IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 1805 of 2006(M) --------------------------------------- PETITIONER(S): ------------------------ K.B. SAJAN, AGED 45, S/O.BALAN, KALLIKATTIL HOUSE, KANNA NAGAR, KORATTY, MUKUNDAPURAM TALUK, MANAGING PARTNER, PUTHEN TRADERS, BHARATH PETROLEUM CORPORATION DEALERS, P.O. KORATTY, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): ------------------------- 1. THE DEPUTY LABOUR COMMISSIONER, THRISSUR. 2. K.V. VENUGOPALAN, S/O.SANKUNNY MENON, KODIYATTIL HOUSE, KOMBATHKADAVU P.O., CHALAKUDY, THRISSUR DISTRICT. R1 BY GOVT. PLEADER MR.NOBLE MATHEW. R2 BY ADV. SRI.P.RAMAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, ALONG WITH WPC NO. 1806 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 1805 of 2006(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPLY SUBMITTED BY THE SECOND RESPONDENT TO THE PETITIONER DATED 06/12/2003. EXT.P2: COPY OF THE APPEAL MEMORANDUM FILED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT DATED 17/03/1994. EXT.P3: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER DATED 23/05/1994. EXT.P4: COPY OF THE COMMON ORDER PASSED BY THE FIRST RESPONDENT IN S.A. NO.7/94 DATED 28/07/2005. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) Nos.1805 & 1806 of 2006 ---------------------------------------------- Dated this the 15th day of November, 2011 JUDGMENT In these two writ petitions, the opposite party, who is the same in Shop Appeal Nos.7/1994 and 8/1994, challenges the common order passed by the appellate authority for Thrissur under the Kerala Shops and Commercial Establishment Act (Shops Act, for short). The 2nd respondent in the two writ petitions were employees of the petitioner. They were dismissed from service. The employees filed two separate appeals under Section 18 of the Kerala Shops and Commercial Establishment Act before the 1st respondent. Before the 1st respondent the employees took the contention that they were dismissed from service without a reasonable cause and without complying with the provisions of the Shops Act. The petitioner raised the contention that the employees were dismissed from service for the misconduct of misappropriation of money, which the employees admitted in writing and, therefore, the dismissal of the employees from service is for a reasonable cause and W.P.(C)Nos.1805 & 1806/06 2 justifiable. But the appellate authority did not find in favour of the petitioner. The appellate authority, by a common order in both appeals, found that no domestic enquiry was conducted to prove the misconduct alleged against the employees and before the appellate authority also no evidence was adduced to prove the misconduct. Since the alleged misconduct was not proved by the petitioner, opposite party, the appellate authority directed resinstatement of the employees or to pay Rs.25,000/- each as compensation in lieu of reinstatement. That common order is under challenge before me in these two writ petitions. 2. The contention of the petitioner is that the employees had submitted in writing admitting the guilt and therefore the question of conducting an enquiry does not arise and the only question remaining for consideration is as to the punishment to be imposed on them. Since misappropriation is a grave misconduct, the petitioner was justified in dismissing the employees from service, is the contention raised. 3. The learned counsel for the 2nd respondent in the W.P.(C)Nos.1805 & 1806/06 3 two writ petitions would contend that the employees never admitted any guilt. They only admitted that there is some shortage in the stock, which was not on account of misappropriation, but for other reasons, despite which they were prepared to make good the amount found short. That cannot be considered as an admission of guilt of misappropriation. He would further point out that after filing of the so called written admission of guilt, the petitioner had suspended the employees pending enquiry, but no enquiry was conducted. According to him, that itself shows that the petitioner also knew very well that the employees did not admit any guilt and therefore in the absence of any evidence to prove the alleged misconduct of misappropriation, the employees could not have been dismissed on the ground of admission of guilt, insofar as there is no admission of guilt at all. In view of the above circumstances, according to the employees, the order of the appellate authority is perfectly valid and proper. 4. I have considered the rival contentions in detail. I W.P.(C)Nos.1805 & 1806/06 4 will first consider whether the contention of the petitioner that the employees had admitted the guilt before the appellate authority is correct. Admittedly, the contention of the petitioner is that the employees were guilty of the misconduct of misappropriation of money. Ext.P1 in both the writ petitions are the so called admissions of guilt relied on by the petitioner. Of course, in the same, the employees admitted shortage of cash. But, they categorically stated that it is not because of any misappropriation by them, but for many other reasons. Of course, they undertook to repay the same in instalments. As such I am not satisfied that the so called admissions are admissions of guilt of misappropriation of money. Apart from that, in the impugned order, the appellate authority has specifically entered a finding on the basis of evidence adduced by the petitioner that the shortage in stock and corresponding shortage of money happened not on a single day's business, but over a long period of business process, which started from the previous stock verification. The appellate authority found that the date of the previous stock verification and loss has not W.P.(C)Nos.1805 & 1806/06 5 been mentioned anywhere and the details of the same were never informed to the employees. In addition to that, the petitioner's own witness deposed as MW1 that apart from the employees concerned, other salesmen and sales assistants also worked in the respondent's establishment along with the appellants and that if anybody is responsible for the loss of stock and money, they are also equally responsible, but they were not proceeded against or punished. A further finding is also entered into by the appellate authority to the effect that the employees had complained to the authorities under the Minimum Wages Act that minimum wages have not been paid to the employees of the petitioner's establishment. The appellate authority, therefore, inferred that the employees have been victimised for having complained before the authorities. 5. The petitioner could have very well adduced evidence before the appellate authority to prove the misconduct of misappropriation alleged to have been committed by the employees. But, the petitioner was not W.P.(C)Nos.1805 & 1806/06 6 successful in proving the same. The entire finding is on the basis of the stock verification report of the Manager. But, the Manager, who conducted the stock verification was not examined as a witness to prove the shortage in stock. Therefore, the appellate authority came to the conclusion that since the misconduct has not been proved in a domestic enquiry and no evidence is available before the appellate authority to come to the conclusion of guilt on the part of the employees, the dismissal from service on the basis of an allegation of misconduct of misappropriation cannot be upheld. I do not find any perversity whatsoever in the findings entered into by the appellate authority. In exercise of powers under Article 226 of the Constitution of India, I cannot interfere with findings of fact in an order of the appellate authority under the Kerala Shops and Commercial Establishments Act except by entering a finding that the findings on fact are perverse. There is absolutely no material before me to even suspect any perversity in the impugned order. Apart from all that, the order only directs reinstatement or payment of compensation W.P.(C)Nos.1805 & 1806/06 7 of Rs.25,000/- each in lieu of reinstatement. By the present day standards Rs.25,000/- is a pittance for an employee, who has been unjustly dismissed from service. Therefore, I do not find any merit whatsoever in these writ petitions and accordingly, the same are dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)Nos.1805 & 1806/06 8 W.P.(C)Nos.1805 & 1806/06 9