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A.E. Shanmugham Vs. the Presiding Officer, Labour Court and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1963)1MLJ331
AppellantA.E. Shanmugham
RespondentThe Presiding Officer, Labour Court and anr.
Excerpt:
- .....he was dismissed from service on 22nd april, i960. the labour court, madras, has found that the dismissal was improper and it was an act of victimisation. nevertheless, the labour court proceeded thus:this is a case which cannot be treated as a dismissal because there is no misconduct as such meriting punishment. the management cannot also be directed to take back this worker, when they entertain apprehension that it will prejudicially affect their interest. having regard to all the circumstances, i think it will be proper, in the interest of both sides to treat the termination as in the nature of retrenchment and my order is that the termination in this case will be treated as retrenchment. on that reasoning, the labour court declined to reinstate the petitioner, but awarded.....
Judgment:
ORDER

Veeraswami, J.

1. The petitioner was dismissed from service on 22nd April, 1960, by the management, on a finding that the petitioner had engaged himself as an Ayurvedic and Siddha Practitioner, which was prejudicial to the interest of the employer. The propriety of this dismissal was challenged by the petitioner, in an application under Section 33-I on the ground that there was a reference pending the industrial dispute for adjudication on the date of the dismissal. It would appear that there was an award on 26th March, 1960 which was published on 20th April, 1960. The charge against the petitioner was framed on 21st November, 1959 and, as I said, he was dismissed from service on 22nd April, i960. The Labour Court, Madras, has found that the dismissal was improper and it was an act of victimisation. Nevertheless, the Labour Court proceeded thus:

This is a case which cannot be treated as a dismissal because there is no misconduct as such meriting punishment. The management cannot also be directed to take back this worker, when they entertain apprehension that it will prejudicially affect their interest. Having regard to all the circumstances, I think it will be proper, in the interest of both sides to treat the termination as in the nature of retrenchment and my order is that the termination in this case will be treated as retrenchment.

On that reasoning, the Labour Court declined to reinstate the petitioner, but awarded retrenchment compensation on a certain rate. This petition is to quash the award.

2. It is obvious in the context of Section 17-A and Section 20(3) of the Industrial Disputes Act that the reference for adjudication of Industrial Dispute No. 4 of 1959 was pending on 22nd April, 1960, when the petitioner was dismissed from service. It does not appear that the management even applied under Section 33(2) for approval of the dismissal. The Labour Court, was, therefore right in coming to the conclusion that the dismissal was improper not only on that ground but also on the merits.

3. When the Labour Court found that the dismissal was improper and that it so declared, the effect of it was that the petitioner should be deemed to have continued in service. In such circumstances, it was the duty of the Labour Court to have ordered reinstatement. Instead, it treated the dismissal as a sort of retrenchment, which clearly it had no jurisdiction to do. Retrenchment is governed by the provisions of Section 25-F of the Industrial Disputes Act, and the termination will amount to retrenchment only if the requisites of that section are satisfied. It is not open to the Labour Court to ignore the statutory provisions and treat the dismissal, which it held to be improper, as a sort of retrenchment and grant compensation on that basis.

4. The award of the Labour Court, in so far as it held that the petitioner should be deemed to have been retrenched from service and granted retrenchment compensation on that basis, is hereby quashed. The result is the Labour Court will consider afresh the relief to be granted to the petitioner and dispose of the matter. The petition is allowed to that extent. No costs.


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