Allowed

The Yemmiganur Weavers Cooperative v. The Second Appellant Authority Under A.P.

Telangana HC20 Jun 2014WA/1536/2004

Case brief

AI extract

What is this about?

In a writ appeal regarding the termination of a Personnel Officer, the High Court allowed the Writ Appeal. It held that the employer was not required to follow natural justice principles when terminating a temporary employee prior to the final declaration of probation, as the employers retain the right to decide suitability during the probationary period.

What did the court decide?

The Writ Appeal was allowed; the order in W.P.No.17684 of 1999 was set aside, and the Writ Petition was allowed setting aside the orders of the authorities below.

The Yemmiganur Weavers Cooperative Vs The… — Pension and Retirement Benefits | Telangana HC (2014)

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*** HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND**

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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+ WRIT APPEAL No.1536 of 2004

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% 2 0 th June, 2014

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# The Yemmiganur Weavers Cooperative Production and Sales Society Limited, Yemmiganur.

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… Appellant

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AND

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$ The Second Appellant Authority under A.P. Shops and Establishments Act, 1988 and Deputy Commissioner of Labour, Kurnool and two (02) others.

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… Respondents

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! Counsel for the Appellant : Sri O.Manohar Reddy Learned Counsel for the Appellant.

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^ Counsel for the respondents 1 & 2: Learned Government Pleader for Labour

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^ Counsel for the respondent No.3: Sri C.H.Satish Kumar and Sri Surendra Desai

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< Gist: > Head Note: ? Cases referred: --

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HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT APPEAL NO.1536 OF 2004

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JUDGMENT:

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The Petitioner in W.P.No.17684 of 1999 is appellant. The Writ Petition was filed questioning the order dated 25.05.1999, passed by the 1^st respondent in S.A.No.4 of 1998, confirming the order dated 15.04.1998 of the 2^nd respondent passed in S.A.No.5 of 1997.

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Briefly stated facts are that the 3^rd respondent was appointed as a Personnel Officer by the appellant on 19.12.1991 on temporary basis and was kept on probation for a period of one year, or such other period as may be extended from time to time. After completion of one year, probation was extended for a further period of six months. The 3^rd respondent was removed from service, through order dated 27.12.1993. He approached this Court by filing W.P.No.20793 of 1993 and an order of interim suspension was passed in W.P.M.P.No.26121 of 1993. Thereafter, the Writ Petition was disposed of without any relief. Thereby the order of termination was enforced with effect from 01.02.1994. Once again 3^rd

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respondent filed Writ Petition before this Court vide W.P.No.6219 of 1994, and the said Writ Petition was disposed of through order dated 11.06.1997, by this Court directing the 3^rd respondent to avail the alternative remedy by invoking provisions of the under A.P. Shops and Establishments Act, 1988 (for short “the Act”). The 3^rd respondent approached the competent authority under the Act, who in turn set aside the order of termination and directed to reinstate the 3^rd respondent apart from directing the payment of Rs.1,76,000/-. The appeal filed by the writ petitioner before the 1^st respondent–2^nd appellate authority, ended in dismissal. Questioning the same the Writ Petition No. 17684 of 1999 was filed. The same was dismissed by the learned single Judge on 21.01.2004 mainly on the ground that both the authorities under the Act concurrently found that the termination of the 3^rd respondent was mala fide and without conducting enquiry, and that there is no irregularity or illegality in the orders passed by the authorities below.

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Sri O.Manohar Reddy, learned counsel for the appellant submits that the order of the learned Single Judge is unsustainable in law. In his attack of the orders of the authorities below he urged three grounds viz.,

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1) The 3^rd respondent being a Personnel Officer, was not an ‘employee’ within the definition under Section 2 (8) of the Act, and his salary was also above is Rs.2,500/- and thereby the Act has no application, on account of Section 73(1) (A) of the Act.

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2) Even otherwise, the 3^rd respondent is a Personnel Officer, who is in-charge and responsible for the entire personnel working in the organization, and was occupying managerial position; and when this objection was raised, the authority below had just referred to liberty given to the 3^rd respondent to approach the authorities under the Act, in W.P.No.6219 of 1994. He contends that the order in W.P.No.6219 of 1994 has only disentitled the 3^rd respondent to approach this Court directly and that it does not confer power upon the authority to entertain and pass orders, unless basic requirement of the 3^rd respondent satisfying the eligibility criteria is fulfilled.

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3) The appointment of 3^{r d} respondent was on temporary basis and subject to successful completion of probation, and once the probation was not declared, he had no vested right to continue in service and the direction issued by the authorities is totally unsustainable. He submits that the question of violation of principles of natural justice do not arise, in the facts of the case, since the non-declaration of probation does not require issuance of notice.

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On the other hand, learned counsel for the 3^rd respondent, Sri C.H.Satish Kumar, submitted that the orders of the authorities below as well as the learned single Judge, that so far as first ground is concerned, it is not open for the appellant to contend that the authorities under the Act have no jurisdiction, in view of orders in W.P.No.6219 of 1994 dt.11.06.1997.

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He further submits that though the 3^rd respondent was given a designation of Personnel Officer, he was not in the managerial cadre and in fact he was taking the orders from the Secretary of the Society, who was the ultimate executive head, and in that view of the matter, exemption under Section 73 of the Act, has no application. Learned counsel would further submit that the 3^rd respondent had worked for about two years without any blemish, and that itself would go to show that his probation is required to be declared.

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We have considered the rival submissions in detail. Points 1 and 2 urged by the appellant cover the same aspect i.e. maintainability of the proceedings under the Act. We find it difficult to accept the contention of the appellant. In view of the orders of this Court in W.P.No.6219 of 1994, it cannot be said that the authorities under the Act, have no jurisdiction to decide the issue. The appellant was a party to W.P.No.6219 of 1994 and the orders therein are binding upon it. Though the 3^rd respondent is designated as Personnel Officer, it is not established that he was discharging managerial functions.

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So afar as the aspect of non-declaration of probation is concerned, the 2^nd respondent i.e. the primary authority did not understand the concept of the probation properly. The same is evident from the discussion in the order, (S.A.No.5 of 1997) which read as under:

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“The contention of the Management that the termination order (Ex.A-4) is discharge simpliciter or cannot be accepted as the performance of the appellant during the period of probation was not evaluated and also not produced before this Authority to know the genuineness or otherwise of the Management contention in terminating the service of the appellant. The impugned termination is punitive in nature and has affected the civil rights of the appellant and gave a cause of action to agitate in the forum created under Section 48 of A.P.S.E. Act, 1988.”

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Once an order of termination simpliciter was issued, before declaration of probation, the question of there being any positive element does not arise. It is of the employers’ right to decide whether or not to declare the probation. Much would depend upon the satisfactory nature of work of the employee. The very fact, the probation was extended for another six months would only go to show that the appellant chose to give some more time before they could make up their mind with regard to the suitability or otherwise of the 3^rd respondent. Further, the occasion to invoke principles of natural justice does not arise in such cases. In the circumstances, the order of the learned single Judge is liable to be set aside.

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Accordingly, the Writ Appeal is allowed. The Order in W.P. No.17684 of 1999 is set aside and the Writ Petition is allowed setting aside the order passed by the 2^nd respondent, as affirmed by the 1^st respondent. There shall be no order as to costs. The miscellaneous petitions pending, if any, in this appeal, shall also stand disposed of.

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L.NARASIMHA REDDY, J

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_____________________________ CHALLA KODANDA RAM, J

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Dt: 20.06.2014 Note: L.R. Copy to be marked. (B/o) Ssv

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HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT APPEAL NO.1536 OF 2004 20-06-2014

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Ssv

The Yemmiganur Weavers Cooperative v. The Second Appellant Authority Under A.P.

Case brief

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What did the court decide?

The Yemmiganur Weavers Cooperative v. The Second Appellant Authority Under A.P.

Case brief

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What did the court decide?

What the court decided

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