JUDGMENT K. A. Nayar, J. 1. This Original Petition is to quash Exts. P-4 and P-5 orders of the Appellate Authority under the Shops and Commercial Establishment Act. The petitioner was the Secretary of the 2nd respondent Cooperative Society. He was suspended on 6th October 1983 and a memo of charges was issued originally on 21st October 1983 containing seven charges. Another memo of charges was issued on 10th December 1983 containing three more charges. The petitioner submitted explanation on 20th December 1983 and, thereafter, enquiry Officer was appointed who conducted an enquiry and submitted a report on 4th May 1984. Accepting the finding, the petitioner was dismissed from service on 18th July 1984. The petitioner then filed an appeal to the Appellate Authority viz. the Board of Directors of the Society and the Board found that the misconduct is proved, but nevertheless converted the punishment of dismissal into compulsory retirement. Against the order of punishment by the management ending in compulsory retirement, the petitioner filed an appeal under S.18 of the Shops and Commercial Establishment Act. Two orders have been passed by the appellate authority. One is relating to the enquiry. The enquiry report has not been proved before the Appellate Authority. Even though the Enquiry Officer was available, counsel for the 2nd respondent was not available before the Appellate Authority. In view of that the Appellate Authority passed Ext. P-4 holding that the validity of the domestic enquiry was not prayed before him and proceeded to take evidence and to conduct de novo enquiry In the de novo/enquiry conducted by the Appellate Authority, the appellant got himself examined and the Management examined five witnesses. The appellant marked two documents and the management marked 29 documents. Thereafter, perusing all the documents and evidence adduced before the Appellate Authority, the Appellate Authority found that charge Nos. 1, 2, 3, 4, 5, 6, 7 and 9 have been proved by the respondents in the denovo enquiry and charges Nos. 8 and 10 have not been proved and further held that the charges proved against the petitioner are grave irregularities, justifying the punishment imposed by the management, viz. compulsory retirement. It is these orders, produced by the petitioner as Exts. P-4 and P-5 that are challenged before me by the petitioner. 2. 8 and 10 have not been proved and further held that the charges proved against the petitioner are grave irregularities, justifying the punishment imposed by the management, viz. compulsory retirement. It is these orders, produced by the petitioner as Exts. P-4 and P-5 that are challenged before me by the petitioner. 2. Counsel for the petitioner referred to S.18 of the Shops and Commercial Establishment Act (for short 'The Act') relevant portion of which provides that no employer shall dispense with the services of an employee employed continuously for a period of not less than six months without conducting a domestic enquiry for the purpose. S.18 (1) of the Act is extracted: "No employer shall dispense with the service of an employee employed continuously for a period of not less than six months, except for a reasonable cause and without giving such employee at least one month's notice or wages in lieu of such notice, provided however that such notice shall not be necessary where the services of such employee are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose." Prima facie section gives an impression that the employment cannot be terminated for a misconduct without conducting an enquiry. Even if the guilt is admitted perhaps on the wording of the section, enquiry will have to be conducted. In other words, it is not open for the Management to dismiss a workman for a mis-conduct without conducting an enquiry. For that proposition the petitioner referred to several decisions of the Madras High Court, viz. Kotak and Co. v. Addl. Commr. for Workmen's Compensation (1970) II LL.J. 364 Zenith Lamps and Electricals v. Addl. Commr. (1970) II LL.J. 103 and also in Zenith Lamps and Electricals v. Addl. Commr. (1973) II LL.J. 445 upholding the decision of the Single Judge in (1970 II LL.J. 103). There are also several other decisions viz. Bombay Amonia (M) P. Ltd. v. Addl. Commr. for W.C. 1988 (1) LL.N. 697 Spencer and Co. Ltd. v. B. Vajravelu 1989 (1) L.L.N. 964 and S. K. Raman v. The Mgt. of Kundah R. Coop. Agrl. Sty. Ltd. 1987 I LLJ. 487. There are also several other decisions viz. Bombay Amonia (M) P. Ltd. v. Addl. Commr. for W.C. 1988 (1) LL.N. 697 Spencer and Co. Ltd. v. B. Vajravelu 1989 (1) L.L.N. 964 and S. K. Raman v. The Mgt. of Kundah R. Coop. Agrl. Sty. Ltd. 1987 I LLJ. 487. In the decision reported in R. Rand of India Ltd. v. Thiru R. Jambulingam 1975 (3) F.L.R 31 the Supreme Court held: "The jurisdiction of the Commissioner is an appellate jurisdiction and is of wider scope unlike that of the Tribunal in an application under S.33 of the I.D. Act. The Commissioner is competent to rehear the matter completely and come to his own conclusion after reappreciation 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 I.D. 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. We are, therefore, unable to accept the submission of the learned counsel." But these decisions will not help the petitioner in this case. 3. Counsel for the petitioner submits that the Appellate Authority came to the conclusion that no enquiry has been proved. He relying on the decision of the Privy Council in Radha Kishun v. Khurshed Hossein A.I.R. 1920 P.C. 8, contended that matters which are not proved before the authority and the matters which are not in existence cognition in the Court of law should be in the same fashion. The observation of Privy Council is "of things that do not appear and things that do not exist the reckoning in a Court of Law is the same". In other words counsel submitted that the court should proceed on the basis that no enquiry has been held at all and, therefore, the matter cannot be at large before the Appellate Authority, for that will be, in clear violation of the section which mandates an enquiry must be held. But in this case, the petitioner himself admits in para 4 of the Original Petition that the/laid respondent appointed an Enquiry Officer to enquire in to the charges against the petitioner. But in this case, the petitioner himself admits in para 4 of the Original Petition that the/laid respondent appointed an Enquiry Officer to enquire in to the charges against the petitioner. The petitioner could not participate in the enquiry, because the change of place requested by the petitioner could not be conceded to. The enquiry was conducted and the Enquiry Officer submitted a report dated 4th May 1984. After refusing the request of the petitioner for copies of depositions and other evidence, the second respondent dismissed the petitioner from service by order dated 18th July 1984. That is the averment in para 4 of the petition. 4. In the appeal petition filed before the Appellate Authority it is stated that the Management appointed Sri Asoka Babu, Advocate, Kottayam, as Enquiry Officer to enquire into the charges levelled against the petitioner. An application to change the venue of the enquiry from the office of the respondent was also submitted. It is stated in para 8 of the appeal petition that the request of the petitioner was not conceded to by the Enquiry Officer and, therefore, the petitioner was not able to participate in the Enquiry as he apprehended physical danger if he attended the enquiry at the office of the respondent. But the enquiry was conducted and the Enquiry Officer submitted a report. Thereafter, on the basis of the finding of the Enquiry Officer a Memo dated 21st May 1984 was served on the petitioner to show cause why he should not be dismissed from service. Copies of the deposition of the witnesses and other evidence was also requested for, but the same was rejected. Ultimately, dismissal order was passed on 18th July 1984. In Northern Railway Cooperative Credit Society v. I. T. (1967) II LLJ 46, the Supreme Court frowned upon the practice of workmen refusing to participate in the domestic enquiry as follows: "In fact, the correspondence which passed between Kanraj and the Society shows that Kanraj was taking a very unreasonable and undesirable attitude in this matter and his conduct in persistently demanding representation by a stranger and on that account refusing to participate in the enquiry deserves to be condemned." Further in Imperial Tobacco Co. of India, v. Its workmen (1961) II LLJ. 414 the Supreme Court held that it is mandatory to the Enquiry Officer to complete enquiry ex parte. of India, v. Its workmen (1961) II LLJ. 414 the Supreme Court held that it is mandatory to the Enquiry Officer to complete enquiry ex parte. The Supreme Court held that: "Even though Akhileshwar Prasad, had withdrawn from the inquiry whether rightly or wrongly the inquiry should have been completed and all evidence should have been taken ex parte." Action taken based on such ex parte enquiry cannot be held to be vitiated, being violative of natural justice. If the workman was given full opportunity to participate but he failed and refused to participate, the resulting enquiry cannot be held vitiated. It was so held in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup 1957 (1) LLJ. 17 . The Supreme Court observed: "Due notice of the enquiry was given to the respondents by the letter of the management addressed to them on 2nd June 1952, and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action, at the enquiry they had only themselves to blame for it. It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been levelled against them. If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves, it could not be said that the enquiry was anything but fair. No principles of natural justice were violated and the Management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and insubordination proved against them." Action taken on the basis of ex parte enquiry has been upheld in Brooke Bond India Ltd. v. Subba Raman (1961) II LLJ. 417, and Eastern Elec. Trading Co. v. Baldev Lal (1975) II LLJ. 367. 5. An ex parte enquiry is a valid enquiry. In this case the petitioner himself admits in the appeal petition as well as in the Original Petition that the enquiry has been held. 417, and Eastern Elec. Trading Co. v. Baldev Lal (1975) II LLJ. 367. 5. An ex parte enquiry is a valid enquiry. In this case the petitioner himself admits in the appeal petition as well as in the Original Petition that the enquiry has been held. Thus it is the case of the petitioner himself that an enquiry has been held by the Management and, the decisions cited before me regarding the appellate jurisdiction are cases where no enquiry has been held. Hence, those decisions of the Madras High Court referred to by counsel for the petitioner need not be considered in this case. It is the case of the management that an enquiry has been held in this case, both the enquiry report and Enquiry Officer were available to be produced and examined and that only because the management's lawyer was not available to go on with the case before the appellate authority it was held that the enquiry was not proved to be held validly. In the decision reported in Chelur Agencies., Calicut v. Appellate Authority, Calicut I.L.R. (1976) 1 Kerala 590, this Court held that there is power on the Appellate Authority to take additional evidence and to hold de novo enquiry when the circumstances warranted the same. The same view was taken by a Division Bench of this Court in M/s Kavitha Movie House v. Abdulkhader I.L.R. 1979 (2) Kerala 326. The Division Bench held: "It will be seen that under S.18(1) the termination of service should be for misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. Under Sub-section (3) it is open to the appellate authority either to dismiss the appeal or direct the reinstatement of the employee with or without wages or direct the payment of compensation or grant such other relief as it deems fit. Judicial decisions have made it clear that it is open to the appellate authority to deal with the evidence recorded in a domestic enquiry and assess it on the merits either agreeing or disagreeing with the findings of the domestic enquiry; or to find if the domestic enquiry has been vitiated by non-conformity with the principles of natural justice or of any statutory provisions or by any act of victimisation or other malpractice against the employee and the like, and for such reasons, to discard the domestic enquiry. In such cases, the decisions have recognised that it is open to the appellate authority to conduct a de novo enquiry itself, and that it will be open to the employer to seek substantiate the charge at the de novo enquiry before the appellate authority. We may refer to the decisions m Chelur Agencies' case I.L.R. 1976 (1) Kerala 590, M.A.K. and Sons v. P. Kumara Pillai (1966 K.L.T. 610), and Ernakulam Cooperative Milk Supply Union v. K.C. Devassy 1973 K.L.T. (S.N.) 25 as authorities in support of the position which we have just setout. There are other decisions also. But it is unnecessary to notice them." Under S.18(2) of the Act, the right given to the employee is to appeal the authority 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. There is no case that the termination in question is for a reasonable cause after required notice or notice pay. Termination is for a misconduct, and the appeal is on the ground that the employee had not been guilty of misconduct as held by the employer. The Appellate Authority is therefore justified in going into the merit of the case of misconduct alleged against the employee. The Appellate Authority his to consider whether there is reasonable cause for termination incases covered by 1st part of S.18(1) or whether the petitioner was guilty of misconduct, in cases covered by the 2nd part of S.18(1). In that view of the matter, even if, enquiry held is vitiated, the Appellate Authority can examine the question de novo as to whether the employee is guilty of the misconduct. The power of the Appellate Authority is larger or wider than the power given to the Industrial Tribunal under S.33(2)(b) as stated above. Under industrial law defective enquiry cases are equated to no enquiry cases. In Workmen of Motipur Sugar Factory v. Motipur Sugar Factory (1965) II LLJ. 162, it was held: "If the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismiss or discharge was proper. 162, it was held: "If the enquiry is defective or if no enquiry has been held as required by standing orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismiss or discharge was proper. Phulbari Tea Estate case (1959-11 LLJ 663) (vide supra) was on a reference under S.10 and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry, in our opinion, stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper". 6. There is no objection in conducting a de novo enquiry. If no such opportunity is given to the Appellate Authority, what will happen is, the employer will restart the disciplinary proceedings. That means another round of litigation which can be avoided if the Appellate Authority himself goes into the merit of the case. In Workmen of Motipur Sugar Factory v. Motipur Sugar Factory (1965) II LLJ. 162 where the Supreme Court observed: "If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits, the employee has the advantage of having the merits of his case being considered by the Tribunal for itself and that clearly would be to the benefit of the employee." In that view of the matter also, exercise of the power of de novo enquiry by the Appellate Authority is in the interest of justice and for the benefit of the employee. 7. 7. This petition is under Art.226 of the Constitution. The power of this Court is to see that the citizens get fair treatment from the Appellate Authority. This Court will riot function as an Appellate Court. [See Bhagat Ram v. State of H. P. 1983 S.C. 454 In Ranjit Takur v. Union of India A.I.R. 1987 S.C. 2386] the Supreme Court observed: "Judicial review generally speaking, is not directed against a decision, but is directed against the decision making process". * * * * Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service (1984)3 W.L.R. 1174 (H.L.) Lord Deplock said: "... Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality', and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community......" . Further in, G.B. Mahajan & Ors. v. The Jalgaon Municipal Council JT 1991 (1) S. C. 605, the Supreme Court held: "When Lord Denning MR stated in the Court of Appeal that 'Not only must (the probationer-Counseller) be given a fair hearing, but the decision itself must be fair and reasonable' (emphasis supplied). The House of Lords thought that the statement of the learned Master of the Rolls if allowed to pass into law would wrongly transform the remedy of judicial review, as the statement would imply that the Court can itself sit, as in appeal, on judgment of the reasonableness of the decision instead of on the correctness of the decision making process. 'The purpose of Judicial Review', it was stated: '..., is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court' [See: Chief Constable v. Evans; (1982) (3) All ER 141 at 144]". 8. There had been 10 charges alleged against the petitioner and the Appellate authority found that eight charges out of 10 have been proved, as against nine charges found proved by the Enquiry Officer. There is elaborate consideration and discussion of the charges and evidence by the appellate authority. 9. The first charge relates to misappropriation of Rs. 3,960. The case was that one C.R. Chellappan opened a seven days notice deposit account of Rs. 4,400 on 15th November 1979 with the respondent Bank. He was paid a loan of Rs. 3,960 on the security of the above deposit. It is the case of the Management that loan is not admissible on notice deposit. Thus when the inadmissible loan was outstanding with Sri Chellappan, Depositor", he withdrew the entire deposit without repaying the loan. The petitioner was the Secretary of the bank and he closed the deposit account of Sri Chellappan ignoring the remarks entered in the deposit account which showed in red ink the outstanding loan of Sri Chellappan. He in his own hand-writing had written the word "closed" in the account in red ink. Sri P. K. Balan, RW-2, who was examined by the Management before the Appellate Authority also deposed that the petitioner wrote as "case filed" in the connected records relating to the above loan, whereas there was really no such case filed. The petitioner admitted the above irregular payment and submitted that it was due to his bona fide oversight that Sri Chellappan was allowed to withdraw the entire deposit amount without adjusting the loan outstanding against him. The Appellate Authority found that the procedure was irregular in that he did not inform the Director Board about the inadmissibility of payment of loan against 7 days notice deposit of Sri. Chellappan and he allowed Sri Chellappan to withdraw his notice deposit without recovering the loan amount. The Appellate Authority found that the procedure was irregular in that he did not inform the Director Board about the inadmissibility of payment of loan against 7 days notice deposit of Sri. Chellappan and he allowed Sri Chellappan to withdraw his notice deposit without recovering the loan amount. He closed the deposit account ignoring the remarks in the ledger to the effect that the loan is outstanding and he did not take any steps for four years to recover the outstanding loan from Chellappan. He entered falsely in the record as "case filed" whereas there was no such case filed against Sri Chellappan. Thus the Appellate Authority found a chain of irregularities which have been proved. The second charge relates to the purchase of two beds at the credit of the Bank for the personal use of the petitioner. This charge also was discussed and found proved. The third charge relates to another alleged misappropriation of Rs. 47. The fourth charge relates to insertion of the word "veetham" in Resolution No. 48 which according to the Management was unauthorisedly inserted by the petitioner though Board Resolution would not contain that word. The insertion of this word "veetham" would confer a right on the three candidates selected for temporary appointments in the Bank service for getting reappointment again and again after every three months. I am not detailing all the charges. The Appellate Authority examined all the charges and ultimately came to the conclusion that except charge Nos. 8 and 10 all the rest have been proved. The proved charges are sufficiently grave, and, therefore, the Appellate Authority came to the conclusion that the petitioner was guilty of misconduct. In view of this, the appeal was dismissed. The appellate order is not vitiated by any illegality, irrationality or procedural impropriety. 10. Counsel for the petitioner submitted that the petitioner was kept under suspension from 6th October 1983 and was dismissed from service on 18th July 1984, which was subsequently converted into compulsory retirement. There is a finding that domestic enquiry has not been proved and, therefore, it is submitted that even if there is power to conduct de novo enquiry, it should precede the dismissal. As in this case de novo enquiry is conducted before the Appellate Authority, it is contended that dismissal would take effect only after the order of the appellate authority. As in this case de novo enquiry is conducted before the Appellate Authority, it is contended that dismissal would take effect only after the order of the appellate authority. Hence, petitioner claims that he is entitled to backwages from the date of suspension upto the date of the appellate order. This is not a case where the employer acted mala fide or vindictively or held a pretence of an enquiry or the enquiry held is sham. The Enquiry Officer found nine charges proved while the appellate authority found eight charges proved. The domestic enquiry proceedings were discarded by the Appellate Authority only on the ground that the Advocate of the employer was not available on the date fixed for production of the enquiry report. The appeal itself lies on the ground that the employee was not guilty of misconduct. If the Appellate Authority comes to the conclusion that the petitioner is guilty of misconduct, as the misconduct have been committed earlier, order of the Appellate Authority takes effect from the date of the order of the Manager. In P. H. Kalyani v. Air France 1963 (1) LLJ. 679 , enquiry was held against the employee of Air France by the Manager and found guilty. The employee challenged the order of dismissal by riling an application under S.33A of the Industrial Disputes Act, 1947 on the ground that the Enquiry Officer was biased. The Labour Court held that even if there is a violation of the principles of natural justice on account of the bias of the Inquiry Officer, the Company was entitled adduce evidence before it in support of its action and after appreciating the evidence adduced before the Labour Court, the Labour Court came to the conclusion that the order of dismissal passed by the employer was justified. On appeal by way of special leave it was contended en behalf of the employee that as the domestic enquiry was found defective, the Labour Court, even it was of the opinion that the dismissal was justified, should have ordered the dismissal from the date of its award and not from the date when the Disciplinary Authority passed the order of dismissal. Rejecting the contention, the Supreme Court consisting a Bench of five Judges held: "The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employ had bona fide come to the conclusion that the employee was guilty, i. e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made." Following the above decision in D.C. Roy v. Presiding Officer, Labour Court, A.I.R. 1976 S. C. 1760 the Supreme Court held that even in cases where the inquiry was defective as it infringed the principles of natural justice, when the dismissal was justified by adducing evidence before the Labour Court, the award of the Labour Court will relate back to the date when the order of dismissal was passed. Petitioner's further contention is that subsistence allowance due the petitioner have been denied. But this issue was considered by the Appellate Authority as follows: "The appellant submits in the appeal memorandum that he was not paid subsistence allowance for the period of his suspension. But he has not raised this issue at any later stage nor proved the same. It is not even mentioned in his deposition as A.W. 1. Hence, I find that this contention is neither pressed nor proved." If subsistence allowance is not paid, that will amount to violation of natural justice. But he has not raised this issue at any later stage nor proved the same. It is not even mentioned in his deposition as A.W. 1. Hence, I find that this contention is neither pressed nor proved." If subsistence allowance is not paid, that will amount to violation of natural justice. It was so held by the decision of the Supreme Court in Fakirbhai Fulabhai Solanki v. Presiding Officer (1986) 3 S.C.C. 131 , the Supreme Court observed: "... .it is reasonable to hold that the workman against whom the application is made should be paid some amount by way of subsistence allowance to enable him to maintain himself and the members of his family and also to meet the expenses of the litigation before the Tribunal. And if no amount is paid during the pendency of such an application it has to be held that the workman concerned has been denied a reasonable opportunity to deferred himself in the proceedings before the Tribunal. Such denials leads to violation of principles of natural justice and consequently vitiates the proceedings before the Tribunal under sub-section (3) of S.33 of the Act and any decision given in. those proceedings against the workman concerned." But in this case, the petitioner is a Secretary and even though Subsistence Allowance Act is applicable to the Cooperative Society, the petitioner will not come under the purview of the said Art. It was held in S. T. Coop. L. M. Bank Ltd. v. Dy. Labour Commissioner 1990 (2) KLT 175 , the Secretary of Society is not an employee coming under the payment of Subsistence Allowance Act and, therefore, he is not entitled to subsistence allowance. Hence, there is no merit in the writ petition. The Original Petition is dismissed.