KOTAK AND CO Vs. ADDITIONAL COMMISSIONER FOR WORKMENS

JUDGEMENT

(1.) THE second respondent herein was employed as a driver under the petitioner and his services were terminated by an order dated 25th February, 1964, issued by the head office of the petitioner-company at Bombay. Prior to this order dated 2slh February, 1964, a charge-sheet dated 3rd February, 1964, was sent to the second respondent to his address at Coimbatore and also to his village address near Trichur, the substance of the charge-sheet being the rude and insolent behaviour of the second respondent and also his failure to report for duty on 27th January, 1964. The charge-sheet sent to him to both the addresses was returned un-served. Thereafter, on 7th February, 1964, a telegram was sent to the second respondent to the following effect: Show cause notice sent to you on the third February stop Seth Popitlal Kotak arriving Monday morning report duty forthwith. It is the case of the second respondent that he did not receive that telegram. Even it he had received this telegram, he could rut have known what the charges framed against him were, since the charges nest dated 3rd Feburary, 1964, was returned unserved. Another telegram was sent to the second respondent on 13th February, 1964, to the following effect: Show cause notices evaded not reported duty despite refusal of leave your-self responsible for consequences. The second respondent received this telegram and on 16th February, 1964, he sent a communication to the petitioner. Thereafter the papers were sent by the petitioner to the head office at Bombay and it is the partner of the petitioner-company at Bombay who passed the order dated 25th February, 1964, terminating the services of the second respondent. This order pointed out that from the tenor of the second respondent's letter dated 16th February, 1964, the employer was reasonably satisfied that in spite of all attempts to serve the show cause notice on the second respondent tad to give him intimation of the fact that no leave had been granted to him, he (the second respondent) purposely evaded service. It further proceeded to state that in the absence of the explanation of the second respondent, the employer was satisfied that the charges made against him in the notice dated 3rd February, 1964, were true. Thereafter, the second respondent filed an appeal before the first respondent under Section 41 (2) of the Madras Shops and Establishments Act, 1947 (Madras Act XXXVI of 1947), hereinafter referred to as the Act. Before the first respondent, the petitioner herein filed an application purporting to be under Rule 9 (2) of the Madras Ships and Establishments Rules, 1948, hereinafter referred to as the rules, read with Section 41 (2) of the Act. In this application, the petitioner stated that the enquiry prior to the dismissal of the second respondent proceeded ex parte in the context of the second respondent not having submitted any explanation to the charge-sheet and there being therefore no explanation to be considered at the enquiry; and if however he should offer any explanation to the charges before the first respondent or if the first respondent should think that the second respondent should be given an opportunity, the first respondent may enquire into the misconduct on the merits and take such further evidence for this purpose as the first respondent may consider necessary, in conformity with the decision of the Madras High Court, in Srirangam Janopakara Bank v. S. Rangarajan 1964-I L. L. J. 221. Pursuant to this application, evidence was adduced before the first respondent. However, by an order dated 19th February, 1968, the first respondent allowed the appeal of the second respondent. The finding of the fist respondent is: The employer is aware of the address of the appellant both at Coimbatore and at Trichur. As no notice has been attempted to be served for an enquiry and as no opportunity has been given to the appellant to offer his explanation, I am not able to accept that this is a case of discharge under the proviso to Section 41 (1) wherein the service of the appellant has been dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. As no attempt has been made to conduct an enquiry in which satisfactory evidence was recorded to support the charges, the dismissal order has to be set aside. Before the first respondent, the petitioner contended in conformity with the application filed by it under Rule 9 (2) read with Section 41 (2) of the Act, that the first respondent himself should go into the evidence placed before it and come to a conclusion as to whether the charges levelled against the second respondent were true or not. The first respondent declined to embark on any such venture. The first respondent pointed out: Though the right to record further evidence in this forum is conceded, evidently, it is not intended to substitute the enquiry contemplated to be conducted by the employer under Section 41 (1) of the Madras Shops and Establishments Act. When there is no evidence on record on a question of jurisdiction as on the question whether the appellant is a 'person employed' or whether the Act is applicable to an establishment or where there is no satisfactory evidence to establish an important fact one way or the other, the appellate authority can certainly record fresh evidence but this recording of evidence is not intended to substitute the enquiry contemplated by the employer. It is to quash this order of the first respondent, the present writ petition under Article 226 of the Constitution of India has been filed.

(2.) BEFORE I proceed to consider the contentions advanced by the learned Counsel for the petitioner, I shall refer to one or two matters on which there is no controversy. Admittedly, the charge-sheet dated 3rd February, 1964, sent to the second respondent was returned unserved and the telegram dated 13th February, 1964, received by the second respondent did not contain the details of the charge. Consequently, the second respondent had no knowledge of what exactly the charges framed against him were, before he received the order dated 25th February, 1964, terminating his services. Secondly, after the papers were despatched by the petitioner to its head office at Bombay, no notice whatever was sent to the second respondent herein asking him to appear for any enquiry to be conducted by anybody and the head office at Bombay did not conduct any enquiry and the order dated 25th February, 1964, was passed by a partner at Bombay, on perusing the papers sent by the petitioner herein. Under these circumstances, the conclusion of the first respondent that no attempt has been made to conduct as enquiry in which satisfactory evidence was recorded to support the charges, before the order dated 25th February, 1964, was passed, is correct and cannot be assailed in these proceedings. As a matter of fact, really, such a finding is one on a question of fact and cannot be challenged in proceedings under Article 226 of the Constitution of India, unless it can be shown that such finding was wholly unsupported by any evidence on record. Such is not the case here and, in fact, the petitioner could not challenge the correctness of this finding and that explains why the application purported to be under Rule 9 (1) of the rules read with Section 41 (2) of the Act was made before the first respondent. Therefore, in this writ petition, I have to proceed on the basis that the petitioner did not conduct any enquiry as contemplated by Section 41 (1) of the Act before the order dated 25th February, 1964, was passed terminating the services of the second respondent.

(3.) IT is because of this position Mr. M. R. Narayanaswami, learned Counsel for the petitioner, confined himself solely to the point that it was the duty of the first respondent under such circumstances to go into the merits as to whether the second respondent was guilty of the charges levelled against him in the charge-sheet dated 3rd February, 1964, and for this purpose evidence having been let in and having been recorded by the first respondent, it was his statutory obligation to consider that evidence and come to a conclusion one way or the other. In this context, the learned Counsel strongly relied on a decision of a Bench of this Court, which itself was referred to in the application purported to have been filed by the petitioner before the first respondent under Rule 9 (2) of the rules read with Section 41 (2) of the Act. I shall now consider this submission with reference to the actual statutory provision and the decisions relating thereto. Section 41 of the Act is as follows: 41. (1) No employer shall dispense with the services of a person employed continuously for a period of not less than six months except for a reasonable cause and without giving such person at least one month's notice, or wages in lieu of such notice, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. (2) the person employed shall have a right to appeal to such authority and within such time as may be 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 decision of the appellate authority shall be final and binding on both the employer and the person employed. Rule 9 (2) of the rules made by the Government under Section 41 (2) of the Act is as follows: 9. (2) The procedure to be followed by the Commissioner for Workmen's Compensation when hearing appeals preferred to him under Sub-section (2) of Section 41 shall be summary. He shall record briefly the evidence adduced before him and then pass orders giving his reasons therefor. The result of the appeal shall be communicated to the parties as soon as possible. Copies of the orders shall also be furnished to the parties if required by them. The copies shall be on stamp papers to be furnished by the parties.