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Judgment
Govindasamy, J.—The petitioner has filed the above writ petition to issue a writ of certiorari to quash the order of the first respondent dated
21.11.1983 made in TNSE Appeal No. 22/80. The petitioner, the Tamil Nadu Mercartile Bank Limited, has a branch at Eriodu near Dindigul.
The said branch is a one man branch wherein there shall be a Manager, a Cashier-cum-Clerk and an attender. The entire activity of the petitioner
Bank at Eriodu has to be carried out with the active co-operation of the Manager, Cashier-cum-Clerk and the Attender. Since the branch at
Eriodu is a one man branch the procedure applicable to all other main branches cannot be made applicable to this branch.
The second respondent was posted as Manager of the Eriodu branch. At the relevant time, one Balasubramaniam was working as Cashier-
cum-Clerk and one Ulagudia Sivagururaja was working as Attender of the said bank. On 11.5.1979 it was reported that while the said attender
was counting and receiving a sum of Rs. 20,000 from the Dindigul branch for taking it to the Eriodu branch he lost a sum of Rs. 10,000. On
9.6.1979 the said Attender had redeemed the jewels pledged in the said Bank. Thereafter, investigation team was sent to Eriodu branch on
25.7.1979 and that the investigation team made an exhaustive examination of all the accounts and found certain irregularities. It is on the basis of
the investigation report, the petitioner initiated disciplinary proceedings against the second respondent and the Cashier-cum-Clerk and also placed
both of them under suspension with effect from 3.8.1979. The petitioner Bank issued a charge memo dated 17.8.1979 containing certain charges
and also called upon the second respondent to submit his explanation. Subsequently, the petitioner issued a second charge memo dated
16.10.1979 which includes certain charges specified in the first charge memo dated 17.8.1979. Thereafter, the petitioner on 19.1.1980 issued a
third charge memo consisting of two new charges. In respect of all the charge memos, the second respondent submitted his explanation, wherein
he denied his guilt. Thereupon, the petitioner appointed an Enquiring Authority to hold an enquiry in respect of the charges framed against the
second respondent. The Enquiring Authority, after holding the enquiry, submitted a report holding that all charges, except charge No. 10 were
proved. On the basis of the findings of the Enquiring Authority, the petitioner, by order dated 10.6.1980 dismissed the second respondent from
service with effect from the date of suspension. In fact, the enquiry was common against the second respondent as well as the Cashier-cum-Clerk
and the services of both the second respondent as well as the Cashier-cum-Clerk were terminated by order dated 10.6.1980. Aggrieved by the
said order of dismissal, the second respondent preferred an appeal on 17.7.1980 under S. 41(2) of the Tamil Nadu Shops and Establishments Act
hereinafter referred to as the Act. The petitioner, on receipt of a notice from the Appellate Authority, filed a detailed statement. 21 documents
which had been marked before the Enquiring Authority were taken on file and in addition the petitioner marked 24 additional documents and
examined two witnesses. The second respondent examined himself as a witness on his side.
The Appellate Authority, the first respondent herein, on consideration of the entire materials on record, including the report, the findings of the
enquiring authority the additional evidence and the additional documents marked before him, did not agree with the findings of the enquiring
authority and held that the impugned order of dismissing the second respondent herein from service was unwarranted and unjustified and that the
second respondent was denied an opportunity by reason of the fact that the petitioner had not produced the documents which were required by
the second respondent herein to disprove his guilt and ultimately set aside the order of the petitioner dated 20.6.1980 dismissing the second
respondent from service as Branch Manager of the petitioner Bank as illegal, void and in operative. Consequently, the Appellate Authority allowed
the appeal. It is at this stage, the petitioner has filed the above writ petition to issue a writ of certiorari to quash the order of the Appellate
Authority, the first respondent herein.
Mr. Vijayanarayanan, learned counsel appearing on behalf of the petitioner, contended that the power conferred under S. 41(2) of the Act is
not a revisional or supervisory power and that the Appellate Authority should have dealt with each and every charge and should have given a
specific finding with reference to each and every charge. Learned counsel for the petitioner further contended that the Appellate Authority
misdirected himself as a revisional authority and assimilated all the charges into three issues and dealt with them accordingly; as a result the
impugned order is vitiated. Learned counsel for the petitioner also contended that there were number of admissions made by the second
respondent herein and that the Appellate Authority had not taken into account all those admissions while allowing the appeal filed by the second
respondent herein. In this connection, learned counsel for the petitioner cited the decision Kotak and Co. Vs. Additional Commissioner for
Workmen''s Compensation and Another, for the purpose of pointing out the scope of the Appellate Authority under S. 41 (2) of the Act.
Repelling the arguments of the learned counsel for the petitioner, Mr. Somayaji, learned counsel appearing on behalf of the second respondent,
contended that the scope and the power of the Appellate Authority is dual in character and that the Appellate Authority gets into the shoes of the
original authority and has power to reappraise the whole evidence. While so, the Appellate Authority has considered all those charges and there is
nothing wrong so long as the Appellate Authority has followed the procedure prescribed in respect thereof. In this context, learned counsel pointed
out the procedure prescribed under Rule 9 (2) of the Tamil Nadu Shops and Establishments Rules, 1948 (hereinafter referred to as the Rules),
wherein it is provided that the procedure to be adopted by the Commissioner for Workmen''s Compensation when hearing appeals preferred to
him under sub-S.(2) of S. 41 shall be summary and he shall record briefly the evidence adduced before him and then pass orders giving his reasons
therefor. Learned counsel for the second respondent further contended that the Appellate Authority consolidated all the charges into four heads of
charges and has considered all the materials and ultimately came to the conclusion that it does not agree with the findings of the Enquiring
Authority/Disciplinary Authority and allowed the appeal.
Considering the relevant contentions of both parties, it is clear that R.9(2) of the Rules provides for procedure to be followed by the Appellate
Authority. It is clear from the said Rule that the procedure to be followed by the Appellate Authority when hearing appeals under sub-S.(2) of S.
41 shall be summary and that the appellate authority shall record briefly the evidence adduced before him and then pass orders giving his reasons
therefor. It is well settled that the Appellate Authority is entitled to take additional evidence and examine all materials before him and arrive at his
own conclusion. In the instant case, the Appellate Authority has followed the procedure as provided under the Rules and in consonance with the
law laid down in this behalf. There is no infirmity whatsoever in the impugned order, as contended by the learned counsel for the petitioner. The
Appellate Authority has followed the procedure and has considered all materials placed before him and ultimately came to the conclusion that the
order of dismissal is unwarranted in view of the conclusions arrived at by him.
Having regard the facts and circumstances in the instant case, there is nothing wrong in consolidating all the charges into three heads by the
Appellate Authority. The Appellate Authority has considered all the charges framed against the second respondent and has dealt with in respect of
each and every charge and has also given his conclusion in respect of the same. While so, the contention of the learned counsel for the petitioner
that the Appellate Authority should have considered each and every charge separately and should have given a finding has no force in the face of
the aforesaid circumstances.
With reference to the contention on the part of the learned counsel for the petitioner to the effect that the Appellate Authority has misdirected
himself as a revisional authority and assimilated all the charges into three points and dealt with accordingly and as a result the impugned order is
vitiated, the same has no substance in view of the reasons set out herein-above. The ratio in Kotak and Company''s case (supra) is only to the
effect that the Appellate Authority can take additional evidence while considering the merits of the case. The ratio in the said decision is also to the
effect that when the employer himself had not conducted the enquiry under S. 41(1) of the Act, the Appellate Authority could take evidence and
uphold the order of the employer, then the statutory requirement of S. 41(1) would be wiped out and would render the provisions of S. 41 (1)
nugatory. The facts of that case are not squarely applicable to the instant case. That was a case where there was no enquiry conducted by the
original authority. In the instant case, the original authority conducted the enquiry and aggrieved by the order of the original authority the second
respondent preferred an appeal. Hence the ratio laid down by this Court in the said decision is not applicable to the present case.
With reference to the contention that the second respondent made certain admissions which the Appellate Authority has not taken into account
while disposing of the appeal, it is manifest from a perusal of the order of the appellate authority, as pointed out by the learned counsel for the
second respondent, that the appellate authority has considered all aspects of the matter, including the so-called admissions made by the second
respondent and has ultimately come to a conclusion. While so, the above contention has no force. The Appellate Authority has considered the
entire record of proceedings and the evidence adduced by both the parties and has given a finding to the effect that the second respondent was not
guilty and consequently held that the impugned order of dismissal of the second respondent from service was not warranted and was not justified
and that the petitioner had not provided adequate opportunity to the second respondent by furnishing all the documents which were required by the
second respondent and consequently the second respondent was denied a reasonable opportunity. While so, the finding of fact reached by the
appellate authority as a result of appreciation of evidence cannot be questioned in writ proceedings. This is a case where the findings of fact cannot
be stated to have been based on no evidence. The adequacy and sufficiency of the evidence with reference to the findings and the inference drawn
from the said findings are within the jurisdiction of the appellate authority and those things cannot be agitated before this Court in a proceeding
under Art. 226 of the Constitution of India. This Court cannot covert into an appellate forum to once again assess the fact and come to the
conclusion that, on assessment of evidence, the findings are sustainable or otherwise liable to be set aside. The conclusion arrived at by the
appellate authority cannot be assailed as it is based on evidence. It is in these circumstances the order of the appellate authority cannot be said to
be unsustainable in law. Consequently, there is no warrant for interference with the impugned order by this Court. Hence the writ petition fails and
the same is dismissed. No costs.