IMPORTANT POINT
Under the provisions of the Tamil Nadu Shops and Establishments Act, 1947, 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.

Headnote:LABOUR LAW-Tamil Nadu Shops and Establishments Act, 1947-Section 41 and Rule 9-Jurisdiction of Appellate Authority to record evidence and to come to its own conclusion-Order of dismissal -Set aside by Appellate Authority principally on ground that a domestic enquiry was not held into imputations made against respondent-Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on guilt of employee-Opportunity of hearing which is being provided to employee at appellate stage will sufficiently meet his demands for a just and proper enquiry.
       Held that the jurisdiction of the Appellate Authority to record evidence and to come to its own conclusion on the questions involved in the appeal is very wide. Even if the evidence is recorded in the domestic enquiry and the order of dismissal is passed thereafter, it will still be open to the Appellate Authority to record, if need be, such evidence as may be produced by the parties. Conversely, also if the domestic enquiry is ex parte or no evidence was recorded during those proceedings, the Appellate Authority would still be justified in taking additional evidence to enable it to come to its own conclusions on the articles of charges framed against the delinquent officer. (Para 17)
       Further held : 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 Ratna s cases (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. (Para 27)

JUDGMENT

S. Saghir Ahmad, J.-Leave granted.

The respondent, K.G. Sangameswaran, who was employed with the appellant as an Accountant, was dismissed from service by order dated 5.7.1994. This order was passed for serious misconduct, including misappropriation on the part of and by the respondent during the period 1986-87 to 1992-93, for which criminal proceedings were also initiated against him.

2. This order was challenged by the respondent before the Appellate Authority under Section 41(2) of the Tamil Nadu Shops & 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.

7. Mr. G.B. Pai, learned senior counsel appearing for the appellant did not seriously dispute the findings on issue No. 1, but he vehemently argued that the finding recorded by the Appellate Authority on issue No. 2 was wholly erroneous, inasmuch as the order by which the services of the respondent were brought to an end was not an order of dismissal and, therefore, there was no requirement to hold a domestic enquiry. It was contended that under Section 41(2) an appeal would lie only on the ground that there was no reasonable cause for dispensing with the services or that he had not been guilty of misconduct as held by the employer. In a case of simple termination, an appeal would, therefore, not lie as it would not fall within any of the aforesaid grounds.

8. The nature of the order, whe

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1997 Supreme(SC) 418

IMPORTANT POINT Under the provisions of the Tamil Nadu Shops and Establishments Act, 1947, 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.

Cases Referred (17)

IMPORTANT POINT
Under the provisions of the Tamil Nadu Shops and Establishments Act, 1947, 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.