KAVITHA MOVIE HOUSE Vs. M A ABDUL KHADER

JUDGEMENT

(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. P5. Ext. P14 is the Report of the Enquiry Officer finding the charges proved. Ext. P15 notice was issued to show cause against dismissal from service; and, after considering Ext. P16 explanation, by Ext. P18, the 1st respondent was dismissed from service. Ext. P16 is the copy of the appeal filed by him, Ext. P19 the reply by the theatre owner, Ext. P20, the rejoinder by the 1st respondent, and Ext. P21 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

(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:

(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.