Poikathusseri Ksherolopadaka Sahakarna Sangham Ltd. and Another vs Dy. Labour Commissioner and Another

P.C. Balakrishna Menon, J.—This original petition on behalf of a cooperative society is to quash exhibit P-l order of the 1st respondent, the appellate authority under the Kerala Shops and Commercial Establishments Act (hereinafter referred to as the "Shops Act") directing reinstatement of the 2nd respondent, dismissed from the service of the society, with backwages.

The 2nd respondent was the secretary of the society. He was dismissed from the service of the society with effect from 1st July, 1985 for the misconduct, alleged in the show cause notice served on him. The committee of the society on perusal of the books of account and records of the society was satisfied that the 2nd respondent was guilty of misconduct and on that finding a punishment of dismissal from service was imposed on him. The appellate authority under the Shops Act has held that the society is not entitled to adduce evidence in justification of the punishment imposed on the workman for the reason that the misconduct said to have been proved against the workman is not "supported by satisfactory evidence recorded at an enquiry held for the purpose" within the meaning of Section 18(1) of the Shops Act.

A Division Bench of this Court in Kavitha Movie House Vs. M.A. Abdul Khader and Others, , has considered the scope of Section 18 of the Shops Act and it was held that the termination of service of an employee for misconduct should be supported by satisfactory evidence recorded at an enquiry held for that purpose. The appellate authority has jurisdiction under Sub-section (3) to dismiss an appeal or direct the reinstatement of the employee with or without back wages or direct payment of compensation in lieu of reinstatement or grant such other relief as it deems fit. It is open to the appellate authority to deal with the evidence adduced at the domestic enquiry and assess it on merits either agreeing or disagreeing with the findings at the domestic enquiry. If the domestic enquiry is vitiated for non-compliance with the principles of natural justice or for any other reason, it is open to the appellate authority to totally discard the domestic enquiry. In such cases the employer may request the appellate authority to conduct a de novo enquiry where he may seek to substantiate the charge and sustain the punishment against the employee. The Division Bench relies on the decisions in Chelur Agencies'' case, ILR (1976) (1) Ker. 590, M.A.K. and Sons Vs. Kumara Pillai (P.) and Another, and Emakulam Co-operative Milk Supply Union v. K.C. Devassy (1973) KLT (SN) 25, as authorities in support of the above proposition.

An enquiry in violation of the rules of natural justice or in violation of law renders the entire proceedings void and such an enquiry is not an enquiry at all in law.

Under the industrial law, it is well established that it is open to the management to seek permission for adducing evidence in justification of the action taken against the workman in cases where the enquiry is defective or where there was no enquiry at all. The Supreme Court, in Workmen of Motipur Sugar Factory (Private) Limited Vs. Motipur Sugar Factory, at 169, stated:

It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic enquiry has been properly held see Indian Iron and Steel Co., Ltd. and Another Vs. Their Workmen, , but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.

The above passage was quoted and followed in a recent decision of the Supreme Court in Shambhu Nath Goyal Vs. Bank of Baroda and Others, .

In the present case, the enquiry was confined to the perusal of records. There was no other formal enquiry and recording of evidence. It should, therefore, be held that this is a case where an employee has been dismissed from service without a proper enquiry. Even if it is to be held that there was no enquiry at all before the employee was dismissed from service, the industrial law, as stated above, allows the employer to seek permission of the Industrial Court to adduce evidence in justification of the action taken against the employee. There is nothing in Section 18 of the Shops Act precluding the appellate authority from granting permission to adduce evidence in cases where there was no domestic enquiry before an employee was dismissed from service. The right of the employer to seek permission to adduce evidence in proceedings u/s 18(3) of the Shops Act is similar to the right of the employer under the Industrial Disputes Act to adduce evidence in justification of the punishment imposed on the workman. In the present case, the appellate authority under the Shops Act has declined permission to adduce evidence on the ground that the employee had been dismissed from service without a formal enquiry as envisaged by Section 18(1) of the Shops Act, and the appellate authority has no jurisdiction to grant such permission.

For the aforesaid reasons, the order, exhibit P-1, cannot be sustained. It is accordingly quashed and the 1st respondent-appellate authority is directed to dispose of the case afresh after affording the petitioner an opportunity to adduce evidence in justification of the punishment imposed on the 2nd respondent. The 2nd respondent is out of service from 1st July, 1985 onwards. The 1st respondent-appellate authority is, therefore, directed to dispose of the matter within six months from today.

The original petition is allowed as indicated above. No costs.