M A HAJEE Vs. S A NAZARUDEEN

JUDGEMENT

(1.) The petitioner is a partnership firm carrying on business in hardware, tools and paint. It is said to be the successor of the firm M/s. Hajee M. A. Mohammed Kannu & Brothers.

(2.) The first respondent in the Original Petition was a Shop Assistant in the firm, M/s. Hajee M. A. Mohammed Kannu & Brothers. On 05/09/1988 he was placed under suspension and a memo of charges alleging misconduct was issued. It was alleged that he was a late comer, that he used to leave the establishment early without permission, that he was wilfully disobeying lawful instructions given by the employer, that he was intentionally destroying the properties of the establishment and was supplying more items than what was actually required by the customers with the oblique motive of causing loss to the employer. As his explanation to the memo of charges was not satisfactory, a domestic enquiry was conducted. The Enquiry Officer found him guilty of the charges. A copy of the enquiry report was furnished to him and he was called upon to show cause why he should not be dismissed from service. As the explanation offered by the first respondent was not satisfactory, he was dismissed from service on 04/05/1989.

(3.) The first respondent filed an appeal before the second respondent under S.18(2) of the Kerala Shops and Commercial Establishments Act, 1960 challenging the order of dismissal. The appeal was filed on 09/06/1989 and it was numbered as SA No. 10 of 1989. It was later renumbered as SA No. 27 of 1992. M/s. Hajee M. A. Mohamed Kannu & Brothers, the sole respondent in the appeal appeared and filed its objections. The validity of the domestic enquiry held into the charges was considered as a preliminary issue. By order passed on 17/06/1998, after 9 long years, the Appellate Authority held that the enquiry was not validly and properly conducted. The Appellate Authority further held that the findings of the Enquiry Officer are perverse. The enquiry report was set aside. The appeal thereafter stood posted for hearing to 10/08/1998. On that day, it was adjourned to 26/08/1998. On 26/08/1998, the counsel appearing for the employer filed a memo stating that the management has decided to cancel the order dismissing the employee from service. A copy of the order passed in that regard on 26/08/1998 (Ext. P1 herein) was also produced before the Appellate Authority. The counsel appearing for the employee sought time for filing objections and the appeal was adjourned to 14/09/1998. On 14/09/1998, the counsel for the employee filed objections to the memo filed by the employer and the case was adjourned to 28/09/1998 for hearing on the objections. On 28/09/1998, the appeal was adjourned as requested by counsel on both sides to 14/10/1998. On 14/10/1998, the counsel for the employer filed an affidavit along with a petition praying for dismissal of the appeal. The counsel for the employee thereupon sought time for filing a reply and the appeal was accordingly adjourned to 26/10/1998. On 26/10/1998, the counsel for the employer filed a hearing note producing along with it a copy of the decision of this Court in President, Eraveli Cooperative Consumers' Stores Ltd. v. Deputy Labour Commissioner, 1977 KHC 194 : 1977 KLT 541 : ILR 1977 (2) Ker. 222 : 1978 (1) LLJ 265. It was contended that when the employer cancels the order dismissing the employee from service, the Appellate Authority ceases to have jurisdiction to go into the merits of the appeal, but can only dismiss it. The counsel for the first respondent was thereupon directed to submit his reply to the hearing note submitted by the counsel for the employer within seven days. The counsel appearing for the first respondent employee, relying on the decision of this Court in Secretary, Fatima Cooperative Credit Society Limited v. Appellate Authority, 1993 KHC 447 : 1994 (3) ILR Kerala 193 : 1993 (2) KLT 903 : 1993 (2) KLJ 886 contended that the Appellate Authority is empowered to direct reinstatement of the employee or to direct payment of compensation in lieu of reinstatement. By Ext. P2 order passed on 30/11/1998, the Appellate Authority overruled the contentions of the employer and directed the employer to pay a lump sum compensation of Rs.50,000/- to the employee in lieu of reinstatement in service. The employer was directed to pay the compensation within 30 days failing which it was ordered that penalty and interest at the rate of 18% per annum will be imposed and the amount recovered under the Kerala Revenue Recovery Act, 1968. The petitioner firm has in this Original Petition challenged Ext. P2 and prayed for the following reliefs: