The Appellate Authority under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 has the jurisdiction to re-appreciate the evidence and come to a different conclusion on the question of the employee's guilt of misconduct.

Swami, C.J

1. This appeal is preferred against the order dated 24.12.1993 passed by the learned single Judge in W.P. No. 5912 of 1987. Learned single Judge has dismissed the writ petition, hence the petitioner therein has come up in appeal.

2. In the writ petition, the petitioner/appellant sought for quashing the order dt. 2-4-1987 passed by the Deputy Commissioner of Labour (Appeal), Madras, in T.S.E.S. No. 31 of 1984. It may be pointed out that the said appeal was preferred under section41(2) of the Tamil Nadu Shops and Establishments Act, 1947, (hereinafter referred to as 'the Act'), by the second respondent against the order dated 19-4-1984 passed by the Chairman of the appellant company, dismissing him from service.

3. It is not in dispute that the appeal filed before the Deputy Commissioner of Labour under section41(2) of the Act was maintainable. The scope of the appeal is stated in sub-section(2) of section41 of the Act which provides that the person employed shall have a right to appeal to such authority within such time as may be prescribed, 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. The decision of the Appellate Authority, as per sub-section (3) of section 41, shall be final and binding on both the employer and the person employed.

4. The Appellate Authority has held that the misconduct alleged is not established and has summarised his reasoning as follows :

"In view of the above I find that the charges or misconduct have not been proved through satisfactory evidence for the following reasons :

1) Non-production to tape

2) Non-examining Thiru Vellaiyan3) Non-examining of the other Investigating Officer.

4) Non-production of documents of Investigating Officer and the original report of the Agency.

The decisions cited by the respondent's counsel have been perused by me and I am in agreement with the arguments of the Appellant's counsel that they are not relevant to the facts of the present case."*

5. Learned single Judge has held that the finding recorded by the Appellate Authority is a finding of fact, as such, it is not open to the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, to re-appreciate the evidence and come to a different conclusion. Accordingly, learned single Judge has rejected the writ petition.

6. It is contended by Mr. G. Subramanian, learned counsel for the Appellant, that in an appeal preferred against the order passed in a domestic enquiry, the Appellate Authority is not entitled to reverse the finding unless it comes to the conclusion that the finding recorded by the Disciplinary Authority is perverse and is based on no evidence, and that the Appellate Authority has exceeded his jurisdiction in re-appreciating the evidence and coming to a different conclusion. Learned counsel has placed reliance on the decisions of this court in Davey Sons v. Addl. Commr. of Workmen's Compensation, (1960) 2 Mad. L.J. 254 and Thirumansalam Co-operative Urban Bank Ltd. v. Assistant Commissioner of Labour, and also that of the Supreme Court in State of Haryana v. Rattan Singh

7. We have already extracted the provisions contained is sub-sections (2) and (3) of section41 of the Act. From the aforesaid provisions, it is clear that an appeal lies not only on questions of law but also on question of fact. In fact, it is open to .... the Appellate Authority to reappreciate the evidence in order to determine as to whether the employee had been guilty of misconduct as held by the employer. The appellate Authority cannot record such a finding without re-appreciating the evidence. Therefore, in the light of the provisions contained in Section41 (2) of the Act it is not possible to apply the decision of the Supreme Court relied upon by the learned counsel for the appellate in State of Haryana v. Rattan Singh, (1982) 1 Lab LJ 46 : when the statute itself give