Judgment LALIT MOHAN SHARMA, J. 1. The main point urged in these cases relates to the interpretation of section 11A of the Industrial Disputes Act (hereinafter referred to as the Act). 2. The Government of Bihar made a reference to the Industrial Tribunal Bihar, under S. 10 of the Act about the justification and legality of the dismissal of one Chandradeep Singh, an employee of Rohtas Industries Ltd., the petitioner in C. W. J. C. 1779 of 1975; and the Tribunal by its award (annexure 1 to the writ application) held that the order of dismissal could not be upheld. The workman, however, was not reinstated and was allowed compensation. The petitioner-company has challenged the award in C. W. J. C. 1779 of 1975; and by the writ application in C. W. J. C. 1919 of 1975. the workman claims his reinstatement in service. Both the cases have been heard together. 3. The workman was served with a chargesheet on 10-8-1968 which is quoted in Para 11 of the award (Annexure 1). He was employed as a Dresser in the hospital run by the petitioner-company and on 1-6-1968 he, according to the charge, misbehaved with the Chief Medical Officer, Dr. Jagdish Narain Singh. The chargesheet also stated that the workman had been intentionally misusing the medical facilities provided by the employer-company and a long list of medicines obtained by him was included. It indicated that several items of medicines were taken by him on a single day and this happened on many occasions. The workman was also suspended. After the submission of a show- cause, a domestic enquiry was held where several witnesses were examined on either side and. ultimately, in pursuance of the enquiry report, the workman was dismissed. In the meantime, a reference under the Act had been made to the Industrial Tribunal in regard to the legality of the suspension of the workman, which was registered before the Tribunal as Reference Case No. 81 of 1968. The petitioner-company also filed an application under S. 33 (1) (b) of the Act before the Industrial Tribunal for permission to implement the dismissal order of the workman Chandradeep Singh and the application was registered as Misc. Case No. 102 of 1968. It was later appreciated that the application was misconceived and was not pursued and the Tribunal dropped the proceeding. Case No. 102 of 1968. It was later appreciated that the application was misconceived and was not pursued and the Tribunal dropped the proceeding. It has been rightly stated on behalf of both the parties before us that the details of Reference Case No. 81 of 1968 relating to the order of suspension are also not relevant now. 4. In reference case No. 38 of 1972 giving rise to the present writ applications, the company filed an application on 27-2-1974 that Chandradeep Singh had been dismissed after duly holding a domestic enquiry and that this matter should be decided as a preliminary point. 5. Mr. Jai Narain, learned Counsel for the workman, in this Court, had appeared for him before the Tribunal also, and he had conceded that there was no defect in the domestic enquiry held by the petitioner company. In paragraph 9 of Annexure 1, the Tribunal has observed that since the amended provision of section 11-A of the Act had come into force on 15-12-1971. that is, before the reference was made by the State Government on 18-11-1972, it could reconsider the merits of the case. All the documents of the domestic enquiry had been produced by the company and the Tribunal was of the view that "it had to decide on the matters already on the record of the domestic enquiry in view of S. 11A". The documents which formed part of the records of the domestic enquiry were marked as exhibits to facilitate reference to them. Later, however, the Tribunal revised its view and held that it should take fresh evidence on the merits of the dispute and record its independent findings. Parties were accordingly directed and witnesses were examined thereafter. 6. Dr. J. N. Singh, the Chief Medical Officer, with whom the workman was alleged to have misbehaved was obviously an important witness, but he was not examined on behalf of the management promptly. After the close of the evidence of the workman, the managements turn came and on 5-5-1975 one witness was examined and a prayer was made for adjournment to produce the other witnesses. The Tribunal adjourned the case for two days fixing 7-5-1975 as the date for further hearing. On this date, two further witnesses were examined on behalf of the company and an application (Annexure 2 to the writ application) was filed for one weeks time to examine Dr. The Tribunal adjourned the case for two days fixing 7-5-1975 as the date for further hearing. On this date, two further witnesses were examined on behalf of the company and an application (Annexure 2 to the writ application) was filed for one weeks time to examine Dr. J. N. Singh on the ground that he was attending the daughter of Shri M. P. Jain, Vice President, Cement Division of the petitioner-company who was seriously ill with meningitis. The Presiding Officer of the Tribunal observed that his tenure of office was not to last very long and it appeared that the management was not co-operating so that the case might not be finished before him. He directed that the management should bring all its remaining witnesses on 9-5-1975. On 9-5 1975, another application for adjournment was filed (Vide Annexure 3) on the ground that a teleprinted message was received from Dr. J. N. Singh that the patients condition was serious and Dr. Lala Surajnandan Prasad was flying from Patna and that Dr. J. N. Singh could not leave the girl in that condition. The Presiding Officer rejected the application and closed the case of the management. The result was that Dr. J. N. Singh, who has been described as the principal witness by the Tribunal, was not examined; but his statement recorded at the domestic enquiry was available. I have stated these facts in some detail because it has been urged on behalf of the petitioner- company that the foundation of the Tribunals opinion against the management is non-availability of any material in support of the charge that the workman had misbehaved with Dr. J. N. Singh. The argument is that even in absence of Dr. J. N. Singh appearing as a witness before the Tribunal, his earlier evidence was available on the records and the Tribunal acted illegally in ignoring it altogether. 7. Mr. R. P. Katriar, learned Counsel appearing for the petitioner-company, has contended that in view of the admitted position that the domestic enquiry held in the present case was a proper one, the Tribunal had no jurisdiction to direct the parties to lead fresh evidence in support of their respective cases and, in any event, the Tribunal could not ignore the evidence produced before the domestic enquiry and made available to the Tribunal. 8. The principle, applicable before the amended S. 11A. 8. The principle, applicable before the amended S. 11A. was firmly established, that in a case of dismissal on ground of misconduct, the Tribunal did not act as a court of appeal and substitute its own judgment for that of the management. It could interfere on the grounds of (i) mala fide, (ii) victimization or unfair labour practice adopted by the management and (iii) the finding of misconduct being completely baseless or perverse; and also in cases where the management was guilty of basic error or violation of the principle of natural justice in conducting the domestic enquiry. The position was explained in very clear terms in paragraph 18 of the judgment in Indian Iron Steel Co. v. Their Workmen ( AIR 1958 SC 130 ) and has been consistently respected in the later decisions of the Supreme Court. It has not been suggested in the present case nor found by the Tribunal that any of the first three grounds applies; and it has been specifically conceded that there was no defect whatsoever in the domestic enquiry which was held by the petitioner company. The Tribunal however held that it did not agree with the conclusion arrived at in the domestic enquiry holding the workman guilty and as section 11A of the Act was applicable to the case, it was open to it to direct the parties to lead fresh evidence on the disputed question and to arrive at its independent finding on their basis. The S. 11A of the Act provides that if the Tribunal is satisfied that the order of discharge or dismissal was not justified, it may set aside the order and direct reinstatement of the workman or give such other relief to him as the case may require. The power is subject to the condition mentioned in the proviso which reads as follows: "Provided that in any proceeding under this section, the Labour Court or the Industrial Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter:" 9. By the introduction of S. HA, the position has changed inasmuch as the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence established the misconduct alleged against the employee. By the introduction of S. HA, the position has changed inasmuch as the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence established the misconduct alleged against the employee. As was pointed out by the Supreme Court in Workmen of F. T. and R. Co. v. Management ( AIR 1973 SC 1227 ) : (1973 Lab IC 851) what was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that finding of misconduct is correct and the limitations imposed on the powers of the Tribunal by the decision in Indian Iron Steel Co. v. Their Workmen (supra) can no longer be invoked by an employer. The Tribunal, in the present case, therefore, had the power to examine the evidence led in the domestic enquiry and to come to a different conclusion, but the material on which it could do so will be confined to that evidence, as is clear from the proviso to S. 11A, quoted above. The language of the proviso is unambiguous and the Tribunal is not permitted to take any fresh evidence for reaching such a conclusion. In the present case, the Tribunal has not only called for fresh evidence but has ignored the evidence produced in the domestic enquiry. The allegation of misbehaviour on the part of the workman has been considered at some length in paras 28 and 29 of the award and the Tribunal has repeatedly commented on the non-examination of the Chief Medical Officer with whom the employee is said to have misbehaved. The Tribunal is right in thinking that the evidence of Dr. J. N. Singh is vital in the case but has failed to appreciate that his statement recorded in the domestic enquiry was before him and had to be considered. It is not right to say that as the Chief Medical Officer was not examined before the Tribunal, the allegation of misconduct by Chandradeep Singh with the Doctor was not supported by any material. It is not right to say that as the Chief Medical Officer was not examined before the Tribunal, the allegation of misconduct by Chandradeep Singh with the Doctor was not supported by any material. It is true that the Tribunal has also mentioned some circumstances which, according to it, support its conclusion, but it is manifest that the assumption that the statement of the Chief Medical Officer was not available for consideration by the Tribunal has weighed very heavily against the petitioner-company and this has vitiated the Tribunals finding. Besides, the Tribunal should not have admitted and relied upon fresh evidence and it should have confined its consideration to the evidence led in the domestic enquiry and produced before it. 10. Mr. Jai Narain contended that the Tribunal came to the conclusion about the incorrectness and unjustifiable nature of the order of dismissal of the employee in para 9 of the award and it was a concession made by the Tribunal to the petitioner company to lead fresh evidence justifying the order of dismissal. He said that if the evidence led before the Tribunal be excluded from considaration, even then the award has to be sustained in view of the finding mentioned in paras 9 and 10. I do not find any merit in this contention. In the first instance, it will be seen that the management did not, at any point of time, seek leave to lead further evidence to support the order of dismissal on merits. The management wanted to lead further evidence only if the domestic enquiry was found to be defective. It was, however, conceded on behalf of the workman that there was no defect in the domestic enquiry. Thereupon, the Tribunal decided to reappraise the evidence led in the domestic enquiry as has been mentioned in paragraph 9 of its award. This decision was perfectly right. But subsequently the Tribunal took a different decision and directed the parties to lead fresh evidence. The error was committed at that stage. This change in the procedure was the result of the observations made in Misc. Case No. 102 of 1968 which were considered by the Tribunal subsequently. The Misc. Case No. 102 of 1968 was registered on the basis of an application by the petitioner- company, as has been mentioned in para 3. The error was committed at that stage. This change in the procedure was the result of the observations made in Misc. Case No. 102 of 1968 which were considered by the Tribunal subsequently. The Misc. Case No. 102 of 1968 was registered on the basis of an application by the petitioner- company, as has been mentioned in para 3. No final orders were passed in this proceeding which was ultimately dropped by the Tribunal. It cannot and has not been suggested that any observation made in that proceeding, at some stage, which must be held to be tentative, could bind the parties in the present reference case. The Tribunal, in the present case, had to form its own opinion based upon the evidence led in the domestic enquiry independent of any observation made in Misc. Case No. 102 of 1968. The observation made in the impugned judgment in para 10 and relied upon by Mr. Jai Narain is in the following terms : "I found that the order of the Tribunal was well-considered order and if I am. to take my independent view in the matter, it would be impossible for me to take a different view so far as the domestic enquiry is concerned, because the learned Presiding Officer had taken into consideration the evidence, circumstances and law on the point. Though there was no infirmity so far the procedure was concerned, but the findings arrived at by the Enquiring Officer were not just and proper. Therefore, in such circumstances, I directed parties to adduce evidence on the merits of the case itself and in pursuance thereof the case has been heard on merits." If this finding be treated as a finding disapproving the finding reached in the domestic enquiry, it will have to be quashed for several reasons, namely, (i) the finding is not based on a consideration of the evidence in the domestic enquiry, (ii) the order is not a speaking one and could not be so in absence of a. consideration of the relevant matters and (iii) it is mainly based on the tentative view expressed . in Misc. Case No. 102 of 1968 which case was dropped without a final decision. in Misc. Case No. 102 of 1968 which case was dropped without a final decision. It was the duty of the Tribunal to have considered the evidence in the domestic enquiry and specially the evidence of the Chief Medical Officer which was vital for the case of the employer before coming to any conclusion about the correctness of the order passed in the domestic enquiry and the Tribunal should have given reasons in support of its conclusion with reference to the evidence. This finding must, therefore, be quashed and the Tribunal must be asked to reappraise the evidence before proceeding further. If the judgment given by the Tribunal be interpreted in the manner in which, the petitioner has suggested, it means that the Tribunal recorded its disapproval of the finding reached in the domestic enquiry only after fresh evidence was led in pursuance of its direction and after ignoring the evidence collected in the domestic enquiry including the evidence of the Chief Medical Officer which has rightly been considered by the Tribunal as vital. This procedure is clearly in violation of the Proviso to section 11A. In either event, the decision of the Tribunal is clearly vitiated in law. The question as to whether the parties can lead further evidence in support of their respective cases and whether the Tribunal can permit them to do so can only arise after the Tribunal gives its finding on the merits of the case after confining its consideration to the evidence in the domestic enquiry. I, therefore, do not answer that question at this stage. 11 For the reasons stated above, the writ application in C. W. J. C. 1779 of 1975 is allowed and the award (Annexure 1 to the writ application) is set aside and quashed and the matter is sent back to the respondent No. 2 for reconsideration in the light of the observation made above. In the circumstances, the question . raised by the workman in C. W. J. C. 1919 of 1975 as to whether he should be reinstated instead of getting an order of compensation in his favour does not remain to be answered by this Court. It will be open to him to urge the point before the Tribunal at the appropriate stage. The writ applications are accordingly disposed of. Parties will bear their own costs. GOBIND MOHAN MISRA, J. 12 I agree.