1. The petitioner is aggrieved with the dismissal order passed at Ext.P4 as confirmed in the appellate order at Ext.P7. The petitioner an Assistant Sales Manager was proceeded against on imputations as are seen at Ext.P1 charge sheet. Briefly put, the allegations related to the release of stock to one of the customers without proper authorisation and without collecting the payments, especially when there were outstanding dues from that particular customer. There was also one another charge with respect to dishonour of five cheques having not been informed to the Regional office for further action. The petitioner was proceeded against under the FACT Employees (Conduct Discipline and Appeal) Rules, 1977.

2. The Departmental enquiry was conducted and Ext.P2 enquiry report was submitted by the Enquiry Officer. The petitioner was offered every opportunity to defend himself, before the Enquiry Officer. There is no violation of principles of natural justice alleged by the petitioner also. The enquiry report found him guilty of the charges. The disciplinary authority issued show cause notice along with the enquiry report and the petitioner submitted detailed objection seen at Ext.P3. The disciplinary authority having considered the issue, passed Ext.P4 order finding the petitioner guilty of the offences, accepting the findings in the enquiry report. The disciplinary authority also considered the fact that the petitioner had been found guilty in two earlier instances, in disciplinary proceedings. The petitioner was issued a censure in March 1986 and a further punishment of reversion to lower grade in July 1986. The petitioner was awarded with major penalty of dismissal, but, however, considering the fact that the he had superannuated on 31.08.2004, the dismissal was related to that day. The gratuity due to the petitioner was also forfeited for reason of the loss caused.

3. An appeal was filed which was rejected by Ext.P7. The first contention raised by the petitioner is that the appellate authority did not give any hearing to the petitioner and the order itself is not of the appellate authority but is a communication of the decision taken by the appellate authority, through a Junior Officer. When an appeal is filed by the delinquent employee especially as a consequence of the dismissal from service, it is only proper that the appellate authority afford an opportunity for hearing to the delinquent and consider the issue in its entirety rather than communicating the decision through a junior officer. The order passed should also be a speaking one; showing the reasons which weighed with the appellate authority. Ext.P7 hence is found to be illegal and unsustainable and the same is set aside.

4. The other contention raised, is with respect to the forfeiture of DCRG by Ext.P4 which was without notice. Originally Section 4(6)(b) of the Payment of Gratuity Act, 1972 provided for forfeiture of the whole amount in the circumstances as noticed in (i) and (ii). The words "shall be wholly forfeited" was substituted by the words "may be wholly or partially forfeited". This necessarily conferred a discretion on the authority; which brings within its wake, the mecessotu pf a hearing before such discretion is exercised, either in favour or against the employee. Apposite would be reference to paragraph 14 of the decision of a Division Bench of Karnataka reported in 1986 LAB I.C 1976 (M/s. Bharat Gold Mines Ltd., v. Regional L.C (Central) Bangalore).

"14. Before concluding, it is necessary to observe that though complying with rules of natural justice was unnecessary, for forfeiting Gratuity under S.4(6)(b) of the Act as it stood. When the decision was taken by the appellant as it provided that the gratuity shall stand wholly forfeited under circumstances specified in cls. (i) and (ii), the position has since changed in view of the amendment of S.4(6)(b)(ii) of the Act with effect from 1.7.1984. After the amendment, it reads thus;

"4(6) Notwithstand