Janarthanam, J.

1. Parry and Co. Ltd.Dare House, Madras 1 (petitioner) commenced a new line in marketing portable Honda generating sets imported from Japan around April, 1982. These portable minigenerators were imported directly from Japan against special import licences by other agencies and sold to Parry and Co., for marketing. The petitioner Company had two sources of importers-one is perfect power system/Kamal Engineering Co., New Delhi & other is M/s. Ambadi Enterprises Pvt. Ltd., Madras. The market response was initially extremely good and many a customer, it is said, were pouring into the office enquiring about the price, availability etc. In order to answer to such personal enquiries and also to submit quotations execute order etc., it was found that the existing manpower in the Genlite Section was inadequate. Therefore, one K. Ramaswamy (Second respondent), hitherto working in Administration section was transferred to Genlite section with effect from 31.5.1982. With effect from that date he was entrusted with the job of handling the functions connected with the sale of Honda generator in his capacity as clerk. Initially the petitioner-company was alone marketing Honda generating sets. As a consequence of great demand for such generating sets, number of other agencies happened to deal with such generating sets. Consequently, this resulted in cut-throat competition, which forced the petitioner-company to reduce the price of such generating sets to meet the competition from others. Despite sharp reduction in prices, the quantum of sale somehow or other deteriorated sharply.

2. During February, 1983, the petitioner-company, learnt from M/s. Ambadi Enterprises Pvt. Ltd., Madras that the second respondent made a visit to their office representing the interests of M/s. Continental Business and Finance, 248, Poona Malliee High Road, Madras-29 and enquired for prices of Honda generating sets for purchases directing from them. As such an act of the second respondent was directly in conflict with the interest of the petitioner-company, it was decided by the Management to investigate the matter discreetly and an investigating agency, going by the name Globe Detective Agency (P) Ltd., Madras-2 was employed. This agency set up two of their senior investigators, one by name Mr. P. G. John and Mr. Malcom Fernandez to gather information about the discreet act.

3. Of them, P. G. John, posing as a businessman from Southern Air-Conditioners, Coimbatore was stated to have approached the second respondent for striking a deal with regard to supply of Honda Generating sets. In the course of discussion, the second respondent appeared to have represented to him that the rate quoted by Parry and Co., with reference to the various types of generating sets were quite high and if he is really interested in getting the generating sets at lower rates, he would see that he can arrange such sets from outside party, provided one per cent commission of the total deal was given to him. He was stated to have written those things in a piece of paper, giving description of the generating sets, its rate and the incentive to be given. The conversation that lasted between them was also said to have been recorded in tape. The said Detective Agency submitted its report to the petitioner-company on the basis of which a memo was issued to the second respondent on 29.4.1983 framing charges of fraud, dishonesty in connection with the companys affairs and acts of omission against the interest of the company likely to cause huge loss and attempting to take illegal gratification, engaging in activities that may tarnish the fair name and image of the company and acts subversive of discipline. The second respondent submitted his explanation on 1.5.1983 denying the charges.

4. However, with reference to his alleged acts of dishonesty, a charge memo was issued on 1.3.1983 on an earlier occasion revolving on his receiving commission of Rs. 300 from M/s. S. S. Trading Company, Madras.

5. One S. V. Govindaraju was appointed as the Enquiry Officer while one R. Madhusudanan was the Presenting Officer. During the course of enquiry, the petitioner-company did not pursue with the earlier charge memo and consequently, the second respondent was exonerated of the said charge.

6. The Enquiry Officer, however, on consideration of the materials, found that the second respondent was guilty of the charges framed later. Based upon the report of the Enquiry Officer, the second respondent has, however, been dismissed from service by an order dated 19.4.1984 issued by the Chairman of the petitioner-company.

7. Aggrieved by the said order, the second respondent preferred an appeal in TSE No. 31 of 1984 before the Dy. Commissioner of Labour (Appeal), Madras-6 (Appellate Authority under Sec. 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (for short the) first respondent). The first respondent, however, on consideration of the materials available on record, held that the charges of misconduct levelled against the second respondent had not been proved by satisfactory evidence in the enquiry and hence the order of dismissal dated 19.4.1984 is in contravention of Sec. 41(1) of the, which deserves to be set aside and accordingly set aside the order of dismissal, by his order dated 2nd April, 1987.

8. Aggrieved by the said order, the petitioner-company resorted to the present action praying for issue of a certiorari to quash the same.

9. The petitioner filed W. M. P. No. 8511 of 1987 praying for stay of operation of the order impugned and this Court on 17.6.1987 passed the following order :

"Interim stay and notice."

This Court on 9.9.1987 passed a further order and the same is reflected as below :

"Though the second respondent has been served, he does not appear either in person or through counsel. Considering the facts and circumstances of the case and also the prior proceedings under the industrial Disputes Act, this is a fit case, where the interim stay granted already should be made absolute. Accordingly, the interim stay is made absolute."

10. The second respondent filed W. M. P. No. 10410 of 1987 praying for a direction to the petitioner for payment of backwages quantified in a specified sum pending disposal of the writ petition.

11. He also filed W. M. P. No. 14376 of 1988 for modification of the order dated 9.9.1987 passed in the stay petition in W. M. P. No. 8511 of 1987.

12. Both those W. M. Ps. were dismissed by an order dated 14.9.1988 as below :

"No ground is made out to modify the order passed already or to give directions as prayed for by the petitioner. These petitions are therefore, dismissed."

13. Aggrieved by the said order, the second respondent preferred W. A. No. 937 of 1989 and a Division Bench of this Court allowed that appeal, by setting aside the order in those W. M. Ps., and remitted them back for fresh disposal.

14. Consequently, both the said W. M. Ps. were restored to file, Subsequently, on 14.8.1990, an order came to be passed, the operative portion of which reads thus :

"Considering the facts and circumstances of the case, I feel, in the interest of justice, the second respondent should be directed and is hereby directed to pay a lump sum of Rs. 30, 000 towards backwages within 4 weeks from to-day and also pay 50% of the salary every month commencing from 15th September till the disposal of the writ petition. In view of the request made by learned counsel for the writ petitioner, the hearing of the writ petition is fixed as 10.12.1990. These petitions are ordered accordingly."

It may be noted here Parry & Co., is the second respondent in both these W. M. Ps.

15. Thereafter, the petitioner-company filed W. M. P. No. 29414 of 1992 praying for modification of the order dated 14.8.1990 in those W. M. Ps. This Court in the said W. M. P., passed the following order on 22.1.1993.

"This Court in W. M. P. No. 14376 of 1988 has passed an order on 14.8.1990 directing the petitioner herein to pay a lump sum of Rs. 30, 000 towards backwages within four weeks and also pay 50% of the salary every month commencing from 15.9.1990 till the disposal of the writ petition, to the second respondent herein. The court also directed and fixed the hearing of the writ petition on 10.12.1990. It is stated that the said order has been complied with and Rs. 30, 000 has been paid within the time and the petitioner has been paying 50% of the salary every month to the second respondent.

2. However, what all required in this petition is that the second respondent herein has attained superannuation on 31.12.1992 and the question of paying 50% of the salary to the second respondent after 31.12.1992 has to be modified. The said application is opposed by the second respondent. It is stated that even though he is not entitled to 50% of the salary after attaining superannuation, in view of the arrears of back wages which are to be paid to him, the petitioner can be directed to pay the said amount. Further, both parties agree that even though date has been fixed for hearing of the writ petition on 10.12.1990, it has not been disposed of.

3. After hearing the arguments of the learned counsel appearing on both sides, I am of the view that the modification asked for by the petitioner is justified in view of the fact that the second respondent has attained the age of superannuation and the question of paying salary after 31.12.1992 does not arise. However, as regards payment of back wage it is in dispute.

4. I feel that in the interest of justice, the disposal of the writ petition can be expedited. The office is directed to post the writ petition for final hearing on 5.2.1993 before the Bench which is hearing writ petitions."

16. Mr. G. Subramaniam, leaned Senior Counsel appearing for the petitioner would, with all seriousness and serenity, contend that the general and normal rule applicable to civil proceedings-appeal is after all, but continuation of the trial of a suit or proceeding and such being the case, the appellate forum, possessed of all the necessary and requisite powers of a trial court is entitled to re-assess, evaluate and appreciate the evidence and come to an independent conclusion of its own, of course for proper reasons cannot all be stated to be appeal, like the one provided under Sec. 41(2) of the and the appellate authority, exercising jurisdiction thereunder cannot be stated to be having any jurisdiction or power, other than the one conferred by such a provision expressed explicitly in the form of a language and such being the case, the language couched therein for the conferment of such a power, if interpreted and understood in broad spectrum analysis, cannot at all convey that the extent and amplitude of the power inhering in such an authority is as wide as that of the power inhering in an appellate forum in civil proceedings and to put it differently, he would further say that the power of the appellate authority under the statute is more or less akin to the power of a Labour or Industrial Tribunal sitting in judgment over the findings of a domestic enquiry, which in its very nature is very limited in cope and extent.

17. Mr. A. L. Somayaji, learned counsel appearing for he second respondent would, however, advance an argument that the submissions thus made by learned senior counsel could very well be made applicable if at all, to a proceeding under Art. 226 of the Constitution of India, though not before an appellate authority under the relevant statute.

18. The rival submissions of either learned counsel may now fall for consideration in the arena of discussion.

19. For a better appreciation and understanding of such a submission, quite relevant and proper it is, to pen down, at this juncture, the salient provisions adumbrated under Sec. 41 of the act, which run as under :

"41. Notice of dismissal : (i) No employer shall dispense with the services of a person employed continuously for a period of not less than six months excepts for a reasonable cause and without giving such person atleast one months notice, or wages in lieu of such notice provided, however that such notice shall not, be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded in an enquiry held for the purpose.

(2) The person employed shall have a right to appeal to such authority and within such time as may be prescribed either on the ground that there was any reasonable cause for dispensing with his services or on the ground that he has 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."

20. From what has been extracted above, it is abundantly clear that for purpose of Sub-sec. (1) of Sec. 41 of the, the employer could dispense with the services of an employee, who has been continuously in service for a period not less than six months, without notice on a charge of misconduct supported by satisfactory evidence recorded in an inquiry held for the purpose. If the misconduct is not one of the grounds of discharge, then the employer can dispense with the services of an employee, if there is a reasonable cause, he can only dispense with the services only after giving him at least one months notice. In al those cases, where the services of a person are not dispensed with in accordance with the provisions of Sub-sec. (1) of Sec. 41 of the, he had a right of appeal to the prescribed authority. Within the prescribed time challenging the order 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, under Sub-sec. 2 thereof. Under Sub-sec. (3) thereof, the order of the appellate authority is final and binding on both the employer and employee.

21. The nature of the power of such an Appellate authority is clearly expressed in express and explicit phraseology, namely,

"misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose."

Such an expression denotes, in no uncertain terms, that in proof of the misconduct of an employee, there must be an inquiry; that the evidence so adduced cannot be stated to be some evidence touching misconduct but satisfactory evidence in proof thereof, thereby making it clear that the evidence so adduced must be adequate and sufficient enough to derive satisfaction in the mind of the appellate authority in proof of the alleged misconduct and this aspect of the matter can further be emphasised by referring to the adjective form of the Word satisfactory prefixing the Word evidence. Further, the power of the appellate authority under Sub-sec. (2) of Sec. 41 of the cannot at all be deemed to be so restricted as to permit him to consider only the evidence recorded by the employer of the dismissed employee at the time of inquiry and debarring him from taking additional evidence.

22. Relevant at this juncture to notice Sub-rule (2) of Rule 9 of the Tamil Nadu Shops and Establishments Rules, 1948 (for short the Rules) framed, in exercise of the power conferred by Sub-sec. (1) of Sec. 49 of the act, which prescribes the procedure to be followed by the appellate authority in exercise of the jurisdiction under Sub-Sec. (2) of Sec. 41 of the. It is thus clear that neither sub-sec. (2) of Sec. 41; nor Sub-rule (2) of Rule 9 of the Rules confines the appellate authority to the evidence already recorded in the inquiry for which Sub-sec. (1) of Sec. 41 provides. The appellate authority has jurisdiction to take such further evidence as it considers necessary in order to enable that authority to come to a decision which would be final and binding on both the employer and the employee as prescribed under Sub-sec. (3) of Sec. 41. The appellate power must be construed in the widest possible manner so as to take in also the power to take additional evidence when necessary.

23. Useful reference, at this juncture may be made to the case of Davey Sons v. Additional Commissioner for Workmens Compensation, in which a Division Bench of this Court consisting of late lamented eminent Chief Justice P. V. Rajamannar and Justice Venkatadri expressed that jurisdiction of the appellate authority to go into the merits of the misconduct for which the appellant/employee was dismissed from service does not stand on the same footing a that of the industrial Tribunal or Labour Court to examine such question in a reference under Sec. 10 of the industrial Disputes Act.

24. In Remington Rand of India Ltd. v. R. Jambulingam, the Apex Court said at paragraph 8 thus :

"8... The jurisdiction of the Commissioner is an appellate jurisdiction and is of wider scope unlike that of the Tribunal in an application under Sec. 33 of the Industrial Disputes Act. The Commissioner is competent to re-hear the matter completely and come to his own conclusion after re-appreciation of the evidence., There is no legal bar in entertaining additional evidence if that is necessary in the interest of justice. The rule of law which has been laid down by this Court with regard to jurisdiction of the Industrial Tribunal in an application under S.33 of the Industrial Disputes Act in interfering with the order of dismissal passed in a domestic enquiry is not applicable to the case of an appeal before the Commissioner, provided for under S.41 of the Shops Act."

25. In Thirumangalam Co-op. Urban Bank Ltd. v. Assistant Commissioner of Labour, Madurai, this Court expressed reassessment of the evidence is permissible by the appellate authority under S.41(2) of the; but, however, such reassessment cannot be arbitrary or whimsical, but must be on proper basis.

26. Coming to the case on hand, the substratum of the accusation of the charges as levelled against the second respondent in the disciplinary enquiry conducted against he second respondent, as already indicated, was that he acted against the interest of the petitioner-company, in the sense of diverting the business of the company to third parties of course for his sole pecuniary benefits. In such a situation it is difficult, if not impossible, to procure direct testimony for the proof of such course of misconduct on his behalf. The reason is very obvious. The beneficiary of the transaction may not come forward to testify against him. It is also equally true that the business concerns, to which the business had been diverted by the second respondent would not come forward to depose to in the enquiry as against his interest. But, nonetheless, it cannot be stated that such a course of misconduct is incapable of being proved. Any fact is capable of being proved by evidence is not possible, in the circumstances of the case, like the one on hand, it does not mean that it cannot at all be proved by resorting to the circumstantial evidence. Realising such a difficult and predicament situation, the petitioner-company had been placed, in the sense of its inability to procure direct evidence, in proof of the misconduct on its part, tried its level best to procure best circumstantial evidence and that perhaps was the reason, it resorted to the help of the Globe Detective Agency. There is nothing wrong in resorting to the aid of such an agency in a situation like this. But the question is whether such an agency employed by the petitioner-company placed relevant materials during the course of enquiry, serving as sufficient and satisfactory evidence, in proof of the misconduct on its part.

27. The Enquiry officer, of course, found that such an agency did admirably trace materials in bringing to light is clandestine activity and therefore found him guilty of the alleged misconduct. The first respondent-Appellate Authority, however, in exercise of its power, thoroughly scanned and sifted those materials and in the process of such sifting, he pointed out various infirmities and pitfalls, as found stated in his order, (vide pages 140 to 145 of the typed set appended to the writ petition) and ultimately cam to the conclusion that the charges of misconduct levelled against him not having been proved by satisfactory evidence at the enquiry, the order of dismissal dated 19.4.1984 was in contravention of Sec. 41(1) of the. Even eschewing the criticism as respects non-production of the tapped conversation that took place between the investigating agency and the second respondent, the discussion on other aspects of the evidence and other materials, as found typed in those pages, of course, had been done in an admissible way, without, in the least making it appear that such discussion of materials in the resultant product of mis-or-mal - appreciation, calling for interference.

28. The further question that arises for consideration is as to whether this Court, sitting in its extraordinary equitable jurisdiction under its extraordinary equitable jurisdiction under Art. 226 of the Constitution can re-assess the materials on record and come to a different conclusion from the one arrived at by the first respondent. Such a question came up for consideration before the Apex Court of this country in the case of Chingleput Bottles v. Majestic Bottling Company, in which their Lordships expressed that the High Court could not have in proceedings under Art. 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence, it might have come to a contrary conclusion.

29. In Syed Yakoob v. K. S. Radhakrishnan, a Constitution Bench of the Apex Court dealing with the question about the limits of jurisdiction of High Court in issuing a writ of certiorari under Art. 226 of the Constitution, took not of the earlier decisions, namely, Hari Vishnu Kamath v. Syed Ahmed Ishaque 1955 (1) M. L. J. (S. C.) 157, Nagendra Nath Bora v. The Commissioner of Hills Division & Appeals, Assam 1958 SCR 1240 [LQ/SC/1958/7] and Kaushalya Devi v. Bachittar Singh and expressed the true legal position in that behalf in a scintillating fashion thus : (at pages 68-69),

"A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result to failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred in it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bar in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."

30. The facts of the instant case, if fell for analysis on the touchstone of the weighty observations of the Apex court, as above, it goes without saying that the relief prayed for is incapable of being granted.

31. For the reasons above, the writ petition deserved to be dismissed and the same is accordingly dismissed. There shall, however, be no order as to costs, in the circumstances of the case.