ORDER
A.R. Lakshman, J.
1. The petitioner above named has filed the present writ petition for the following relief. To issue a writ of certioriari or any other writ, order of direction, calling for the records of the 1st respondent culminating in the order date November 20, 1987 in T.S.E.A. No. 27 of 1987 and quash the same.
2. In brief, the relevant facts of the case are as follows: Air France has an office at Madras and the 2nd respondent was the District Manager, along with five other employees. The petitioner management decided to close its Madras office for economic reasons. In compliance with the requirements of Section 25FFA, under which a statutory notice of sixty days to various authorities of the State and the affected parties has to be given. By letter dated January 8, 1987, the notice intimating the management’s intention to close its Madras office with effect from March 31, 1987 was sent to all the authorities prescribed under the Act as well as to the affected parties. The services of the workmen were terminated in accordance with law and they were offered their full terminal compensation.
3. The conditions of service of the supervisory and managerial staff are governed by regulations and conditions of service agreed by the parties. In terms of Clause 8.1 of the said regulations, by letter dated February 27, 1987, the services of the 2nd respondent were terminated with effect from March 31, 1987. But, as the 2nd respondent has averred that the said letter reached him only on March 6, 1987, the petitioner management paid him his salary for April, 1987 also, in effect, his services stand terminated from May 1, 1987. The 2nd respondent was admittedly the District Manager of the Madras office of the petitioner and therefore, Section 4(1)(a) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Act) excludes its applicability to the 2nd respondent. The above Section has been included in the Act by the competent Legislative Assembly of the State of Tamil Nadu. The power to legislate for State vests in the State Legislative Assembly, and the State Legislative Assembly alone is competent to amend, modify or repeal any substantive provision of the Act. There is no change made in Section 4(1)(a) of the Act by the State Legislature Assembly.
4. However, the 2nd respondent contended in his reply affidavit before the 1st Respondent/Deputy Commissioner of Labour (Appeals) that by G.O.Ms.No.4074, Industries, Labour and Housing (Labour), dated October 5, 1966, all the provisions of the Act have been made applicable to class of persons mentioned in Clause (a) of Sub-section (i) of Section 4 of the Act. The aforesaid G.O., was issued by the Governor of Tamil Nadu in exercise of the powers conferred by Section 5 of the Act. According to the petitioner, Section 5 of the Act has delegated powers to the State to apply the provisions to any class of persons by notification, but the power does not go and cannot go to the extent of allowing the delegate (in this case, the State) to amend or change a substantive provision of the Act itself. This is a function which can be done only by the State Legislative Assembly. That apart, Section 4(1)(a) of the Act deliberately excludes the applicability of the Act to persons employed in any establishment in a position of management. It is settled law that conditions of service of management employees are governed by the conditions of service entered into by the parties under the common law of master and servant. In the circumstances it is submitted by the petitioner/ management that even if it is assumed that Section 4(1)(a) of the Act has lost its force by virtue of the above mentioned notification of the State Government, the said notification will be hit by Article 251 of the Constitution of India and be void to the extent of its repugnancy in its application to managerial or supervisory officers whose conditions of service are governed by agreements entered into by the employees and employers 1 under the Contract Act, which is a Central Act.
5. According to the petitioner/management, the termination of service of the 2nd respondent is in full conformity with Rule 8.1 of the Regulations and Conditions of Service entered into by the parties, which is extracted hereunder:
“8. Termination of employment.
8.1 Designation – Discharge
After the expiry of the probationary period, an employee who resigns must give one month’s notice, otherwise the Company; shall be entitled to deduct one month’s salary in lieu from his last salary. Conversely, the Company may not discharge any employee, except in case of misconduct, without giving one month’s notice, or paying one month’s; salary.”
6. Thus, according to the petitioner/management, it is obvious that the clause recognises the rights of either party to terminate the service by giving one month’s notice or in lieu of notice, on paying a month’s salary in the case of the employer, and in the case of the employee, to surrender one month’s salary. The word ‘except’ in case of misconduct, refers to Clause 13 of the terms and conditions of service under which the employer can dismiss an employee without notice in a case of misconduct. It is further submitted that Clause 8.2 of the conditions of service only lays down the age on which the employer normally terminates. It does not confer any right on any employee to work till the age of 60. In any event, it is submitted that Section 41(2) of the Act only requires that the termination will be bad in case where there is no notice and no reasonable cause for termination and it is admitted that notice was given in this case before termination of the services of the 2nd respondent.
7. The 1st respondent, who heard the appeal (T.S.E.No. 27 of 1987), by his judgment dated November 20, 1987, allowed the appeal and set aside the order of termination dated February 27, 1987 of the service of the 2nd respondent. The said judgment and the reasons for rejection of the contentions raised on behalf of the management are void and without jurisdiction. Therefore, the said judgment is liable to be quashed. The petitioner management has, therefore, filed the above writ petition for the relief asked for therein.
8. The petitioner has also filed two W.M.Ps., during the pendency of the writ petition viz., W.M.P. Nos. 25907 and 25908 of 1991 to im-plead the State of Tamil Nadu represented by the Secretary, Labour Department, as 3rd respondent in the above writ petition and also to permit the petitioner/management to raise additional grounds in the writ petition that Section 5 of the Act is invalid and void and has to be struck down as ultra vires. The following are the additional grounds raised in W.M.P. No. 25908 of 1991:
“5. That the petitioner desires to raise an additional ground that Section 5 of the Tamil Nadu Shops and Establishment Act. 1947, hereinafter called the Act, itself is invalid and void as it suffers from the vise of excessive delegation.
6. That as the validity of the provision of Section 5 of the Act is being challenged, it is necessary to implead the State of Tamil Nadu also as a party in the said writ petition.”
9. The 2nd respondent has filed his counter affidavit dated April 11 1988. According to the 2nd respondent, the petitioner, without any justification and in blatant violation of the mandatory requirement of Section 41 of the Act, terminated the services with effect from March 31, 1987, purporting to be under Clause 8 of the Staff Regulation, under a communication dated February 27, 1987. Aggrieved by the same, he filed an appeal under Section 41(2) of the Act before the 1st respondent. The petitioner/ management filed a counter and contested the said appeal. The 1st respondent found that by virtue of G.O, Ms. No 4074, Industries, Labour and Housing (Labour) dated October 5, 1966, the provisions of the Act have been made applicable to class of persons mentioned in Section 4(1)(a) of the Act and, therefore, the appeal field by the 2nd respondent was maintainable in law. It was further held by the 1st respondent that the con-tract between the employer and the person employed cannot over ride the express statutory provisions. It was the further finding of the 1st respondent that the petitioner/management is obliged to mention the reasonable cause in the order of termination for enabling him to apply his mind to determine the reasonableness of the reason for termination. It is untenable to contend that the District Manager like the 2nd respondent has no jurisdiction to entertain an appeal. Persons in the position of management are specifically brought within the purview of the Act in exercise of the statutory powers. Section 5 of the Act is an over-riding provision as could be seen from the opening lines of the said section. G.O.Ms. No. 4074, Industries, Labour arid Housing (Labour), dated October 5, 1966 is not in conflict with the unwritten law of master and servant. The provisions of the Act themselves make an inroad into the ordinary law of master and servant. The effect of an order made by the Appellate Authority setting aside an order of termination is that the order of termination is non-est and never existed and that the employee who was removed from service continues in employment without any interruption or break. For the reasons aforementioned, the 2nd respondent has prayed that the writ petition may be dismissed.
10. The petitioner/management filed a reply affidavit. As the 2nd respondent was occupying a managerial post, the Act did not apply in his case and his appeal under Section 41 of the Act was misconceived and not maintainable in law. Section 5 of the Act only delegates certain powers to the State and the State, as delegate, cannot efface a substantive provision of the Act by a notification under Section 5 of the Act. Even assuming for arguments sake that the language of Section 5 of the Act is so wide as to include the powers to change Section 4 of the Act itself, Section 5 of the Act itself will be invalid in law as it will be hit by the vice of excessive delegation. The Constitution has granted the power to the State legislature to legislate on the topic. Excessive delegation of power is not possible in law and the Legislative body has to exercise some control over delegated legislation. In any event, the law of master and servant is a Central Law and conditions of service between employers and employees occupying managerial post are governed by the Central Law and, therefore, any State provision of law in conflict with the Central Law, will be void to the extent of the conflict.
11. I have heard the elaborate arguments of Mr. S. Govind Swaminathan, learned Senior Advocate on behalf of M/s. N.S. Sivam and K. Madhavan, for the petitioner and Mr. A.L. Somayaji of M/s. Aiyar and Dolia, learned counsel for the 2nd respondent.
12. W.M.P. No. 25908 of 1991 has been filed by the petitioner during the pendency of the writ petition seeking permission to raise the additional ground that Section 5 of the Act is invalid and void and has to be struck down as ultra vires, and the said petition was ordered by S. Ramalingam, J., on December 10, 1991. In the affidavit filed in support of the above W.M.P., it is stated that Section 5 of the Act is invalid and void because it suffers from the vice of excessive delegation.
13. Mr. S. Govind Swaminathan, learned Senior Advocate for the petitioner, has raised the contention that power to withdraw the exemption granted under Section 4 of the Act could be exercised only by the Legislature itself and the said power to withdraw the exemption cannot be delegated. In other words, it is the contention of Mr. S. Govind Swaminathan, that the delegation of the power under Section 5 of the Act is an unconstitutional delegation of Legislative power.
14. Per contra, Mr. A.L. Somayaji, learned counsel for the 2nd respondent, would submit that the delegation of the power under Section 5 of the Act to remove the exemption granted is in accordance with the accepted legislative practice and is not unconstitutional.
15. In support of his contention, Mr. S. Govind Swaminathan would invite my attention to the following decisions; reported in In re Article 143, Constitution of India, etc. (AIR 1951 S.C., 332) paragraph 74 at page 355, Hari-shankar Bagla v. The State of Madhya Pradesh , Hamdard Dawak-hanav. The Union of India , Makhan Singh Tarsik-kar v. The State of Punjab . and Harakchand Ratanchand Bantta v. Union of India .
16. Mr. A.L. Somayaji, learned counsel for the 2nd respondent, would invite my attention to the following decisions in support of his contention that Section 5 of the Act is valid and constitutional. They are reported in Pandit Banarsi Das Bhant v. The State of Madhya Pradesh The Tatalron and Steel Co. Ltd. (1950 LLJ 1043), The Management of Blue Star & Co. Ltd. v. The Asst. Commissioner, Madras-6 (1989-I-LU-233), which in turn followed 1950-11-LLJ-1043), Mohmed-alli v. Union of India 1963-1-LLJ-5 36 State Bank of Travancore v. Deputy Commissioner of Labour Coimbatore (1981-I-LU-393); Basant Kumar Sarkar v. The Eagle Rolling Mills Ltd. 1964-I-LLJ-105 M/s. Jalan Trading Co. Private Ltd. v. Mill Mazdoor Sabha 1966-11-LLJ-546 The Edward Mills Co. Ltd., Beawar v. The State of Ajmer 1954-II-LLJ-686 Bhikusa Yamasa Kshatriya (P) Ltd. v. Union of India 1963-I-LLJ-270 and Syed Mohamed & Co. v. State of Madras .
17. In order to appreciate the respective contentions of the parties, it is necessary to extract the provisions of Sections 4 and 5 of the Act.
“4. Exemptions. (1) Nothing contained in this Act shall apply to-
(a) persons employed in any establishment in a position of management;
(b) persons whose work involves traveling and persons employed as canvassers and caretakers;
(c) establishments under the Central and State Government, local authorities, the Reserve Bank of India, a railway administration operating any railway as defined in clause (20) of Article 366 of the Constitution and cantonment authorities;
(d) establishments in mines and oil fields;
(e) establishments in bazarrs, in places where fairs or festivals are held temporarily for a period not exceeding fifteen days at a time;
(f) establishments which, not being factories within the meaning of the Factories Act, 1948, are in respect of matters dealt with in this Act, governed by a separate law for the time being in force in the State.
2. Nothing contained in Section 7 or Section 13, as the case may be, shall apply to
(a) hospitals and other institutions for the treatment or care of the sick, the infirm, the destitute or the mentally unfit;
(b) such chemists’ or druggists’ shops as the State Government may, by general or special order, specify;
(c) clubs and residential hotels, hostels attached to schools or colleges, and establishments maintained in boarding schools in connection with the boarding and lodging of pupils and resident masters.
(d) stalls and refreshment rooms at railway stations, docks, wharves or ports.
5. Power of Government to apply Act to exempted persons or establishments. Notwithstanding anything contained in Section 4, the State Government may, by notification , apply all or any of the provisions of this Act to any class of persons or establishments mentioned in that Section, other than those mentioned in Clauses (c) and (f) of Sub-section (1), and modify or cancel any such notification.”
18. Under Section 4 of the Act, exemption has been granted in respect of certain persons employed in establishments. But for the exemption, the category of ‘persons employed’ and ‘establishment’ would be governed by the provisions of the Act. Section 5 of the Act has been given over riding effect as it opens with non-obstante clause. Therefore, the provision of Section 4 of the Act is subject to the provisions of Section 5 excepting in regard to establishments mentioned in Clauses (c) and (f) of Sub-section (1) of Section 4 of the Act. The State Government has been further empowered to modify or cancel any notification made under Section 5 of the Act. A reading of the various provisions of the Act makes it clear that the enactment not only provides for regulation of conditions of work in shops and commercial establishments but also provides the grounds of termination of services of persons employed. The expression “persons employed” and “establishment” has been defined in Sub-clauses 12 and 6 of Section 2 respectively.
19. The Legislative policy is very clear that the exemption granted in respect of persons and establishments, except in regard to establishments enumerated in Clauses (c) and (f) of Sub-section (1) of Section 4 of the Act, is subject to the provisions of Section 5 of the Act. Section 5 of the Act does not run counter to the essential features of the Act or policy of the enactment. By withdrawing the exemption granted under Section 4 of the Act, the essential features and policy of the enactment are not in any way changed. On the other hand, the coverage of this Act, in my opinion, is widened.
20. The contention raised by Mr.S. Govind Swaminathan, learned Senior Counsel for the petitioner was that under Section 5 of the Act, there is an unconstitutional delegation of legislative power. The Apex Court had occasion to consider a similar question in the case reported in Pandit Banarsi Das Bhant v. The State of Madhya Pradesh (supra). That case arose under the Central Provinces and Berar Sales Tax Act, 1947. Sub-section 1 of Section 6 of the said Act provided that no tax shall be payable under this Act on the sale of goods specified in the second column of Schedule II, and Sub-section (2) of the said Section provided that the State Government may, after giving notice by notification, amend the Schedule and thereupon such Schedule shall be deemed to be amended accordingly. The contention raised in that case was, that the power conferred on the Sate Government by Section 6(2) of the said Act to amend the sche- dule relating to exemption was unconstitutional because it amounts to delegation of legislative power and that it is impermissible in law. This contention was repelled by the Apex Court in the following terms:
“We are, therefore, of the opinion that the power conferred on the State Government by Section 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.”
21. While taking the above view, the Apex Court had referred to with approval the judgment of our High Court reported in Syed Mohmed & Co, v. State of Madras . In that case, the Madras High Court has held that the delegation of authority under Section 5(vi) of the Madras General Sales Tax Act to the rule making authority to deter-mine at which single point in the series of sales by successive dealers, the tax should be levied, was within the permissible constitutional limits in the decision reported in The Edward Mills Co. Ltd. Beawar v.The State of Ajmer (supra) the Supreme Court upheld the power given to the State Government under the Minimum Wages Act, 1948, to add to the list of employment mentioned in the Schedule and extend the Act to that employment.
22. In the decision reported in Mohmedalli v. Union of India (supra), the Supreme Court upheld the provisions of Section 1(3) of the Employees’ Provident Funds Act, 1952, authorising the Central Government to bring within the purview of that Act such establishment as it, might specify under Sub-clauses (a) and (b) of Sub-section (3) of Section 1 of the said act, applying to factories and establishments specified therein in which 20 or more persons are employed. Hence, Section 1(3) of the Employees’ Provident Funds Act, 1952, authorising the Central Government to bring within the purview of that Act such establishment as it might specify under Sub-clauses (a) and (b) of Sub-section (3) of Section 1 of the said Act, applying to factories and establishments specified therein in which 20 or more persons are employed. Hence, Section 1(3)(A) and (B) of the said Act excludes from its purview factories and establishments in which less than 20 persons are employed. But, under the Proviso to Section 1(3), the Central Government is given the power to apply the provisions of the Act, by notification, to any establishment employing less than 20 persons. The above provision has been upheld by the Supreme Court and it has been observed as follows (1963-I-LLJ-536 at 539-540):
“It has been contended (1) that Section 1(3)(b) under which the notification including restaurants and hotels were brought under the operation of the Act, is invalid because it confers uncontrolled and uncanalised power on the Government. (2) that the Act was intended to apply to mere wage-earners and not to salaried people and that, therefore, the two notifications as a result of which the petitioners’ employees have been brought within the purview of the Act are bad inasmuch as they are salaried employees and not mere wage-earners, and (3) that the scheme is bad under Article 14 of the Constitution because it is discriminatory…..By Section 4, the Central Government has been authorised to add to the schedule any other industry in respect of the employees whereof it is of opinion that a provident fund scheme should be framed under the Act, and when such a notification is issued, the industry so added shall be deemed to be an industry specified in the Schedule. The general rule as to the application of the Act has been laid down in that sub-section. By way of exception to that general rule, the Appropriate Government has been authorised by Section 17 to exempt from the operation of all or any of the provisions of any scheme framed under the Act. The scheme is to be framed by the Central Government, under Section 5, for the establishment of provident fund under the Act for employees or any class of employees, in pursuance of the provisions of the Act.”
23. In the case of the Supreme Court upheld Section 60 of the Madras Co-op. Societies Act, 1932, which gave power to the State Government to grant exemption to any society from any of the provisions of the Act, as well as the power to apply the provisions of the Act to any specific society, and it has been observed as follows:-
“The policy of the Act is there and so are the guidelines. Why the legislation? ‘To facilitate the formation and working of Co- operation societies’. Co-operative Societies for what purpose? ‘For the promotion of thrift, self-help and mutual aid’. Amongst Whom? ‘Among agriculturists and other persons with common economic needs’. To what end? ‘To bring about better living, better methods of production’. The objectives are clear, the guidelines are there. There are numerous provisions of the Act dealing with registration of societies, rights and liabilities of members, duties of registered societies, privileges of registered societies, property and funds of registered societies, inquiry and inspection, supersession of committees of societies, dissolution of societies, surcharge and attachment, arbitration etc. We refrain from referring to the details of the provisions except to say that they are generally designed to further the objectives set out in the preamble. But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact the too rigorous application of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by Section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modification. The power given to the Government under Section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear. We are therefore of the view that Section 60 is not void on the ground of excessive delegation of legislative power. We so declare and otherwise dismiss the appeal.”
24. Section 1(3) of the Employees’ State: Insurance Act, 1948, was held to be valid as an example of conditional legislation in the decision reported in Basant Kumar Sarkar v. The Eagle Rolling Mills Ltd. (supra) and the law has been stated in the following terms (1964-II-LLJ-105 at 107-108):
“Section 1(3) is not an illustration of delegated legislation; it is what can be properly described as conditional legislation. Section 3(1) of the Act purports to authorise the Central Government to establish a Corporation for the administration of the scheme of Employees’ State Insurance by a notification. In other words, when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation. Assuming that there is an element of delegation, the plea that the discretion conferred by Section 1(3) is not guided by any legislative provision is unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself. In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees’ State Insurance Corporation should be established. It is obvious that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Such beneficial measures which need careful experimentation have same times to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That cannot amount to excessive delegation. Edward Mills and Bhikuse Yamasa (1963-I-LLJ-370) rel. on. I.L.R. 40 Patna, 193, affirmed.
Hence, I am of the view, that the provision of Section 5 of the Act is valid and does not suffer from the vice of excessive delegation as contended by the learned Senior Counsel for the petitioner.
25. The Act in question being a Welfare legislation, the Court should lean in favour of wider delegation of legislative power as observed by the Supreme Court in the case reported in Registrar of Co-operative Societies, Trivandrwn v. K. Kunhambu (supra) which is as follows:-
“A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designated to further the Directive Principles of State Policy.”
26. The State Government has not usurped the functions of the State Legislature. Further, Section 5 of the Act does not contravene any constitutional provision. It is not the case of the petitioner that Section 5 of the Act contravenes any of their fundamental rights or ultra vires the powers of the State. I have found already that Section 5 of the Act does not suffer from the vice of excessive delegation. As already mentioned, the Legislature has enacted Sections 4 and 5 with clarity. Section 5 over-rides the provisions of Section 4. Since the exemption contained in Section 4 is subject to the provisions of Section 5, the delegated authority, by issuing the notification withdrawing the exemptions, is not altering the statute or acts contrary to the statute. Section 5 limits the powers of the delegated authority and the power of the State Government is defined clearly. Delegated power under Section 5 of the Act cannot extend to the withdrawal of exemption granted under Clauses (c) and (f) of sub-section (1) of Section 4 and Sub-section (2) of Section 4 of the Act.
27. Further, Section 5 of the Act has to be construed liberally, being a social welfare legislation, and it is also a pre-Constitutional enactment. In this connection, reference can be usefully made to the decision of the Apex court reported in M/s. Harihar Polyfibres v. Regional Director, E.S.L Corporation 1984-II-LLJ-475 wherein it has been observed as follows: (p. 2 476):
“The Employees’State Insurance Act is a welfare legislation and the definition of ‘wages’ is designedly wide. Any ambiguous expression must receive beneficent construction. The E.S.I. Act being a social welfare legislation must be given a liberal interpretation beneficial to the interests of the employees so as to serve the purpose and. objects of the Act.”
28. In the above view of mine, there is no need to refer in detail the judgments relied on by the learned Senior counsel for the petitioner, for, there cannot be any demur to the proposition made by the learned Senior Counsel for the petitioner that there cannot be a delegation of legislative function.
29. Section 5 of the Act does not delegate essential legislative function to the State Government. Exemption granted under Section 4 is subject to withdrawal under Section 5 and the power to withdraw the exemption does not suffer from the vice of excessive delegation. Legislative policy is contained in Sections 4 and 5 of the Act. Standards and guidelines are discernable from the various provisions, and scheme and object of the Act. Therefore, I hold that Section 5 of the Act is valid and legal.
30. This Court has been taking the consistent view that the employer is bound to disclose the reasons for termination in the order of termination itself and failure to do so would render the order of termination void and non-est as could be seen from the following decisions. In the decision reported in The Tata Iron and Steel Co. Ltd. (supra) C.P.V. Rajamannar, C.J., and A.V. Viswanatha Sastri, J.), it has been observed as follows (1950-LLJ-1043 at 1044):
“Under Section 41(1) of the Act, the services of a person like the first respondent who has been employed continuously for over a period of six months can be dispensed with for a reasonable cause after giving the person at least a month’s notice or wages in lieu of such notice or on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose, in which case notice would not be necessary. From the order of the company dispensing with the services of the 1st respondent, the only reason appearing is the non-requirement of his services. The order does not state anything else. The only question, therefore, for the appellate authority was to determine whether that ground can be said to be reasonable cause. The authority held that it could not be
and we agree with him..”
31. In the decision reported in State Bank of Travancore v. Deputy Commissioner of Labour, Coimbatore, (1981-I-LLJ-393), Nainar Sundaram, J., (as he then was), it has been observed as follows (p. 394):
“The first ground is that the proceedings under Section 41 of the Act before the first respondent are incompetent because the petitioner has passed the order of termination against the second respondent under paragraph 522 (1) of the Sastri Award. His submission is not tenable because it cannot be
disputed that so far as the employment in question is concerned, the provisions of the Act are definitely attracted. The petitioner-employer and the second respondent satisfied the definition of a person employed within the meaning of the Act and any contract between the employer and the person employed cannot override the express provision of the Act, or, in particular, Section 41 thereof. The learned counsel for the petitioner is not in a position to cite any direct authority that wherever there is contract governing the relationship between the employer and the person employed the provisions of the Act will have to be ignored and there is no necessity to adhere to and satisfy the formalities laid down under Section 41 of the Act. Hence, I am not able to appreciate and accept the first contention of the learned counsel for the petitioner. The second ground urged by the learned counsel for the petitioner is that even otherwise the petitioner has dispensed with the services of the second respondent for a reasonable cause and there has been strict compliance with the first limb of Sub-section (1) of Section 41 of the Act, in the sense the second respondent has been paid more than a month’s wages in lieu of the notice contemplated. In the instant case a memo was issued to the second respondent on May 11, 1976 and an explanation was obtained on June 10, 1976. The order of termination dated March 17, 1977 does not disclose as to whether the explanation was accepted or not and the factors which weighed with the petitioner to pass the order of termination on the basis of reasonable cause. If the termination is to be on the ground of reasonable cause, it is incumbent on the part of the employer to disclose the reasonable cause in the order of termination and in the absence of a disclosure it is not possible for any authority, and in particular the Appellate Authority under Section 41(2) of the Act, to determine as to whether the grounds put forth by the employer can be stated to constitute a reasonable cause and as to whether the order of termination has been passed bona fide. The necessity to disclose the reasonable cause in the order of termination has been stressed by a Bench of this Court in Tata Iron and Steel Co. Ltd. (1950-LLJ-1043).”
32. In the decision reported in the Management of Blue Star & Co. Ltd., v. The Asst. Commissioner of Labour Madras-6 (supra) Shanmukham, J., has held as follows:- (1989-I-LLJ-233 at 235):
“From the above evidence, it is clear it is the practice of the management not to put down the reasons in writing in respect of Managers, but to inform verbally and according to that practice, reasons were verbally stated and not stated in the letter. Thus, not only the documentary evidence emanated from the management but also the evidence of the Management itself will give a direct lie to the stand taken by the management that it is because of the specific request made by the 2nd respondent, the reasons for termination were not disclosed in the order of termination dated January 3, 1980. If so much is established, it follows that the order has to be struck down as illegal in view of the decision of this Court in State Bank of Travancore v. Deputy Commissioner of Labour, Coimbatore and Anr. (supra) which in turn followed the decision of this court in Tata Iron and Steel Co. Ltd. (1950-LU-1043) and of Mr. Justice Nainar Sundaram in State Bank of Travancore v. Deputy Commissioner of Labour (1981-I-LLJ-393 at 395) (supra).”
It is also seen from the above decision, the learned Judge has followed the decision of this Court in State Bank of Travancore v. Deputy Commissioner of Labour (1981-I-LLJ-393), (supra) which in turn followed the decision of this Court in Tata Iron andSteelCo. Ltd. (1950 LLJ-1043) (supra).
33. It is admitted by the learned Senior Coun-sel for the petitioner that if Section 5 of the Act is held to be valid, the notification viz., G.O. Ms. 4074, Industries, Labour and Housing (Labour) dated October 5, 1966 would be valid and consequently, the 2nd respondent can invoke the remedy under Section 41(2) of the Act, and since no reason has been given in the order of termination, the order of termination, in my View, is void and non-est. The order of termi-tion, which is marked as Ex. A-1 before the Appellate Authority. 1st respondent, is also reproduced hereunder:
“Air France
General Management- India and Nepal
50-B, Chanakyapuri, New Delhi-110 021-Phone 604775 Grams Air France- Telex
2480.
DEL.DA. 0411/CC.AC. Mr. K.R. Gopalan
68, Abhiramapuram IV St.,
Madras 600 018.
Re: Notice of termination of Services.
Registered A/d.
New Delhi 27th February, 1987.
Sir,
In terms of our agreement clause 8 we hereby terminate your services in Air France with
effect from March 31, 1987.
Yours faithfully,
Air France
(Sd.) P.J. Se Borgne
General Manager.”
34. Therefore, the view of the Appellate Authority, 1st respondent exercising powers under Section 41(2) of the Act, that the order of termination issued by the writ petitioner to the 2nd respondent does not contain reasonable cause and that therefore, the same is liable to be set aside, does not call for any interference by this Court. The writ petition is, therefore, liable to be dismissed and accordingly, the same is dismissed. However, there will be no order as to costs.