You have initiated a very interesting thread. Probably you have gone thru the details and court cases on “section 23 of indian contract act” and SE Act of AP and formed a strategy. There are brilliant lawyers and brilliant judges.
Your efforts may lead to a judgment having far reaching consequences for employee and employer.
Kindly keep this thread updated.
Valuable advice of learned experts/members is sought which shall help everyone and shall enrich the forum.
The discussion given below is heartfelt opinion only and you may finally consult your writ lawyer having mastery on SE Act of AP, and precedence’s set by court thru various judgments, and proceed under expert advice of your lawyer.
Let your lawyer opinion be final on all points discussed in this thread.
SE Act AP:
It is felt that Sec 40 was the original section on Termination which with the effect of notifications culminated into present Sec 47.
You have posted that “Section 47 of SE act violated (speaks that termination is only based on misconduct for permamanent employees).”
This is probably the language of Sec 40.
The present Sec 47 is probably as:
“(1) No employer shall, without a reasonable cause terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee atleast one month s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment:“
However kindly obtain the latest version from Dept of Labor/SE Inspectorate/ or market and relate and finally decide at your end in consultation with your lawyer. SE Act of AP is attached.
Kindly look into:
Andhra High Court
Srinivasa Resorts Limited And ... vs State Of Andhra Pradesh And Ors. on 22 November, 2001
The court has dissected the SE Act with clinical precision, and has concluded:
“60. For the reasons aforementioned, we hold that the Sub-sections (3) and (4) of Section 47 of the Shops Act are unconstitutional and amounts to unreasonable discrimination and violative of Article 14 of the Constitution of India. Let a writ of mandamus issue accordingly. Writ petition is disposed of accordingly. No order as to costs”
After making striking observations and some scathing remarks:
“The A.P. Shops and Establishments Act (Act No. 15 of 1966) was enacted in the year 1966. Section 40 of Act, 1966 provided for conditions for terminating the service of an employee and payment of gratuity. The said provision was amended in the year 1976 by reason of Act No.53 of 1976 and ultimately Act, 1966 was repealed by the present Act, 1988. Section 47 of Act, 1988 provides for conditions for terminating the services of an employee, payment of service compensation for termination, retirement, resignation etc. For convenience sake, the unamended Section 40 of Act, 1966, the amended Section as existed in 1976 as also Section 47 of Act, 1988 may be tabulated as under:”
“Sub-section (4) of Section 47………..thereof is arbitrary, oppressive, discriminatory and violative of Article 14 of the Constitution”
“main challenge in the writ petition is as to the constitutional validity of the provisions of
Sub-sections (3) and (4) of Section 47 of the Shops Act.”
‘16. Undisputedly, the constitutionality of the unamended provisions of Section 40(1) and (3) of Act, 1966 came up for consideration before a Division Bench of this Court in SURYAPET MARKET CO-OPERATIVE SOCIETY V. MUNSIF MAGISTRATE, SURYAKPET AND ORS., 1972 (2) ALT 163. The said provision was declared ultra vires Article 14 of the Constitution inter alia”
“Any law which is inconsistent with the provisions of the Constitution, to the extent of such inconsistency, is void and ineffective under Article 13 of the Constitution.”
‘18. Sub-section (1) of Section 47 provides that no employer shall without a reasonable cause, terminate the service of an employee”
‘20. Contract of service is basically a contract between the parties. Only when the conditions of service are governed by a statute, statutory provisions shall prevail over the agreed conditions.”
28. the Supreme Court held: “A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature.”
“75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution.”
“We do not, therefore find much substance in the contention that the Courts cannot at all exercise judicial control over the impugned notifications. In cases where the power vested in the Government is a power, which has got to be exercised in the public interest, as it happens to be here, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution.”
46. Where the Act is ambiguous the doctrine of justness and reasonableness must be invoked.
47. Can in a situation of this nature, the statute be interpreted to mean that even those who have left the service would be entitled to service compensation.
48. If the provisions of the Act to be given effect to, the same will be counterproductive.
58. The service conditions and the extent of their protection are not fundamental rights They are creatures of either statute or of the contract of employment. What Service conditions would be available to particular employees, whether they are liable to be varied, and to what extent are matters governed either by statute or the terms of contract. The legislature cannot be mandated to prescribe and secure particular service conditions
to the employees or a particular set of employees. The service conditions and the extent of their protection as well as the set of employees in respect of whom they may be prescribed and protected are all matters to be left to the legislature. Hence when a legislation extends protective umbrella to the employees of a particular class, ii cannot be faulted so long as the classification made is intelligible and has rational nexus to the object sought to be achieved.
--- The language of order of termination e.g. “further your skills cannot be gainfully utilised in any other departments of the organization”…. indicates lay off/retrenchment.
Is it confirmed that contentions of the employer are true, that there is no place/ no where in your company? If not it should be contested.
The faults with the actions of the employer may be probed, found and established.
Present Sec 47 states:
-“Provided that every termination shall be made by the employer in writing and a copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination.“
(Has the employer supplied the copy to Inspector?)
Has the Inspector checked the contentions of the employer, on receiving the copy? Has the employer stated in writing to Inspector also that there is no place/ no where in the company?
Have you approached the Inspector on it or under Sec 47 (2)
"The services of an employee shall not be terminated by the employer when such employee made a complaint to the Inspector regarding the denial of any benefit accruing to him under any labour welfare enactment applicable to the establishment and during the pendency of such complaint before the Inspector."
If statements of the employer are false can Inspector write to employer and compel the employer to call back the order of termination/lay off/retrenchment? It is felt that Inspector is duty bound to submit his report. If you have knowledge of posts available where if you are placed you can remain employed, the matter should end with penalty to employer.
-“(4) Every employer shall give an order of appointment to his employee in the establishment before such employee joins the service and shall also furnish a copy of such order to the Inspector having jurisdiction over the area, within three days of issue of each such order:“
(Has the employer supplied the copy to Inspector? If no does employer want to conceal?)
---You have posted that:
“applicant is a permannant employee for which certified standing order applies"”
“two basic pay replaces the term "gross salary " in the orginal appointment letter’ ( What is the notice pay mentioned in certified standing orders?)
“when termination order is violative terms and conditions of appointment , can such a plea succed in Civil Suit” ( Generically speaking the answer seems to be yes however let your lawyer examine all details, documents, merits and opine finally on it.)
Kindly let your lawyers also examine the following:
If both the certified standing orders and the model standing orders are silent or in cases where the Industrial Employment(Standing Orders) Act is not applicable then the power to lay off has to be found in the contract of employment which is the appointment letter. If the appointment letter is also silent then the employer has no power to lay off and if he lays off his workmen, they are entitled to full wages for the period for which they were laid off.
And let the opinion of your lawyer/law firm be final on it.
“58 yeras - 38 years (my age ) = 20 years
“can i file a suit for compensation for 20 years salary for violating the contract.”
We sincerely wish that this happens and thus courts drill sense into the heads of unscrupulous employers which are in plenty in the market.
Although this may seem to be the righteous penalty on employer however it would be a big amount. Court has to decide.
Our apprehension is that the achievement of such an amount requires a brilliant plaint substantiated with facts, laws, citations, judgements setting precedences, and a brilliant lawyer.................
Courts needs to be convinced.
Based on the merits courts may be pleased to order reinstatement with lay off compensation.
However let your lawyers opine finally on it.
---Probably you want to hint from section 23 of Indian contract act; “it would defeat the provisions of any law; or involves or implies injury to the person, opposed to public policy” and r/w with Sec 48 of SE Act of AP.
Kindly attach the latest version of SE Act of AP and elaborate more for further discussion.
Valuable advice of learned experts/members is sought.