Parameswaran Elayidam v. Mutual Aid Bankers — 1999 DIGILAW 145 (KER)

Judgment :- J.B. Koshy, J. Appellant, second respondent in the Original Petition, was employed as a Civil Assistant in the first respondent Trust (petitioner in the Original Petition). He was served with a charge sheet containing several charges. An enquiry was conducted in accordance with the principles of natural justice regarding the charges. The enquiry officer found that only charge No. 2 was proved against the appellant. The proved charge was as follows; "On 15.7.1989, Rs.8,000/- was received from judgment debtors in O.S. No. 227/86 before principal Sub Court, Ernakulam. but the delinquent had remitted Rs. 5,000/- only in the office of Mutual Aid Bankers, Pullepady, Cochin-18. Thus there is misconduct and misappropriation on the part of the delinquent." 2. The case of the appellant before me enquiry officer was that an amount of Rs. 8,000/- was received from the judgment debtors in O.S. No. 227 of 1986 before the Principal Sub Court, Ernakulum, on 15.7.1989 by the Deputy Manager of the employer Trust. According to him, Sri. P.B. Mohankumar, Advocate who appeared for the employer handed over the above amount to the Deputy Manager. The Deputy Manager entrusted the appellant to enter Rs. 5000/- in the accounts and he has entered Rs. 5,000/-accordingly. In the enquiry Deputy Manager was examined and he admitted that he received the amount of Rs. 8000/-from the Advocate and he asked the Clerk to account for Rs. 5000/- and he himself is detaining the balance Rs. 3000/-. Therefore, it was the contention of the appellant that there was a specific direction of the Deputy Manager who was the superior to account Rs. 5,000/- and that was accounted. When Deputy Manager admitted that the balance Rs. 3000/- is detained with him there is no misappropriation. The enquiry officer found as follows: "The delinquent is not expected load or commit illegitimate-or illegal acts which will hamper the best interest of the institution in which he is employed. His explanation that he was strictly directed by EW2 to write false account is not satisfactory explanation and hence lam not inclined to accept his version. I am of the opinion, in the aforesaid circumstances, that the delinquent is partly to the misappropriation of Rs. 3000/-." On the basis of the above findings he was dismissed from service. 3. His explanation that he was strictly directed by EW2 to write false account is not satisfactory explanation and hence lam not inclined to accept his version. I am of the opinion, in the aforesaid circumstances, that the delinquent is partly to the misappropriation of Rs. 3000/-." On the basis of the above findings he was dismissed from service. 3. Against the dismissal order, appellant filed an appeal before the Shop Appellate Authority under S. IX(2) of the Kerala Shops and Commercial Establishments Act, 19(i() (hereinafter referred to as 'the act) and the shop appeal was numbered as S.A. No. 4 of 1992. The Shop Appellate Authority found that enquiry was conducted fairly and properly. Thai means there was no denial of opportunity to both sides, employer and employee, to adduce whatever evidence they would like to adduce. But the Shop Appellate Authority found that findings of the enquiry officer are perverse. The Shop Appellate Authority considered the evidence and depositions of the Deputy Manager in cross-examination and found as follows: "The depositions of the Deputy Manager of the respondent Bankers is a categorical admission that the amount received from the judgment debtors in O.S. No. 227/86 was received by him from Advocate P.B. Mohankumar and that the balance amount of Rs. 3000-after crediting Rs.5000/- is with him". After quoting the depositions again it was held as follows: "The above deposition shows that the appellant was instructed to enter in the suit ledger Rs.5000/- only out of Rs.8000/- received in O.S. No. 227/86 and been lriesmadc in the suit lodger by the appellant were in accordance with the specific direction of the Deputy Manager of the respondent Bankers. There is also evidence to show that the Deputy Manager has been managing the entire affairs of the respondent Bankers in the relevant period...." Ext. D1 I was copy of the suit. In the suit itself it is stated that Sri. P.L. Frixes, Deputy Manager was the Convener of the Trust and the managing trustees having other commitments and occupation, the Deputy Manager was managing the entire business of the Trust and he was the sole authority in the conduct of the business. In the above circumstances, the Shop Appellate Authority found as follows: "In the circumstances the appellant cannot be found fault with for having obeyed the direction of the Deputy Manager...,". In the above circumstances, the Shop Appellate Authority found as follows: "In the circumstances the appellant cannot be found fault with for having obeyed the direction of the Deputy Manager...,". After considering the evidence adduced in the domestic enquiry the Shop Appellate Authority found that mis conduct is not proved against the appellant. The final conclusions are as follows : "For the reasons staled above I am convinced that the respondent has failed to establish charge No. 2 raised against the appellant and find that the finding of guilt by the Enquiry Officer is not supported by evidence and-il is therefore, perverse. Therefore, the finding of guilt and the order of dismissal issued to the appellant based on the finding in the enquiry are seaside." After holding so in Ext. P1 order the case was further posted for considering the question of relief. It was also staled that the management will give an opportunity to raise the point (hat appellant was gainfully, employed after his suspension etc. No evidence was adduced by the management regarding the question of relief. They also did not lake a contention that appellant was gainfully employed after suspension from service or that there is no reason to award normal relief of reinstatement with back wages when misconduct was not proved. But they filed a petition for allowing de novo enquiry. Thai petition was dismissed. The order in that petition was neither produced nor challenged by the petitioner. Thereafter, final order was passed. The Shop Appellate Authority has taken the minimum wages prescribed by the Government for calculating back wages and ordered reinstatement with back wages. Ii was calculated that he is entitled to back wages of Rs. 24,608/-. In view of S.18(4) and (4a) the amount of compensation to be paid in lieu of reinstatement was also fixed. S.18(4) and (4A) are as follows: "(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. S.18(4) and (4A) are as follows: "(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. (4Aj In directing the payment of compensation under sub-s.(3) or (4) the Appellate Authority may include as part of the compensations the wages of the employee for the period he was kepi out of employment." Considering (fie decision of the Supreme Court in O.P. Bhandari v. Indian Tourism Development Curporaliitn Lid. (1987 Lab 1C 25) compensation in lieu of reinstatement was also calculated taking note of the age of the appellant and retirement age and fixed at Rs. 30,729/-. If he is not reinstated the employer was directed to pay Rs. 55.337/- as compensation in lieu of reinstatement with back wages. II was further ordered that if the amount is not paid within 30 days, 10% interest also to be realised by means of revenue recovery. The relief is ordered in Ext. P2 order. The employer challenged Exls. P1 and P2 orders before this Court contending that the Shop appellate Authority exceeded its jurisdiction in reconsidering the evidence adduced before the enquiry and come into its own conclusions. It was further contended the appellant should have been granted an opportunity to adduce fresh evidence to prove the misconduct when the findings of the enquiry was not accepted: The learned judge accepted both the contentions. 4. With regard to the first contention that the Shop appellate Authority exceeded its jurisdiction in setting aside the findings of the enquiry decision of the Supreme Court in Indian Iwn & Steel Co. Ltd. v. Tlmr Workmen. (1958 (I) LLJ 260) and held as follows: "Therefore, the reasoning adopted by the first respondent to set aside the finding of me inquiry officer cannot he considered to he legal or valid on the facts and circumstances of this case and in view of the above decisions of the Supreme Court." The learned judge also referred to the decision in Workmen of M/s. Firestone Tyre & Rubber Co. v. Management & Ors. (1973 (I) LLJ 278). The learned judge further held that the management's request for adducing fresh enquiry should have been allowed eventhough enquiry was fairly and properly conducted. v. Management & Ors. (1973 (I) LLJ 278). The learned judge further held that the management's request for adducing fresh enquiry should have been allowed eventhough enquiry was fairly and properly conducted. Thereafter, after going through the evidence found that the employee was guilty and he is not entitled for reinstatement with backwages. Learned Judge held as follows: "For the falsilication of the accounts made by the second respondent, he is now ordered to be reinstated on payment of more than Rs. 30, 000/- by the first respondent. In the transaction, the Trust has lost Rs. 3, 000/- by the conduct of the Deputy Manager in misappropriating the same from the amount received from Court and the second respondent in making incorrect and false criteria in the accounts of the-Trust. In the above circumstances, I do not find any legal or moral justification for the first respondent to order reinstatement of the second respondent with back wages." Therefore, Exts. P1 and P2 are quashed and the case was remanded to the first respondent to consider it afresh after according an opportunity to the management to substantiate the charges levelled against the second respondent. 5. The decision of the Supreme Court in Indian Iron & Steel Co. 's case deals with the power of the Labour Court and Tribunal under the Industrial Disputes Act. That too before the amendment of the Industrial Disputes Act by introducing S.11A. Before the introduction of S.11A of the Labour Court and Tribunal have jurisdiction of interfere with the dismissal on misconduct when there is want of good faith, victimization or unfair labour practice, violation of the principles of natural justice or when the findings arc perverse or baseless. Here the appellate authority found that findings arc perverse. Apart from the above, the powers of the Shop Appellate Authority under the Shop Act is different from the powers of the Industrial Tribunal and Labour Court. S.18(2) and (3) of the Act are as follows: "(2) Any employee whose services are dispensed with any appeal to such authority and within such time as may he 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. (3) The appellate authority may. after giving not ice 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 gram such other relief as it deems fit in the circumstances of the case." 6. In S.U.S. Davey Sou v. Addl. Commissioner for Workmen's Compensation & Am: (I960 (I) LLJ 485 and 1963 (I) LLJ 44) it was held by a Division Bench of the Madras High Court considering similar circumstances that the jurisdiction of the appellate authority to go into the merits of the misconduct for which the appellant employee was dismissed from service, does not stand on the same footing as that of the Industrial Tribunal or Labour Court to examine such question in the reference under S.10 of the Industrial Disputes Act. 7. In M.A.K. & Sons v. P. Kuniara filial (1966 KLT 640) this Court held that power under S.18(2) of the appellate authority is very wide. re-appraisel and reassessment of the evidence by the Appellate Authority is justified. The Industrial Tribunal and Labour Court before S.11A was not silling in appeal. Bui, Shop Appellate Authority was silting in appeal and it can re-appraise the evidence. The learned judge also referred to the decision of the Supreme Court in Workmen of MA: Firestone Tyre..& Rubber Co.'s case (supra). The learned judge referred to certain portions from paragraph 25 ol'lhe Supreme Court judgment. Bui those arc sell led position before S.11A was introduced and not after S.1IA was introduced. In paragraph 30 it is stated that S.11A was enacted to lake away the limitations on the powers of the Industrial Tribunal as laid down by the Supreme Court, in Indian Iron & Sleel Co. Lid. ',v case and found that after S.11A was introduced the Labour Court and Tribunals have got power to re-appraise the evidence and differ from the findings of the enquiry with cogent reasons if enquiry is conducted fairly and properly. If enquiry is not conducted or there is defective enquiry, fresh evidence can be adduced and fresh enquiry can be conducted by the Tribunal itself. Even before S. I IA was enacted the Shop Appellate Authority has got power to re-appraise evidence. If enquiry is not conducted or there is defective enquiry, fresh evidence can be adduced and fresh enquiry can be conducted by the Tribunal itself. Even before S. I IA was enacted the Shop Appellate Authority has got power to re-appraise evidence. (S. The Supreme Court in United Planters Association of Southern Indict v. K.G. sanameswaran & Am: (1997 (1) LLJ 1104) held as follows: "From a perusal of t he provisions quoted above, it will he sectional the jurisdiction of the Appellate Authority to record evidence and to come to its own conclusion on the questions involved in the appeal is very wide..." In that case, the enquiry was not conducted and employees' services were terminated in accordance with service conditions. Supreme Court held that it is punitive in nature and therefore, management should have allowed to adduce evidence before the Shop Appellate Authority as no enquiry was conducted. I1 was held in the above case that power of the Shop Appellate Authority is very wide. In Remington Rand of India Ltd. v. Thini R. Jambidingum (1975 II LLJ 376) it was held by the Supreme Court that jurisdiction of the Commissioner (Deputy Labour Commissioner) who is the Appellate Authority under the Act is of wider scope unlike that of the Tribunal in an application under S.33 of the Industrial Disputes Act. It was further held that the Commissioner was competent to rehear the matter completely and come to its own conclusion after re-appreciation of the evidence or entertaining additional evidence, if necessary, in the interest of justice. In view of this decision we are of the opinion that powers of the Appellate Authority is very wide and merely by re-appraising the evidence and came to a different finding the Appellate Authority did not commit any illegality or error of jurisdiction. Jurisdiction of the Shop Appellate Authority cannot be equated with that of the Industrial Tribunal and Labour Court before introduction of S.11A as found by the learned Single Judge. 9. With regard to the question of additional evidence as held by the Supreme Court in UPAS '.s case (1997 I LL.I 1104) it is our opinion that Shop Appellate Authority can allow parties in the appeal to adduce evidence when there is no enquiry or enquiry is defective. 9. With regard to the question of additional evidence as held by the Supreme Court in UPAS '.s case (1997 I LL.I 1104) it is our opinion that Shop Appellate Authority can allow parties in the appeal to adduce evidence when there is no enquiry or enquiry is defective. It can also permit parties to adduce evidence even if enquiry is fair, if it is of the opinion that material evidence was left out to be adduced in the enquiry because enquiry was exparte etc. or in the interest of justice further evidence should be adduced. The power of Shop Appellate Authority is wider than Industrial Tribunal and Labour Court under S.11 A. But when enquiry is properly conducted, the authority need not automatically allow the parties to adduce fresh evidence without application of mind merely because one of the parties requested for such an opportunity, in this case enquiry was conducted in accordance with the principles of natural justice. Both parties adduced evidence. The management has no case that it did not adduce full available evidence in the enquiry or not stated that management was prevented or disallowed from adducing evidence in the enquiry. Evidence in the enquiry was re-considered and re-appreciated by the authority. Management has not revealed even in the original petition, regarding the nature of fresh evidence to be adduced other than evidence already adduced in the enquiry so as to show that circumstances warranted for the Shop Appellate Authority to allow to adduce further evidence in this case. The opinion of the learned Single judge that merely because first respondent disagreed with the findings of the enquiry officer, first respondent ought to have allowed an opportunity to the management to adduce evidence at its request to substantiate the charges levelled against the employee cannot be accepted. Merely because a different finding is arrived at by the authority is not a reason to allow the management to adduce fresh evidence. In this case, the entire evidence and documents are considered. In fact, findings of the enquiry officer was not considered, and the appellate authority was of the opinion that even if the allegations made by the management is accepted, it will not amount to misappropriation as charge sheeted. It was proved that Deputy Manager who was in full management has received Rs. 3000/- from the Advocate and directed the employee to account only Rs. 5000/-. It was proved that Deputy Manager who was in full management has received Rs. 3000/- from the Advocate and directed the employee to account only Rs. 5000/-. The Deputy Manager himself admitted that he detained Rs. 3000/- with him and there is no misappropriation on the pail of the employee. There is also no charge that employee connived with the Deputy Manager in committing misappropriation. 10. Considering the evidence adduced and nature of circumstances, His conclusion arrived at by the Shop Appellate Authority was that appellant has not commuted any misconduct and he has done only as per the direction of the Deputy Manager. In fact, even in the enquiry officer's findings it is not disputed that the amount of Rs. 5000/-only was accounted at the instance of the Deputy Manager. The fault found against the employee in the findings of the enquiry officer was that even if the Deputy Manager directed he should not have wrote the same. There is no such charge. All the aspects of the matter were considered by the Shop Appellate Authority and came to the conclusion that misconduct charged was not proved. 11. As already held the Shop Appellate Authority has jurisdiction to re-appraise the evidence. After going through the evidence the Shop Appellate Authority rightly found that charge No. 2 was not proved and findings of the enquiry officer are perverse. The other charges were already held not proved by the enquiry officer himself. Apart from the fact that the findings by the enquiry officer were not fully accepted, no valid grounds were urged for allowing to adduce fresh evidence to prove misconduct and the application for the same was rightly rejected by the Appellate Authority. The employer did not adduce any evidence regarding quantum of relief to be granted to the employee. The Shop Appellate Authority has considered the entire matter in the right perspective and granted relief. There is no error of jurisdiction or error of law apparent. on the face of the record so as to all act jurisdiction under Art.226 or 227 of the Constitution of India. There is no perverse finding resulting in injustice. If the employer feels that in view of the nature of allegations he has lost confidence in him, instead of reinstatement -he can pay compensation, and the total amount of compensation ordered in lieu of reinstatement with hack wages is only Rs. 55,337/-. There is no perverse finding resulting in injustice. If the employer feels that in view of the nature of allegations he has lost confidence in him, instead of reinstatement -he can pay compensation, and the total amount of compensation ordered in lieu of reinstatement with hack wages is only Rs. 55,337/-. In the above circumstances, we see no infirmity in Exist. P1 and P2 orders. The impugned judgment of the learned Single Judge is set aside. I however in view of the fact that the order of the Shop Appellate Authority was stayed by this Court during the pendency of the original petition etc. interest as ordered in Ext. P2 order from the date of that order need be paid if the compensation is not paid within thirty days from today. With the above observations, the Writ Appeal is allowed.