An employee receiving retrenchment compensation under protest is entitled to challenge the termination, but the abolition of a redundant post due to organizational restructuring justifies termination.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the concerned records from the 1st respondent, quash the order of the 1st respondent TNSE1/22/2011 dated 27.08.2013 as illegal, arbitrary and contrary to law and consequently direct the respondent No.2 and 3 to reinstate the petitioner in service with full back wages, continuity of service and all other attendant benefits, award costs and render justice.)

1. The brief facts of the case are as follows:

(i) The petitioner herein is a “person employed” under the second and third respondent “Establishment” as defined under the 'Tamil Nadu Shops and Establishments Act, 1947' (hereinafter referred to as 'the Act'). On 01.05.1982, the petitioner joined the Establishment as a Secretary cum Reservation / Ticketing Assistant. On 01.06.2001, he was transferred to Chennai and his last held designation was that of a Passenger Sales Officer-II. Owing to restructuring of the Establishment, the position of Passenger Sales Officer had become redundant and accordingly, the post / designation was abolished. Consequently, by an order dated 21.02.2008, the petitioner's service was terminated by the Establishment, stating that his service was no longer required, due to the restructuring / reorganization of the Establishment and that his service shall stand terminated as on 22.02.2008. Along with the termination order, all the statutory dues, including a sum of Rs.5,16,870/- was attached towards ex-gratia, by way of a cheque. The petitioner herein had encashed the cheque on 26.02.2008 and thereafter, had sent a letter dated 23.02.2008, stating that the receipt of monetary benefits was under protest.

(ii) In this background, he had preferred an appeal in TNSE- 1/22/2011 before the first respondent / authority under the Act on 17.03.2008, challenging the termination order. Through the impugned order dated 27.08.2013, the authority had rejected the petitioner's claim, predominantly on the ground that when the Establishment had made the payments including the ex-gratia payment, in accordance with Section 25- F of 'the Industrial Disputes Act, 1947' (hereinafter referred to as 'ID Act') as well as that since the post held by the petitioner was abolished, he was not entitled for reinstatement or rehabilitation. Challenging the said impugned order, the present Writ Petition has been filed.

2. The learned counsel for the petitioner placed reliance on a decision of this Court in the case of Unnikrishnan M. and another Vs. Deputy Commissioner of Labour and others reported in 2010 SCC OnLine Mad 6530 and submitted that when the petitioner herein was transferred to Chennai and the post came to be subsequently abolished, he ought to have been re-transferred to the office of the Establishment that were functioning in Mumbai and therefore, terminating the service of the petitioner on the ground that the post was no longer required, cannot be sustained.

3. The learned counsel for the petitioner also placed reliance on a few decisions of the Hon'ble Supreme Court for the proposition that the authority under the Act was not correct in holding that the petitioner was estopped from filing an appeal against the order of termination, after receiving the compensation amount, particularly, when such compensation was received under protest.

4. Per contra, the learned counsel for the respondents 2 and 3 / Establishment submitted that when the post, which the petitioner was holding, was no longer required, owing to the reorganization of the Establishment, there is no infirmity in terminating his services. In support of this submission, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of SH. Maheshwari Senior Higher Secondary School and another Vs. Bhikha Ram Sharma and others passed in Civil Appeal No.3645 of 1996, dated 12.02.1996, as well as the decision of the Karnataka High Court in the case of In