Madras High Court
S.K. Raman vs The Management Of Kundah Rural ... on 16 July, 1986
Equivalent citations: (1987)ILLJ487MAD
ORDER
1. The petitioner, who was employed as a Security of the first respondent, was sent out of service on 16th March, 1977. It is the case of the first-respondent that the petitioner was sent out of service on a charge of misconduct. The charge memorandum issued contains as many as five charges and they relate to disobedience of orders of the Special officer; staying away from duties; dereliction of duties; negligence of duties and falsification of accounts. The petitioner filed an Appeal under S. 41(2) of the Tamil Nadu Shops and Establishments Act, 1947, hereinafter referred to as 'the Act', to the second respondent. In that Appeal petition, as we could see from the copy furnished by the learned counsel for the petitioner, the petitioner would contend that there was no enquiry conducted. The relevant averments are found in paragraphs 10 to 14 in the Appeal Petition, as follows :-
"The Special Officer of the Society framed charge memo on 4th September, 1976 and the applicant was called for to submit his explanation. The charges were so elaborated and were not specific. The Applicant not only denied the allegations, but has demanded for an enquiry.
The special officer did not conduct an enquiry. On the other hand, he framed a show cause notice on 15th October, 1976 and called for explanation which was offered on 23rd October, 1976. The applicant has in his explanation demanded for an enquiry.
The special officer has thereafter fixed 13th November, 1976 as date for oral enquiry. On the said date, the Special Officer obtained a statement from the Applicant. There was no attempt made to prove the charges by the Management.
By the Memo, dated 13th December, 1976, the Special Officer again instituted an enquiry on 17th December, 1976. On the said date also no enquiry was held. But the statement of the applicant was alone recorded.
After the same the Special Officer of the Society by his proceedings, dated 16th March 1977 passed orders dismissing the Applicant from services of the Society to take retrospective operation from the date of suspension."
The first-respondent filed a counter statement and with regard to the enquiry, paragraph 6 of the counter statement alone refers to it in the following terms;
"It is not correct to state that the Applicant demanded an enquiry. In fact, he only requested for an interview, in which a statement was obtained from the applicant. The applicant has admitted some points of allegations made against him".
Copies of the Appeal petition and counter statement, were produced by the learned counsel for the petitioner. The respondent in their counter-statement, replied the appeal petition preferred by the petitioner as above. The second respondent passed the following order, on 30th January, 1979.
"Thiru S. K. Raman preferred an appeal under S. 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 against the orders of his dismissal by the Kundah Rural Co-operative Agricultural Credit Society Limited, Kundah Bridge Post, Nilgiris District. He stated that he was unjustifiably dismissed without proper enquiry. The respondent in their counter-statement, replied that the dismissal was made only after proper enquiry. If was further added that industrial Disputes were not recommended by the Government for adjudication.
The case was taken up for hearing on several dates and finally on 30th January, 1979. The Appellant was examined. He stated that no enquiry was conducted in his presence. He was on medical level. He was suspended while he was on leave. During cross-examination, he has replied that he gave a written-statement to the enquiry officer which was filed. But he did not know the contents of the statement. He added that he was asked to sign and he signed. Again another statement was obtained from him. He admitted that he did not report to anybody that his signature was obtained unlawfully. It was argued on behalf of the applicant that the dismissal was made without a proper enquiry and therefore it was illegal.
From the evidence let in and after hearing the arguments of both the parties, I find that the statements were given by the applicant before the enquiry officer. It is difficult to believe that he signed the statements without knowing the contents. The Applicant is a literate person. Under the circumstances, I am inclined to accept the contention of the respondent that the applicant was dismissed after a recorded enquiry held for the purpose as contemplated in S. 41(1) of the Tamil Nadu Shops and Establishments Act, 1947. No order as to costs."
The above order is being impugned in the present writ Petition.
2. Mr. A. L. Somayaji, learned counsel appearing for the petitioner, would submit that the case of the first respondent being that the service of the petitioner was dispensed with on a charge of misconduct, it could be done only with the support of a satisfactory evidence recorded at an enquiry held for the purpose, and in the instant case, it is not the case of the first-respondent that there was an enquiry conducted where any evidence was recorded, much less satisfactory evidence in support of the charge of misconduct. Learned counsel submits that the provision of S. 41(1) of the Act are mandatory in nature and whether the employee demanded an enquiry or not, and whether the employee admitted the guilt or not, the employer if he wants to dispense with the service of the employee on a charge of misconduct, it must have the support of satisfactory evidence recorded at an enquiry held for the purpose. S. 41(1) of the Act reads as follows :-
"No employer shall dispense with the service of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such persons 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."
We are not facing a case of dispensing with the service of an employee for reasonable cause, and after giving such persons at least one month's notice or wages in lieu of such notice. Here we are facing a specific case of the employer, the first-respondent, that the service of the petitioner was dispensed with on a charge of misconduct. Rajagopala Ayyangar, J. as he then was, in Venkateswara Bank Ltd. Salem Vs. Krishnan (1959-II - LLJ-797) had an occasion to consider the scope and implication of S. 41 of the Act, and he summed up the position in the following terms : at page 801.
"It is in the light and context of these elements of protection granted to the servant that the terms of S. 41(2) have to be understood. Under S. 41(2) the grounds of appeal are two : (1) that there was no reasonable cause for dispensing with the services and (2) that the employee (appellant) had not been guilty of mis-conduct as held by the employer. It would be seen that these two terms are related to the two limbs of sub-S. (1) of S. 41 to which I have already referred. I will refrain from dealing with the first of the grounds of appeal, namely, that there was no reasonable cause for dispensing with the services which applies to cases where notice of at least one month or wages in lieu of notice is given as that is not relevant to the present case and confine myself only to the other grounds, namely, 'the applicant had not been guilty of misconduct' as held by the employer. The Appellate Authority under S. 41(2) must be held to have jurisdiction to enquire whether the statutory conditions subject to which alone a servant could be dismissed have been complied with. When it finds that this is lacking, I consider that it would be the duty of that authority to allow the Appeal. It must be remembered that S. 41(2) of the Act 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 on the terms of S. 41(1) after an enquiry at which satisfactory evidence has been recorded. When those conditions are wanting the terms of S. 41(1) would not be satisfied."
3. In The Management of Viduthalai Vs. J. Dravida Arasu (1970) 1 M.L.N. (S.N.) 3, Ismail, J, (as he then was), held that whether the employee admits the misconduct or not, the employer must conduct an enquiry to substantiate the misconduct on the basis of which the employer dispensed with the services of the employee, and in the absence of such an enquiry, the order of dismissal would be invalid. The learned Judge dealt with the point in the following language :
"Here again, admittedly, no enquiry was conducted by the petitioner and no evidence was recorded to support the misconduct at such an enquiry. The learned counsel for the petitioner contends that when the employee has admitted the misconduct, such an enquiry and recording of evidence is unnecessary. As the statute stands at present, I do not think that there is any scope for such an argument whether the employee admits the misconduct or not, the employer must conduct an enquiry and evidence must be recorded at the enquiry to substantiate the misconduct on the basis of which the employer dispensed with the services of the employee. On the terms of the statute, in my opinion, the contention of the learned counsel for the petitioner that no such enquiry is necessary simply because the first-respondent had admitted his misconduct cannot stand."
The learned Judge also referred to and followed the ratio of Rajagopala Ayyangar, J., (as he then was) in Venkateswara Bank Ltd., Salem Vs. Krishnan (supra). The very same learned Judge, while repelling the contention, that in the absence of an employer holding an enquiry under S. 41(1), the Authority under the Act, could take evidence and uphold the order of the employer observed as follows in Kotak and Co. Vs. Addl. Commissioner, Workmen's Compensation (1970-II-LLJ-364) at p. 379.
"From the language of that Section already extracted, it is clear it is a statutory prerequisite for an employer to dispense with the service of an employee on the ground of misconduct to conduct an enquiry for the purpose of establishing that misconduct. That means, the condition precedent to the exercise of the power of dispensing with the services of an employee on the ground of misconduct is the holding of the enquiry for the purpose of establishing the misconduct by recording evidence at such an enquiry. When a statute states that a particular thing should be done in a particular manner it impliedly prohibits the doing of the same in any other manner. Therefore, when the employer does not follow the statutory prescription and fulfill the condition precedent, the action of the employer dispensing with the services of an employee will be ab initio void. When the appellate authority dismisses the appeal preferred by the employee, it merely sustains or confirms the order of the employer. When the action of the employer is ab initio void, there cannot be any subsequent confirmation or upholding of the same. When an order is ab initio void, in the eye of the law, it has no existence.
In other words, to hold that when the employer himself had not conducted the enquiry contemplated by S. 41(1) of the Act, the Appellate Authority can conduct that enquiry and on the basis of the said enquiry, uphold the order of the employer dispensing with the services of the employee is to wipe out the statutory requirement and to render the same totally nugatory"
Here we find the first-respondent never pleaded that there was an enquiry into the charge of misconduct conducted by it where evidence was recorded in support of such charge and which it found to be satisfactory and on the basis of which, a warrant was found to dispense with the service of the petitioner. What all the first respondent stated in the counter-statement, as we could see from the extract made above, is that the petitioner only requested for an interview in which a statement was obtained from him and the petitioner admitted some points of allegations made against him. The second-respondent was not strictly in order when he observed that the first respondent in the counter-statement replied that the dismissal was made only after proper enquiry. A mere interview where a statement, may be self incriminating was taken from the employee is certainly not a substitute for an enquiry into the charge of misconduct where evidence should be recorded. To hold so, would be making a mockery of statutory mandate. The charges levelled against the petitioner were elaborate indeed, and they required substantiation by evidence to be recorded at the enquiry. Even the counter-statement filed by the first respondent only states that the petitioner admitted some points of allegations made against him. The second respondent has obviously omitted to take note of the principles governing cases where the employer puts forth a plea of dispensing with the service of an employee on a charge of misconduct. As observed by Ismail, J., as he then was, when a statute states that a particular thing should be done in a particular manner, it impliedly prohibits the doing of the same in any other manner. Since there is an omission on the part of the second respondent to keep in mind and adhere to the principles discussed above, I feel obliged to interfere in writ jurisdiction. Accordingly, the Writ Petition is allowed, and the matter shall stand remitted to the file of the second-respondent for him to consider the same afresh in the light of the above principles and pass the appropriate orders in accordance with law. I make no order as to costs.