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Kavitha Movie House Vs. P.M. Mary and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ10Ker
AppellantKavitha Movie House
RespondentP.M. Mary and anr.
Cases ReferredPett v. Greyhound Racing Association
Excerpt:
.....opportunity to the employee for his defence, and the misconduct alleged was properly proved at the domestic enquiry, the appellate authority need not necessarily advert to or discuss the additional evidence, if any, adduced before it; on the other hand, if, on the facts and in the circumstances of the case, it is satisfied that the domestic enquiry was held without observing the principles of natural justice, or the misconduct alleged was not properly proved, it is open to it to arrive at its own conclusion on an appraisal of the entire material placed before it. first respondent had clearly stated that she was not a member of a union, and being an 'uneducated female' person her lawyer might be allowed to assist her at the time of enquiry so as to afford her a reasonable opportunity to..........she had no answer to the charges, and she was guilty of the charges levelled against her'. the enquiry proved to be a sheer mechanical process without the enquiry officer bothering to ascertain as to anything was to be done lest scale be weighed against her at the enquiry. 15. all the communications to the first respondent by the petitioner and the enquiry officer were in english. there was no indication that the enquiry proceedings would be in a language known to the first respondent. if not earlier, at least from ext. p4 letter dated 4-12-1969, the petitioner had known that the first respondent was an uneducated woman. in this background the framing of the charge and the sending of the communications in english, in a ritualistic manner for apparent compliance of the formalities did.....
Judgment:

K. Bhaskaran, J.

1. The legal battle in this writ petition is between two unequals, the management of the Kavitha Movie House (the petitioner) on the one hand, and a sweeper (woman) employee (the first respondent) on the other; and they have remained locked up in dispute for wellnigh nine years by now. Accepting the finding in Ext. P7 domestic enquiry report, the petitioner passed Ext. P10 order dismissing the first respondent from service. On appeal by the first respondent under Section 18(2) of the Kerala Shops and Commercial Establishments Act (hereinafter referred to as the Act), the second respondent, the Commissioner for Workmen's Compensation, Ernakulam, (the Appellate Authority) in and by Ext. P15 order held that the misconduct alleged against the first respondent was not proved either in a proper domestic enquiry or before him, and in the result, ordered the petitioner to pay the respondent a sum of Rs. 2,916 as backwages, and a sum of Rs. 324 as compensation in lieu of reinstatement; no reinstatement, however, was ordered. It is for qushing Ext. P15 that this writ petition has been filed.

2. Sri S.A. Nagendran, the counsel for the petitioner, argued that the second respondent has acted either without jurisdiction, or in excess of the jurisdiction vested in him, by interfering with Ext. P10 order of dismissal based on the finding in Ext. P7 enquiry report, which according to him, could have been found to be one supported by evidence, and could not have been characterised as perverse on a review by the Appellate Authority of the evidence adduced at the domestic enquiry.

3. Sri Stanley Fernandez, the counsel for the first respondent, however, took the stand that his client really is the aggrieved party inasmuch as the Appellate Authority, after having rightly come to the conclusion that the misconduct alleged was not proved in a proper domestic enquiry has, instead of ordering, as a natural corollary, the reinstatement of the first respondent into service, ordered only the payment of a paltry sum of Rs. 324 by way of compensation in lieu of reinstatement.

4. The origin of the episode lies in the alleged theft of a packet of cashewnut costing fifty paise by the first respondent from the balcony canteen of the theatre.

5. Before we embark on a discussion as to the relative merits of the contentions raised in support of and against Ext. P15 order, it would be advantageous to bear in mind the limitations of this Court while exercising the extraordinary jurisdiction under Article 226 of the Constitution, and also the scope and extent of the jurisdiction of the Appellate Authority under the Act while dealing with an appeal filed under Section 18(2) of the Act.

6. As far as the question relating to the jurisdiction of this Court is concerned, it cannot be better expressed than in the words of Venkatarama Ayyar, J., in Hari Vishnu v. Ahmad Ishaque : [1955]1SCR1104 :

On these authorities, the following propositions may be taken as established : (1) 'certiorari' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) 'Certiorari' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of 'certiorari' acts in exercise of supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review finding of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal , against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in 'certiorari',

7. It is also well-settled that where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent is not guilty of the charge, it is not the function of the High Court to review the evidence to arrive at an independent finding on the evidence. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (State of Andhra Pradesh v. C. Venkata Rao : (1976)ILLJ21SC .

8. So far as the second question relating to the extent and scope of the jurisdiction of the Appellate Authority in dealing with an appeal filed under Section 18(2) of the Act is concerned, guidance is. available from the pronouncement of the Supreme Court in Remington Rand of India Ltd. v. Thiru R. Jambulingam : (1975)ILLJ450SC , wherein, in paragraph 8, at page 1917, construing identical provision contained in Section 41(2) of the Tamil Nadu Shops and Establishments Act (36 of 1947), (speaking for the Bench) Goswami, J., has observed as follows:

Mr. Natesan also submitted that the Commissioner should not have interfered with the order passed in the domestic enquiry since there was no violation of the principles of natural justice nor was the finding perverse. The jurisdiction of the Commissioner is an appellate jurisdiction and is of wider scope unlike that of the Tribunal in an application under Section 33 of the I.D, Act. The Commissioner is competent to re-hear the matter completely and come to its own conclusion after re-appreciation of the evidence. There is no legal bar in entertaining additional evidence if that is necessary in the interest of justice.

9. The decisions of this Court in M.A.K. & Sons v. P. Kumara Pillai 1966 K.L.T. 640; Ernakulam Co-operative Milk Supply Union v. K.C. Devassy (O.P. No. 107/73 reported in (1973) K.L.T. Short Notes 25); Valithan v. Additional Deputy Labour Commissioner & Appellate Authority (1975) 2 I.L.R. Kerala 301; and Chelur Agencies, Calicut v. Appellate Authority, Calicut (1976) 1 I.L.R. Kerala 590 and a few decisions of the Madras High Court referred to in the above decisions, have been cited before me. What emerges on a careful consideration of the ruling given in these decisions is that the Appellate Authority, by virtue of the provisions contained in Section 18 of the Act and Rule 3(2) of the Rules, has power to take additional evidence, and even to hold a de novo enquiry itself where circumstances warrant it; in such cases the Appellate Authority has to satisfy itself by a reappraisal and reassessment of the evidence as to whether the domestic enquiry was held in accordance with the principles of natural justice, and whether the charge of misconduct has been properly proved; if it is satisfied that the enquiry was held giving reasonable opportunity to the employee for his defence, and the misconduct alleged was properly proved at the domestic enquiry, the Appellate Authority need not necessarily advert to or discuss the additional evidence, if any, adduced before it; on the other hand, if, on the facts and in the circumstances of the case, it is satisfied that the domestic enquiry was held without observing the principles of natural justice, or the misconduct alleged was not properly proved, it is open to it to arrive at its own conclusion on an appraisal of the entire material placed before it.

10. Now in the background of the legal position discussed above we have to ask ourselves whether there were facts and circumstances, as disclosed by the records, to uphold the finding of the Appellate Authority that the misconduct alleged was not properly proved; and if the answer is in the affirmative, the further question that falls for decision is whether there are sufficient grounds for this Court to interfere with the order for payment of backwages and compensation passed by the Appellate Authority.

11. In Ext. P4, letter dated 4-12-1969, the. first respondent had clearly stated that she was not a member of a union, and being an 'uneducated female' person her lawyer might be allowed to assist her at the time of enquiry so as to afford her a reasonable opportunity to defend her case. The petitioner by Ext. P5 letter dated 16-12-1969, a copy of which was marked to the enquiry officer, informed the first respondent that her request to have the assistance of an advocate could not be granted at the domestic enquiry. In that letter it was also mentioned that the petitioner intended to rely on Ext. P1 letter dated 13-9-1969 sent by Oberoi Restaurant, the lessee of the canteen, to the petitioner complaining about the alleged act of stealing of the packet of cashew nut, and the alleged act of beating the canteen boy by the first respondent. The first respondent has a case that on 19-12-1969 it was with her lawyer that she went for the enquiry; but she was told that she should go alone, and she was sent away. She has also deposed before the Appellate Authority that on 29-12-1969 when she went there at 11 a.m., she was told that the enquiry was over and, therefore, she could not participate in it. No doubt, there is no reference in Ext. P7 enquiry report to the first respondent having gone to the place of enquiry on the appointed day. The enquiry officer is seen to have declared her ex parte and proceeded with the enquiry. He assumed, 'if as a matter of fact she was innocent of the charges, she could have (sic) (been) present at the enquiry and could have explained her position. Since she remained ex parte the only reasonable presumption is that she has no answer to the charges and she is guilty of the charges framed against her'.

12. It is true, ordinarily in domestic enquiries conducted or caused to be conducted by the management, the delinquent is not entitled to, as a matter of right, to insist for permission to engage a lawyer, though the enquiry officer or the management in his or its discretion, in appropriate cases, can and may allow him to do so. Even in the case of a public servant, in whose case enquiries are held in accordance with statutory provisions, such right does not exist in an absolute sense. For instance, Rule 15(5) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, in terms, does not permit the Government servant to present his case with the assistance of a legal practitioner unless the person nominated by the disciplinary authority to present the case is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case gives permission in that behalf. Commenting on the scope and purpose of Rule 15(5), the Supreme Court, in C.L. Subramaniam v. Collector of Customs, Cochin : (1972)ILLJ465SC stated as follows:

Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training . Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why Rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by another Government servant or in appropriate cases by a legal practitioner.

13. I am of the view that this principle should apply to domestic enquiries of the nature involved in the present case in order to make it meaningful and purposeful without reducing it to an empty formality or a mere farce, though it could not be considered as an absolute rule for general application to cases of disciplinary proceedings held under statutory rules or enquiries held in industrial concerns having standing orders. In this case, as mentioned at the outset, the fight was between two unequals--the management of a movie house on the one hand, and a poor widow, an uneducated sweeper, employed under it on the other. The petitioner summarily rejected her request for permission to present her case with the assistance of her lawyer in spite of her having specifically stated that she was not a member of any union and that she was an ' uneducated female' person. The enquiry officer proceeded with the enquiry without bearing in mind this background and with the impression that there arose a presumption that she was guilty of the charges framed against her on the reasoning that ' If as a matter of fact she was innocent of the charges, she could have (sic) (been) present at the enquiry and could have explained her position'. It is evident that the enquiry officer took the enquiry merely as a matter of formality.

14. In Ext. P3 notice dated 27-11-1969 the petitioner, no doubt, had told the first respondent that she would be given an opportunity to cross-examine the witnesses. Neither the petitioner nor the enquiry officer appears to have seriously considered as to whether this offer in effect meant anything to her. Virtually it is like giving a weapon to a handicapped person who cannot make use of it. Cross-examination is an art by itself, wherein even trained persons often fail. In C.L. Subramaniam's case : (1972)ILLJ465SC the appellant before the Supreme Court was a sufficiently educated person, though not legally trained; nevertheless, the Supreme Court, on an anxious consideration of the position, felt that in the given circumstances, where his livelihood appeared to be at peril, he could not have effectively cross-examined the witnesses out of nervousness. In this context I should also like to quote the words of Lord Denning, M.R., from a passage in paragraph 10 in Pett v. Greyhound Racing Association (1968) 2 W.L.R. 1471, (1968) 2 All. E.R. 545 :

It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man : 'You can ask any questions you like'; whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him. And who better than a lawyer who has been trained for the task I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor.

If this was the case with C.L. Subramaniam and Pett, how much more pitiable is the case of Mary, the illiterate sweeper-woman. If what ultimately happened gives any clue, it is clear that the petitioner had intended to inflict the extreme punishment of dismissing the first respondent from service if the charges against her were proved at the enquiry. Considering the seriousness of the consequences that would follow from the finding of the enquiry, the petitioner and the enquiry officer had the duty to ensure that the first respondent was afforded a reasonable opportunity to defend herself which included the facility to effectively cross-examine the management's witnesses and place her case before the enquiry officer in an intelligent manner. Reasonable opportunity to defend oneself in the case of ' uneducated female person ' can have meaning only if she was allowed to have the cross-examination of the witnesses and presentation of the case done by or through her agent including a lawyer, as the task was beyond her comprehension. The counsel for the petitioner relied on the decisions of the Supreme Court in Kalindi's case 1960-II L.LJ. 228 and Brook Bonds case 1961-II L.L.J. 417, to contend for the position that a workman against whom an enquiry is being held by the management has no right to be represented at such enquiry by a lawyer. I am afraid, the observations of the Supreme Court have been quoted out of context. The Supreme Court had no occasion to consider a case like the present one where an ' uneducated female person' had to face an enquiry and defend herself. After all, the Supreme Court itself has indicated that the management has a discretion to allow the workman to engage the lawyer. That is a discretion the management has to exercise in a spirit of fairplay, and by and large to be in consonance with the rules and principles of natural justice which may assume various forms and shapes depending upon the context in which it comes into play. The petitioner's refusal of the request of the first respondent for permission to be represented by her agent, a lawyer, virtually amounted to depriving her of the reasonable opportunity to defend herself at the enquiry. In this background it is unfortunate that the enquiry officer jumped to the conclusion that if, as a matter of fact, the first respondent was innocent of the charges, she could have presented herself at the enquiry to explain her position; it is still more unfortunate that he proceeded with the assumption that there arose a presumption that' she had no answer to the charges, and she was guilty of the charges levelled against her'. The enquiry proved to be a sheer mechanical process without the enquiry officer bothering to ascertain as to anything was to be done lest scale be weighed against her at the enquiry.

15. All the communications to the first respondent by the petitioner and the enquiry officer were in English. There was no indication that the enquiry proceedings would be in a language known to the first respondent. If not earlier, at least from Ext. P4 letter dated 4-12-1969, the petitioner had known that the first respondent was an uneducated woman. In this background the framing of the charge and the sending of the communications in English, in a ritualistic manner for apparent compliance of the formalities did not really serve any useful purpose as far as the first respondent was concerned. The charge framed was vague; it did not state either the date or the time of the commission of the alleged acts of theft and beating. Exhibit P1 letter from the lessee of the canteen is dated 13-9-1969, whereas from Ext. P2 it is seen that the alleged theft of the packet of cashew nut took place on 25-8-1969, and till the sending of the petitioner's letter dated 29-9-1969 no action is seen to have been taken, and communication is seen to have been sent to the first respondent, by the petitioner. No explanation is offered to explain this indifference and inordinate delay. Exhibit P1 letter is conspicuous for the absence of any definite statement. Like the charge, it also does not mention the date or time of the alleged theft or beating. It does not mention either the name of the first respondent or that of the particular canteen boy, Joseph. The person who sent Ext. P1 letter was not examined at the enquiry to prove it and to speak about the contents thereof, even though it was stated in Ext. P1 that he was present at the canteen at the time of the incident relating to the stealing of the packet of cashew nut. Nobody proved Ext. P1 at the enquiry. In fact, when examined before the Appellate Authority, the enquiry officer would go to the extent of saying that Ext. R1 (which is the same as Ext. P1 in the writ petition) was not brought to his notice at the time of the enquiry. The above facts and circumstances are sufficient to convince the judicial conscience of the Court to uphold the conclusion reached by the Appellate Authority that the misconduct levelled against the first respondent was not proved in a proper domestic enquiry. The Appellate Authority has also discussed the whole evidence placed before it in order to come to its conclusion that the misconduct alleged was not proved before that Authority also. A reappraisal by this Court of the evidence which led to the conclusion reached by the Appellate Authority would be both uncalled for and unjustified. If these facts and circumstances would be seen from the records, even if it could be said that there was no detailed discussion of the evidence in a systematic and cogent manner, as could normally be expected in a judgment of the civil Court, by the Appellate Authority, that by itself would not justify interference by this Court on the plea that there was no proper review of the enquiry report by the Appellate Authority before rejecting the finding therein.

16. After all, no reinstatement has been ordered by the Appellate Authority; only payment of a very moderate sum by way of backwages and compensation has been ordered by it. The backwages awarded is only for one-third of the period involved.

17. Taking the entire circumstances of the case into account I am satisfied that the petitioner has not made out a case for interference with Ext. P15 order at this distance of time by this Court in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. The result is that the writ petition fails, and is dismissed with costs. Counsel's fee is fixed at Rs. 250.


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