High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-12-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.16648 of 2003andWPMP No.11905 of 2004The Management ofPraxair Limited62/2B, Vanagaram High RoadAmbattur, Chennai 600 053... Petitioner vs1.The Deputy Commissioner of Labour (Minimum Wages) (Appellate Authority under TamilNadu Shops & EstablishmentsAct 1947) Chennai 600 006.2.G.Subbarama Raju3.The Management ofAmeri Gas Private Limited 62/2B, Vanagaram High Road Ambattur, Chennai 58... Respondents Writ petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorari to call for the records and quash theorder dated 15.2.2002 in TSE.II.No.25 of 2001 on the file of the firstrespondent, the Deputy Commissioner of Labour (Minimum Wages),(Appellate Authority under Tamil Nadu Shops & Establishments Act 1947),Chennai 600 006.For Petitioner: Mr.MeenakshisundaramFor Respondents: Mr.S.Gopinathan Additional GovernmentPleader for R1 Mr.C.R.Chandrasekaran for R2 No appearance for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDERThe petitioner management has brought forth this writ petition fora writ of certiorari to quash an order passed by the first respondent,the Deputy Commissioner of Labour (Minimum Wages), namely the appellateauthority under Tamil Nadu Shops & Establishments Act 1947.2.The affidavit in support of the petition along with the groundsand the affidavit filed by the second respondent in the directionpetition, are perused. The Court heard the learned Counsel on eitherside. 3.The order under challenge came to be passed in an appeal filedby the second respondent herein whereby he challenged an order oftermination by the third respondent management. 4.Admittedly, the second respondent was employed under themanagement of the third respondent, and his services were terminated inthe month of January 1998. The management of the writ petitioner hadtaken over the said company on transfer in the month of April 1998, andthus, the name of the second respondent was not in its roll. 5.The gist of the case that was put forth by the second respondentin his appeal before the appellate authority, was that he had put in 17years of permanent service as Assistant Manager; that he was orallyterminated by the third respondent on 20.1.1998, which was unfair; thathis services have been transferred from the associate company of thethird respondent namely M/s.Asiatic Oxygen Limited, Padi, Madras, onand from 2.8.1997; that thereafter, he continued to be with M/s.AmeriGas Private Limited; that the second respondent was taken into serviceby that Asiatic Oxygen Limited; that a signature was obtained from himby the third respondent company by coercion and undue influence in apiece of paper without allowing him to go through it; that only aftersigning the paper, a copy of the same was handed over to him along withtwo cheques for Rs.1,35,426/- on 27.1.1998; that he was also asked notto report duty from the next day onwards; that thereafter, he foundthat it was a receipt for full and final settlement of his dues fromM/s.Ameri Gas Private Limited, Madras, the third respondent herein;that afterwards, he filed an application for payment of gratuity underthe provisions of the Gratuity Act and also an appeal seeking to setaside the order of termination; that the application for payment ofgratuity was subsequently withdrawn by him; that the order oftermination was arbitrary and illegal, and hence, it was to be setaside.6.While the appeal was filed, there was a delay in preferring theappeal. At that time, it was objected to by the third respondentstating that the delay should not be condoned; that if the delay was tobe condoned, the appellant namely the second respondent herein, mustproceed against the proper management since the actual transfer ofmanagement has taken effect from 16.4.1998; and that the appellantmight be advised to put forth his claim, if any, against the proper https://hcservices.ecourts.gov.in/hcservices/ management. 7.While the matter stood thus, the delay was condoned, and then,an application was filed to implead M/s.Praxair Limited namely the writpetitioner herein, to whom there was a transfer of management by thethird respondent company. On contest, the said application was ordered,and the writ petitioner was added as party to it. Then, the partieswent on enquiry, as a result of which the first respondent passed anorder setting aside the order of termination of the second respondentby the third respondent, which is the subject matter of challenge inthe writ petition before this Court.8.Advancing his arguments on behalf of the writ petitioner, thelearned Counsel raised the following three main points:(a) Firstly, the second respondent was, admittedly,terminated from service on 20.1.1998, and he has alsoreceived two cheques in full and final settlement of hisdues. He encashed those cheques. Had it been true that sucha receipt was obtained from him by coercion and undueinfluence, he should not have encashed the same; but,instead, he encashed the same. (b) Secondly, he also filed an application for payment ofgratuity under the Gratuity Act. Had it been true that thetermination of service was illegal, there was no occasion forhim to file an application for payment of gratuity under theprovisions of the Act, and subsequently, he has withdrawnthat application. (c) Thirdly, in the instant case, he has pleaded that thereceipt was obtained from him by coercion and undueinfluence. Thus, it was for him to prove the same; but, hefailed. The learned Counsel would submit that for the above reasons, the orderpassed by the first respondent without considering the position bothfactual and legal, was not correct, and hence, it has got to be setaside.9.Contrary to the above contentions, it is contended by thelearned Counsel for the second respondent that the order passed by thelower authority, has got to be sustained; that it is true that thesecond respondent was actually under the services of the thirdrespondent in January 1998; but, his services were terminated orally;that even according to the writ petitioner, what was all available wasonly the receipt for full and final settlement of the amount; that itis also true that two cheques were issued; that it is also an admittedposition that he had encashed the same; but, there is no material toindicate that his services were terminated properly by any writtenform; that when such an appeal was filed, the third respondentmanagement desired to wash its hands by simply stating that the companyhad been transferred to the writ petitioner, and if he has got anyremedy, he must work out the remedy against the writ petitionermanagement and not against the third respondent; but, the writpetitioner took a stand that at the time of termination of the service https://hcservices.ecourts.gov.in/hcservices/ in January 1998, he was under the management of the third respondentand not under the writ petitioner, and hence, he was not in the roll ofthe management of the writ petitioner, and they were not liable toanswer the claim; that under the circumstances, they took two differentstands; and that by stating so, they wanted to make easy walk over inorder to sustain the termination.10.Added further the learned Counsel that the main case of thesecond respondent was that the termination of service was illegal sincethey have obtained a receipt by undue influence and coercion; that alook of the receipt itself would indicate the same; that while such acontention was raised and the second respondent had also gone into thebox to speak about that fact, not even anybody was examined either onthe side of the third respondent or on the side of the writ petitionerto counter the same; that what was available before the firstrespondent, the Deputy Commissioner of Labour, was the evidence of thesecond respondent; that under the circumstances, the first respondenthas relied on the evidence and passed the order, and hence, it has gotto be sustained, and the writ petition be dismissed.11.The Court paid its anxious consideration on the submissionsmade.12.It is not in controversy that the second respondent was underthe employment of the third respondent in January 1998. According tothe third respondent management, his services were terminated on20.1.1998. That apart, they would say that since the management hasalready terminated him and it was also legally done, no question ofsetting aside the same would arise since his salary and other benefitshave been given in full and final settlement as could be seen from thereceipt passed on by the employee on 27.1.1998. Further, they wouldadd that if at all any claim could be made, it must be against theproper management, that would, according to the third respondent, meanthe present writ petitioner. But, the writ petitioner came forward tosay that the management was transferred by the third respondent to thewrit petitioner only in April 1998; that the services of the secondrespondent were terminated in the month of January 1998, and thus, thename of the second respondent was not in its roll at the time of thetransfer, and hence, the appeal was not at all maintainable. 13.As could be seen from the materials available, it was achallenge of termination of services of the second respondent. Now,what was all available was only the receipt passed on. The receipt wasdated 27.1.1998. Even the name of the witness has not been filled up.The receipt would say "on account of full and final settlement". Now,at this juncture, it is pertinent to point out that even in theaverments, the third respondent has categorically stated that it was anoral termination. This Court is at a loss to understand when a man hasput in service for nearly about two decades, where is the question oforal termination that would arise. Added circumstance is the twocheques that were issued, whereby full and final settlement was alsomade on getting a receipt on 27.1.1998. What was the reason for givingtwo postdated cheques is also not made known. https://hcservices.ecourts.gov.in/hcservices/

14.Apart from the above, as rightly contended by the learnedCounsel for the second respondent, it was a specific pleading of thesecond respondent in the appeal petition that the receipt was obtainedfrom him by undue influence and coercion, and therefore, as appellantwhat he could do is to adduce his evidence in that regard, and he hasalso adduced oral evidence before the forum. But, at the same time, itis pertinent to point out that there was no contra evidence; but, thewrit petitioner would say that they are not competent to give anyevidence since such a document was given by the second respondent inthe month of January even before the transfer of management by thethird respondent to the present writ petitioner. Even assuming to beso, since the third respondent was also a party at the time of theenquiry, a duty was cast upon them to adduce evidence to the effectthat no such receipt was obtained by coercion and undue influence, andthe said receipt was not tainted by any invalidating factors. But, thethird respondent has not done so. Now, the writ petitioner cannot beallowed to say that the third respondent was the competent person togive such evidence, but not done so, and therefore, it would not bebinding. So long as the termination of the second respondent is foundto be bad and illegal, then automatically, it would follow that he wascontinued to be in service, and his services have got to be reinstated.Once there was evidence adduced by the second respondent for aparticular fact of coercion and undue influence, it is not rebutted bythe opposite party namely the third respondent. Under thecircumstances, the first respondent was perfectly correct in basing itsfinding on that evidence. 15.True it is that the second respondent has filed an applicationfor payment of gratuity. It remains to be stated that he has filedboth the application for payment of gratuity and the appeal on the verysame day which would not mean that he cannot have his remedy in theappeal. Further, merely because he has encashed both the cheques, thesame cannot also be a reason to deny the remedy. This Court is of theconsidered opinion that once the receipt has been passed on towardsfull and final settlement and found to be not one in accordance withlaw, and also he is a person of 20 years service, the oral terminationby the third respondent management would go to show that all was notwell. Under the circumstances, the lower authority was perfectlycorrect in setting aside the order of termination and hence, the orderhas got to be sustained. Accordingly, this writ petition fails, andthe same is dismissed. No costs. Consequently, connected WPMP is alsodismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/To:1.The Deputy Commissioner of Labour (Minimum Wages) (Appellate Authority under TamilNadu Shops & EstablishmentsAct 1947) Chennai.+1cc to Mr.Meenakshi Sundaram, Advocate Sr 75286+1cc to Mr.C.R.Chandrasekaran, Advocate Sr 74810+1cc to Govt. Pleader Sr 74893PUR (CO)km/4.1.WP No.16648 of 2003