1. In this writ petition, under Art. 227 of the Constitution, the petitioner invokes the certiorari jurisdiction of this Court and prays that this Court may be pleased to quash the order of respondent 1 in D. Dis. S. E. & A.C. No. 37 of 1962 on his file as that order suffers from errors of law apparent on the face of the record, and, further, in dealing with that case, respondent 1 did not exercise his jurisdiction in accordance with provisions contained in S. 41 of the Madras Shops and Establishments Act, 1947, to be hereinafter referred to as the Act.
The material facts of the case are as follows.
2. The petitioner was an employee under respondent 2. There is dispute between the parties as to the length of his service under respondent 2. On October 20, 1962, it is alleged that one of the partners of respondent 2 firm directed the petitioner to attend to certain work. According to respondent 2, the petitioner refused to do that work, and, in the course of exchange of words, he filthily abused Sri Balakrishna Shenoy, one of the partners of the firm, and walked away from the shop in a huff. But, according to the petitioner, the partners of respondent 2 firm, on the ground that there had been a fall in their business, tried to persuade him to leave their service. But, when he refused to do so, they began to give him pinpricks and on October 20, 1962, for no fault of his, Sri Shenoy picked up a quarrel with him and abused him filthily, necked him out of the shop and thereafter did not permit him to attend to his work. October 21, 1962, was a Sunday. Admittedly, the petitioner went to respondent 2's shop on October 22, 1962. As to what happened on that day, the parties are not agreed. According to the petitioner, the partners of resplendent 2 firm did not admit him into the shop. They informed him that he had been dismissed from service. Respondent 2 denies those facts. On October 23, 1962 the petitioner caused a lawyer's notice to be sent to respondent 2 setting out his version and demanding compensation in accordance's with law On October 26, 1962, respondent 2 sent by registered post to the petitioner a notice, dated October 20, 1962, asking him to show cause as to why disciplinary action should not be taken against him for his alleged misbehaviour on October 20, 1962. Respondent 2's case is that that notice was offered to the petitioner on October 22, 1962, but he refused to accept the same and hence sent to him by registered post on October 26, 1962 These allegations are denied by the petitioner. According to him, it was an antedated notice and the same was issued in order to meet the case of the petitioner set out by him in his notice dated October 23, 1962. An enquiry was held against the petitioner on November 26, 1962. According to respondent 2, that enquiry was in accordance with the principles of natural justice. But the petitioner complains that he was not permitted to cross-examine the witnesses examined at the enquiry and the statement made by him before the enquiry officer was not recorded by him.
3. Two questions arose for decision by respondent 1. They are :
(1) whether the decision of respondent 2 as to what happened on 20 October 1962, was supported by satisfactory evidence, and
(2) whether the enquiry held was in accordance with the principles of natural justice.
Respondent 1 in his impugned order merely summarized the pleas taken by the parties as well as the arguments advanced on their behalf and thereafter observed as follow :
'I am convinced that the enquiry conducted in this case and the order of dismissal passed have been strictly in accordance with the provisions of the Act. I see no reason to interfere with the orders passed. The appeal preferred is accordingly dismissed.'
4. Quite clearly respondent 1 did not go into the merits of the case as required by A. 41 the Act. He was required to examine the material before him to find out whether the findings reached by the domestic tribunal are supported by satisfactory evidence, More than that, it was necessary for him to pronounces on the contention of the petitioner that the enquiry held was not in accordance with the principles of natural justices. He did not go into either of these questions. No reasons were given in his order in support of the conclusion reached by him. There is a stray observation in the order :
'It was not correct on the part of the appellant to have kept quiet without replying to the show-cause notice, dated 20 October 1962, even though it had reached him on or after 26 October 1962.'
This observation was made while summarizing the pleas taken. In making that observation respondent 1 overlooked the fact that the petitioner had put forward his case in full as early as on October 23, 1962, and hence there was no purpose in his repeating the same in reply to the notice sent by respondent 2. That apart, that circumstance has not been made the basis of the decision of respondent 1.
5. The scope of S. 41 of the Act was considered by this Bench in C. Muniruddin v. Peirce Leslie & Co., Ltd., Mangalore, and others [1966 - I L.L.J. 271]. Therein, interpreting S. 41(2) of the Act, we held that the appellate authority has to decide the appeal preferred. 'To decides the appeal' means to go into the merits of the appeal and pronounce on the same. A Bench of the Madras High Court in Srirangam, Janopakara Bank, Ltd. v. Rangarajan (S.) and another [1964 - I L.L.J. 221] laid down that orders passed by the appellate authority should be supported by reasons.
6. Interpreting Ss. 41 and 42 of the Mysore Shops and Establishments Act (S. 41 of that Act is similar to S. 41 of the Act), a Bench of this court observed that in the case of an appeal against the termination of services under the first part of Sub- section (1) of S. 41 of the Mysore shops and Establishments Act, 1948 the point for investigation in the appeal is, whether there existed reasonable ground for such termination In the case of an appeal against dismissal under the second part of Sub-section (1) the point for investigation would be whether the employer's finding that the appellant was guilty of misconduct is supported by satisfactory evidence recorded at an enquiry held by the employer for the purpose as indicated in Sub-section (1).
7. It is quite obvious that respondent 1, when he decided the appeal, was unaware of the true scope of S. 41 of the Act. He did not exercise his appellate powers in accordance, with S. 41 Hence his order is unsustainable.
8. For the reasons mentioned above, this petition is allowed and the order impugned quashed. The case is remitted back to respondent 1 for disposal according to law in the light of the observations made above. Respondent 2 shall pay the costs of the petitioner in this petition. Advocate's fee Rs. 100.