K.T. ANTONY Vs. APPELLATE AUTHORITY

JUDGEMENT

(1.) This Original Petition is to quash Exts. P-4 and P-5 orders of the Appellate Authority under the Shops and Commercial Establishment Act. The petitioner was the Secretary of the 2nd respondent Cooperative Society. He was suspended on 6th October 1983 and a memo of charges was issued originally on 21st October 1983 containing seven charges. Another memo of charges was issued on 10th December 1983 containing three more charges. The petitioner submitted explanation on 20th December 1983 and, thereafter, enquiry Officer was appointed who conducted an enquiry and submitted a report on 4th May 1984. Accepting the finding, the petitioner was dismissed from service on 18th July 1984. The petitioner then filed an appeal to the Appellate Authority viz. the Board of Directors of the Society and the Board found that the misconduct is proved, but nevertheless converted the punishment of dismissal into compulsory retirement. Against the order of punishment by the management ending in compulsory retirement, the petitioner filed an appeal under S.18 of the Shops and Commercial Establishment Act. Two orders have been passed by the appellate authority. One is relating to the enquiry. The enquiry report has not been proved before the Appellate Authority. Even though the Enquiry Officer was available, counsel for the 2nd respondent was not available before the Appellate Authority. In view of that the Appellate Authority passed Ext. P-4 holding that the validity of the domestic enquiry was not prayed before him and proceeded to take evidence and to conduct de novo enquiry In the de novo/enquiry conducted by the Appellate Authority, the appellant got himself examined and the Management examined five witnesses. The appellant marked two documents and the management marked 29 documents. Thereafter, perusing all the documents and evidence adduced before the Appellate Authority, the Appellate Authority found that charge Nos. 1, 2, 3, 4, 5, 6, 7 and 9 have been proved by the respondents in the denovo enquiry and charges Nos. 8 and 10 have not been proved and further held that the charges proved against the petitioner are grave irregularities, justifying the punishment imposed by the management, viz. compulsory retirement. It is these orders, produced by the petitioner as Exts. P-4 and P-5 that are challenged before me by the petitioner.

(2.) Counsel for the petitioner referred to S.18 of the Shops and Commercial Establishment Act (for short 'The Act') relevant portion of which provides that no employer shall dispense with the services of an employee employed continuously for a period of not less than six months without conducting a domestic enquiry for the purpose. S.18 (1) of the Act is extracted:

(3.) Counsel for the petitioner submits that the Appellate Authority came to the conclusion that no enquiry has been proved. He relying on the decision of the Privy Council in Radha Kishun v. Khurshed Hossein AIR 1920 PC 8 , contended that matters which are not proved before the authority and the matters which are not in existence cognition in the Court of law should be in the same fashion. The observation of Privy Council is