Case: United Palnters Asson. Of Southern India Vs. K.G. Sangameswaran

those cases where no evidence was recorded at the domestic enquiry and the principles of natural justice were violated. In addition to such cases, namely, cases in which an opportunity of hearing was not given to the employee or the principles of natural justice were, in any way, violated, the Appellate Authority shall also have jurisdiction to record evidence, if necessary, in order to come to its own conclusion on the vital question whether the employee was guilty or not of the charges framed against him. 21. The Madras High Court in Salem-Shevapet Sri Venkateswara Bank Ltd. v. Krishnan (K.K.) and another, 1959(2) LLJ 797, held that the Appellate Authority under Section 41(2) had the jurisdiction to enquire whether the statutory conditions subject to which alone a servant could be dismissed, have been complied with. It would imply that the Appellate Authority can also record evidence specially when it has also to record the findings whether the charges were established or not. 22. The Madras High Court again in Srirangam Janopakara Bank Ltd. v. Rangarajan (S.) , 1964(1) LLJ 221, considered the ambit and scope of Section 41 read with Rule 9 and laid down that :- "It appears to us that this rule is not intended to confer, on the appellate authority, a power to take evidence de hors S. 41(2); the rule really lays down a rule of procedure, that the hearing of appeals shall be summary, that the evidence (if) recorded shall be brief, and that when orders are passed, reasons should be given. There is therefore no room for examining rule 9(2) dissociated from S. 41(2), and to decide that rule 9(2) went far beyond the rule-making power under Section 49, on the ground that it confers power to take additional evidence on the appellate authority.It would also appear necessary in the interests of the proper working of an enactment like the Madras Shop and Establishments Act, to confer on the Appellate Authority the power to take evidence itself, if the circumstances of a case justify it." 23. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.24. If the instant case is analysed in the light of the principles laid down above, it will be noticed that the Appellate Authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The Appellate Authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law. 25. We may now consider the contention of the learned counsel for the respondent relating to the principles of natural justice which were not observed at the initial stage, namely, at the time of the domestic enquiry. Whether the defect is curable at the appellate stage or not is the question. 26. Learned counsel, in support of his arguments that the defect is not curable has placed reliance on the decision of this Court in Institute of Chartered Accountants of India v. L.K. Ratna and others, 1986(4) SCC 537. It was, no doubt, laid down in this case that a post-decisional hearing cannot be an effective substitute of pre-decisional hearing and that if an opportunity of hearing is not given before a decision is taken at the initial stage, it would result in serious prejudice, inasmuch as if such an opportunity is provided at the appellate stage, the person is deprived of his right of appeal to another body. There may be cases where opportunity of hearing is excluded by a particular service or statutory rule. In Union of India and another v. Tulsi Ram Patel, 1985(3) SCC 398, pre-decisional hearing stood excluded by the second Proviso to Article 311(2) of the Constitution and, therefore, the Court took the view that though there was no prior opportunity to a Government servant to defend himself against the charges made against him, he got an opportunity to plead in an appeal filed by him that the charges for which he was removed from service were not true. Principles of natural justice in such a case will have to be held to have been sufficiently complied with. In Mrs. Maneka Gandhi v. Union of India and another, 1978(1) SCC 248, and in Liberty Oil Mills and others v. Union of India and others, 1984(3) SCC 465, an opportunity of making a representation after the decision was taken, was held to be sufficient compliance. All depends on facts of each case. 27. In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratnas case (supra) will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.24. If the instant case is analysed in the light of the principles laid down above, it will be noticed that the Appellate Authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The Appellate Authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law.In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratnas case (supra) will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry.