Kavitha Movie House v. Abdulkhader — 1978 DIGILAW 224 (KER)

JUDGMENT Gopalan Nambiyar, C.J. 1. These two writ appeals are by the owner of the 'Kavitha Movie House', one of the well known cinema houses of this city. The appellant had conducted an enquiry against two of the gate keepers employed by it in respect of a certain misconduct alleged against them and a charge in respect thereof. The charge to state it with reference to the farts in W.A. 174/77 -- was that a complaint was received from M/s. Thirumeni Pictures, distributors of films, that on the 10th January, 1974, for a matinee show of the picture 'Jesus' in the Kavitha Theatre only 65 numbers of middle circle tickets of Rs. 1.50 each, were issued in the gent's side, and that when their representative counted the number of persons in the above class, it was found that the number was seven in excess of the number of tickets issued; that the on the spot enquiries revealed that at the instance of Sri. Srinivasan three persons were admitted to the middle circle by Abdulkhader who was in charge of the middle circle that day. In the course of the enquiry into the complaint it was stated that the theatre owner received a statement from the booking clerk Mr. Hameed, that Sri Abdulkhader stated to him that three persons were admitted on the strength of the pass issued to Sri Srinivasan, whereas the fact was, that no pass was issued to Sri Srinivasan for admitting three persons that day. On these facts Abdulkhader was charged, that he had admitted persons without any tickets or any passes issued; and Srinivasan, that in connivance with Sri Abdulkhader, he had unauthorisedly admitted persons in the middle circle for the matinee show on 10th January 1974. Abdulkhader is the first respondent in W.A. No. 174 of 1977; and Srinivasan is the 1st respondent in W.A. No. 175 of 1977. The charges were enquired into at a domestic enquiry conducted by an Advocate, at the instance of the theatre owner. A copy of the explanation to the charge is Ext. P-5. Ext. P-14 is the Report of the Enquiry Officer finding the charges proved. Ext. P-15 notice was issued to show cause against dismissal from service; and, after considering Ext. P-16 explanation, by Ext. P-18, the 1st respondent was dismissed from service. Ext. P-16 is the copy of the appeal filed by him, Ext. P-5. Ext. P-14 is the Report of the Enquiry Officer finding the charges proved. Ext. P-15 notice was issued to show cause against dismissal from service; and, after considering Ext. P-16 explanation, by Ext. P-18, the 1st respondent was dismissed from service. Ext. P-16 is the copy of the appeal filed by him, Ext. P-19 the reply by the theatre owner, Ext. P-20, the rejoinder by the 1st respondent, and Ext. P-21 is the copy of the appellate order. The facts are similar in the other appeal also, although the exhibits dealing with these, do not quite tally with the numbers in this appeal. The appellate authority came to the conclusion that both the respondents in these appeals were dismissed in contravention of S.18(1) of the Kerala Shops and Commercial Establishments Act, and that they were entitled to relief by way of reinstatement with back wages. The back wages were fixed at Rs. 5,000 each. In lieu of reinstatement it was ordered that the respondents would be entitled to three months wages for every year of their service for a period of six years, the total amount under this head coming to Rs. 3,600 for each of the respondents. S.18 (1) to (4) of the Shops and Commercial Establishments Act read: 18. Notice of dismissal.-- (1) No employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause arid without giving such employee at least one month's notice or wages in lieu of such notice, provided however that such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose. (2) Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. (2) Any employee whose services are dispensed with may appeal to such authority and within such time as may be prescribed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. (3) The appellate authority may, after giving notice in the prescribed manner to the employer and the employee, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case. (4) In directing the reinstatement of an employee the appellate authority shall also direct the payment of such amount of compensation as may be specified by him in case the employer fails to reinstate the employee in accordance with the directions. (rest of the section is omitted as not material.) It will be seen that under S.18(1) the termination of service should be for misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. Under sub-s.(3) it is open to the appellate authority either to dismiss the appeal or direct the reinstatement of the employee with or without wages or direct the payment of compensation or grant such other relief as it deems fit. Judicial decisions have made it clear that it is open to the appellate authority to deal with the evidence recorded in a domestic enquiry and assess it on the merits either agreeing or disagreeing with the findings of the domestic enquiry; or to find if the domestic enquiry has been vitiated by nonconformity with the principles of natural justice or of any statutory provisions or by any act of victimisation or other malpractice against the employee and the like, and for such reasons, to discard the domestic enquiry. In such cases, the decisions have recognised that it is open to the appellate authority to conduct a de novo enquiry itself, and that it will be open to the employer to "seek to substantiate the charge at the de novo enquiry before the appellate authority. We may refer to the decisions in Chelur Agencies's case (ILR 1976 (1) Ker. In such cases, the decisions have recognised that it is open to the appellate authority to conduct a de novo enquiry itself, and that it will be open to the employer to "seek to substantiate the charge at the de novo enquiry before the appellate authority. We may refer to the decisions in Chelur Agencies's case (ILR 1976 (1) Ker. 590) M.A.K. and Sons v. P. Kumara Pillai ( 1966 KLT 640 ), and Ernakulam Cooperative Milk Supply Union v. K. C. Devassy (1973 KLT SN 25), as authorities in support of the position which we have just set out. There are other decisions also. But it is unnecessary to notice them. 2. In the instant case, however, the appellate authority, we are afraid, has jumbled up the domestic enquiry and the de novo enquiry, such as it was. It examined A.W. 1 (the 1st respondent in these writ appeals) for the appellants and R.W. 1. (the enquiry officer) for the respondents in the two appeals before it. The additional evidence thus recorded in appeal was discussed. Having taken this additional evidence itself, in the course of the appellate order Ext. P-21, the authority after discussion recorded its finding thus: ".............. I find that the charges were made against the appellants without giving an opportunity to the appellants to convince them of the discrepancy on the spot. It is the case of the respondent that Ramakurup and Hameed counted and got themselves satisfied that there was excess number of persons. They counted the number from the Balcony from a distance when the show was going on in diffused light as in the case of all matinee shows. There was every chance for them to commit mistake in the counting under such circumstances. In order to clinch the matter the representative and manager in charge could have done the counting an the presence of the appellants and made sure of the excess admission. This they have not done. The respondent has not examined any independent witness before this authority to prove the charge. In the enquiry also they have not examined any independent witness in this regard to prove their case. With regard to the enquiry also I find that the enquiry officer did not consider the explanation of the appellant in Ext. A-4. The respondent has not examined any independent witness before this authority to prove the charge. In the enquiry also they have not examined any independent witness in this regard to prove their case. With regard to the enquiry also I find that the enquiry officer did not consider the explanation of the appellant in Ext. A-4. The delay of more than one month from the alleged commission of the misconduct on 10th January 1974 and the date of giving charge sheet on 19th February 1974 leads one to think that the respondent was taking steps for a deliberate move to terminate the appellant's services, otherwise within a reasonable time the respondent could have taken action regarding the misconduct of the appellant. I therefore, find under issue (1) that both the appellants were dismissed by the respondent in contravention of S.18(1) of the Kerala Shops and Commercial Establishments Act. Issue No. (2): In view of my finding under issue (1) the appellants are entitled to reliefs by way of reinstatement with back wages. Both the appellants have put in 6 years service and were getting Rs. 200 as monthly wages. They were dismissed from 30th September 1974 and their period of the employment since then comes to 2 completed years and one month (25 months) and a little more." It will be noticed that the appellate authority in recording this finding has not stuck to the domestic enquiry and the records of that enquiry alone; it has made a hash up of the records of the domestic enquiry together with the evidence of A W. 1 and R.W. 1 recorded by it in appeal; and by mixing up the two, had come to the conclusion that the finding recorded on the charge could not be supported. The same infirmity is seen in the earlier part of the Appellate Tribunal's order. For instance, the Tribunal stated thus: "The other aspect is the D. C. R. Ext. A-13 revealed that on 10th January 1974 for matinee show there were 140 persons on the ladies side where the seating capacity is only for 92. Mr. Hameed has stated that the excess number of ladies was seated on the gent's side in the front. Thus on the gent's side there should be 113 persons beside children. Yet Mr. Hameed and Kurup found only 72 persons on the gent's side. The charge sheet and Mr. Mr. Hameed has stated that the excess number of ladies was seated on the gent's side in the front. Thus on the gent's side there should be 113 persons beside children. Yet Mr. Hameed and Kurup found only 72 persons on the gent's side. The charge sheet and Mr. Kurup's letter made mention of 72 gents. This aspect the enquiry officer did not consider but gave twist and then quoted the words of Hameed in the cross examination by Abdulkhadr and laid stress on the word gents. The failure to consider this aspect with an open mind made the finding Ext. A-19 perverse. It only evidenced the partiality of the enquiry officer. The version that on 10th January 1974 Mr. Hameed and Mr. Kurup counted the number could not but be a barefaced lie. The said story was inducted ingeniously under advice in order to rope in the appellants. Had it been don? the total number of persons in the middle circle would have found a place in charge sheets and other papers in this regard. The appellants objection to the enquiry being conducted by Mr. Venketeswaran was justified by the deliberate omission on his part in considering the very important aspects pointed out above. The advocate of Kavitha Movie Theatre happened to be Mr. S. A. Nagendran and (R.W. 1's wife is ?) Mr. S.A. Nagendran' junior. This fact was more or less conceded by the enquiry officer when he was examined." (underlining ours). The words we have supplied within brackets are omitted from the copy of the appellate order in our record. But earlier in the order the Tribunal noted that R.W. 1 (the Enquiry Officer) stated that he does not know if Sri Nagendran was the legal adviser of the appellant, and that R.W.1's wife was attending Sri Nagendran's office at the time. The appellate authority had also observed that the first respondent in these appeals had been denied the services of an Advocate or of the Union Secretary which was requested for, and that as a result of such denial, the appellants had been prejudiced and this aspect of the matter had also vitiated the enquiry. The appellate authority had also observed that the first respondent in these appeals had been denied the services of an Advocate or of the Union Secretary which was requested for, and that as a result of such denial, the appellants had been prejudiced and this aspect of the matter had also vitiated the enquiry. It was complained that the appellate authority did not keep in mind the two different aspects of its powers, viz., to deal with the evidence of the domestic enquiry and to re-assess the same; or to discard the same if it was vitiated by any of the vitiating features which we have referred to earlier, to conduct a de novo enquiry and to deal with the matter in the light of the evidence at the de novo enquiry conducted by it. Instead of the keeping the two things apart, what the appellate authority has chosen to do, is to deal with the evidence at the domestic enquiry and also the evidence of A.W.1 and R.W. 1 collected at the appellate stage and on a combined assessment of these, to record its findings. This, we think, was unsustainable. 3. The finding entered by the appellate authority in regard to the denial of opportunity to the 1st respondent in these cases to engage Counsel or a representative of the Union at the enquiry requires reexamination. Representation as of right, by Counsel or Union representative, at a purely domestic enquiry of the type here involved, is difficult to posit. That position was freely admitted by the Government Pleader. The Tribunal has not found that either from the nature of the charge or the scope of the enquiry, or the unequal position of the contestants, such as that the enquiry was being conducted by a trained lawyer or one experienced in conducting enquiries, that the respondents were at a disadvantage and had suffered prejudice. In the circumstances, we cannot sustain this reasoning of the appellate authority. The position requires reexamination after taking all aspects into account. 4. The same infirmity attaches to the observations entered by the appellate authority regarding the bias of the Enquiry Officer. The objection on this ground was not taken, except in a very general way. In the circumstances, we cannot sustain this reasoning of the appellate authority. The position requires reexamination after taking all aspects into account. 4. The same infirmity attaches to the observations entered by the appellate authority regarding the bias of the Enquiry Officer. The objection on this ground was not taken, except in a very general way. The domestic enquiry went on for nearly four or five days, in the course of which, not only was no objection taken to the personnel of the Enquiry Officer, but the respondents themselves participated in the enquiry. Besides, the circumstance that the wife of the Enquiry Officer was the junior of the appellant's legal adviser, is spelt out by the Tribunal from the evidence in cross examination of R.W. 1 examined before it. These circumstances, the Tribunal failed to evaluate. 5. We regret to observe that there was a mix up of the different aspects of the powers possessed by the appellate authority in dealing with the appeal under the Shops and Commercial Establishments Act. As the appellate authority had not fully informed itself of its powers and the way of dealing with the appeal under S.18 of the Act, we regret that we cannot share the view of the learned Judge that it is not the province of this Court to re-assess the evidence and to differ from the conclusions of the appellate authority. Ordinarily this is undoubtedly so; but not, as in this case, where the appellate authority did not keep the evidence of the domestic enquiry and the additional evidence taken before it, separate, but mixed up the two. Nor was it clear in regard to the spheres of operation of the domestic enquiry and,- if such it was-, the de novo enquiry. Why, and how was additional evidence taken before the Tribunal, and A.W.1 and R.W.1 examined? Was it by way of a de novo enquiry? If not, under what powers did the Tribunal receive the additional evidence? These are aspects which require elucidation, and to which the Tribunal has paid little attention. For reasons noticed, we are constrained to interfere. 6. We allow these appeals and set aside the judgment of the learned Judge. The orders passed by the appellate authority (Ext. P-21 in W.A. No. 174 of 1977 and Ext. P-13 in W.A. No. 175 of 1977) will stand quashed. For reasons noticed, we are constrained to interfere. 6. We allow these appeals and set aside the judgment of the learned Judge. The orders passed by the appellate authority (Ext. P-21 in W.A. No. 174 of 1977 and Ext. P-13 in W.A. No. 175 of 1977) will stand quashed. We direct that the appeals will stand remanded back to the appellate authority for fresh disposal in accordance with law and in the light of the observations contained in this judgment. We make no order as to costs.