ORDER
Nainar Sundaram, J.
1. The petitioner was an employer of the second respondent within the meaning of the Tamil Nadu Shops and Establishments Act, 1947, hereinafter referred to as ‘the Act’. On the basis that the second respondent tendered a letter of resignation on 25th February 1980, the petitioner by order dated 26th February 1980 relieved the second respondent from services on 27th February 1980, accepting the resignation. The second respondent moved the process under Section 41(2) of the Act before the first respondent. Before the first respondent, on the contentions put forth by the parties, the following points arose for consideration :-
1. Whether the appeal petitioner actually tendered any resignation letter and whether the resignation letter dated 25th February 1980 is a genuine one or a forged one ?
2. Whether the appeal is entertainable under the Tamilnadu Shops and Establishments Act ?
3. Whether appeal is barred by limitation ?
4. Whether the appellant is entitled to the relief prayed for ?
2. On point No. 1, the first respondent held that the letter of resignation dated 25th February 1980 was only a forged document and was not signed by the second respondent. On point No. 2, the first respondent held that the appeal by the second respondent is entertainable. On point No. 3, the finding of the first respondent has gone in favour of the second respondent. As a result, on point No. 4, the first respondent held that the order of the petitioner dated 26th February 1980 relieving the second respondent from services from 27th February 1980 was tantamount to dispensing with the services of the second respondent without reasonable cause, and as a consequence, the first respondent set aside that order of termination. The petitioner is challenging the order of the first respondent in this writ petition.
3. Mr. Vijay Narayan, learned counsel for the petitioner, would raise three points before us, desiring interference at our hands in writ jurisdiction. The first point is that the appeal by the second respondent before the first respondent itself was not maintainable since it was not at all a case of dispensing with the services of the second respondent by the petitioner either for a reasonable cause, or on a charge of misconduct, held proved at an enquiry held for the purpose, as contemplated under Section 41(1) of the Act, but it is a case of the second respondent voluntarily going out of service, and in that contingency it would not lie within the jurisdiction of the first respondent to probe into the grievance of the second respondent over his non-employment under Section 41(2) of the Act. The second point put forth by the learned counsel for the petitioner is that the jurisdiction of the first respondent under Section 41(2) of the Act and the rules framed thereunder, is summary with reference to an enquiry in an appeal under Section 41(2) of the Act, and this power cannot be equated to that of a Civil Court or an industrial forum so as to enable him to investigate into the disputed factual aspects as to whether the resignation tendered by the second respondent was a genuine one or not. The third point taken by the learned counsel for the petitioner relates to the propriety of the factual assessment by the first respondent of the question as to whether the letter of resignation relied on by the petitioner as against the second respondent is a genuine one or not.
4. Expatiating the first point, learned counsel for the petitioner would submit that admittedly it is not a case of dispensing with the services of the second respondent by the petitioner on a charge of misconduct, supported by satisfactory evidence recorded at an enquiry held for the purpose as contemplated in the second part of Section 41(1) of the Act. So far as this aspect of the submission of the learned counsel for the petitioner is concerned, there need not be any disputation over the same because that is also not the case of the second respondent. However, learned counsel for the petitioner would submit that it is also not a case of dispensing with the services of a person employed for a reasonable cause as contemplated in the first part of Section 41(2) of the Act because it postulates an unilateral act on the part of the employer in sending the person employed out of service and when of his own volition, the person employed goes out of service by tendering a letter of resignation, that provision also would not be attracted and thus the first respondent lacked jurisdiction to investigate into the grievance of the second respondent. In support of his submission, learned counsel for the petitioner places reliance on a pronouncement of Ismail, J., as he then was, in The Lakshmi Vilas Bank v. L. S. Pattabhi Chettiar (1970-II-LLJ-211). That was a case of a dispute with reference to the process of superannuation resorted to by the employer as against the person employed and the person employed raising a dispute with reference to his actual age, so as to warrant superannuation. The learned single Judge, opined that the dispensing with the services for a reasonable cause or the dispensing with the services on a charge of misconduct, both of them, contemplate a termination of the services anterior and prior to the date on which the services would come to an end automatically either as a result of the terms in the contract of service or as a result of a rule applicable to the service in question, and in the case of retirement, on reaching the age of superannuation, the above element is not present, and therefore there is no scope for the contention that the relieving of an employee from his duties on the basis that he retired from service on reaching the age of superannuation would amount to dispensing with the services of an employee for a reasonable cause. In that contingency, the learned single Judge held that the appeal by the employee was really incompetent. It must be noted here that the opinion of the learned single Judge was expressed on the findings of fact that it was a case of superannuation on the employee attaining the prescribed age therefor. The learned single Judge did go into the factual aspect with regard to the actual age of the employee and held that it was a case of superannuation. The learned single Judge was perfectly conscious of the position that if in fact it was not really a case of superannuation, but a device with an ulterior motive on the part of the employer to dispense with the services of the employee under the cloak of superannuation, a different position would result. The following passage in the pronouncement of the learned single Judge brings out the above position very clearly : (p. 215)
“….. I may also mention one other feature. It may happen in a particular case, the retirement was used by the employer as a cloak for dispensing with the services of an employee where the motive for dispensing with the services is something different. In that event a different position may possibly result because no person will be allowed to evade the obligation imposed on him by law by having recourse to cloak or guise under which he can take refuge in order to escape from such an obligation. The present case is not one such and while dealing with the second of the contentions, I shall refer to the facts of this case which support this conclusion of mine ….”.
We do not think that the learned counsel for the petitioner could draw any support from this pronouncement of the learned single Judge for a general proposition that where a question arises as to whether the services of a person employed has been dispensed with or not as per Section 41(2) of the Act, there should not be an investigation into this aspect by the Appellate Authority under Section 41(2) of the Act.
5. When the person employed puts forth a complaint that his services have been dispensed with by the employer without a reasonable cause and in answer the employer says that it is not a case of dispensing with the services of the person employed by him by any unilateral act of his, certainly the jurisdictional issue arises as to whether it is a case of dispensing with services of the person employed or not, and to say that the jurisdictional issue is beyond the pale of an enquiry by the Appellate Authority under Section 41(2) of the Act, would practically make the provisions nugatory. Such should not be result achieved by any judicial thinking or construction put on the provisions. If the view of the learned single Judge in The Lakshmi Vilas Bank v. L. S. Pattabhi Chettiar is to be construed as an opinion contrary to the above principle, certainly we would hold that pronouncement is not good law. But, as already pointed out, the pronouncement of the learned single Judge came to be rendered on the facts of that case, namely; that there was in fact a superannuation of the employee on his attaining the age of superannuation, and there is a factual finding to that effect rendered by the learned single Judge in that pronouncement. The learned single Judge has consciously delineated, as per the passage in his pronouncement extracted above, that if the factual position should be otherwise, different consequences would follow.
6. Next, Mr. Vijay Narayan, learned counsel for the petitioner, would rely on the pronouncement of a Bench of this Court in Ramaswami v. M/s. Needle Industries (P) Ltd. 1981 (1) MLJ 448 for advancing the proposition that when the person employed sends a letter of resignation, and acting upon that, the employer relieves him from services, that would not constitute the employer dispensing with the services of the person employed, and as such the jurisdiction to probe into the matter under Section 41(2) of the Act will stand excluded. For assessing the propriety of the reliance placed by the learned counsel for the petitioner on the pronouncement, we are obliged to advert to the facts of the case dealt with by the Bench therein. In that case on 12th January 1979 the person employed wrote a letter of resignation in unambiguous terms. That letter of resignation was accepted and acted upon, and in fact, accounts of the person employed were also settled. However, on 20th January, 1979 the person employed wrote a letter to the employer stating that the letter of resignation dated 12th January 1979 was obtained from him by coercion and threat, and he followed this by preferring an appeal to the Appellate Authority under Section 41(2) of the Act. The employer approached this Court with a prayer for the issue of a writ of prohibition, prohibiting the Appellate Authority under Section 41(2) of the Act from proceeding further with the hearing of the appeal preferred by the person employed. That case of the employer was dealt with initially by a learned single Judge of this Court in Needle Industries Ltd. v. The Additional Commissioner (1986-I-LLJ-408). In the pronouncement of the learned single Judge, the factual aspects have been more fully discussed. It has been found that the person employed did admit the writing of the letter of resignation, and according to him, it was brought about by coercion of the employer. The learned single Judge expressed the view that when the factum of writing of the letter of resignation is admitted, at once the case of the person employed falls to the ground. After expressing that opinion, the learned single Judge held that there was no act of dispensing with the services of the employee, and on the facts of that case, there was no such act attributable to the employer. Ultimately the learned single Judge countenanced the prayer of the employer and issued the writ of prohibition. The decision of the learned single Judge was taken in appeal and that appeal was dealt with by the Bench in Ramaswami v. M/s. Needle Industries (P) Ltd. Taking note of the facts of that case and adverting to the provisions of Section 41 of the Act, the Bench found that the person employed in that case was relieved from his post in the services of the employer not on the basis of any initiative taken by the employer to dispense with the services of the person employed, but at the request of the person employed himself, who tendered his resignation on 12th January 1979. It was only in that context and on the facts of that case, the Bench has expressed the view that the relieving of the person employed from his duties will not constitute the employer dispensing with the services of the person employed. After carefully going through the facts of the case dealt with by the Bench, we are not able to say that any general ratio has been expressed by the Bench saying that the question as to whether there has been a dispensing with the services of the person employed by the employer is alien to an enquiry under Section 41(2) of the Act. If it is a case of a voluntary retirement on tendering resignation or a retirement of a person employed on his attaining the age of superannuation, it may not come within the ambit of the expression “dispense with the services of a person employed” occurring in Section 41(2) of the Act. But the moot question that will certainly arise in specified cases is as to whether the facts do make out such a dispensing with the services of a person employed or not. As we have already expressed, to say that an enquiry with a view to find out that factual position cannot be indulged in under Section 41(2) of the Act will lead to rendering the provisions nugatory. That could be and should be the scope of the enquiry on stated facts and such an enquiry need not be frowned upon as lacking in jurisdiction. We are not able to construe the pronouncement of the Bench in Ramaswami v. M/s. Needle Industries (P) Ltd. as saying anything contrary to the above proposition. Mr. Vijay Narayan, learned counsel for the petitioner, would say that in the present case the second respondent admitted the giving of the letter of resignation. On a perusal of the entire records we could not find anything to say that the second respondent has admitted as his the signature found in the letter of resignation dated 25th February 1980 which alone had been accepted and acted upon by the petitioner.
7. Coming to the facts of the present case, the second respondent would impeach the letter of resignation dated 25th February 1980 relied on by the petitioner for the purpose of relieving the second respondent from its services. The question which arises for consideration then is as to whether there was in fact a withdrawal from service by the second respondent on his own volition by tendering the resignation or was there an act of dispensing with the services of the second respondent by the petitioner. If the factual position is the former one, may be, it could be argued that the maintaining of an appeal under Section 41(2) is incompetent. But if the latter position has emerged, certainly that would attract Section 41 of the Act. Hence, we are not able to appreciate and sustain the first ground of the attack put forth by the learned counsel for the petitioner.
8. The second point urged by the learned counsel for the petitioner is that the enquiry by an Authority under Section 41(2) of the Act is summary in nature and the first respondent who dealt with the matter under Section 41(2) of the Act has transgressed the limits with reference to the scope of the enquiry and has indulged in holding a detailed enquiry, accepting materials with reference to the attack on the genuineness of the letter of resignation dated 25th February 1980 and expressing an opinion against the petitioner. Learned counsel for the petitioner in this connection drew our attention to rule 9(2) of the Rules framed under the Act. It is true that the said rule contemplates that the procedure to the followed by an Authority under Section 41(2) of the Act shall be summary and he shall record briefly the evidence adduced and then pass the orders giving his reasons therefor. A reading of this rule does not convey any meaning that even the requisite and relevant evidence that should be looked into and that is being placed by the parties in substantiation of their case on the moot question will also stand excluded. By the procedure being summary, it cannot be stated that the adducing of the appropriate evidence will be out of place. If, on the other hand, if the moot question as to whether there was a voluntary resignation in contrast to the dispensing with the services of the person employed has come to be decided on inchoate and inadequate evidence, certainly that will give room for grievance one way or the other by the party aggrieved. Hence, we cannot frown upon the first respondent enquiring into the matter in an appropriate manner, permitting the parties to place their evidence in support of their case.
9. The third point taken by the learned counsel for the petitioner relates to the factual assessment of the question by the first respondent. There is considerable discussion of this question in the order of the first respondent impugned in the writ petition and he points out very many factual aspects which conclusively prove that the letter of resignation dated 25th February 1980 relied on by the petitioner could not be a genuine one. There is the opinion of the Handwriting Expert from the Tamil Nadu Forensic Science Laboratory, Madras, corroborated by his oral evidence placed before the first respondent. There was also the oral evidence placed on behalf of the petitioner through R.Ws. 1 to 3. Very many infirmities have been noticed in their evidence and which demonstrated that the evidence placed on behalf of the petitioner suffered inconsistencies and contradictions and hence no credence could be attached to such evidence. In our view, the factual adjudication by the first respondent, does not suffer any infirmity, warranting interference at our hands, on any acceptable grounds. It is not as if we should convert ourselves into an appellate forum to scrutinise the propriety of the factual assessment by the first respondent, in the absence of any well-accepted exceptions. The above discussion obliges us to repel the case of the petitioner and accordingly this writ petition is dismissed. We make no order as to costs.