P. Ramakrishnan, J.
1. This Writ Petition is filed against the order of the Labour Court, II, Madras, the appellate authority, in which that authority directed the petitioner the proprietor of the Janatha Coffee Centre, Mount Road, Madras, to pay a sum of Rs. 150 to one Chandrasekaran in lieu of an order for reinstatement, on the ground, that the petitioner had dismissed him from employment without reasonable cause. The facts lie within a very narrow compass and they can be briefly put down.
2. The petitioner alleged that the employee, Chandrasekaran, behaved rudely to him and assaulted him when the employee's conduct towards a customer was questioned by the petitioner. The petitioner went so far as to say that the said Chandrasekaran kicked him in the back and ran away. Thereafter the petitioner terminated the services of Chandrasekaran for misconduct but did not hold a formal enquiry for that purpose. Section 19(1) of the Madras Catering Establishments Act, 1958, provides:
No employer shall dispense with the services of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee 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 employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose.
3. Chandrasekaran felt aggrieved because his services were dispensed with on a charge of misconduct without an enquiry held for that purpose. Relying upon the provisions in Section 19(2)(a) he filed an appeal to the appellate authority, namely, the Labour Officer II, Madras. That authority held that it was the duty of the petitioner, even if Chandrasekaran had deserted his post, to give him notice of the enquiry before dismissing him from service and in the absence of an attempt to hold an enquiry, even an ex parte enquiry, it must be held that the petitioner had dispensed with the services of Chandrasekaran without reasonable cause for so doing. The appellate authority thereupon set aside the dismissal order and directed the petitioner in the circumstances to pay Chandrasekaran Rs. 150 as compensation in lieu of reinstatement. This order is now attacked by the petitioner-employer, in the present petition under Article 226 of the Constitution for the issue of a writ of certiorari.
4. Learned Counsel appearing for the petitioner first of all referred to the fact that he had given a complaint to the police about the assault on him by Chandrasekaran and a criminal case was pending. It is also alleged that subsequently Chandrasekaran was convicted by the Criminal Court and bound over for good behaviour. But it appears to me these proceedings in the Criminal Court have got no relevancy for the present purpose.
5. The petitioner next urged in the affidavit that since he was the person who was assaulted there was no point in himself holding an enquiry under Section 19(1) of the Act, as he would fulfil the roles of the prosecutor and judge. For that reason he urged that it was not possible to hold an enquiry under Section 19(1) of the Act. Secondly it was urged that the jurisdiction of the appellate authority under Section 19(2) of the Act would be to consider (1) whether there was no reasonable cause for dispensing with the services of the employee, (2) whether he had been guilty of misconduct as held by the employer, or (3) whether the employer did not retrench him in good faith. What the appellate authority did in the present case was to hold that the employer had not conducted an enquiry at all, which according to the petitioner's learned Counsel, is a different thing from finding that none of three grounds mentioned in Section 19(2) had been made out.
6. In regard to this last mentioned argument it is sufficient to refer to the decision of Rajagopala Ayyangar, J., in Salem-Shevapet Sri Venkateswara Bank Ltd. v. Krishnan : (1959)IILLJ797Mad , where dealing with analogous provisions under the Madras Shops and Establishments Act, Sections 41(1) and 41(2) of that Act, the learned Judge : (1959)IILLJ797Mad held:
It must be remembered that Section 41(2) of the Act (corresponding to Section 19(2) of the Madras Catering Establishments Act, 1958) enacts that it is the misconduct which has been held by the employer to have been established that is made the subject-matter of enquiry by the appellate authority. That 'holding' can only arise in the terms of Section 41(1) (Section 19(1) of the Madras Catering Establishments Act, 1958) after an enquiry at which satisfactory evidence has been recorded. When those conditions are wanting, the terms of Section 41(1) would not be satisfied.
Therefore, where no enquiry at all had been held by the employer before terminating the services of an employee as required under Section 19(1) of the Madras Catering Establishments Act, 1958, it is certainly open to the appellate authority to find that the employee had not been guilty of misconduct as held by the employer. Equally it could be held in such a case where no enquiry had been held that the services of the employee had been dispensed with, without reasonable cause.
7. It is held that the appellate authority under Section 19(2) while hearing the appeal can also allow the parties to adduce evidence as provided in Rule 23, Sub-rule (3) framed under the Madras Catering Establishings Act, 1958, which states that the appellate authority when hearing the appeals shall do so in a summary manner and shall briefly record the evidence adduced and then pass orders giving its reasons therefor. But it has been held that this enquiry by the appellate authority is only supplementary to the original enquiry which the employer is compelled to hold in similar cases (vide Srirangam Janopakara Bank v. Rangarajan (1965) 1 M.L.J. 453 : I.L.R. (1964) Mad. 805 : (1964) I L.L.J. 221. In that decision at page 226 the following observations are found:
The power of the appellate authority under Section 41(2) of the Act (just as 19(2) of the Madras Catering Establishments Act, 1958) should be construed in the widest manner possible, so as to take in also the power to take additional evidence, where the needs of the case call for it.
As mentioned already, this power cannot be substituted for the statutory requirement that the employer should give an opportunity to the employee before terminating his services and where such an opportunity has not been given the appellate authority can conclude that it was a dismissal or termination of services without reasonable cause.
8. Regarding the objection that the employer in holding such an enquiry will have to fulfil the roles of prosecutor as well as judge, it cannot help the employer to avoid the statutory obligation, because of such a contingency. In Srirangam Janopakara Bank v. Rangarajan (1965) 1 M.L.J. 453 : I.L.R. (1964) Mad. 805 : (1964) I L.L.J. 221, reference is made to this circumstance, and it was observed that the only way of mitigating any possible adverse effects to the employee by such a procedure for holding the enquiry, will be for the aggrieved party to adduce additional evidence at the appellate stage. But he cannot urge that in such a contingency he can dispense with holding the enquiry altogether. At page 226 the Bench has made the following observations:.he might be the person whom the employee had disobeyed and from that point of view the prosecutor and the judge would be rolled into one; as a consequence, he might be considered as having a bias against the employee. But none of these circumstances by its own force can preclude, the employer from holding the enquiry and from discharging the statutory obligations placed on him.
For the aforesaid reasons I am of opinion that the order in the present case cannot be quashed by a writ of certiorari. The petition is therefore dismissed. No order as to costs.