JUDGMENT V.P. Gopalan Nambiyar, J. 1. The 2nd respondent was an employee under the petitioner, a partnership-firm. Disciplinary proceedings were instituted against him for eleven charges. These were enquired into at the domestic enquiry conducted by an Advocate appointed by the petitioner. By Ext. P-1 Report, the Enquiring Officer found the 2nd respondent guilty of charges 1 to 5, 7 to 9 and 11. Ext. P-2 is the copy of the Enquiry Report. On Charge No. 6, he was of the view that although there is evidence to show that the 2nd respondent work was not up to the mark for the past few months, the Management had not proved beyond reasonable doubt that the worker had intentionally adopted the go slow policy, so as to paralyse the work of the Management. Regarding Charge No. 10, he found that the same had not been established by reliable evidence. On the strength of this Report, the 2nd respondent was dismissed. He preferred an appeal before the Appellate Authority (1st respondent) under section 18 of the Kerala Shops and Commercial Establishments Act 1960. That Authority by Ext. P-3 order found that the charges found by the Enquiry Officer had not been substantiated. It was also of the view that the 2nd respondent had not been given a reasonable opportunity to defend himself, and that the Enquiry proceedings were not bona fide. In view of these, it set aside the order of dismissal and directed re-instatement of the 2nd respondent, and on default, payment of Rs. 2,928 as compensation (being three months wages for every completed year of service). The Management has filed this writ petition against that decision. 2. The petitioner is engaged in the sale and servicing of typewriters, calculating machines, and others. The 2nd respondent was a mechanic employed by the petitioner and his work consisted in servicing and repairing typewriters and other equipments sold by the petitioner, and also machines belonging to the customers of the firm. He had to tour to different centres and to attend to the machines of die customers in different centres. Objection was raised before the 1st respondent and rather feebly pressed that the 2nd respondent was one whose work mainly involves travelling and was therefore exempt from the provisions of the Act under section 3 (1) (b). He had to tour to different centres and to attend to the machines of die customers in different centres. Objection was raised before the 1st respondent and rather feebly pressed that the 2nd respondent was one whose work mainly involves travelling and was therefore exempt from the provisions of the Act under section 3 (1) (b). This was rightly found against by the Appellate Authority; and although the point was mentioned before me, the objection was not pressed. 3. It is necessary to notice the charges, especially these, found proved by the Enquiry Officer, and the manner in which they were dealt with by the 1st respondent. Comment on the manner of disposal will be made where necessary, immediately after noting the same, and, in some cases, later. Charge No. 1 was that the 2nd respondent did not service Halda Typewriters, in the Vijaya Bank Ltd. , Manjeswar, that he did not at all go to Manjeswar during the period from 26th August 1968 to 31st August 1968 as required in accordance with the tour programme issued to him and filed as Ext. M-1 at the enquiry. The Enquiry Officer in Ext. P-1 recorded that the charge is practically admitted by the workman and that his only explanation was that if he went to Manjeswar, he could attend only to the one machine of the Vijaya Bank that day, and that on a previous occasion, the machine was attended to by a mechanic from the Manjeswar office of the petitioner. Ext. P-1 rejected this explanation and found the charge proved. The Appellate Authority in Ext. P-3 noted that by the tour programme Ext. M-1 the 2nd respondent work was fixed, and he was to attend to the Halda Typewriter in Vijaya Bank Ltd., Manjeswar, and that he did not do this work although he went up to Kundara a nearby station. It proceeded to state: "The appellant might have honestly believed that going to Manjeswar to repair one machine will entail unnecessary expenditure for the company especially in view of the company circular in this regard, which has not been brought on record by the respondent. I, therefore, find that this is not an offence committed by the appellant."� The relevancy of an honest belief of the 2nd respondent in the face of the fixed tour programme and the specific duties assigned to him, surely called for a closer examination. I, therefore, find that this is not an offence committed by the appellant."� The relevancy of an honest belief of the 2nd respondent in the face of the fixed tour programme and the specific duties assigned to him, surely called for a closer examination. 4. The second charge was that though the 2nd respondent was to attend to the machine in Kasaragod, of M/s Subha Raya Anantha Kammath, he did not attend to this work, although he visited the office and showed in the M.D.R. (Mechanics Daily Report), filed as Ext. M-2 at the enquiry that he attended to the work, and also caused some bogus signature to be put in the time-slip. The 2nd respondent defence was that he went to the office of M/s Subha Raya Anantha Kammath at 9 am and did not see anyone, and left the place. Ext. M-2 is not signed by the 2nd respondent. The 2nd respondent seems to have had a case that the servicing of the machine on the particular occasion was a free servicing, whereas the petitioner would contend that it was not. In Ext. P-3 the Appellate Authority noted as follows: "Whether it was a free service or not could easily be seen from the servicing card as M.W. 1, (D.W. 1) himself says in the present enquiry. The respondent has not satisfactorily explained why the servicing card has not been brought on record in this case. This apart in Ext. M-5 the party uses the words 'The machine was not touched'� by the appellant. The party does not exactly say in so many words that the appellant did not go there. And there is a request from the party to detail somebody else from Mangalore. It is not understood what the party means by this. This strongly indicates that the party was not satisfied with the appellant work. How can he not be satisfied if he has not seen the appellant work. The natural course the party would have taken in the matter was to request the respondent to send the appellant and not to change him. The party is not a witness in this case nor before the Enquiry Officer. I, therefore, find a strong probability that the appellant went there on the next day and did servicing of the machine. The natural course the party would have taken in the matter was to request the respondent to send the appellant and not to change him. The party is not a witness in this case nor before the Enquiry Officer. I, therefore, find a strong probability that the appellant went there on the next day and did servicing of the machine. The charge against him is not tenable."� As far as this charge is concerned, I do not think it would be within the province of this court to interfere with the finding of the Appellate Authority that the charge had not been proved. It has considered the evidence and the materials bearing on the charge and it is not for this court under Article 226 to interfere with the assessment of the evidence by the Tribunal. 5. Charge No. 3 was, that although the 2nd respondent was deputed to the office of the Malabar Timber and Bamboo Depot, Feroke, on 21st August 1968, to attend to a Halda machine, he did not do this work. The appellant explanation was that someone in the office of the customer stated that servicing of the machine was not necessary, and that this had been noted on the reverse of the M.D.R. (M-8). Ext. M-9 was produced before the Enquiry Officer as the letter from the customer that the 2nd respondent did not go over there, and requesting that somebody may be deputed to attend to the machine. Ext. P-3 dealt with the matter thus: "The appellant put in a request before the Enquiry Officer to bring on record the M.D.R. and time-slips relating to 21st August 1968 is an attempt to show that he made subsequent repairs of this party machine, but these have not been brought on record by the respondent. According to the appellant he could not attend the machine on 21st August 1968 for a reason beyond his control. It is not known who signed Ext. M-9. It might or might not have been the top management of this party who sent Ext. M-9. But whether the top management has made proper enquiries before sending Ext. M-9 to the respondent is not known. It is not known who signed Ext. M-9. It might or might not have been the top management of this party who sent Ext. M-9. But whether the top management has made proper enquiries before sending Ext. M-9 to the respondent is not known. Also the letter only says that the management never asked the appellant not to attend the machine, But the appellant case is not that he was not allowed to service the machine but only that it could not be done at the time when he went there. And he would say that servicing was afterwards done as could be evident from the documents which he requested the enquiry officer to be exhibited in the enquiry proceedings which was turned down. The charge is therefore not tenable."� My comment on this aspect of the finding will appear later when dealing with the Appellate Authority observation that there was a denial of opportunity to the 2nd respondent to defend himself. 6. The fourth charge was that the 2nd respondent produced his M.D.R. dated 10th September 1968 (M-11) stating that the Halda machine supplied by the Chartered Bank Ltd., required some major repairs whereas the machine is a new one not requiring any repair; and that this statement of the 2nd respondent had caused embarrassment to the party, and misunderstanding towards the petitioner. The defence seems to have been that what was stated in the M.D.R, will not be seen by the party and there was therefore no question of any damage to the reputation of the petitioner. Ext. P-3 dealt with the matter thus: "But even in the charge sheet it is only stated that the appellant reported (obviously to the respondent) that the machine required major repairs. This will not prejudice the good name of the respondent company. This does not support the charge that the appellant lowered the respondent company name in the estimate of the parties."� 7. The fifth charge was that the 2nd respondent did not promptly adjust a new Halda machine and two other machines supplied to R. K. C. Trading Co. and Gwalior Rayons on 9th September 1968 and 10th September 1968, and on complaint being received, the 2nd respondent had again to be deputed for doing further servicing. Charge No. 6 was found not proved. 8. and Gwalior Rayons on 9th September 1968 and 10th September 1968, and on complaint being received, the 2nd respondent had again to be deputed for doing further servicing. Charge No. 6 was found not proved. 8. Charge No. 7 was that the 2nd respondent disobeyed the order of the petitioner to deliver a machine to a party in Elathur on 10th July 1968. After an inconclusive discussion, in which nothing specific was found by the Appellate Authority, and in the course of which it noted the defence of the 2nd respondent that the machine could not be carried in a bus, the authority noticed that the charge of disobedience was quite serious, but proceeded to remark that it was not known why the management allowed this matter to lie over from 10th July 1968 till 23rd October 1968 without taking any action, and then alone coupled it with certain less serious charges. According to the Appellate Authority, this itself shows that the petitioner could not take steps as involving a substantial lapse on the part of the 2nd respondent. The Appellate Authority also made some comment that M.W9 examined on behalf of the management was not sure whether it was the 'bounden duty'� of the 2nd respondent to take the machine to Elathur. In the result, it recorded that the offence of disobedience or dereliction of duty was not proved. The discussion, in regard to this charge is quite unsatisfactory and shows that the Appellate Authority had not applied its mind at all to the essential aspects of the charge. Counsel for the 2nd respondent himself candidly realised the perfunctory nature of the finding on this charge. 9. The eighth charge was that on 21st September 1968, the 2nd respondent abused the officer in charge on the ground that telephone calls intended for him were not duly passed on to him and that personal letters which came to his address were opened. The charge was sought to be proved through the witnesses examined on the side of the petitioner. The 2nd respondent by his letter dated 4th November 1968 required the Enquiry Officer to make available one B. Gopalakrishnan Nair as a defence witness. This was rejected by the Enquiry Officer. The charge was sought to be proved through the witnesses examined on the side of the petitioner. The 2nd respondent by his letter dated 4th November 1968 required the Enquiry Officer to make available one B. Gopalakrishnan Nair as a defence witness. This was rejected by the Enquiry Officer. In regard to this charge the Appellate Authority after noticing the rejection of the request, commented as follows: This request was presented to the Enquiry Officer before his evidence started. It was not a belated request. During the proceedings before me also the appellant wanted to examine this Gopalakrishnan but since he was not available, he was given up. But Sri Gopalakrishnan was working in the respondent establishment at the time of the domestic enquiry and it would have been the easiest thinking for the Enquiry Officer to make available this person to speak on the matter. But this has not been done. This entails a deprival of a reasonable opportunity to the appellant to vindicate his stand and a violation of the principles of natural justice. I therefore reject this charge.� The Appellate Authority would have done well to discuss what was the purpose for which Gopalakrishnan Nair was sought to be examined, what was the ground on which the Enquiry Officer rejected the request for his examination, and whether there was any prejudice or miscarriage of justice as a result of the non-examination of the witness. Without a discussion as to any of these aspects, the conclusion of the Appellate Authority is unsustainable. 10. The ninth charge is in respect of an additional expense of Rs. 150 per day incurred by the 2nd respondent while camping at Wynad which in spite of repeated request he did not adjust in the expense-sheet. The excess ultimately had to be recovered from his salary. The appellant contention was that the excess amount was incurred as he had to stay at the Travellers Bungalow when the rent per day was increased, that the fact was made known to the management and the extra amount had also been recovered from his salary. The Enquiry Officer found the charge proved on the ground that the 2nd respondent had admitted the charge. The Enquiry Officer found the charge proved on the ground that the 2nd respondent had admitted the charge. The Appellate Authority was of the view that there was nothing in the record to show that the appellant admitted the charge, and as there was no evidence in support of the charge, it found the charge not proved. I do not think this finding of the Appellate Authority calls for any interference in these proceedings. Charge No. 10 was found not proved by the Enquiry Officer, and therefore calls for no comment. 11. The eleventh charge related to certain allegations of misconduct on the part of the 2nd respondent in that he was behaving in a disobedient fashion with the staff and smoking near kerosene oil tins in spite of warning not to do so. The petitioner examined witnesses in support of the charge. On their evidence, the Enquiry Officer found the charge proved. The Appellate Authority commented as follows: "This is not an offence which the appellant is supposed to have committed on any particular day or days constituting an act of misconduct in order to bear out the present charge. The respondent has not proved that the charge relates to any particular day or days. Previous warnings can support a serious punishment but not a charge for which disciplinary action can be taken against an employee. In this case M.W. 1 says he cannot remember any specific date on which the appellant committed the offences. I, therefore, find that the charge is baseless."� I would not hesitate to characterise the finding of the Appellate Authority as perverse. It had to confine itself to the charge and find whether it was proved or, not, irrespective of whether the charge related to misbehaviour or misconduct, on any particular day or occasion or hour or minute. 12. From the discussion, it will be found that the Appellate Authority did not apply its mind to the precise charge or charges against the 2nd respondent and to the question as to whether the same can be said to have been made out, on the evidence placed either before the domestic enquiry or adduced before the Appellate Authority. On most of the charges its findings are diffuse and inconclusive, and not specific. The matter assumes importance this way. The 2nd respondent had been served with a number of charges. On most of the charges its findings are diffuse and inconclusive, and not specific. The matter assumes importance this way. The 2nd respondent had been served with a number of charges. Even if some of them are found not proved, and the rest proved, the Appellate Authority may well have to consider whether the proved charges are so serious and substantial as to sustain the order of dismissal on their strength alone. From this aspect again, the discussion of the Appellate Authority is unsatisfactory. 13. The Appellate Authority recorded that the 2nd respondent by his letter dated 4th November 1968 requested the Enquiry Officer to bring on record certain documents, showing the deputation of persons from Mangalore to Manjeswar, and the M.D.R. and the time-slips, for work done by such persons, servicing card and the time-slip signed by M/s Subharaya Kammath, M.D.R. and time-slips for 21st August 1968, 10th September 1968, 2nd November 1968 and 4th November 1968 in respect of servicing of the machines supplied to the expense-sheet in respect of all mechanics (machines) for the last few months etc. The Enquiry Officer is stated to have turned down the 2nd respondent request. The Appellate Authority was of the view that a reasonable opportunity to defend himself, was thus denied to the 2nd respondent, and that this had vitiated the enquiry proceedings. It would have been useful, and indeed very necessary, for the Appellate Authority to discuss the relevancy and the materiality of the documents and the evidence required to be produced by the 2nd respondent; and to show how far, if any, the Enquiry Officer had acted illegally or without jurisdiction in refusing to permit the necessary evidence to be adduced before him. Without considering these aspects, the Appellate Authority was wrong in blindly recording its finding that there was a denial of reasonable opportunity to the 2nd respondent to defend himself. This too has vitiated the order of the Appellate Authority. 14. Arguments were addressed at considerable length on the powers of the Appellate Authority under the Shops and Establishments Act, and, in particular, its power to receive evidence in appeal, and to conduct a de novo enquiry in regard to the guilt or innocence of the employee proceeded against. The relevant statutory provision is section 18 (3) of the Shops and Commercial Establishments Act, which reads: "18. The relevant statutory provision is section 18 (3) of the Shops and Commercial Establishments Act, which reads: "18. (3) The Appellate Authority may, after giving notice in the prescribed manner to the employer and the employee, dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case". Rule 3, clause (2) framed by the Kerala Government under the provisions of section 34 of the Act, reads: "3. (2) The procedure to be followed by the Additional Deputy Labour Commissioners when hearing appeals preferred to him under sub-section (2) of section 18, shall be summary. He shall record briefly the evidence adduced before him arid then pass orders giving his reasons therefor. The result of the appeal shall be communicated to the parties as soon as possible. Copies of the orders shall also be furnished to the parties if required by them. The copies shall be on, stamp papers to be furnished by the parties."� The validity of the rule was not attacked before me. The nature of the power conferred on the Appellate Authority and the indication available from the rules, appear to support the view that there is power in the Appellate Authority to take additional evidence and to hold a de novo enquiry itself, where circumstances warrant the same. It was so held by me on an earlier occasion in M/s M.A.K. and Sons v. P. Kamara Pillai and another 1966 K.L.J. 582, after examining the authorities on the point which were then brought to my notice. It was contended by counsel for the 2nd respondent that under section 18 of the Act, it was a condition precedent to dispense with the service of an employee that the charge of misconduct against him should be supported by satisfactory evidence recorded at the enquiry, and that it was for the employer to prove that this had been done. It was argued that where no enquiry at all had been held against the employee, or the enquiry held offended the principles of natural justice, there was no power in the Appellate Authority to fill up the lacuna by holding a de novo enquiry and sustain the punishment meted out on the result of such enquiry. It was argued that where no enquiry at all had been held against the employee, or the enquiry held offended the principles of natural justice, there was no power in the Appellate Authority to fill up the lacuna by holding a de novo enquiry and sustain the punishment meted out on the result of such enquiry. On the other hand, counsel for the petitioner maintained that the Appellate Authority was within its bounds in holding a de novo enquiry if it found that the domestic enquiry had not been fair or proper, or had been an act of victimisation, or was contrary to the principles of natural justice. In all these cases, it was maintained, that it was open to the Appellate Authority to go into the matter afresh by taking additional evidence itself, and by assessing the question of the guilt or innocence of the employee in the light of the de novo enquiry held before it. My attention was drawn to the case law on this aspect. In Sree Venkiteswara Bank Ltd. v. Krishnan 1959 (2) L.L.J. 797 Rajagopala Iyengar, J. of the Madras High Court (as he then was) took the view that the Appellate Authority under the Shops and Commercial Establishments Act, had no power to conduct a de novo enquiry, when it found that no enquiry at all had been conducted by the domestic enquiry officer or Tribunal, and that in such circumstances, the only course open to it, was to allow the employee's appeal. The learned Judge seems to have somewhat relaxed this rigorous stand in an unreported judgment delivered by him in writ petitions Nos. 702 and 703 of 1959, and to have recognised that it was open to the Appellate Authority to enquire into the misconduct on the merits and to sustain the order of dismissal passed by the employer. In S. U.S. Davey Sons v. Addl. Commissioner for Workmen's Compensation and another 1960 (1) L.L.J. 485 Rajagopalan, J. took the view that neither the section in the Madras Act nor the rule framed under it, confined the Appellate Authority under the Shops and Commercial Establishments Act, to the evidence already recorded in the enquiry, and that the rule was clear that the Appellate Authority had jurisdiction to take such evidence as it considered necessary. It was ruled that it was open to the Appellate Authority to review the evidence at the domestic enquiry afresh, and also to review it in the light of the further evidence taken before it, and come to its own conclusion independent of, and even at variance with, the finding recorded at the domestic enquiry. In 1966 K.L.J. 582 noticed earlier, I recorded my agreement with the above observations of Rajagopalan, J. That decision of Rajagopalan, J., was confirmed on appeal by Rajamannar, C.J. and Venkatadri, J. in S.U.S. Davey Sons case 1962 (1) L.L.J. 44. However, the course of case law in regard to this aspect does not appear to have been quite uniform in Madras. In Srirangam Janopakara Bank Ltd. v. Rangarajan and another 1964 (1) L.L.J. 221 Ramachandra Iyyar, C.J. and reversing the decision of Veeraswami, J. followed the principle of the decision of Rajagopalan, J. in S.U.S. Davey Sons v. Addl. Commissioner for Workmen's Compensation and another 1960 (1) L.L.J. 485. But in Kotak and Co. v. Addl Commissioner for Workmen Compensation and another 1970 (2) L.L.J. 364 Ismail, J. after surveying the decisions and the authorities, pointed out that Rajagopala Iyengar J. view in Sree Venkiteswara Bank Ltd. v. Krishnan1959 (2) L.L.J. 797 cannot be said to have been overruled by any of the subsequent decisions. The learned Judge was of the view that where no enquiry can be said to have been held at all by the domestic Tribunal, the Appellate Authority under the Shops Act had no jurisdiction to hold a de novo enquiry or to take fresh evidence, and the only course open to it was to allow the appeal. The learned Judge summed up the three different variations of the position that was likely to arise. In Zenith Lamps and Electricals v. Addl. Commissioner for Workmen's Compensation, Madras and another 1973 (2) L.L.J. 445 , a Division Bench of the Madras High Court held that where no enquiry at all had been held by the domestic Tribunal, the Appellate Authority has no power to conduct a de novo enquiry or to reassess the matter in the light of fresh evidence. 15. Counsel for the petitioner drew my attention to the observations in Tata Engineering and Locomotive Co. 15. Counsel for the petitioner drew my attention to the observations in Tata Engineering and Locomotive Co. v. Prasad 1969 (2) L.L.J. 799 at 809 where it was observed that Industrial Tribunals have to bear in mind the limited resources and training with which domestic Tribunals record their findings, and the need not to interfere with them except for strong and cogent reasons. My attention was also called to the decision in Delhi Cloth and General Mills Co.'s case 1972 (1) L.L.J. 180 where, after a survey of the authorities, the Supreme Court laid down the circumstances under which an employer is allowed to give additional evidence before the Industrial Tribunal in order to make good the action taken against the employee which had been the subject of a domestic enquiry. Counsel for the 2nd respondent on the other hand, pointed out that it may not be altogether proper to equate the powers of the Appellate Authority under the Shops and Commercial Establishments Act, with that of an Industrial Tribunal functioning under the Industrial Disputes Act. For this purpose, he placed reliance on the decision of the Supreme Court in The Chairman, M/s Brooke Bond India (P.) Ltd. v. Chandranath Choudhary A.I.R. 1969 S.C. 992 16. From the unsatisfactory nature of the discussion of the Appellate Authority and the inconclusive nature of its findings, I think it unnecessary and inappropriate to define categorically-if it were possible to do so the powers of the Appellate Authority, and the circumstances, if any, under which it may conduct a de novo enquiry and proceed to reassess the correctness of an action taken against an employee in the light of such de novo evidence. The difficulty that confronts me here is this. The Appellate Authority did not record any clear finding after a proper application of the mind and a satisfactory discussion of the salient aspects as to whether the domestic enquiry in this case was vitiated by non-conformity with the principles of natural justice, and if so for what reasons. It is only thereafter, if at all, that the Appellate Authority could proceed to reassess the correctness of the action taken against the employee in the light of the de novo evidence adduced before it. It is only thereafter, if at all, that the Appellate Authority could proceed to reassess the correctness of the action taken against the employee in the light of the de novo evidence adduced before it. Assuming that it is possible for the Appellate Authority to jumble up the evidence at the domestic enquiry and the evidence led before it at the de novo enquiry, it is very necessary that the Appellate Authority should apply its mind closely to the particulars and the details of the charges and record its findings specifically and clearly as to whether these charges or any of them have been proved or not; and if only some of them had been proved, it should further consider the question whether, on the charge or charges proved, the action taken by the 2nd respondent could be sustained or not. As there has been a misapplication of the mind and a completely wrong approach to the consideration of the question involved, I allow this writ petition and quash Ext. P-3, and direct the 1st respondent to re-hear the appeal preferred to it by the 2nd respondent afresh, in accordance with law, and in the light of the observations contained in this judgment, and pass appropriate orders thereon as expeditiously as possible. There will be no order as to costs.