Madras High Court
Head-Human Resources vs The Appellate Authority Under ... on 28 June, 2022
W.A.No.1468 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.A.No.1468 of 2022
1.Head-Human Resources,
M/s.Indusind Bank Limited,
8th Floor - Tower-I,
841, SB Mark, Eliphinstone Road,
Mumbai-400 013.
2.Head-Employees Relations,
M/s.Indusind Bank Limited,
8th Floor - Tower-I,
841, SB Mark, Eliphinstone Road,
Mumbai-400 013.
3.Regional Manager - Human Resources,
M/s.Indusind Bank Limited,
New No.34, G.N.Chetty Street,
T.Nagar,
Chennai-600 017. .. Appellants
Vs
1.The Appellate Authority under Shops and
Establishment Act (Special joint Commissioner of Labour)
DMS Compound,
Chennai-600 006.
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W.A.No.1468 of 2022
2.Srinivasan Kottaiah .. Respondents
Prayer : Appeal filed under Clause 15 of Letters Patent against the
order dated 28.01.2022 passed in W.P.No.6520 of 2021.
For the Appellants : Mr.H.Karthik Seshadri
For the Respondents : Mr.R.Sivakumar
for respondent No.2
JUDGMENT
(Delivered the Hon'ble Chief Justice)
By this writ appeal, a challenge is made to the order dated
28.1.2022, by which the writ petition preferred by the writ
petitioner/ writ appellant was allowed on certain conditions.
2. Learned counsel for the writ appellants submitted that the
order passed by the authority under the Tamil Nadu Shops and
Establishments Act, 1947 [for brevity, "the Act of 1947"] was
challenged by maintaining a writ petition precisely raising many
issues to show illegality in the order and the learned Single Judge
appreciating the contentions put forth held that the reasoning given
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W.A.No.1468 of 2022
by the authority under the Act of 1947 was not proper. While
remanding the matter to the authority on the issues raised by the
writ appellants, an order was passed to pay a lump sum amount of
Rs.10.00 lakh and also to pay the last drawn salary, recording the
consent of the writ appellants. A representation was immediately
made to question recording of the consent of the counsel for the
writ appellants and thereupon a modified order/ corrected order was
issued on 28.01.2022.
3. Learned counsel submitted that the second respondent was
subjected to an order of dismissal, however, immediately,
thereupon he had tendered a resignation letter and the
management accepted the resignation letter and thereby the
dismissal was substituted by resignation. Ignoring the aforesaid,
the authority under the Act of 1947 entered into the issue of
validity of the dismissal order and therein without providing an
opportunity to the management to lead evidence to prove the
charges, an order was passed holding the dismissal order to be
illegal. The said order was questioned by maintaining a writ
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W.A.No.1468 of 2022
petition.
4. Learned counsel further submitted that the learned Single
Judge found that the authority has failed to exercise the jurisdiction
vested in it, because opportunity should have been given to the
employer to lead evidence to prove the charges. In view of the
above, the matter was remanded to the appellate authority under
the Act of 1947. However, while remanding the case, a condition
was imposed to pay a lump sum amount of Rs.10.00 lakh within a
period of eight weeks and also to pay the last drawn salary
commencing from 1.3.2022 and to continue to pay the same till the
final order is passed by the appellate authority. The order aforesaid
has been questioned mainly on the ground that the issue as to
whether the order of dismissal was substituted by acceptance of
resignation and if not then as to whether the dismissal was
appropriate or not is yet to be decided after affording an
opportunity of hearing to the employer to lead evidence.
5. It is further submitted that only after declaring the order of
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W.A.No.1468 of 2022
dismissal to be illegal, the authority can take a decision for the
consequential benefits, if any. No benefit can be extended till the
issue is adjudicated by the appellate authority. However, the
learned Single Judge awarded lump sum amount pre-supposing the
order of dismissal to be invalid. It is without realising that if the
appellate authority finally comes to the conclusion that it was not a
case of dismissal, but acceptance of resignation or it is a case of
dismissal, then after affording an opportunity, the order of dismissal
is found to be valid, then it will take effect from the date the order
was passed originally. In that case, the employee would not be
entitled to any benefits for the intervening period. Yet, without
assigning any reason, huge amount of Rs.10.00 lakh has been
awarded with further direction to pay last drawn salary during the
pendency of the application before the appellate authority as if it is
a petition before the High Court where Section 17B of the Industrial
Disputes Act, 1947 would apply. The provision of Section 17B of
the Industrial Disputes Act, 1947 is not applicable to the
proceedings before the authority under the Tamil Nadu Shops and
Establishments Act, 1947.
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W.A.No.1468 of 2022
6. The appeal is opposed by learned counsel for the employee.
It is submitted that the order to grant lump sum amount of
Rs.10.00 lakh and the last drawn salary is to ensure that the
employee survives during the pendency of hearing of the application
filed before the authority. It is looking to the fact that for the last
seven years, he is out of employment. Thus, a just and proper
order has been passed by the learned Single Judge.
7. We have considered the rival submissions and find that
there is substance in the arguments raised by learned counsel for
the writ appellants.
8. It is settled law that whenever an issue about the validity of
the dismissal order is to be adjudicated by the authority and if it
finally comes to the conclusion about the validity of the order, the
dismissal would relate back to the date of the original order, even in
a case where inquiry is conducted by the authority for the first time
or after holding the inquiry to be unfair. It is not that the order of
termination will take effect from the date of its confirmation by the
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W.A.No.1468 of 2022
authority, but it would relate back to the original date of order of
termination, in view of the decision of the Apex Court in the case of
P.H.Kalyani v. Air France, Calcutta, AIR 1963 SCC 1756.
Ignoring the aforesaid, the learned Single Judge awarded lump sum
amount which cannot be without adjudication of the issue about the
validity of the order of dismissal. The issue aforesaid is open for
consideration before the appellate authority and, therefore, we
would not comment upon the aforesaid, as otherwise the matter
has been remanded to the appellate authority. The direction to pay
last wage drawn is also not legally sustainable. Section 17B of the
Industrial Disputes Act, 1947 would be applicable only to a writ
petition filed to challenge the award of the Labour Court and not to
the proceedings before the authority under the Tamil Nadu Shops
and Establishments Act, 1947.
9. Accordingly, we find reason to cause interference in the
order of the learned Single Judge to the extent of directions
contained in paragraphs 13 to 16 and those directions are set aside.
The appellate authority is directed to expedite the matter and for
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W.A.No.1468 of 2022
that both parties are directed to cooperate with the appellate
authority so that the matter may be decided within a time frame,
which should not be beyond a period of six months from the date of
receipt of a copy of this judgment.
10. The appeal is disposed of accordingly. There will be no
order as to costs. Consequently, C.M.P.No.9607 of 2022 is closed.
(M.N.B., CJ.) (N.M., J.)
28.06.2022
Index : Yes/No
bbr
To
The Appellate Authority under Shops and
Establishment Act (Special joint Commissioner of Labour)
DMS Compound,
Chennai-600 006.
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W.A.No.1468 of 2022
THE HON'BLE CHIEF JUSTICE
AND
N.MALA,J.
bbr
W.A.No.1468 of 2022
28.06.2022
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