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Judgment
In this petition under Art. 226(1)(b) and (c) of the Constitution, the petitioners have challenged the order dated 1.6.1979 passed by the District Judge and the Education Appellate Tribunal, Chitradurga, in M.A. No. 341 of 1978 on I.A. Nos. 5 and 6 allowing the said applications and permitting respondent No. 1 to cross examine petitioner-2 and also examine himself in the appeal and further directing the summoning of the documents as prayed for in I.A. No. 6.
The contentions of Sri B.G. Sridharan, the learned counsel appearing for the petitioners, are that the appellate Tribunal has not considered the objections raised by the petitioners and hence the order in question is not a speaking order; that under S. 10(4)(c) of the Karnataka Private Educational Institutions (Discipline and Control) Act 1975 (hereinafter referred to as ''the Act''), it was not open for the appellate tribunal to allow the first respondent to adduce fresh evidence. The learned counsel also further contended that the manner in which the District Judge has rejectedthe objections, would go to show that he has not considered the contentions of the petitioners and has also not given reasons as to why it has become necessary to allow the first respondent to adduce evidence in the appeal and as such, it is not a speaking order.
The District Judge, in paras 9 and 10 of the order has recorded a finding that the feelings between petitioner No. 2 and the first respondent were very much strained and there was no love lost between them and as such, no reasonable opportunity was afforded to respondent No. 1 while conducting an enquiry. It was also found, by the District Judge that certain, ex parte proceedings have been taken by the enquiry committee & the 1st respdt. was not able to put forth his case before the enquiry committee. The Dist. Judge has also recorded a finding on consideration of the material placed before him that he was satisfied that it was absolutely necessary that the first respondent should be permitted to adduce evidence by way of cross examining the second petitioner and by examining himself in the course of the appeal. Thus, it is clear that the contention of the petitioners that the learned District Judge has not considered, the objections filed by them, hence the order is not a speaking order, is not acceptable.
The contention of the petitioners that it was not open for the District Judge (Educational Appellate Tribunal) to allow the 1st respondent to produce additional evidence in the appeal, is also not tenable in law. The Appellate Tribunal has come to the conclusion that the first respondent had no opportunity to adduce the evidence, therefore it was absolutely necessary to permit the 1st respondent to adduce additional evidence. That being so, the Tribunal was justified in allowing the 1st respondent to adduce additional evidence as per S. 10(4)(a) and (c) of the Act.
The provisions of S. 10(4) of the Act, are as follows:
"The Educational Appellate Tribunal shall- (a) for the purpose of the disposal of the appeals referred under this Act have the same powers as are vested in a court of appeal under the Code of Civil Procedure, 1908 (Central Act 5 of 1908);
(b) have the power to stay the operation of the order appealed against on such terms as it may think fit;
(c) if, after taking such fresh evidence as it considers necessary, is satisfied from the materials on records that- (i) the order of dismissal or removal was not justified it may set aside the order and direct reinstatement of the employee, on such terms and conditions (including payment of salary and other allowances from the date of dismissal till the date of reinstatement and costs if any) as it thinks fit or give such other relief to the employee including the award of any lesser punishment in lieu of dismissal or removal as the circumstances of the case may require;
(ii) the punishment (other than those specified in sub-clause (i)) imposed was not justified, it may set aside the punishment imposed or give such other relief to the employee including the award of any lesser punishment in lieu of the punishment imposed as the circumstances of the case may require; and (d) ....."
From the aforesaid provisions, it is clear that the appellate Tribunal, for the purpose of disposal of the appeals, enjoys the same powers as are vested in a court of appeal under the Code of Civil Procedure, 1908. But, in the matter of taking fresh evidence in the appeal the powers of the appellate Tribunal are not as restricted as that of a court of appeal under the Code of Civil Procedure. Order 41 Rule 27 C.P.C. provides as to under what circumstances the parties to the appeal may be allowed to adduce additional evidence. The restrictions regarding production of additional evidence contained in Oder 41 Rule 27 of the Code of Civil Procedure, will not be applicable to the appellate Tribunal functioning under the Act, in view of the special provision made in the Act, regarding the production of fresh evidence in the appeal. S. 10(4)(c) of the Act, specially provides for taking such fresh evidence as the appellate Tribunal considers necessary. If the Legislature intended to restrict the powers of the appellate Tribunal in the matter of taking fresh evidence in the appeal, in the same manner as the powers of a court of appeal under the Code of Civil Procedure. 1908, are restricted it was not at all necessary for the Legislature to add clause (c) in S. 10(4) of the Act, inasmuchas clause (a) of S. 10(4) of the Act, would have served that purpose. Normally, the construction which leads to surplusage of word or wards in a statute should be avoided consistent with the rule on construction that a meaning should be given toevery word in a statute. In this connection the observations made in the case of Hill v. William Hill (Park Lane), 1949 AC. 530 HL by Viscourt Simon, are very appropriate and the same are as follows:
".....It is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already beensaid once this repetition in the case of an. Act of Parliament is, not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible be given to every word in the statute implies that unless there is good reason to the contrary, the words add something which would not be there if the words wereleft out."
In this connection, it is to be noticed that the domestic enquiry proceedings are not conducted in the manner as the proceedings before the Court. Haying regard to this, the legislature has made a special provision for taking fresh evidence in the appeal by the appellate Tribunal. Therefore, the only criteria for the appellate Tribunal to allow fresh evidence will be as to whether the fresh evidence which the party intends to adduce is necessary for the purpose of adjudicating the matters in controversy between the parties to the appeal and also to arrive at a just decision in the case. It to just possible that in a given case, a party might not havehad full and proper opportunity to adduce evidence during the course of a domestic enquiry conducted by the management. Further, there may be several other circumstances as a result of which the necessary evidence might not have come on record during the course of a domestic enquiry. In order to meet several such contingencies, a special provision has been made under sec. 10(4)(c) of the Act, for taking such fresh evidence as the appellate Tribunal considers necessary.
In the instant case, as already pointed out, the appellate Tribunal has come to the conclusion that the first respondent, due to certain circumstances did not have an opportunity to adduce evidence; therefore, the appellate Tribunal has further held that it was absolutely necessary in the interest of justice to permit the first respondent to adduce additional evidence. That being so, the appellate Tribunal cannot be said to have acted illegally and without jurisdiction in permitting the first respondent to adduce additional evidence.
So far as the relief relating tothe issue of writ of mandamus directing the appellate Tribunal to dispose of the application, for vacating the stay is concerned, the petitioner should make an application before the appellate Tribunal to dispose of the same immediately.
For the reasons stated above, I do not seeany ground to issue Rule. Accordingly, the writ petition is rejected.