S.U.S. Davey Sons vs Additional Commissioner for Workmen's Compensation and Another

Rajagopalan, J.—The petitioner-firm carried on business as opticians. The respondent 2 was an employee of the petitioner and was

employed as a grinder. The respondent 2 was charged on 16 February 1959 with having refused to carry out an item of work assigned to him,

which was one of his legitimate duties as a grinder. In response to the notice served upon the respondent 2, he furnished his explanation on 17

February 1959 denying the charges. The management held an enquiry on 20 February 1969 and on 21 February 1959. The management held that

the charges had been proved and terminated the services of the respondent 2. Thus, in effect, it was a case of dismissal for misconduct,

misconduct established in an enquiry in which the respondent 2 was given an opportunity to defend himself against the charges.

The respondent 2 preferred an appeal to the (Additional) Commissioner for Workmen''s Compensation, Madras, u/s 41(2) of the Madras

Shops and Establishments Act (Madras Act 36 of 1947). The Commissioner came to the conclusion that the charges of misconduct had not been

proved. He there set aside the order of dismissal and directed the reinstatement of the respondent 2. That order was dated 26 August 1959.

The petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order dated 25 August 1959.

To appreciate the main contention of the learned Counsel for the petitioner, it is desirable to extract the relevant passage from the application

preferred by the respondent 2 to the Commissioner, which was treated as an appeal u/s 41(2) of the Act. In that application the respondent 2

stated:

I served the management referred to above for 15 years faithfully and honestly. All of a sudden I was terminated from service from 21 February

1959. Notice was served on 23 February 1959 without any reasonable cause.

There was no allegation in that application that the respondent 2 had been dismissed for misconduct after an enquiry held into the charges framed

against him. The respondent 2 also alleged that he had been victimized but apparently that charge was not persisted in, and nothing turns now upon

that allegation made but not proved. As I said, the Commissioner came to the conclusion that the charge of misconduct had not been proved. The

learned Counsel for the petitioner urged that, where the respondent 2 himself did not allege In his application or memorandum of appeal that he

had been dismissed on the ground of alleged misconduct and that such misconduct had not been proved, the appellate authority had no jurisdiction

to go into the Question whether the dismissal was justified or whether the finding of the management that the misconduct was established was

correct. Section 41(1) of the Act runs:

No employer shall dispense with the services of a person employed continuously for a period of not less than six months except for a reasonable

cause, and without giving such person at least one month''s notice or wages in lieu of such notice:

Provided further that such notice shall not be necessary where the services of such a person are dispensed with on a charge of misconduct

supported by satisfactory evidence recorded at an enquiry held for the purpose.

No doubt, Section 41(1) makes a distinction between the termination of services for a reasonable cause and termination of services on a charge of

misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. Nonetheless, the position Is that termination of

services on an established charge of misconduct is also termination of services for a reasonable cause; only where such termination of service is for

established misconduct, the statutory requirement of one month''s notice or wages in lieu of such notice is dispensed with. Still the contention of the

learned Counsel for the petitioner has to be dealt with, when the respondent 2 chose to claim that his services had been terminated without a

reasonable cause, had the Commissioner''s jurisdiction to decide the real question that arose before him in the appeal, whether the charges of

misconduct had been established. No specific form has been prescribed either by Section 41(2) or by any rule to which my attention had been

drawn, In which the appeal should be preferred. At the worst, It can be said that the real point at issue was not specifically brought out in the

written application that the respondent 2 preferred to the appellate authority. I am unable to accept as correct the contention that the jurisdiction of

the appellate authority was confined to what was expressly stated in the written application presented to him. The respondent 2 had a statutory

right to prefer an appeal against the order of dismissal. That right he exercised by invoking the appellate authority, and that was by a written

application, The appellate authority has jurisdiction to decide the questions that arose for determination In the appeal. He was not necessarily

bound by what was expressly pleaded in the application. It is not the case of the petitioner that he was taken by surprise at what he had to answer

in the proceedings before the appellate authority. The appellate authority did go into the question whether the dismissal was justified, that is,

whether the charge of misconduct was true, and in the enquiry that preceded the determination by the appellate authority the petitioner had the

opportunity of taking part and did take part. I am unable to accept the contention of the learned Counsel for the petitioner, that the appellate

authority had no jurisdiction to investigate whether the dismissal on the charge of misconduct was justified or not.

The next contention of the learned Counsel for the petitioner was that, where an employee was dismissed for misconduct the scope of the

enquiry by the appellate authority should be whether the statutory conditions were complied with or not; the correctness of the findings of the

punishing authority, the employer, could not be examined unless there was no evidence to support the finding of misconduct or unless that finding

was perverse ; the sufficiency of the evidence on which the management based its finding that misconduct had been established was not a matter

for investigation by the appellate authority. It should be remembered that what Section 41(2) confers is an appellate jurisdiction. It is not a

revisional jurisdiction. Rule 9(2) of the rules framed under the Act provides:

The procedure to be followed by the Commissioner for Workmen''s Compensation when hearing appeals preferred to him under Sub-section (2)

of Section 41 shall be summary. He shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. The

result of the appeal shall be communicated to the parties as soon as possible...

Neither Section 41(2) nor Rule 9(2) confines the appellate authority to the evidence already recorded in the enquiry for which Section 41(2)

provided. As I said, it was an appellate jurisdiction that was conferred, and the rule made it expressly clear that the appellate authority had

jurisdiction to take such further evidence as it considered necessary. It was enough if the enquiry held by the appellate authority was summary. In

the face of these provisions I am unable to accept as correct the contention of the learned Counsel for the petitioner, that the appellate authority

had no jurisdiction to take further evidence. Of course in exercise of the appellate jurisdiction the appellate authority had also to consider the

record of the enquiry conducted by the management, to verify if the evidence placed on record at that stage was sufficient to support the finding

reached by the management in this case that the charge of misconduct had been established. It was, however, open to the appellate authority to

review that evidence afresh, and also to review that in the light of the further evidence taken in the enquiry before him and come to his own

conclusion independent of and even at variance with the finding recorded by the management. Of course, as the appellate authority it should take

into consideration the fact that the management had jurisdiction to hold an enquiry and to reach its conclusions; and those conclusions of the

management with its right to terminate the services of an employee for misconduct proved to its satisfaction, should be treated with respect by the ''

appellate authority, and should not be lightly brushed aside. But that is not equivalent to saying that the appellate authority had no jurisdiction to

review the evidence afresh.

Whether on the material before the appellate authority, it was justified in reaching the conclusion, that the charge of misconduct had not been

proved, is not for me to investigate at this stage and in proceedings under Article 226 of the Constitution. A finding of fact based on the

appreciation of the evidence, and to some extent oral evidence, which the Additional Commissioner heard, cannot be set aside in these

proceedings. It was not a case of no evidence. It was really a case of whom to believe, the respondent 2 or the partner of the petitioner firm, both

of whom gave evidence before the Additional Commissioner, The Additional Commissioner chose to believe the version of the respondent 2, that

all along after 1955 he had been told that it was enough if he did the work of grinding, without undertaking the other items of work that an

employee of the status of a grinder would be called upon to do. If, as the Additional Commissioner held, the work that was assigned to the

respondent 2 on 16 February 1959, was not an item of work that he was contractually bound to undertake and discharge, refusal to do that work

could not be viewed as misconduct, which was the view taken by the Additional Commissioner. He had jurisdiction to reach that conclusion. I am

not to be understood as agreeing with the finding of the Additional Commissioner, I am not called upon to express my agreement with, or dissent

from, the finding recorded by the Additional Commissioner. As I said, the quantum or sufficiency of the evidence on which the Additional

Commissioner reached that conclusion is not a matter for investigation in the exercise of the limited jurisdiction I have under Article 226 of the

Constitution.

Thus the position is that neither the assumption of the jurisdiction nor its exercise was vitiated. The petition fails and is dismissed. No order as to

costs.