Jacob Koshy v. Appellate Authority and Another — 1994 DIGILAW 851 (MAD)

Judgment :- The Writ Petition can be disposed of in a very short ground. The prayer is to quash the order passed by the Appellate Authority under Section 41(2) of the Tamilnadu Shops and Establishments Act, 1947 in T.S.E.A. Case No. 5 of 1984 on March 25, 1985. 2. The petitioner was an employee as Office Assistant-Cum-Driver under the second respondent. His services were terminated by an order dated February 8, 1984. The same was challenged by the petitioner in an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act before the first respondent. A counter was filed by the second respondent in the appeal. The petitioner's counsel sought permission of the authority to lead evidence to decide the question as to the validity of the domestic enquiry conducted by the second respondent. Evidence was partly recorded. When the petitioner was in the witness box, the second respondent's counsel put some questions to the witness relating to the merits of the case. The petitioner's counsel objected thereto by pointing out that the question on merits did not arise for consideration at that stage as the authority had to decide whether the domestic enquiry was valid or not and whether there has been any procedural defect in the enquiry. On that question, the authority directed both the counsel to argue. Arguments were heard on March 7, 1985 and March 26, 1985 was passed by the authority March 25, 1985 was passed by the authority holding on the merit that the domestic enquiry was validly held and that the petitioner failed to utilise the opportunity given to him to appear before the officer who held the domestic enquiry. 3. The first respondent directed the parties to argue the merits of the appeal without letting in any additional evidence. It is that order which is challenged in this writ petition by the petitioner. 4. It should be pointed out that though the affidavit of the petitioner was served on the respondents about nine years ago, neither of them has chosen to file counter affidavit denying the averments made in the petitioner's affidavit. Hence I proceed on the footing that the averments in para II in particular in the affidavit of the petitioner are true. It should be pointed out that though the affidavit of the petitioner was served on the respondents about nine years ago, neither of them has chosen to file counter affidavit denying the averments made in the petitioner's affidavit. Hence I proceed on the footing that the averments in para II in particular in the affidavit of the petitioner are true. Again, when the matter came up before Raju, J., on June 24, 1994, he directed the Government Pleader to cause production of the entire file relating to the proceedings pending on the file of the first respondent. The matter was adjourned by two weeks. Though nearly four months have elapsed, still the records are not produced. According to the learned Additional Government Pleader, he had given a telephonic message to the first respondent, but the records were not forwarded to him. 5. In the circumstances, as stated above, I proceed on the footing that the averments contained in Para 11 of the affidavit of the petitioner are true and the arguments were concluded only on March 26, 1985. But the officer had passed the order even on March 25, 1985. That is more than enough to set aside the impugned order of the first respondent. 6. However, there is one other ground on which the order can be set aside. It is not in dispute that the petitioner was in the witness box and he was partly examined. Even the first paragraph of the impugned order discloses that when the petitioner was being cross-examined, the petitioner's counsel objected to certain questions put to the petitioner by the counsel for the second respondent. Hence at that stage, the petitioner's counsel agreed to argue the issue whether any question could be put to the witness relating to the merits of the case. Arguments were heard only for that purpose. After hearing those arguments, the order proceeds to hold on the merits that the domestic enquiry was properly held and the counsel for the parties should argue the appeal before the first respondent without any further evidence. It is again clearly erroneous. The first respondent ought not to have decided the question as to whether the domestic enquiry was validly held or not. The only question on which he heard the arguments was whether any evidence could be let in relating to the merits of the case. It is again clearly erroneous. The first respondent ought not to have decided the question as to whether the domestic enquiry was validly held or not. The only question on which he heard the arguments was whether any evidence could be let in relating to the merits of the case. After hearing, for that limited purpose, the first respondent has no business to give a finding on the merits of the appeal. 7. Thereafter, the first respondent prevented the parties from letting in further evidence. That is also erroneous. 8. In the circumstances, the order of the first respondent deserves to be set aside and it is accordingly quashed. 9. The scope of the Enquiry in appeal under Section 41(2) of the Tamilnadu Shops and Establishments act has been considered by this Court in Kodak and Company v. Additional Commissioner, Workmen's Compensation (1970-II-LLJ-364). The relevant passage laying down the principles applicable to the case reads as follows : With regard to the holding of such enquiry three possible situations may be contemplated : (1) The Employer does not hold any enquiry at all and simply passes an order dispensing with the services of the employee on grounds of certain misconduct; (2) The employer makes a farce of conducting an enquiry without bona fide intending to conduct any such enquiry as contemplated by the statute and thereafter passes as order of dismissal; (3) The employer bona fide conducts an enquiry, but subsequently it is found to be defective by the appellate authority. As far as the first case is concerned, it does not present any difficulty and the result is that there had been a failure to comply with the mandatory statutory requirements. As far as the third case is concerned, the employer had bonafide conducted an enquiry; but the same had been determined to be defective by the appellate authority. In that case, it cannot be said that there had been a violation or contravention of the statutory requirements by the employer and therefore, the appellate authority will be perfectly justified in remedying the defect in the enquiry by taking additional evidence and considering the question of the misconduct against the employee on merits and disposing of the appeal on that basis. As far as the second case is concerned, lack of bonafides wipes out the farcical enquiry and in substance it does not stand on any different footing than the first one, where there has been no enquiry. In this case also, the result is that there had been a contravention and violation of the requirements of the statute and the said deficiency cannot be made good by the appellate authority. In the first two cases, the defect or deficiency goes to the root of the matter and renders the ultimate action of the employer void so that there cannot be any affirmation or confirmation of such void action by the appellate authority on the basis of himself conducting an enquiry.Under these circumstances, I am definitely of the view that when the services of an employee are dispensed with by an employer without conducting an enquiry as contemplated by Section 41(1) of the Act, the appellate authority has no jurisdiction whatever to itself conduct an enquiry, in the place of the enquiry to be conducted by the employer and as a result of such enquiry to come to the conclusion whether the employee was guilty of the misconduct alleged against him, or not. In such a situation, the only course open to the appellate authority is to allow the appeal of the employee and set aside the order of dismissal. The result of this will be, the employer will be at liberty to take action again against the employee after complying with the statutory requirements. Though I have come to the said conclusion, with reference to the language contained in Section 41(1) and Section 41(2) of the Act and the objects sought to be achieved by the said statutory provisions, it may also be noticed that this conclusion does not damnify or prejudice the employer, because his right to take fresh proceedings after complying with the statutory requirements is preserved. 10. The only question to be decided by the authority under Section 41(2) of the Tamilnadu Shops and Establishments Act, whether there was a valid enquiry. Hence, there is no question of the authority going into the merits of the charge framed against the petitioner and grounds of termination of services. Consequently it follows that the evidence to be adduced before the authority should be confined to the procedural irregularity or infirmity of the domestic enquiry. Hence, there is no question of the authority going into the merits of the charge framed against the petitioner and grounds of termination of services. Consequently it follows that the evidence to be adduced before the authority should be confined to the procedural irregularity or infirmity of the domestic enquiry. There is no necessity for letting in evidence on the merits of the charge against the petitioner at this stage. In those circumstances, the evidence of the petitioner should continue and the questions should be put to him only with regard to the validity of the domestic enquiry. It is for the second Respondent to adduce evidence if any only with respect to that matter. After conclusion of such evidence on both sides, it is for the first respondent to pass an order in accordance with law on the appeal. In view of my above decision, it is not necessary for the first respondent to decide whether the evidence can be adduced with regard to the merits of the charge framed against the petitioner. The first respondent shall follow the directions given above and conclude the case before him on or before January 31, 1995. 11. Learned for the second respondent submits that he has no instructions to appear before the first respondent in the enquiry any further. Hence he requests the court to direct the first respondent to issue notice to the parties directly. In the circumstances, I direct the first respondent to issue notice not only to the counsel on record in the Appeal before him but also to the parties directly. 12. The writ petition is allowed on the above terms. In view of the indifferent attitude shown by the first respondent in this case by neither filing a counter nor producing the records in spite of the direction of the court, the first respondent shall pay the costs of the petitioner in the writ petition. Counsel fee Rs. 2, 000/-.