ORDER
D.P. Kundu, J.
1. In this writ application the petitioner has challenged the award dated February 28, 1986 passed by the Second Industrial Tribunal, West Bengal, in case No. VIII 54-75.
2. Admittedly, the respondent Nos. 3, 4, 5 and 6 were the workmen of the petitioner. After the death of respondent No. 3, the legal heirs of the respondent No. 3 have been added as respondent Nos. 3a, 3b and 3c.
3. By a chargesheet dated August 29, 1972, the following charges were levelled against the aforesaid workmen:
“On August 23, 1972 at 7.45 p.m. while the supply van of Modern Bakeries (India) Limited bearing No. WMK-5 delivering breads in Zone 6 under the regular delivery schedule, the undersigned along with the Production Superintendent and the Sales Manager suddenly met the delivery van at 50/3A, Ekbalpur Lane, Calcutta -23.
On meeting the said delivery van, I, the undersigned, directed the Sales Manager to check up the contents in the van as, for a considerable long period, it was brought to the notice of the Management that there has been a systematic theft from the Bread Store of the Company.
After such physical verification and/or checking, it was found that quantities of breads which were inside the said van were in excess quantities were 4 crates of 48 breads each of 400 gm., and 32 loaves of 400 gms., each.
At that point of time the said vehicle was driven by Sri Bimal Krishna Ghosh who was accompanied by Sri Pran Krishna Kundu, Loader. After spotting out the irregularities, I, the undersigned, caused an enquiry at the spot through the Sales Manager who gathered from the Driver and the Loader as to how the excess breads came into the Van. In answer to the said enquiry, the Driver, Bimal Krishna Ghosh and Pran Krishna Kundu jointly gave a written explanation, a copy of which is annexed here which will speak for itself.
On return to the factory, the undersigned checked up the Gate Pass connected with the said challans and found that in the Gate Pass it is wrongly inserted 10 crates in place of 6 crates. Thereafter, Sales Manager caused a personal enquiry from Sri Paresh Nath Choudhury, Bread Store Clerk as to how the said excess quantity of bread went out from the store. In reply to said enquiry, the said Bread Store Clerk had given a written explanation, a copy of which is annexed here.
Under the above circumstances, I, the undersigned, is of belief that the aforesaid incident is serious and by this process the Company, being a Public Sector Company is incurring heavy “financial loss.
I, therefore, charge on the facts which have come out at the spot enquiry that Shri T.K. Sen, Sales Assistant, Bimal Krishna Ghosh, Delivery Van Driver, Pran Krishna Kundu, the Loader and Paresh Nath Choudhury, the Bread Store Clerk, each of them in collusion and conspiracy with each other committed theft, fraud or dishonesty or wilful damage in connection with the business or property of the Company whereby wilful damage or financial loss has been caused to the Company.
In addition to what has been stated as aforesaid, the said four persons are also charged for offence of wilful negligence and neglect of duty in complying with the departmental directions regarding dispatch and delivery.”
4. Thereafter an enquiry was conducted by the Company and the Workmen were found guilty of the charges levelled against them and they were dismissed from services of the Company.
5. An industrial dispute was raised and the Government of West Bengal by an order of reference dated June 3, 1975 referred the following issue:
“Whether termination of services of Sarbashree T.K. Sen, P.N. Chowdhury, P.K. Kundu and B.K. Ghosh is justified to what relief, if and, are they entitled?”
6. Supreme Court in Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, reported in (1972-I-LLJ-180)(SC), in paragraph 61 of the reported decision laid down the following principles:
“61(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled, to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with, in the first instance, as a preliminary issue, the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding pn the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.”
7. Following the above referred principles laid down by the Supreme Court in Ludh Budh Singh’s case (supra) the Tribunal as a preliminary issue decided that the enquiry held by the employer Was not justified.
8. Being aggrieved by and dissatisfied with the said order of the Tribunal, the Writ Petitioner preferred a Writ petition before this High Court.
9. A learned single Judge of this High Court dismissed the Writ application. Against that decision of the learned single Judge, the Writ petitioner preferred an appeal being FMAT No. 3133 of 1980. The Division Bench of this High Court by a judgment and order dated July 30, 1984 passed the following order:
“After hearing the learned Advocate for the parties and after considering the facts and circumstances of the case, we grant liberty to the appellant to agitate the points taken herein in argument before the Tribunal and the Tribunal, after considering the submissions to be made by the parties will pass necessary award in accordance with law.
It is made clear that we have not considered the matter on merits.
This appeal is disposed of as above. There will, however, be no order for costs.”
10. Thereafter, the matter was heard before the Second Industrial Tribunal, West Bengal. The Tribunal by its award dated February 28, 1986, inter alia, held:
“So, considering all these, I find that the management has failed to prove the case of theft, fraud or dishonest or wilful damage beyond reasonable doubt against the charged workmen on merit also. Therefore, all these points are decided against the company and in favour of the concerned workmen.”
11. However, the Tribunal also held that the evidence on records proves a case of neglect of duty. The workmen were also charged for negligence. The Tribunal under these circumstances directed “the workmen will be reinstated with full back wages from the date of dismissal less 25% of their total salary and allowance due to them during this period. This will meet the ends of justice of the case. The management is directed to give effect to this award without delay.”
12. Mr. P.S. Sengupta, the learned Advocate for the petitioner argued the following points:
1. The Tribunal has not correctly applied the standard of proof.
2. Even if the standard of proof has been correctly applied, then also the Tribunal has taken into consideration the irrelevant matter and omitted to consider the relevant matter.
3. The finding of the Tribunal is partly based on conjecture and surmise.
4. When punishment has been inflicted upon the workmen on a number of charges and when only some of the charges have been proved, then that would not be a ground for interference by the Tribunal.
5. It is now well settled law that while interfering with the punishment under Section 11-A of the I.D. Act, 1947 reasons have to be given by the Tribunal while considering the justification of the punishment and since, in the instant case, the Tribunal has failed to give any reason, the finding of the Tribunal under Section 11-A of the said Act is not legal and valid.
6. While the Tribunal finds the workmen guilty of some charges, the Tribunal could not award backwages to the workmen because that would amount to give a premium to the misconduct committed by the workmen.
Heard the learned Advocates for the parties.
I am of the view that if it is found that the Tribunal did not correctly apply the standard of proof, then the other questions argued by the learned Advocate for the petitioner do not require to be considered.
The question which falls for consideration is what should be the standard of proof before the Tribunal while deciding an industrial dispute relating to disciplinary proceedings. The view of the Supreme Court in Ludh Budh Singh’s case (supra) has already been mentioned in the earlier part of this judgment. It appears from the said decision of the Supreme Court that the Tribunal discharges the function relating to disciplinary proceedings and not that of criminal Court. It is now well settled that the standard of proof in connection with disciplinary proceedings is preponderance of probabilities and not “beyond reasonable doubt.”
13. In this connection reference may be made to a Supreme Court decision in Management of Balipara Tea Estate v. Its Workmen, (1959-II-LLJ-245)(SC). The relevant lines of the reported decision are quoted herein below at p. 249:
“It has been contended on behalf of the appellant, and in our opinion, rightly, that the Tribunal has misdirected itself in so far as it has judged the case against the workman concerned afresh on its merits as if it were a trial for a criminal offence for the falsification of accounts and misappropriation of funds, and that in so doing, the Tribunal was not only sitting as a Court of Appeal on the order of dismissal passed by the Management, even though it did not find any mala fides for want of good faith or any irregularity in the proceedings taken by the management against the workman concerned, but it had also laid down a wrong line of approach to the case. The Tribunal misdirected itself insofar as it insisted upon conclusive proof of guilt to be adduced by the Management in the inquiry before it.”
14. The learned Advocate for the respondents workmen referred to a Supreme Court decision in High Court of Judicature at Bombay v. Udaysingh S/o Ganpatrao Naik Nimbalkar and Ors., . In that case the Supreme Court held as follows:
“But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion.”
15. Therefore, it is evident that in a matter relating to disciplinary proceeding, the standard of proof is preponderance of probabilities and not “beyond reasonable doubt.”
16. 1 am of the view that the Tribunal wrongly considered the standard of proof as “beyond reasonable doubt” and for this reason the award of the Tribunal is vitiated and the same is set aside and is quashed. The matter is remanded back to the Tribunal for proper adjudication of the matter. Since only on one point I am setting aside and quashing the award, the other points argued by the learned Advocates for the parties are not dealt with.
17. In these terms, the Writ petition is allowed.
18. There will be no order as to costs.
19. The learned Advocate for the respondents workmen prays for stay of the order and the learned Advocate for the petitioner opposes such prayer. Considered the prayer and the same is rejected.
20. If Xerox certified copy of the order is applied for, the same be given as quickly as possible.