Partly allowed

The Tadpatri Cooperative Town Bank Ltd. v. The second Appellate Authority Under a.P.Shops and Estb Act

Telangana HC3 Sept 2012WP/6766/2000

Case brief

AI extract

What is this about?

The Court set aside orders reinstating an employee with back wages as the authorities failed to follow the High Court's earlier direction requiring the employer Board to examine the validity of the original appointment. The petition was disposed of by directing the employer to continue paying wages while the Board decides, in compliance with the High Court order, whether the employee should retain

What did the court decide?

Directing the petitioner bank to continue paying the third respondent full last drawn wages and the Board of Directors to consider the question of continuing him in service within three months, comply

The Tadpatri Cooperative Town Bank Ltd. Vs The… — Service and Employment | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

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WRIT PETITION No.6766 of 2000

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ORDER:

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This writ petition is filed by Tadepatri Cooperative Town B Limited, represented by its President and Secretary, against the orde the Second Appellate Authority under the Andhra Pradesh Shops Establishments Act, 1988 (for short, the Act), and the Dep Commissioner of Labour, Kurnool, in S.A.No.1 of 1999 dated 24.03.20 confirming the order of the Authority under Section 48(2) of the Act and Assistant Commissioner of Labour, Anantapur, in S.E.No.1 of 1991 da 30.12.1998.

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Facts in brief are that the third respondent was initially appointed an Assistant Secretary. On the ground that the third responde appointment was not in accordance with the procedure stipulated, Regional Joint Director of Cooperative Societies, Kadapa, conducted enquiry and, on the basis of the report, the District Cooperative Offic Anantapur directed the petitioner bank to terminate the services of the t respondent on the ground that his appointment is irregular, and is violation of the byelaws. Thereafter the petitioner bank, by proceedi dated 02.11.1985, terminated the services of the third responde W.P.No.13442 of 1985 was filed by the third respondent questioning order of termination and this Court, by order dated 19.12.1985, dismis the writ petition holding that, in the absence of any post, the v appointment of the third respondent was without authority either under Andhra Pradesh Cooperative Societies Act, 1964 (for short, A.P.Cooperative Societies Act) or the byelaws. The third respondent la filed W.P.No.1470 of 1987 seeking a direction that he be appointed to post of Secretary in the petitioner bank. This Court by an interim ord dated 16.04.1987, directed the petitioner bank to forward the pap relating to the selection of the third respondent to the Registrar Cooperative Societies under Section 116(c)(2) of the A.P.Coopera

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Societies Act for approval and, thereafter, to appoint the third respond as Secretary pending further orders in the Writ Petition. The Registra Cooperative Societies, by proceedings dated 05.06.1987, accor permission to the petitioner bank to appoint the third respondent un Section 116(c) of the A.P.Cooperative Societies Act subject to the f orders passed in W.P.No.1470 of 1987. The third respondent w appointed as the Secretary on 09.06.1987, and joined the service 10.06.1987.

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On the ground that certain irregularities were committed by the t respondent, the petitioner bank issued a notice leveling nineteen char against him. The third respondent was called upon to submit explanation by 16.09.1988. As he did not submit any explanation, attributed motives to the petitioner bank, the matter was referred to sub-committee after which an order of termination was passed. The t respondent filed W.P.No.3662 of 1989 questioning the order terminating services. Both W.P.No.3662 of 1989 and the earlier W.P.No.1470 of 1 were disposed of by a common order dated 21.08.1989 directing the t respondent to file an appeal before the appellate authority. Aggrieved the order of the learned single Judge, the petitioner bank filed two appeals in W.A.Nos.1100 and 1101 of 1990. W.A.No.1100 of 1990 w against the judgment passed in W.P.No.1470 of 1987, and W.A.No.110 1990 was against the judgment passed in W.P.No.3662 of 1989. Division Bench passed a common order on 22.07.1991 observing follows:-

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“The Board of Directors shall consider the question of removal of the petitioner and pass appropriate orders thereon. Moreover, in case the Board of Directors comes to the conclusion that the order of removal is bad in law, the further question of continuing the petitioner in service shall be considered in the light of his previous appointment or otherwise in accordance with law.

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In view of the above direction, there is no need for us to go into the other aspects of the matter and both the writ appeals are disposed of accordingly. There will be no order as to costs. Government Pleader’s fee Rs.150/- each.”

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Thereafter the third respondent invoked the jurisdiction of Authority under Section 48 of the Act. The Authority, by order da 30.12.1998, held that the petitioner herein had failed to conduct the enq into the charges leveled against the third respondent; and this amounted violation of principles of natural justice. The Authority set aside the or terminating the services of the third respondent, and directed that he reinstated in service with full back wages and all other attendant benefits

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Aggrieved thereby, the petitioner bank preferred an appeal to the f respondent in S.A.No.1 of 1999. The first respondent, by his order da 24.03.2000, held that the lower authority had rightly ordered reinstatem of the third respondent; no fault could be found with the said order; a hence, the order of lower authority was being confirmed. The petitio bank was directed to reinstate the third respondent with continuity service, full back wages, and all attendant benefits for the period he w kept out of employment. Aggrieved by the said order of the f respondent, the petitioner bank has invoked the jurisdiction of this Court way of the present Writ Petition.

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Before this Court Sri O.Manohar Reddy, learned counsel for petitioner bank, would contend that, since the second respondent permitted the third respondent to let in evidence before it, failure on the p of the petitioner bank to conduct the enquiry before terminating services of the third respondent was of no consequence; and, in any ev the order of the Division Bench in W.A.Nos.1100 and 1101 of 1990, da 22.07.1991, had been violated both by the first and second respondents even if the enquiry or the order of termination passed consequent theret held to have been vitiated, the order of the Division Bench required Board of Directors to examine the further question whether the t respondent could have been continued as a Secretary, as his appointm to the said post was only pursuant to the interim order passed W.P.No.1470 of 1987 dated 16.04.1987.

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Section 48 of the Act relates to the appointment of an authority hear and decide appeals arising out of termination of services. Un

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subsection (2) thereof, the appellate authority may, after enquiry in prescribed manner, dismiss the appeal or direct the reinstatement of employee with or without wages for the period he was kept out employment or grant such other relief as it deems fit in the circumstan of the case. The prescribed procedure for an enquiry is stipulated in R 21 of the Andhra Pradesh Shops and Establishments Rules, 1990 short, the Rules). Under sub-rule (2) thereof, the procedure to be follow by the Appellate Authority, for hearing the appeals preferred to it un subsection (1) of Section 48 of the Act, shall be summary. Sub-clause (d) expressly stipulates that the parties shall not be entitled to prod additional evidence, whether oral or documentary, before the Appel Authority, but the request for additional evidence would be entertained ( the employer from whose order the appeal is preferred has refused admit evidence which ought to have been admitted; or (ii) the Appel Authority requires any document to be produced or any witness to examined to enable it to pass orders or for any other substantial cause, Authority may allow such evidence or document to be produced or witn to be examined. As per

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sub-clause (e), wherever additional evidence is allowed to be produced the Appellate Authority, it shall record the reasons for its admission. order whereby the third respondent and the petitioner bank were b permitted to adduce additional evidence has not been placed before Court.

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Sri O.Manohar Reddy, learned counsel for the petitioner bank wo however, contend that, even if the petitioner bank is held to h acquiesced to the procedure followed by the Appellate Authority permitting evidence to be adduced, no reasons have been recorded by Appellate Authority, and as such the evidence let in is required to eschewed.

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It is necessary to note that what clause 2(d) of Rule 21 of the Ru stipulates is for production of additional evidence. The mere fact additional evidence is permitted, does not mean that the earlier evidenc

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any, is required to be ignored, or the order passed under sub-rule 2(d Rule 21 of the Rules would absolve the petitioner bank of the requirem of conducting an enquiry before holding an employee guilty of the char leveled against him. Admittedly, in the present case, no such enquiry been held and as such, the order passed by the petitioner bank termina the services of the third respondent has been rightly set aside both by Authority under Section 48 of the Act, and the Second Appellate Authorit

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The question, however, remains whether the first and sec respondents were justified in directing reinstatement of the third respond with continuity of service and back wages. A perusal of the petition f by the third respondent, before the Authority under Section 48 of the A would show that the he had specifically referred to the order passed by Division Bench. The third respondent, in his appeal to the authority, specifically stated that W.A.Nos.1100 and 1101 of 1990 were filed in High Court, and the Division Bench had observed that the Board Directors of the petitioner bank would decide the appeal filed by the t respondent both on his termination as well as his appointment.

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The Board of Directors were required, under the orders of Division Bench, to consider whether the third respondent was entitled continue in service in the light of his previous appointment only whe came to the conclusion that the order of removal passed against him w bad in law. In the present case, the Board of Directors had come to conclusion that the order of removal was justified. It is only pursuant to orders passed by the first and second respondents that the order removal, as hitherto confirmed by the Board of Directors, was set asi While the first and second respondents may well have been justified setting aside the order of termination, they ought to have, in complia with the order of the Division Bench, called upon the Board of Directors the petitioner bank to examine the further question whether the t respondent was entitled to continue in service in the light of his previ appointment. To the limited extent that the third respondent was direc to be reinstated into service with back wages and attendant benefits,

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orders of both the first and second respondents are liable to be, and accordingly, set aside.

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This Court, by order in W.P.M.P.No.8912 of 2000 dated 25.04.20 granted interim suspension of the order of reinstatement passed by second respondent on 30.12.1998 as confirmed by the first respondent 24.03.2000, on condition that the petitioner bank paid to the t respondent every month full wages last drawn by him. The t respondent was also permitted to withdraw half of the amount alre deposited, by the petitioner bank before the first respondent, towards b wages on furnishing bank guarantee from a nationalized bank to satisfaction of the first respondent.

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Sri O.Manohar Reddy, learned counsel for the petitioner bank, wo express ignorance as to whether or not the third respondent had furnis the bank guarantee, and whether or not he had withdrawn half the b wages deposited by the petitioner bank before the first respondent. Suf to note that the earlier interim order, dated 25.04.2000, was confirm subsequently by order of this Court dated 05.12.2000.

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Ends of justice would be met if the petitioner bank is directed continue to pay the third respondent full wages last drawn by him till Board of Directors of the petitioner bank, in compliance with the orde the Division Bench in W.A.Nos.1100 and 1101 of 1990 dated 22.07.19 considers the question of continuing the third respondent in service in light of his previous appointment or otherwise in accordance with la Needless to state that the wages last drawn would be required to be p only if the third respondent has not reached the age of superannuation The Board of Directors shall comply with the above referred directions the Division Bench, and communicate its decision to the third respond within a period of three months from the date of receipt of a copy of order. It is made clear that, in case the third respondent has withdra half the back wages as directed by this Court earlier, the petitioner b shall not take any coercive steps for recovery of either the said amount of the last drawn wages paid to him, till final orders are passed by

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Board of Directors of the petitioner bank.

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The Writ Petition is disposed of accordingly. The miscellane petitions pending, if any, shall also stand disposed of. There shall be order as to costs.

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___________________________ (RAMESH RANGANATHAN 03.09.2012 vs

The Tadpatri Cooperative Town Bank Ltd. v. The second Appellate Authority Under a.P.Shops and Estb Act

Case brief

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The Tadpatri Cooperative Town Bank Ltd. v. The second Appellate Authority Under a.P.Shops and Estb Act

Case brief

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