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

2. This order was challenged by the respondent before the Appellate Authority under Section 41(2) ofthe Tamil Nadu Shops and Establishments Act, 1947 (for short, the `Act). The Appellate Authority, by its judgment dated 12.2.1996, allowed the appeal, set aside the order of dismissal and directed reinstatement of the respondent with full back-wages. It is against this judgment that the present appeal has been filed.3. The order of dismissal by the appellant was set aside by the Appellate Authority (Respondent No. 2), principally on the ground that the order being an order of dismissal, could not have been passed under Section 41(1) of the Act without first holding a domestic enquiry into the allegations made against him.4. The appellant, in their written statement filed before the Appellate Authority, pleaded that the Act was not applicable to the respondent and consequently the appeal itself was not maintainable. It was also pleaded that when the charge-memo was issued to the respondent, he filed his reply dated 24.1.1994 in which he denied the charges and made a request for perusal of records before submitting his further reply. The appellant, by their subsequent letter dated 17.2.1994, wanted the details of the documents which the respondent wanted to inspect. The respondent, by his letter dated 20.2.1994 is said to have pleaded not guilty and is further said to have stated that no useful purpose would be served by participating in the enquiry as the enquiry was bound to be biased. The appellant consequently proceeded to dismiss the respondent from service after perusal of the documents and other relevant records indicating misappropriation and misconduct by the respondent.5. In view of the controversy raised before the Appellate Authority, two issues were framed as under :-1. Whether the respondent/management and the appellant are covered under the TNSE Act 1947 ?2. Whether the respondent followed the provisions of Section 41(1) before dismissing the appellant ?6. On issue No. 1, the finding recorded by the Appellate Authority was that since The United Planters Association of Southern India, which is appellant before us, was declared as a commercial establishment by the Tamil Nadu Government vide its Notification in G.O.Ms. No. 6265 dated 20.12.1948 issued under Section 2(3) of the Act, it would be governed by the Act. It was further held that since the respondent was employed as an Accountant in that establishment, he would fall within the definition of "person employed" as set out in Section 2(12) of the Act. On issue No. 2, it was found by the Appellate Authority that the respondent was dismissed from service without following the provisions of Section 41(1) of the Act and without holding the domestic enquiry.

Reasoning:
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.