Judgment :- 1. The petitioner is a Co-operative Bank. The second respondent was employed as a Senior Clerk/Secretary incharge in the petitioner bank. The Cashier one Mr. Radhakrishnan, misappropriated the funds to the tune of Rs.2,16,500/- from various accounts. The petitioner issued a charge memo dated 23.09.2002 against the second respondent alleging that he connived with the Cashier Mr. Radhakrishnan in misappropriating the funds. The following charges are levelled against him in the charge memo dated 23.09.2002. “1. Connived with Mr. S. Radhakrishnan- Cashier of the bank by allowing him withdrawals from the accounts of M/s. Shanmugalakshmi, A.Sankari, A.V. Palanichamy, R. Seeniappan and S. Karuppasamypandian by manipulating false records and forging their signatures, thereby enabling him to misappropriate Rs.1,58,500/-by causing disrepute to the bank; ii. Failed to take notice of the suppression of receipt of Rs.20,000/- on 25.06.02 by way of withdrawal from the Bank, in the Subsidiary cash book with false tallying of closing balance thereby connived with Mr. S. Radhakrishnan in misappropriation of the said amount. iii. Failed to take note of the false withdrawal of Rs.30,000/- from the account of Mrs. Pappammal by making entry in the Subsidiary cash book without voucher and corresponding entry in the Savings Bank personal ledger or in the pass book, thereby enabled Mr. S. Radhakrishnan to reduce the cash balance and tally shortage, thereby connived with him in misappropriation of the said amount: iv. Failed to take note of the fake withdrawal of Rs.7,000/-from the account of Mr. M. Sundarraj (1440) on 25.06.02 by using forged withdrawal vouchers and tampering of records by Mr. S. Radhakrishnan thereby connived with him in misappropriation of the said amount; v. Failed to take note that Mr. S. Radhakrishnan had maintained two parallel subsidiary cash books to suit the false transactions; vi. Failed to take note that on 08.05.2002 Mr. K. Ganesan when remitted Rs.21,000/- he transacted as Rs.22,000/- as receipt in the subsidiary cash book, thereafter took away the excess credit of Rs.1,000/-on 25.06.2002 by using forged withdrawal vouchers and tampering of records by Mr. Radhakrishnan thereby connived him in misappropriation of the said amount;” 2. An enquiry was conducted against the second respondent. The enquiry Officer gave his report dated 03.02.2003. Ultimately, the petitioner was dismissed from service based on the enquiry proceedings, by an order dated 24.12.2003. Radhakrishnan thereby connived him in misappropriation of the said amount;” 2. An enquiry was conducted against the second respondent. The enquiry Officer gave his report dated 03.02.2003. Ultimately, the petitioner was dismissed from service based on the enquiry proceedings, by an order dated 24.12.2003. The second respondent preferred an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, before the first respondent questioning the order dismissing him from service. The same was taken on file in T.N.S.E No.6 of 2004. 3. After hearing both sides, the appellate authority allowed the appeal and set aside the dismissal order. The appellate authority held that while the enquiry officer held that since four charges out of six charges were not proved, the Management proceeded to pass the dismissal order as if all the charges are proved. Hence, it was a case of non application of mind. It was further held that charge No.5 is vague. It was also held that since the enquiry officer held that the charges 1 to 4 were not proved, charges 5 and 6 also should have been held as not proved, since those charges were similar to other four charges. The first respondent held that there is no satisfactory evidence to hold that the charges were proved. The petitioner has now filed the present writ petition to quash the aforesaid order of the appellate authority dated 25.01.2006. 4. Notice of motion was ordered. The second respondent filed counter affidavit. 5. Heard both sides. 6. The learned counsel for the petitioner submits that the appellate authority should have decided the validity of the enquiry as a preliminary issue and instead, the authority proceeded to pass the impugned order allowing the appeal. The learned counsel has relied on the judgment of the Apex Court in The Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd., Vs. The Management and Others, reported in(1973) 1 Supreme Court Cases 813 = 1973 (1) LLJ 278 . 7. The learned counsel further submits that the first respondent authority committed error in holding that the enquiry officer held that charges 1 to 4 were not proved. of India (P) Ltd., Vs. The Management and Others, reported in(1973) 1 Supreme Court Cases 813 = 1973 (1) LLJ 278 . 7. The learned counsel further submits that the first respondent authority committed error in holding that the enquiry officer held that charges 1 to 4 were not proved. According to the learned counsel, the petitioner deviated from the findings given by he enquiry officer and issued a second show cause notice in Ex.R7 and called for explanation from the second respondent and this was not taken note of by the first respondent, while passing the impugned order. He has taken me through the findings of the enquiry officer, Ex.R.7, the second show cause notice and the impugned order of the first respondent and made his submissions in detail. 8. On the other hand, the learned counsel for the 2nd respondent submitted that there is no infirmity in the order of the first respondent, who is an appellate authority and he has categorically recorded that there is no satisfactory evidence. It is also submitted that the first respondent has taken into account the fact that the Cashier Radhakrishnan admitted guilt and gave in writing about the misappropriation made by him and also remitted back the amount. 9. He further submits that the enquiry officer held that the charges 1 to 4 were not proved. It is his further submission that the ground (h) in the affidavit filed in support of the writ petition is self contradictory. If the enquiry officer did not hold that the charges 1 to 4 were not proved, the petitioner need not deviate from the findings. According to the learned counsel for the second respondent, the second show cause notice in Ex.R7 is not the deviation from the findings of the enquiry officer and it was only proposing the punishment. 10. I have considered the submissions made on either side. 11. The petitioner initiated disciplinary action against the second respondent by issuing charge memo dated 23.09.2002. The charges are extracted above. The crux of the allegations made in the charge memo is that he connived with the Cashier in the misappropriation of funds committed by Cashier. The misappropriation made in various accounts. 12. The learned counsel for the petitioner find fault with the first respondent and submits that the authority failed to decide the validity of the enquiry as a preliminary issue. The misappropriation made in various accounts. 12. The learned counsel for the petitioner find fault with the first respondent and submits that the authority failed to decide the validity of the enquiry as a preliminary issue. The learned counsel has relied on the decision of the Apex Court in T he Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd., Vs. The Management and Others, reported in(1973) 1 Supreme Court Cases 813 = 1973 (1) LLJ 278 . 13. In my view, the writ petitioner cannot have grievance. It is a fact that the authority did not hold that the enquiry was not conducted in a fair manner. The first respondent authority never held that the enquiry was an invalid one. He went into merits and recorded the findings, based on the records that there is no satisfactory evidence in support of the charges. Hence, the submission of the learned counsel for the writ petitioner has no substance. The judgment relied on by the petitioner has no application to this case. Nowhere it is held in the judgment of the Apex Court that the employer could find fault with the authority for not deciding the validity of the enquiry as a preliminary issue, particularly, when the authority did not hold that the enquiry was not conducted properly. It is a different matter, if the petitioner wanted to give up the enquiry and to let in any fresh evidence and the authority refused to record such evidence. 14. On the other hand, the petitioner relied on the enquiry conducted by them and wanted to sustain the dismissal order based on the same. The authority did not record any finding that the enquiry was not a proper one. On the other hand, the authority held on merits that there was no satisfactory evidence in support of the findings on the charges. 15. Therefore, the submissions made by the learned counsel for the petitioner that the authority failed to decide the validity of the enquiry as a preliminary issue deserves to be rejected. 16. According to the learned counsel, the enquiry officer did not hold that charges 1 to 4 were not proved. Hence, I perused the findings of the enquiry officer. 15. Therefore, the submissions made by the learned counsel for the petitioner that the authority failed to decide the validity of the enquiry as a preliminary issue deserves to be rejected. 16. According to the learned counsel, the enquiry officer did not hold that charges 1 to 4 were not proved. Hence, I perused the findings of the enquiry officer. In the findings, it is stated as follows: “TAMIL” The authority took into account the aforesaid finding and came to the conclusion that the enquiry officer recorded a findings that the charges1 to 4 were not proved. 17. In my view, the authority is correct in holding that the charges 1 to 4 were not proved, in view of the finding of the enquiry officer. 18. As correctly held by the appellate authority, the writ petitioner proceeded as if all the charges were held proved in the enquiry. Therefore, it is total non application of mind. 19. Further, the submission of the learned counsel for the writ petitioner that the writ petitioner issued Ex.R7 second show cause notice deviating from the findings of the enquiry officer is also factually not correct. 20. I have perused Ex.R7, second show cause notice dated 05.12.2003. It is not deviating from the findings of the enquiry officer. It is only proposing the punishment. In fact, the petitioner issued a notice dated 27.09.2003, directing the second respondent to give his explanation on the findings of the enquiry officer. In the said notice dated 27.09.2003, the writ petitioner has erroneously proceeded as if the enquiry officer came to the conclusion that all the charges were proved. 21. Furthermore, as rightly contended by the learned counsel for the second respondent, the appellate authority has taken into account the guilty being pleaded by the Cashier Mr. Radhakrishnan for the misappropriation and he remitted back the amount. The enquiry officer also recorded the following findings that goes a long way to establish that the petitioner did not connive with Cashier Radhakrishnan. Radhakrishnan for the misappropriation and he remitted back the amount. The enquiry officer also recorded the following findings that goes a long way to establish that the petitioner did not connive with Cashier Radhakrishnan. The said finding is extracted hereunder: “TAMIL” The appellate authority exercised its jurisdiction under Section 41 of the Tamil Nadu Shops and Establishment Act and recorded the findings that the 5th charge is vague and the charges 5 and 6 are similar to the charges 1 to 4 and that since charges 1 to 4 were held as not proved by the enquiry officer, other charges are also should be held as not proved. It is also submitted by the learned counsel for the writ petitioner that Radhakrishnan was dismissed for committing misappropriation and he accepted the same and he did not agitate against the dismissal order. 22. I do not find any infirmity in the findings of the appellate authority. It cannot be termed as perverse. 23. For all the above reasons, the writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.