Decided on May 27,1974

Chelur Agencies Appellant


V.P.GOPALAN NAMBIYAR,J. - (1.) THE 2nd respondent was an employee under the petitioner,a partnership -firm.Disciplinary proceedings were instituted against him for eleven charges.These were enquired into at the domestic enquiry conducted by an Advocate appointed by the petitioner.By Ext.P -1 Report,the Enquiring Officer found the 2nd respondent guilty of charges 1 to 5,7 to 9 and 11.Ext.P -2 is the copy of the Enquiry Report.On Charge No.6,he was of the view that although there is evidence to show that the 2nd respondent's work was not up to the mark for the past few months,the Management had not proved beyond reasonable doubt that the worker had intentionally adopted the go slow policy,so as to paralyse the work of the Management.Regarding Charge No.10,he found that the same had not been established by reliable evidence.On the strength of this Report,the 2nd respondent was dismissed.He preferred an appeal before the Appellate Authority(1st respondent)under section 18 of the Kerala Shops and Commercial Establishments Act 1960.That Authority by Ext.P -3 order found that the charges found by the Enquiry Officer had not been substantiated.It was also of the view that the 2nd respondent had not been given a reasonable oppor­tunity to defend himself,and that the Enquiry proceedings were not bona fide.In view of these,it set aside the order of dismissal and directed re -instatement of the 2nd respon­dent,and on default,payment of Rs.2,928 as compensation(being three months ™wages for every completed year of service ).The Management has filed this writ petition against that decision.
(2.) THE petitioner is engaged in the sale and servicing of typewriters,calculating machines,and others.The 2nd respondent was a mechanic employed by the petitioner and his work consisted in servicing and repairing typewriters and other equipments sold by the petitioner,and also machines belonging to the customers of the firm.He had to tour to different centres and to attend to the machines of die customers in different centres.Objection was raised before the 1st respondent and rather feebly pressed that the 2nd respondent was one whose work mainly involves travel­ling and was therefore exempt from the provisions of the Act under section 3(1 )(b ).This was rightly found against by the Appellate Authority;and although the point was mentioned before me,the objection was not pressed. It is necessary to notice the charges,especially these,found proved by the Enquiry Officer,and the manner in which they were dealt with by the 1st respondent.Comment on the manner of disposal will be made where necessary,immediately after noting the same,and,in some cases,later.Charge No.1 was that the 2nd respondent did not service Halda Typewriters,in the Vijaya Bank Ltd .,Manjeswar,that he did not at all go to Manjeswar during the period from 26th August 1968 to 31st August 1968 as required in accordance with the tour programme issued to him and filed as Ext.M -1 at the enquiry.The Enquiry Officer in Ext.P -1 recorded that the charge is practically admitted by the workman and that his only explanation was that if he went to Manjeswar,he could attend only to the one machine of the Vijaya Bank that day,and that on a previous occasion,the machine was attended to by a mechanic from the Manjeswar office of the petitioner.Ext.P -1 rejected this explanation and found the charge proved.The Appellate Authority in Ext.P -3 noted that by the tour programme Ext.M -1 the 2nd respondent's work was fixed,and he was to attend to the Halda Type­writer in Vijaya Bank Ltd .,Manjeswar,and that he did not do this work although he went up to Kundara a nearby station.It proceeded to state: The appellant might have honestly believed that going to Manjeswar to repair one machine will entail unnecessary expenditure for the company especially in view of the company's circular in this regard,which has not been brought on record by the respondent.I,therefore,find that this is not an offence committed by the appellant. The relevancy of an honest belief of the 2nd respondent in the face of the fixed tour programme and the specific duties assigned to him,surely called for a closer examination.
(3.) THE second charge was that though the 2nd respondent was to attend to the machine in Kasaragod,of M/s Subha Raya Anantha Kammath,he did not attend to this work,although he visited the office and showed in the M.D.R.( Mechanics Daily Report ),filed as Ext.M -2 at the enquiry that he attended to the work,and also caused some bogus signature to be put in the time -slip.The 2nd respondent's defence was that he went to the office of M/s Subha Raya Anantha Kammath at 9 am and did not see anyone,and left the place.Ext.M -2 is not signed by the 2nd respondent.The 2nd respondent seems to have had a case that the servicing of the machine on the particular occasion was a free servicing,whereas the peti­tioner would contend that it was not.In Ext.P -3 the Appellate Authority noted as follows: Whether it was a free service or not could easily be seen from the servicing card as M.W.1,( D.W.1)himself says in the present enquiry.The respondent has not satisfactorily explained why the servicing card has not been brought on record in this case.This apart in Ext.M -5 the party uses the words The machine was not touched by the appellant.The party does not exactly say in so many words that the appellant did not go there.And there is a request from the party to detail somebody else from Mangalore.It is not understood what the party means by this.This strongly indicates that the party was not satisfied with the appellant's work.How can he not be satis­fied if he has not seen the appellant's work.The natural course the party would have taken in the matter was to request the respondent to send the appellant and not to change him.The party is not a witness in this case nor before the Enquiry Officer.I,therefore,find a strong probability that the appellant went there on the next day and did servicing of the machine.The charge against him is not tenable. As far as this charge is concerned,I do not think it would be within the province of this court to interfere with the finding of the Appellate Authority that the charge had not been proved.It has considered the evidence and the materials bearing on the charge and it is not for this court under Article 226 to interfere with the assessment of the evi­dence by the Tribunal.;

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