TMI Blog1997 (3) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... e b 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 he charge-memo was issued to the respondent. he filed his reply dated 24.1.1994 in which he denied the charges and made 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 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 bu participating in the enquiry as the enquiry was bound to be biased. The appellant consequently proceeded to dismiss the respondent form service after perusal of the documents and other relevant records indicating misappropriation and misconduct by the respondent. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the position of trust and responsibility that you hold as Accountant. It is decided to dismiss you form service forthwith. 3.................................. 4. It may be noted that this is without prejudice to the right of the Association to pursue criminal proceeding s initiated against you as well as to recover the amounts lost by misappropriation and other acts committed by you as also due to your gross and criminal negligence. It may also be noted that in view of the nature of the misconducts committed bu you and the loss suffered by the Association. consequent to the same you will not be entitled to any gratuity from the Association. This order ex-facie is punitive in nature as the respondent has been held guilty of misconduct including misappropriation allegedly committed but him. The order is not an innocuous order and cannot be treated as an order by which services of the respondent were simply terminated. He was in fact dismissed from service. 9. It was next contended by the counsel for the appellant that the appellate Authority before whom an application to produce the evidence was filed should have allowed the charges levelled against the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the misconduct imputed to the employee. the decision of the Labour Appellate Tribunal in Buckingham and Carnatic co Ltd. vs. Workers of the company, 1952 Lab AC 490, in which it was laid down that evidence can be adduced even for the first time at that stage was approved. This question was again considered in management of Ritz vs. Its Workman (1963) 3 SCR 461 and the law laid down earlier was reiterated. To the same effect is the decision of this court in Khardah co. Ltd. vs. Their workmen, (1964) 3 SCR 506 and workmen of Motipur sugar Factory (p) Ltd. vs. Motipur sugar Factory, (1965) 3 SCR 588. In state Bank of India vs. R.K. Jain ors. (1972) 1 SCR 755 and in Delhi cloth General mills company Ltd. vs. Ludh Budh Singh ,(1972) 1 Labour Law journal 180 SC it was again laid down that where an employer failed to make an enquiry before dismissing a workman it would be open to him to produce all relevant evidence before the Tribunal to show that the action was justified. 13. Provisions of the Industrial Disputes Act were. In the meantime, amended and on the recommendation of the International Labour Organisation section 11A was introduced in the Act by the parliament where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed either on the ground that there was no reasonable cause for dispensing with his services or on the ground that he had not been guilty of misconduct as held by the employer. (3) The decision of the appellate authority shall be final and binding on both the employer and the person employed. Rule 9. Appeals under section 41(1) - The deputy commissioners of Labour in their respective areas assigned to them by the commissioner of Labour shall be the authorities for the purposes of hearing appeals under sub-section (2) of section 41 of the said Act. Provided that the commissioner of Labour may, by order in writing on the on the representation made by either of the parties any case under this Act. pending before an authority fr disposal. Such authority to whom the case is so transferred may, subject to the special direction in the order of transfer proceed either de-novo or from the stage at which it was so transferred. (2) Any appeal under sub-section (2) of section 41 shall be preferred by the person employed within thirty days from the date of service of the order terminating the service with the employer such service to be deemed effective if carried out either person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Nath Choudhary, (1969) 1 SCR 919. In that case, the court considered the provisions of the Bihar shops and commercial Establishment Act and the Rules framed thereunder. Sub-section (1) of section 26 of the Bihar Act provided that no employer shall dismiss or discharge an employee except on a reasonable cause and without giving such employee at least one month s notice or month s wages in lieu thereof. the proviso to sub-section (1) laid down that the notice shall not be necessary where the services are dispensed with on a charge of misconduct. It was provided by sub-section (2) that every employee, dismissed or discharged. May file a compliant to the prescribed authority (Labour Court ) on three grounds, namely - (1) that there was no reasonable cause for dispensing with his services, or (2) that no notice was served on him as required by sub-section 1, or (3) that he was not guilty any misconduct as held by the employer. 20. Sub-section (5) of section 26 enabled the competent authority to record evidence and come to its own findings on such evidence. It was held that the authority was required to come to its own independent findings on the evidence adduced by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under S.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 shops 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 the 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 evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
