there was any delay, that delay should be condoned in view of the fact that the first respondent preferred an appeal to the departmental officers and the question of the first respondent appealing to the second respondent would arise only if he did not get any relief from the departmental appellate-authority. It is to quash this order of the second respondent dated October 15, 1973, taking up the appeal of the first respondent for disposal on merits, the present writ petition has been filed.

2. Mr. Sampathkumar, the learned Counsel for the petitioner, contend that the provision vesting a discretion in the appellate-authority to condone the delay, embodied in the proviso to Rule 9(1) of the Madras Shops and Establishment Rules, 1948, is ultra vires of the statute. Rule 9(1) of the Madras Shops and Establishments Rules, 1948, states--

The Commissioner for Workmen's Compensation shall be the authority for the purpose: of hearing appeals under Sub-section (2) of Section 41 and any such appeal shall be preferred by the person employed within thirty days from the date of service of the order terminating the services with the employer, such service to be deemed effective if carried out either personally or if that be not practicable, by pre-paid registered post to the last known address when the date of such service shall be deemed to be the date when the letter would arrive in ordinary course of post:

Provided that an appeal may be admitted after the said period of thirty days if the appellant satisfied the appellate authority that he had sufficient cause for not preferring the appeal within that period.

It is the validity of this proviso that was challenged before me.

3. Before considering this question, I shall first consider the question whether the appeal preferred by the first respondent on September 21, 1972, before the second respondent was barred by limitation at all under the main part of Sub-rule (1) of Rule 9 of the Madras Shops and Establishments Rules, 1948. For this purpose, the question for consideration is what is the starting point of limitation-whether it is the date of communication of the order of the General Manager or the date of communication of the appellate order of Custodian. If the starring point of limitation is the date of service of the appellate order of the Custodian, then, the appeal preferred by the first respondent was admittedly within time. Only if the starting point of limitation is the date of the service of the order of the General Manager, the question of condonation of the delay will arise. Therefore, the first point to be considered is what is the starting point of limitation.

4. I do not have any doubt whatever that the starting point of limitation for this purpose is the date of communication of the order of the appellate-authority. Section 41(1) of the Act states--

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 notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose.

According to Sub-section (2)--

The person employed shall have a right to appeal to such authority and Avithin 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 the employer.

Thus, it will be seen that Sub-section (2) of Section 41 of the Act does not refer to any order at all and it merely refers to 'dispensing with services,' It is only Rule 9(1) of the rules, which I have already extracted, that provides for a period of thirty days from the date of service of the order terminating the services with the employer.

5. In my opinion, the order terminating the services with the employer will be the final and ultimate order of the employer terminating the services. If 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(2) of the Act will not arise. If the conditions of service, rules or regulations or contract, provide for appeal or revision against the order passed by a particular officer terminating the services with the employer, the termination of services with the employer does not become complete or final until such appeal or revision is disposed of. All such proceedings are internal with reference to the statutory appeal provided for in Section 41(2) of the Act. When particular officer passes an order dismissing an employee, he does so on behalf of the employer, just as the appellate or revisional officer functions on behalf of the employer. Consequently, the order of every one of such officers is an order of the employer and hence it is the order of the appellate or the revisional authority which is the final order of the employer and therefore, an employee will approach the statutory authority under Section 41(2) of the Act. only when the final order of the employer is adverse to him.

6. I am dealing with the question only with reference to the calculation of the period of limitation and I am not concerned in the present case with the question whether the first respondent could. have straightaway approached the second respondent by way of an appeal against the order of the General Manager itself, without preferring an appeal to the Custodian, and I am not expressing any opinion on that question. I am dealing in the present case with the question as to what should be the starting point of limitation for the purpose of appeal under Section 41(2) of the Act when the employee Has actually availed himself of the departmental remedies open to him. With reference to this question I have no hesitation in coming to the conclusion that the starting point of limitation was the date of the communication of the order of the appellate-authority, viz., the Custodian, on 1st September, 1972, and consequently the appeal filed on 21st September, 1972, was within the thirty days' time prescribed by Sub-rule (1) of Rule 9 of the Rule 9 of the Rules referred to already.

7. In view of the above, it is unnecessary to consider the question regarding the vires or validity of the provision conferring power on the appellate-authority to condone the delay in the filing of an appeal.

8. The learned Counsel for the petitioner then sought to contend that the second respondent had no jurisdiction to entertain and dispose of the appeal at all, since the Act does not apply to the petitioner-bank and since the first respondent, at the time of Ms termination of the service with the employer, was working in Manipal in Mysore State and not in Tamil Nadu State. Neither of these two points arises in the present writ petition which has been filed merely for the purpose of quashing the order of the second respondent holding that the appeal of the first respondent was within time, or condoning the delay, if there was any delay. Consequently, I am not expressing any opinion on those two points; and it is certainly open to the petitioner to urge them before the second respondent and invite him to render his decision thereon.

9. The writ petition fails and it is dismissed. No costs.


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