The Hindu Business Line : Order of dismissal, if passed retrospectively, can’t be held invalid: HC

Chennai, July 6An order of dismissal, if passed retrospectively, could not be held invalid, since it was open to the employer to order dismissal of employee either from date of suspension so as to deny wages for the interrugnum period or dismiss him prospectively, the Madurai Bench of the Madras High Court has held.

Rejecting the contention of a dismissed employee of a primary agricultural co-operative bank in Kanyakumari district that no dismissal order could be passed retrospectively, Mr Justice K. Chandru ruled that the dismissal order could not be invalid for this reason.

Mr Jose Gnanadoss was Secretary in Sarel Primary Agricultural Co-op Bank Ltd and he was dismissed on charge of misconduct. Aggrieved by the order dated 25-10-2004 of the first respondent (Deputy Commissioner of Labour, Appellate Tribunal under TN Shops & Establishments Act, 1947) in having allowed appeal by Mr Jose Gnanadoss (second respondent) under Section 41 (2) of the said Act challenging the order of dismissal, petitioner (Sarel co-operative Bank) filed the present writ petition.

Dismal validity

The first respondent, however, found the order of dismissal as invalid on 3 grounds. When the second respondent was put on suspension pending enquiry, no period of suspension was prescribed and hence the order was illegal.

When the petitioner gave a second show cause notice including enquiry report, only 3 days’ time was granted for reply by the second respondent. The third infirmity was that when the order of dismissal was passed, it was done from the date of suspension, and this was illegal.

The judge referred to a decision of the Full Bench of this Court holding that there was no necessity to prescribe any particular period of suspension as it was only a suspension pending enquiry, and said no challenge could be made if period of suspension was not prescribed.

Regarding contention that no dismissal order could be passed retrospectively, it might be a correct proposition of law, but when there was an order of suspension, if an order of dismissal was made, it was open to the employer to pass such order either from the date of suspension or dismiss him prospectively. On that ground, the order could not be invalid.

Backwages

On the question of relief to the second respondent, the judge said the employee was paid full subsistence allowance at the rate of 50 per cent. After dismissal, he had taken more than 860 days to go before the authority and proceedings before it also took 1 year.

It was inequitable to make the petitioner to pay backwages. Hence, while the second respondent should be restored to service, he was not eligible to get any backwages. However, the entire period of his non-employment would be counted for the purpose of terminal benefits as well as to pay fixation, increments, bonus, etc.

With the above direction, writ petition would stand dismissed.

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