JUDGMENT : S. Shamsul Hasan, J. A proceeding under section 26 of the Shops & Establishment Act has given rise to these applications. These two writ applications are being disposed of by this common JUDGMENT : as the matters involved relate to each other. 2. Respondent no. 2 in C.W.J.C. 1015 of 1981(R) had filed a complaint under the aforesaid section before the Presiding Officer, Labour Court, Jamshedpur, complaining about his dismissal after a domestic enquiry by the petitioner. Respondent No. 2 aforesaid was employed by the petitioner (In C.W.J.C. 1015 of 1981 (R) and at the relevant period was posted as shop-in-charge at Jamshedpur. On the basis of certain allegations against respondent no. 2, a domestic enquiry was initiated. On 22.9.73, charge-sheet was issued to respondent no. 2 in which the allegations were enumerated. The enquiring officer after giving notice to respondent no. 2 who admittedly did not participate in the enquiry except to the extent of seeking adjournments which were granted on five occasions, but refused on the sixth time. An exparte enquiry was held and a report was submitted holding respondent no. 2 guilty on all charges on 4.3.74. On the basis of the result of the enquiry, respondent no. 2 was dismissed with immediate effect offering one month's wages in lieu of notice. Aggrieved by the notice of the petitioner, on 7.5.74, a complaint under Section 26 (2) of the Bihar Shops & Establishment Act, 1953 (hereinafter referred to as the Act) was filed by respondent no. 2 which was registered as B.S. Case No. 35/74. That complaint is Annexure-16 to the writ application. On 2.4.1974, the respondent no. 2 had already filed an application under section 28 of the aforesaid Act claiming nonpayment of certain dues to which he was entitled to. This was registered as B.S.E. Case No. 5/74. The Labour Court heard both the proceedings together inspite of the objection of the petitioner and after the parties had adduced oral and documentary evidences, ultimately passed the impugned ORDER :on 1.5.1981 which is Annexure-1 to the writ application. In these writ applications we are concerned only with the decision in B.S. Case No. 35/74 arising out of a complaint under Section 26 (2) of the Act. In these writ applications we are concerned only with the decision in B.S. Case No. 35/74 arising out of a complaint under Section 26 (2) of the Act. His decision under section 28 of the Act is sub-judice to appeal which is rending before the appellate court and with that we are not concerned in these cases. 3. Although the court below held respondent no. 2 guilty on one count, it allowed the complaint of the respondent no. 2, but instead of reinstating the respondent no. 2 directed the payment of Rs.1,27,664-00 to respondent no. 2. Succinctly stated, the Labour Court held that the entire domestic enquiry suffered from the vice of violation of the principles of audi altrern partern because of the refusal of the enquiring officer to adjourn the enquiry fixed for 21st February, 1974 as prayed for by respondent no. 2 and proceeded to decide the matter exparte. It also held that the Divisional Manager was not competent to issue charge-sheet or to appoint an enquiry officer and on the basis of the report of that enquiring officer, to pass an ORDER :of dismissal. It exonerated respondent no. 2 of all the charges except one which he found to have been proved. 4. It may be stated that respondent no. 2 consequently also filed an application under Article 226 of the Constitution of India before this Court being C.W.J.C. No. 1224 of 1982 (R) challenging the finding in regard to one of the charges which was held to be proved against him. That application was also heard along with C.W.J.C. 1015 of 1981 (R). 5. The main contention of the petitioner is that the finding with regard to the exparte enquiry and the violation of rules of natural justice is perverse, also the finding in regard to the power of the Divisional Manager to take the steps that he did. It was further submitted that in view of the findings of the Labour Court that one of the charges is proved, the court could itself pass a dismissal ORDER :on that basis and should not have allowed the financial claim of respondent no. 2. In any event it was further submitted that the amount awarded was not compatible either with the emoluments of respondent no. 2 or justified in view of the fact that respondent no. 2 was held guilty of one of the charges at least. 2. In any event it was further submitted that the amount awarded was not compatible either with the emoluments of respondent no. 2 or justified in view of the fact that respondent no. 2 was held guilty of one of the charges at least. 6. On behalf of respondent no. 2 it was contended that one of the charges proved against him was entirely perverse and is fit to be struck down. The scope of interference in an application under Article 226 of the Constitution of India arising out of a decision of a Labour Court or Industrial Tribunal may be said to be regulated by the decision of the Supreme Court, one of whose decision is A.I.R. 1964 Supreme Court 477 (Syed Yakoob v. K.S. Radhakrishnan and others). It has been held in para 7 of that JUDGMENT : as follows:- "The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals these are cases where ORDER :s are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ Can similarly be issued where an exercise of jurisdiction" conferred on 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. 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, a writ of certiorari can be issued if it is shown that in recording the said finding, 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 bear in mind that a finding of fact recorded by the Tribunal can not 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 said finding, are within the executive 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 [vide Hari Vishnu Kamath v. Ahmad Ishaque, (1955) 1 SCR 1104 : AIR 1955 SC 23: Nagendra Nath v. Commr. of Hills Division. 1958 SCR 1240 : AIR 1958 SC 398 and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 .]" Similarly it is useful to refer to AIR 1969 Supreme Court 983 (Central Bank or India Ltd. v. Prakash Chand Jain) in paragraphs 4 and 5 of which it has been held as followed:- “These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an ORDER :of dismissal under section 33 (2) (b) of the Act, it can disregard the findings given by Enquiry Officer only if the findings are perverse. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all. This principle was further affirmed in a different context in State or Andhra Pradesh v. Sree Rama Rao, (1964) 3 SCR 25 ( AIR 1963 SC 1723 ) where this court had to consider whether a High Court, in a proceeding for a writ under Article 226 of the constitution could interfere with the findings recorded by departmental authority in disciplinary proceedings taken against a Government servant. The Court held :- "But the departmental authorities are, if the enquiry is otherwise properly held, the sole Judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution. 5. In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the Tribunal. Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with, and those two are cases in which the findings are not based on legal evidence or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal. In each of those cases, the findings are treated as perverse. It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the ORDER :of dismissal which was passed on the basis of the evidence recorded by the Enquiry Officer, Mr. Tipnis.” 7. The submissions of the learned counsel appearing on behalf of the petitioner has now to be examined on the basis of the above decisions. 8. Tipnis.” 7. The submissions of the learned counsel appearing on behalf of the petitioner has now to be examined on the basis of the above decisions. 8. At the outset, the challenge to the maintainability of the complaint must be disposed of since the point was raised but rightly abandoned as being not of substance in view of the provisions of section 26 of the Act. It was contended that by the nature of employment this petitioner could not file a complaint under Section 26 of the Act as it stood now. It was, however, conceded that when the complaint was initiated it was• maintainable and the possibility arises due to a subsequent amendment which admittedly not being retrospective, could not debar the relief to the respondent no. 2. This point, therefore, was rightly not pressed by the learned counsel for the petitioner. 9. Taking up the matter of the violation of the rule of natural justice, it was contended that the reasons given for coming to the finding that this rule has been violated, is entirely perverse as it is conjectural and without basis. The Labour Court felt that the Enquiring Officer should have held that by not granting adjournment to respondent no. 2 on the 21st of February, 1974, the principles of natural justice bas been violated is entirely perverse as it is conjectural and without basis. The Labour Court felt that the Enquiring Officer should have held that by not granting adjournment to respondent no. 2 on-the 21st of February, 1974, the principles of natural justice b as been violated. Several adjournments undoubtedly were taken by the respondent no. 2. Finally, when the enquiry was fixed on 21.2.74, a telegram was sent on 19.2.74 seeking adjournment on the ground that an injunction matter was fixed for 22.2.74 and his presence at that hearing being essential, the enquiry be adjourned. Since no reply was sent in this connection: a letter was again sent on 4.3.74 (Ext. 1/M) requesting the enquiring officer to let the respondent no. 2 know the date fixed. The enquiring officer, however, without giving any reason proceeded to conclude the enquiry ex-parte. The receipt of the telegram sent by respondent no. 2 has been admitted by the Enquiring Officer who is O.P. Witness No. 1. The reasoning given by the Court has been seriously assailed by the learned counsel for the petitioner. 2 know the date fixed. The enquiring officer, however, without giving any reason proceeded to conclude the enquiry ex-parte. The receipt of the telegram sent by respondent no. 2 has been admitted by the Enquiring Officer who is O.P. Witness No. 1. The reasoning given by the Court has been seriously assailed by the learned counsel for the petitioner. According to him, respondent no. 2 could be present at the time of enquiry proceeding allowing someone also to attend the injunction matter on his behalf. In my view, if the reasoning given by the Labour Court was conjectural and based on surmises, the submission of the learned counsel for the petitioner is equally conjectural. In cannot be said the finding of the Labour Court is perverse since it could also be reasonably assumed that the enquiry officer was unjustified in not adjourning the matter. I also feel that there was no hurry in disposing of the enquiry on that day and to proceed ex-parte in the matter on this ground was not justified, particularly, when the reason given by the respondent no. 2 was not entirely without substance. The enquiry officer could have allowed another adjournment as a last resort stating that no further application for adjournment would be entertained on any account whatsoever. I am, therefore, not inclined to set aside the fielding of the Labour Court in this regard which is entitled based on inference on facts which the court was entitled to take. The learned counsel for the respondents cited 1975 B.B.C.J. 667 (at page 675 paragraph 17), in support of his contention that adjournment should have been granted, as prayed for by the respondent. In reply, the learned counsel for the petitioner contended that this decision has no application to the present case because the ground of adjournment was different. Firstly for a point like this, no decision is really required. But the decision cited by respondent no. 2, in my opinion, is appropriate and the comment as made by the learned counsel for the petitioner, in my view, does not detract the effect of this decision on this point in favour of respondent no. 2. In my view, therefore, the enquiry is fit to be quashed on this point alone. 10. 2, in my opinion, is appropriate and the comment as made by the learned counsel for the petitioner, in my view, does not detract the effect of this decision on this point in favour of respondent no. 2. In my view, therefore, the enquiry is fit to be quashed on this point alone. 10. The next question to be examined is the contention of the respondent regarding the power of the Divisional Manager to take steps that he did against respondent no. 2. It is contended by him that the Divisional Manger has no power to issue a charge-sheet, appoint an enquiring officer and to dismiss the respondent. This matter was argued at great length and the status of the respondent also came up for discussion. But this question was not pursued at any length, the main submission being on the power and authority of the Divisional Manager himself. The initial objection taken by the petitioner to this point was that this point was not raised in the complaint nor did the respondent assert in his evidence that the Divisional Manager had no power to take the steps that he did. The only thing that has been brought in' his evidence is on the basis of the cross-examination of the Divisional Manager. It was submitted by the learned counsel for the petitioner on the basis of several decisions that in the absence of pleadings, any evidence led by the parties should be ignored. Several decisions were cited by the learned counsel for the respondent to the effect that pleadings should not be strictly construed and as stated by Hon'ble Krishna Iyer, J., 'verbatism is not legalism.' 11. Another matter which deserves initial notice is that in contradiction to a proceeding under section 28 of the Act in which the provisions of Code of Civil Procedure have been made applicable by section 28 (9) of the Act, no such provision has been provided in a complaint under section 26 of the Act. From this it follows that rigour of the Code of Civil Procedure will not apply to a complaint under section 26 of the Act and broad effect of the grievances made and facts alleged has to be dealt in a complaint under section 26 of the Act. It has been stated in the complaint as follows : Paragraph 58(2): "That the letter of dismissal is colourable exercise of power". It has been stated in the complaint as follows : Paragraph 58(2): "That the letter of dismissal is colourable exercise of power". 12. It may be that the allegation of lack of power made has been not strongly worded and has become a victim of the verbosity of the draftsman, it cannot be said that the jurisdiction of the Divisional Manager is not challenged. Apart from this, undoubtedly the Divisional Manager was Cross-examined. In his cross-examination also the Divisional Manager did not state that he had power to take steps that he did. It was elicited from him that he had no written authority to take steps that he did. It was, in my view, necessary for the officer concerned to prove that he had the power to act in the manner that he did. 13. Another significant aspect is that the enquiry was conducted by a complete outsider. This was also contrary to the procedure prescribed by the company for such enquiries. The Divisional Manager in any event should not entrust the enquiry to such a person. It is also apparent from Annexure 3/7 which was Ext. M before the Lobour Court that the power to issue chart-sheet and to appoint enquiring officer is vested in the company and the management. The Divisional Manager cannot be said to be the "Management" of a Public Limited Company. The learned counsel for the petitioner submitted that in view of the absence of the pleading, this finding also is perverse as it is based on no evidence. Apart from the decisions which I shall avert to, I am not inclined to accept the submissions of the learned counsel for the petitioner because there was material on record to come to finding of fact that the Labour Court did and it was incumbent upon the Management also to prove the powers of the Divisional Manager. The decisions cited by the petitioner are 1979 (2) Labour Law Journal 194 (at page 207) (Shankar Chakrabarty, Vs. Britannia Biscuit Company and another). Similarly there are several decisions of the Patna High Court being A.I.R. 1964 Patna 348 (Punit Ravi Vs. Mohammad Majid and others); A.I.R. 1974 Patna 254 (Janki Missir V. Dharamraj Missir and others); AIR : 1975 Patna 168, and AIR 1968 Supreme Court 1186 (at page 1190)(The State or Madhya Pradesh and others Vs. I. Sardar D.K. Yadav). 14. Similarly there are several decisions of the Patna High Court being A.I.R. 1964 Patna 348 (Punit Ravi Vs. Mohammad Majid and others); A.I.R. 1974 Patna 254 (Janki Missir V. Dharamraj Missir and others); AIR : 1975 Patna 168, and AIR 1968 Supreme Court 1186 (at page 1190)(The State or Madhya Pradesh and others Vs. I. Sardar D.K. Yadav). 14. At the outset the decision reported in A.I.R. 1968 Supreme Court 1186 is useful to the extent. It holds as follows: “It is well established that where the jurisdiction of an administrative authority depends on a preliminary finding of fact, the High Court' is entitled, in a proceeding for a writ, to determine upon its own independent JUDGMENT : whether or not that finding is correct”. I am satisfied that there is sufficient material on record to justify the finding arrived at by the Labour Court and I see no reason to differ from the finding on that question. Another aspect is that this decision arises out of a special Act to which Civil Procedure Code was applicable. The Patna decisions cited by the learned counsel for the petitioner has no application because they arise out of the Code of Civil Procedure where the requirement is certainly more stringent and the requirement of a pleading is well spelt out in the Code itself. 15. The Supreme Court decision in 1979 (2) Labour Law Journal 194 runs as fallows: “It is well settled that allegation which is not pleaded even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party”. This decision has no application to the present case because it arises out of Industrial Disputes Act to which Code of Civil Procedure has also been applied and the principles of that Act cannot apply to the Shops & Establishment Act. Secondly, on a question of fact this decision is also not acceptable because it cannot be said strictly that the petitioners have no knowledge of the objection pf the respondent concerned. 16. In reply, learned counsel for the respondent no. Secondly, on a question of fact this decision is also not acceptable because it cannot be said strictly that the petitioners have no knowledge of the objection pf the respondent concerned. 16. In reply, learned counsel for the respondent no. 2 has drawn my attention to the following decisions (1) A.I.R. 1980 Supreme Court 193 (at page 195) (paragraph 6) (S.B. Narona v. Prem Kumar Khanna); (2) A.I.R. 1976 Supreme Court 461 (at page 470 paragraph 26) (Madan Gopal Kanodia v. Manraj Maniram and others), and (3) A.I.R. 1977 Supreme Court 1158 (at paragraph 6) Smt. Manjushree Raha and others v. B.L. Gupta and others). All these decisions in my view, apply to the facts and circumstances prevailing in this case. The only comment made by the learned counsel for the petitioner was in regard to the first case AIR 1980 SC 193 , where omission is of a minor character, but in the present case the omission is a major issue. In regard to the second Case his comment is that there was a pleading of some sort and in regard to the third, there was some allegation made in the pleadings. In my view, these comments do not in any way derogate the usual effect of these decisions in answer to the points raised by the petitioner and in support of the reply of the respondent no. 2. I have, therefore, no hesitation in holding that the Labour Court was quite right in coming to a decision in favour of respondent no.2 in regard to the power of the Divisional Manager and I feel that any interference with that duding would not be justified as the finding cannot be treated as perverse. 17. It may now be stated that the petitioners have not challenged of assailed the finding of the Labour Court to the extent that it has exonerated the respondent of all the charges except one. In this application, therefore, I have to proceed on the footing that the respondent no. 2 has been exonerated of all the charges except one which he has assailed in his own application and at this stage, therefore, it will be desirable to dispose of his writ application also. 18. According to the Labour Court, the first charge in the charge-sheet (Ext. C) has been proved. 2 has been exonerated of all the charges except one which he has assailed in his own application and at this stage, therefore, it will be desirable to dispose of his writ application also. 18. According to the Labour Court, the first charge in the charge-sheet (Ext. C) has been proved. This charge relates to misappropriation of Rs.3942.44 P. In the charge-sheet this charge is described is follows:- "You have misappropriated a sum of Rs.3942.44 only in respect of the supplies effected to Tata Engineering and Locomotive Co. Ltd., Jamshedpur, by submitting forged copies of the bills to the Divisional Office, Patna and accounted accordingly through the concerned term-ending reports, whereas you have charged and realised higher amounts from TELCO as detailed below... (details need not be stated)." In my view, the facts as stated do not constitute misappropriation at all. The learned counsel for the petitioner submitted that the word "misappropriation" in the charge-sheet should be broadly used and not circumscribed by the meaning of that word expressed in the Indian Penal Code. From the charge-sheet itself it appears that it has been framed entirely on the basis of the definition as given in the Indian Penal Code. I cannot, therefore, give the word in the charge-sheet a different meaning than what it is really meant to convey. The court has also held that what the respondent did was under the instruction of Mr. Bhupendra Nath who was undoubtedly an officer of the company and whatever the respondent no. 2 did was in collusion with Bhupendra Nath. But apparently no loss was caused to the company at all and whatever was done it can at the very highest be stigmatised as an act of impropriety but that would not make him guilty of the charge framed against him. In view of position aforesaid in regard to the allegation in charge no. 1, in my view, the Labour Court was entirely perverse in holding the petitioner in the second writ application (C.W.J.C. No. 1224 of 1982 (R) guilty of this charge. I have, therefore, no hesitation in quashing this charge. 19. The last submission of the learned counsel for the petitioner in C.W.J.C. 1015 of 1981 (R) was that since the Labour Court has found respondent no. 2 guilty of one charge, it could pass an ORDER :of dismissal itself. I have, therefore, no hesitation in quashing this charge. 19. The last submission of the learned counsel for the petitioner in C.W.J.C. 1015 of 1981 (R) was that since the Labour Court has found respondent no. 2 guilty of one charge, it could pass an ORDER :of dismissal itself. In my view, there is no substance in this submission because the scope of the proceeding is circumscribed by provisions of section 26 of the Act and that section does not empower a Labour Court to impose a punishment on the basis of a complaint made by a person aggrieved by the action of the employer. The relief that the Labour Court could give under that section is clearly spelt out and needs no repetition. The submission of the learned counsel for the petitioner that the compensation awarded is also incompatible with the law has also not any substance and the decisions cited by him cannot come to his assistance because these decisions are based on the provisions of Industrial Disputes Act, where the matter is entirely different from what prevails under section 26 of the Act. In my view, with regard to first charge, this submission has now become academic and has no substance also. The decisions cited by the learned counsel for the petitioner which to my mind are not applicable AIR 1970 Supreme Court 1401 (M/s. Hindusthan Steels Ltd. Rourkela Vs. A.K. Roy and others) AIR 1965 Supreme Court 1051 (The Management of Utkal Machinery Ltd. Vs. Workman Shanti Patnaik) and AIR 1958 Supreme Court 12 (S.S. Sethi Vs. Dharat Nidhi). 20. Finally, therefore, I have no hesitation in upholding the decision of the Labour Court entirely except to the extent that he has held the first charge to be proved, which I quash. 21. In the result, the first writ application C.W.J.C. 1015 of 1981 (R) is dismissed and the second writ application C.W.J.C. 1224 of 1982 (R) is allowed but without costs. Abhiram Singh, J. I agree. But I would like to add a few sentences. 23. The Labour Court after due consideration of the facts and circumstances of the case has come to a definite conclusion that Mr. Singh and Bhupendra Nath (Respondent No.2) in the complaint petition filed by Mr. Singh are equally guilty for charge no. 1 and Mr. Singh only can not be held guilty for the same. 23. The Labour Court after due consideration of the facts and circumstances of the case has come to a definite conclusion that Mr. Singh and Bhupendra Nath (Respondent No.2) in the complaint petition filed by Mr. Singh are equally guilty for charge no. 1 and Mr. Singh only can not be held guilty for the same. The Labour Court has further held that out of the four charges levelled against Mr. Singh charge nos. 2 to 4 could not be proved against him. 24. It is significant that O.P. No. 2 who has assumed the role of punishing authority was himself found guilty along with Mr. Singh for one of the charges levelled against Mr. Singh, by the Labour Court. In this view of the matter, the Labour Court does not seem to be justified in holding that charge no. 1 has been established against Mr. Singh, especially when he has come to the conclusion that whatever Mr. Singh did, he did it in collusion and in conspiracy with O.P. No. 2. I am, therefore, of opinion that the final ORDER :passed by the Labour Court does not need any interference except the portion of his finding to the effect that charge no. 1 has been established against Mr. Singh.