JUDGMENT T. Chandrasekhara Menon, J. 1. A partnership owning rubber estate in Cannanore District has approached this court for quashing an award of the Industrial Tribunal, Calicut by which the petitioner firm has been directed to take back 6 workers, into employment with back wages. According to the petitioner these 6 workers trespassed into the petitioner's plantation area, fenced off portions of land and put up temporary huts there. They also started tapioca cultivation there. The petitioner was compelled to terminate their employment as in spite of repeated requests they refused to vacate the land they had trespassed upon. 2. An industrial dispute was raised by the 6 workers through their union, 1st respondent, regarding the termination of their employment. The matter was ultimately referred by the Government to the Industrial Tribunal as per order, dated 4th March 1974, the dispute for adjudication by the tribunal being the non employment of the workers specified therein by name. Before the Tribunal the union contended that the workers were denied employment from 27th July 1972 without assigning any reason. The conciliation conference also did not result in any settlement. According to the union the reason for denial of employment is the result of the attempt of the workers to get the benefits of the Land Reforms Act. The petitioner firm had wanted the workers to vacate the land in their possession and on their refusal they were denied employment. 3. According to the petitioner the 6 persons were employed on a temporary basis. They trespassed into the land belonging to the petitioner and put up sheds and occupied the same. They were directed more than once to vacate the land and they were intimated that unless they vacate the land, their services will be terminated. The petitioner's contention was that denial of employment was for valid reason. Trespass is a misconduct and the only question for the tribunal's decision was whether the workers are trespassers or not. 4. In a rejoinder filed before the tribunal, it had been stated that the workers had filed applications before the Land Tribunal for getting certain rights under the Land Reforms Act, wherein the special Revenue Inspector had made enquiries and preliminary order has been already passed. 5. After examining two witnesses on the side of the management and 3 on the side of the Union the Tribunal directed reinstatement of the workers. 5. After examining two witnesses on the side of the management and 3 on the side of the Union the Tribunal directed reinstatement of the workers. The Tribunal pointed out that the management had not succeeded in showing that the workers concerned were only temporary workers whose services could be terminated at any time. After pointing out that the main case of the management was that these workers were trespassers and they were denied employment when they were refused to vacate the land trespassed upon, the tribunal points out that if there had been such a thing naturally the management would have taken steps to get them vacated. At least a complaint to the police is a natural outcome of a trespass like this. No copy of any complaint petition has been filed before the Tribunal. It is also not established that such a petition had been filed. When they were denied employment these employees were residing in the house constructed in the land in respect of which they had initiated steps to get jenm rights. The proceedings are even pending. The proper forum according to the Industrial Tribunal to consider whether they are trespassers or tenants entitled to get the Jenm rights is the Land Tribunal. Proceedings are pending there. Having waited for about 2 years with the petitions pending before the Tribunal the petitioner could have waited till the final orders are passed before they denied employment to the workers. The Tribunal further stated that when the proper authority is seized of the matter it will not be proper for the Tribunal to arrive at a finding whether they are trespassers or not. 6. In regard to the question whether there was a trespass which is a misconduct as contended by the management, the Tribunal points out that no standing orders are produced. The Tribunal then proceeds to state that "they are trespassers is also not proved. No show cause notice was given to the workers and no enquiry was conducted before they were dismissed. Hence the workers are entitled to be reinstated with back wages. There is the proceedings before the Land Tribunal, and if it is ultimately found that these workers are trespassers, the Management if empowered to do so, can take action against the workers." 7. In attacking this award what was vehemently contended for by Mr. Hence the workers are entitled to be reinstated with back wages. There is the proceedings before the Land Tribunal, and if it is ultimately found that these workers are trespassers, the Management if empowered to do so, can take action against the workers." 7. In attacking this award what was vehemently contended for by Mr. Ramakrishnan counsel for the petitioner were, (1) the Industrial Tribunal should have decided in the proceedings before it whether the workers concerned had trespassed into the property; (2) If there had been such trespass certainly it will amount to misconduct under common law and (3) Though there has been no domestic enquiry into the matter, on the basis of the evidence before it the Tribunal could have taken a decision on these points and on the basis of the finding taken a final decision whether the workers should be reinstated or not. According to Sri Ramakrishnan in refusing to decide the question whether the workers concerned had trespassed into the land, it has really abdicated its function in the matter of adjudication of the dispute. 8. The law the point of the Industrial Tribunal's power in such adjudication proceedings apart from the statutory provisions has been made clear by the decision of the Supreme Court in workmen of F.T. v. The management AIR 1973 SC 1227 . The following principles governed the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge before the introduction of S.11A of the Industrial Disputes Act (shortly stated the Act) (I am enumerating the principles as laid down by the Supreme Court in AIR 1973 SC 1227 ). "(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the standing orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightway, without anything more direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an. employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interferred with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workmen be reinstated or paid compensation is, as held by this court in the Management of Panitole Tea Estate v. The workmen ( AIR 1971 SC 2171 ) within the judicial decision of a labour court or Tribunal." 9. The aforesaid decision also has considered how far these principles would be applicable after the introduction of S.11A. The court has considered whether this section has made any changes in the legal position and if so to what extent. There two extreme contentions were raised on behalf of the workmen and the management respectively. According to the workmen the entire law has been completely altered by the introduction of this section; whereas according to the employers a very minor change has been effected giving power to the Tribunal only to alter the punishment after having held that the misconduct is proved. 10. The supreme court first considered cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with the finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by the supreme court in AIR 1958 SC 130 existed. 10. The supreme court first considered cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with the finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by the supreme court in AIR 1958 SC 130 existed. As per that decision the conduct of disciplinary proceeding and the punishment to be imposed were all considered to be a managerial function which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an interference of victimisation or unfair labour practice. The Supreme Court points out that this position has now been changed by S.11A. 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 the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in AIR 1958 SC 130 can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter. If there has been no enquiry held by the employer or if the enquiry is held to be defective, it is open to the employer even now to adduce evidence for the first time before the Tribunal justifying the order of discharge or dismissal. 11. The court pointed out that the right in the management to sustain its order by adducing independent evidence before the Tribunal, if no enquiry has been held or if the enquiry is held to be defective, has been given judicial recognition over a long period of years. Even after S.11A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer. Even after S.11A, the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer. Therefore both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time the satisfaction under S.11A about the guilt or otherwise of the workman concerned, is that of the tribunal. It has to consider the evidence and come to a conclusion one way on other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved. Nevertheless it may be of the opinion that the order passed by the management is not justified. The Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can award to the workman only lesser punishment instead. 12. When we look into the question in the present case it cannot be said that the Tribunal had not given any opportunity to the employer to adduce evidence before it in regard to the alleged misconduct of the workers. It might be noted that in a case where domestic enquiry had also been conducted as per the decision of the Supreme Court, the Industrial Tribunal will have first to consider the question whether the enquiry was proper. If the enquiry was proper no further question would arise except the consideration by the Tribunal as to how far the findings are justified by the evidence taken at the enquiry. But if the enquiry was not proper, it is open to the employer to request the Tribunal to give him an opportunity to adduce evidence before the Tribunal itself for proving the misconduct. That is why in certain cases it has been held that the question of the validity of the domestic enquiry should be considered as a preliminary point. That has been so held in Cooper Engineering Ltd. v. Mundhe 1975 (2) LLJ 379 . That is why in certain cases it has been held that the question of the validity of the domestic enquiry should be considered as a preliminary point. That has been so held in Cooper Engineering Ltd. v. Mundhe 1975 (2) LLJ 379 . There the question was also considered whether, when a domestic enquiry conducted by the employer, is found by the labour Court to be defective, is any duty cast upon the labour court to give an opportunity to the employer to adduce evidence before it and whether failure to do so will vitiate the award. The court said that: "When a case of dismissal or discharge of an employee is referred for adjudication, the labour court must first decide, as a preliminary issue, whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or when defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties, that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the Management to decide whether it will adduce any evidence before the Labour Court. If it choses not to adduce any evidence, it will not be thereafter permissible in any proceedings to raise this issue." 13. The court said that it has to be made clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. Here in this case there is no contention that the petitioner had not been allowed to adduce sufficient evidence before the Industrial Tribunal. What is contended before me is that the Industrial Tribunal did not take any decision on the question whether the workers concerned had trespassed into the land and in not taking the decision the dispute has not really been properly answered by the Tribunal. 14. I think the scope of the Industrial Tribunal's decision has been misunderstood by the learned counsel for the petitioner; In effect the Industrial Tribunal has really come to the conclusion that it has not been proved before it that the workmen are trespassers. 14. I think the scope of the Industrial Tribunal's decision has been misunderstood by the learned counsel for the petitioner; In effect the Industrial Tribunal has really come to the conclusion that it has not been proved before it that the workmen are trespassers. On that aspect the Tribunal refers to the fact that the alleged trespass took place a long time before the workers were denied employment. The workers had approached the Land Tribunal for getting the benefits under the Act and in the circumstances when already 2 years had elapsed after the alleged trespass and the final adjudication of the Land Tribunal is not yet over the denial of employment to the workers would not be proper or correct. Whether they are trespassers can be decided positively only by the Land Tribunal. 15. In this connection I might refer to a contention which the learned counsel for the petitioner strongly put forward, viz., that the Industrial Tribunal has really the jurisdiction to consider the question whether the workers concerned are trespassers into the land. Not only that it has got jurisdiction it is necessary that it should decide that question before the Industrial dispute could be answered. In this connection he referred to the decision of a division bench of this court in Central Government Production Centres Employees Association v. Industrial Tribunal, Madras ILR 1977 (2) Ker. 514. One of the issues that had been referred to the Industrial Tribunal in that case was with regard to the framing of service rules of certain employees in the Production Centres Employees' Association of the Production and Extension Centres under the Directorate of Production Centres, Ettumanur. The workmen concerned, were employees under the Government of India and the employer within the meaning of the Act was the Government of India. In regard to the conditions of service of the employees rules had been framed by the president under Art.309 of the Constitution. The Tribunal took the view that as these rules had laid down the conditions of service of the employees, it was no longer open to the Tribunal to go over the same ground and to proceed to lay down the conditions of service under its powers of adjudication. In that view the Tribunal recorded its conclusion on that issue. The Tribunal took the view that as these rules had laid down the conditions of service of the employees, it was no longer open to the Tribunal to go over the same ground and to proceed to lay down the conditions of service under its powers of adjudication. In that view the Tribunal recorded its conclusion on that issue. When the matter was taken upto the High Court against the decision of the Industrial Tribunal, a learned Judge of this court said that the Industrial Tribunal is invested with judicial power; its jurisdiction is judicial in character and it is bound to Act judicially. The learned judge then posed the question whether a judicial authority, can, like the executive, frame service rules regulating recruitment and conditions of service of Government Servants when the legislative authority had promulgated the relevant rules in that behalf under the proviso to Art.302. The learned judge was of the view that the Tribunal did not possess this power, and observed that although the jurisdiction and powers of the Industrial Tribunal are very wide, these would not justify its interfering with the contractual rights and obligations of employers and employees, nor extend to the exercise the residual regal functions of the State, of regulating the conditions of service of its servants whose rights and liabilities stem, not from contract, but from status. 16. With this conclusion of the Single Judge the Division Bench did not agree. The Bench pointed out that the Industrial Tribunal is a creature of statute and its powers and duties and the limits of its jurisdiction have to be sketched entirely with reference to the provisions of the statute. The definitions of S.2(a), 2(g), 2(j) and 2(s) and other provisions of the Act leave no doubt that a dispute between the Central Government and its employees may well form the subject matter of reference under S.10 and of adjudication under S.15 and 17 of the Act. It is clear that once a dispute is referred for adjudication there is a statutory duty and obligation on the Tribunal to adjudicate on the matter referred. The Tribunal was, therefore, wrong in having declined jurisdiction on the ground that a consideration and decision on the issues would land it into conflict with the rules framed under Art.309 of the Constitution. 17. The Tribunal was, therefore, wrong in having declined jurisdiction on the ground that a consideration and decision on the issues would land it into conflict with the rules framed under Art.309 of the Constitution. 17. But it might be noted that in that case one of the issues raised before the Tribunal was the framing of service rules of the employees concerned. The court said that that issue will have to be answered. Whether the Tribunal should have answered that question by only taking due account the rules under Art.309 of the Constitution or leave the question of reconciling the conditions of service laid down by it and the rules under Art.309 to be dealt with by the appropriate authorities or what should be the appropriate modes of relief to be given, the court did not answer. After referring to a decision of the Patna High Court in State v. Industrial Tribunal, Patna 1977 LB IC 803 the Division Bench said: "We do not propose to express our view at this stage, and it may not be proper to do so. If the Tribunal decides to accept Ext. R1 rules this aspect would not arise for consideration. If it does not accept the rules, it would be time enough to then consider its course of action". 18. As far as this case is concerned the question whether the workers concerned are trespassers or not is really not an issue as such referred to the Tribunal. What the Tribunal had to consider is (1) whether the employer had proved before it (as no domestic enquiry has been conducted) that the workers concerned are trespassers and (2) if they are trespassers whether such trespass committed by them would amount to misconduct rendering them liable for discharge from service. In considering the question whether the employer had proved that the workers had trespassed into the land, the Tribunal can certainly point out that, whether there had been real trespass or not can only be decided by the Land Tribunal before which the matter is already pending and in the absence of any final decision by the Tribunal it cannot be said that the Management has proved that these persons are trespassers. 19. 19. Another contention that has been raised by the petitioner is that if the petitioner is to reinstate the workers as directed by the Tribunal, the entire morale of the establishment would be lost and it will be a condonation of a grave misconduct and that will but be a premium on trespass. In regard to the question of loss of confidence in an employee the law on the point has been clearly put forth in L. Michael and another v. M/s Johnson Pumps India Ltd. 1975 (1) LLJ 262 . There the court held: "The law is simply this: The Tribunal has power and indeed the duty to xray the order and discover its true nature, if the object and effect, if the attendant circumstances and the ulterior purpose is to dismiss the employee because he is an evil to be eliminated. But if the management to cover up its inability to establish by an enquiry, illegitimately O. P. No. 3842 of 1976-G but ingeniously passes an innocent looking order of termination simpliciter, such action is bad and is liable to be set aside, Loss of confidence is no new armour for the management otherwise, security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this court can be subverted by this neoformula. Loss of confidence in the law will be the consequence of the loss of confidence doctrine". 20. The court said, it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set of facts and motivation. The court is concerned with the latter and not with the former, although circumstances may exist which justify a genuine exercise of the power of simple termination. 21. I do not think any error of jurisdiction has been committed by the Industrial Tribunal. I see no reason to interfere in the matter. The O.P. is dismissed; but without costs.