Full Judgment
Prayer
Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, to call for the records relating made in Na.Ka.No.L/2044/2010 dated 28.03.2011 passed by the 2nd respondent and quash the same and consequently to direct the 2nd respondent to issue the order passed by the first respondent vide Letter No.L2/11929/10, dated 21.03.2011 to the petitioner.
ORDER
1. The petitioner has filed the above writ petition to challenge the order made in Na.Ka.No.L/2044/2010 dated 28.03.2011 passed by the 2nd respondent and quash the same and consequently, direct the 2nd respondent to issue the order passed by the first respondent vide Letter No.L2/11929/10, dated 21.03.2011 to the petitioner.
2.The case of the petitioner is that while he was working as Rubber Tapper at the respondent's corporation, he was issued with a show-cause notice on 24.09.2010 by the second respondent and another show-cause notice on 29.09.2010, calling upon the petitioner to submit his explanation with regard to certain allegations made thereunder. The petitioner had submitted his explanations dated 01.10.2010 and 11.10.2010 respectively. As the petitioner's explanation was not considered and an enquiry officer appointed also conducted an enquiry and consequently an order of termination was passed by the second respondent on 29.11.2010. Aggrieved against the same, the petitioner has preferred an appeal before the first respondent on 18.12.2010. While the petitioner was awaiting the order in the appeal, he was issued with a communication by the second respondent dated 28.03.2011, stating that the first respondent vide his proceedings dated 21.03.2011 was pleased to provide job to the petitioner at Kallar Sub-Division of Kothaiyar Division, provided the petitioner enter into a settlement as per Section 18(1) Industrial Disputes Act 1947 and on certain other conditions. It is the said order of the second respondent is challenged in this writ petition.
3.Notice of motion was ordered by this Court on 28.04.2011. The respondents entered appearance and counter filed by the first respondent.
4.It is stated in the counter affidavit that the first respondent passed an order on appeal by taking lenient view subject to certain conditions that the petitioner is to be re-instated into service without any wages, allowances and gratuity for the non-employment period and he has to be posted as a Tapper in Kallar Unit of Kothiyar Division and he was asked to enter into settlement with the second respondent under Section 18(1) of the Industrial Disputes Act 1947. Based on the said order passed by the first respondent, the impugned order came to be passed by the second respondent and therefore, there is nothing wrong in passing the present order by the second respondent as the same was not passed by him on his own but only based on the order passed by the first respondent.
5.Heard the learned Counsel for the petitioner and the respondents.
6.In this case, the petitioner was terminated from the service. Aggrieved against the same, he preferred an appeal before the first respondent. When an appeal is preferred against an order of termination, the authority exercising the power as an appellate authority should consider the said appeal and pass orders on merits by considering all the facts and circumstances and communicate the same to the appellant, namely, the delinquent.
7.In this case, admittedly, though the first respondent being the appellate authority had passed an order on 21.03.2011 the same has not at all been communicated to the petitioner till this date. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court reported in (2001)8 SCC 443 in the matter of State of W.B. vs. M.R.Mondal at paragraph 16 as follows:
16. The learned Judges of the Division Bench of the High Court ought to have seen that there can be no legal impediment for the Department to make preparations ahead of the period of expiry of the one-year contract given in favour of the plaintiff to facilitate the entrustment of the task of collecting the toll in question for the period subsequent thereto, to a newly selected contractor at competitive rates. The Division Bench further overlooked the vital legal proposition that the memorandum dated 11-3-1998 of the Joint Secretary cannot, per se, have the legal consequence of bringing into existence an extended period of contract and that too for 30 years, though said to be renewable periodically every three years. On a proper consideration of the memorandum dated 11-3-1998, which was also stated to have been never communicated to the plaintiff, and the subsequent memorandum dated 24-8-1999 of the very Joint Secretary, who issued the earlier memo, that memorandum dated 11- 3-1998 contained only certain proposals and not any final orders of extension or renewal of the contract as assumed in the judgment under challenge. Para 15 of the memorandum dated 11-3-1998, which has been relied upon as the basis for claiming an extended period of contract, itself has been misconstrued out of context, though by itself, it cannot have the effect of bringing into existence such an extended term of contract to warrant or justify the grant of directions of this nature in the present case. Even assuming for consideration, without accepting that para 15 of the memorandum dated 11-3-1998 had any effect, it can by no stretch of imagination be construed to bring into existence ipso facto an extended period of contract beyond the one-year period for which alone the contract had been given to the plaintiff in this case. An order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect. No reliance can be placed on the same to even assert a claim based on its contents. If its utility depended upon a decision to be taken on the performance of the plaintiff by the competent authority, neither the authority could be compelled to take a decision nor any concrete rights could be said to have been acquired by the plaintiff, to warrant the grant of the type of directions given in this case. It is really surprising that the discretionary power to grant injunction, be it of prohibitory or mandatory nature, has been availed of to bring into existence and force upon the State a new contract, which could never have been the intention of the State itself.(emphasis supplied)
In this case after passing the said order, the first respondent had communicated to the second respondent for passing the consequential order, which is impugned in this writ petition. It is the case of the petitioner that the condition imposed in the impugned order is not at all agreeable to him and therefore, the petitioner is not in a position to challenge the order of the appellate authority, as he was not served with the copy of the same till this date.
8.As admittedly the order passed by the first respondent in the appeal preferred by the petitioner has not been communicated to the petitioner so far, I direct the first respondent to furnish a copy of the order to the petitioner within a period of three weeks from the date of receipt of a copy of this order and once the order copy is served on the petitioner, it is open to the petitioner to challenge the same in the manner known to law.
9.With the above observation, the writ petition is closed. No costs. Consequently, connected miscellaneous petition is closed.