JUDGMENT: Gokulakrishnan, J.- These two appeals arise out of the Judgment of Sathiadev J., in Writ Petition No. 2384 of 1976. 2. Writ Petition No. 2384 of 1976 was filed by one P. Muthukrishnan to quash the award of the Industrial Tribunal, Madras, passed in I. D. No. 43 of 1974 dated 20th December, 1975. In I. D. No. 43 of 1974 the Industrial Tribunal took up for decision the reference made by the Central Government relating to the discharge of the said Muthukrishnan from the services of the State Bank of India. 3. The short facts are:-Muthukrishnan was served with a charge-memo, by the State Bank of India, Madras. There were as many as four charges against him. The first charge related to purchasing of cheques for large amounts from one V.J. Bhaskar Rao by the delinquent in his personal capacity while acting as the official in-charge of the Nungambakkam Pay Office. There were twenty such purchases during the years 1966 and 1967, and they were acts of gross misconduct falling under paragraph 521 (4) (j) and (1) of the Shastri Award read in conjunction with paragraph 18.28 of the Desai Award. The second charge was that Muthukrishnan, in collusion and conspiracy with V. J. Bhaskar Rao, permitted and enabled Bhaskar Rao unauthorisedly to encash cheques drawn by him on his account with the Madras local head-office without sufficient balance in his account to recover the drawings at the time of such encashments, and in pursuance of the said conspiracy, he deliberately delayed despatch of such cheques with remittance schedules for periods ranging from two to days with a view to afford time to V. J. Bhaskar Rao to replenish his account with sufficient funds to meet the cheques later when received at the local head office. The third charge related to the encashment of a cheque for Rs. 200 on 9th February, 1967, drawn by another on his personal account. The fourth charge was that he encashed on his personal account. The fourth charge was that he encashed on his personal account eight cheques for a total sum of Rs. 6,000 drawn by one C.P. Radhakrishnan and delayed despatch thereof for periods extending from two to four days with intention to afford unauthorised personal favour to the said Radhakrishnan and thus caused wrongful loss to the Bank. The fourth charge was that he encashed on his personal account eight cheques for a total sum of Rs. 6,000 drawn by one C.P. Radhakrishnan and delayed despatch thereof for periods extending from two to four days with intention to afford unauthorised personal favour to the said Radhakrishnan and thus caused wrongful loss to the Bank. These acts were gross misconduct falling under paragraph 521 (4) (j) of the Shastri Award read in conjunction with paragraph 18.28 of the Desai Award. Muthukrishnan, by his explanation marked as Exhibit M-4 denied all these allegations and said that he had not committed any act detrimental to the welfare of the Bank. By the order marked Exhibit M. 27 he was placed under suspension. In the enquiry conducted against him, the Enquiry Officer found charge Nos. 1, 2 and 4 proved and charge No. 3 not proved. On those findings, a notice under Exhibit M-8 was given to Muthukrishnan to show cause why the punishment of discharge from the Bank's service on payment of one month's salary and allowances in lieu of notice should not be imposed on him. Exhibit M.9 is the written explanation given by Muthukrishnan. The Staff Superintendent, who is the Disciplinary Authority, passed an order under Exhibit M.10 discharging Muthukrishnan from the Bank's service on payment of one month's salary and allowances in lieu of notice. Against this order of discharge passed by the Disciplinary Authority, Muthukrishnan preferred an appeal under Exhibit M-11. The appellate authority, viz., The Deputy Secretary and Treasurer of the State Bank of India, dismissed the appeal of Muthukrishnan on the ground that no point was made out to interfere with the findings of the Enquiry Officer. Upon representation by the party concerned, the Central Government referred the matter to the Industrial Tribunal, Madras. The Industrial Tribunal framed an issue to the effect: “Whether the action of the management of the State Bank of India, Madras in discharging Shri P. Muthukrishnan, from the services of the Bank with effect from the 14th April, 1969 is justified? If not, to what relief is the employee entitled?”. The Tribunal found that Muthukrishnan, in collusion with Bhaskar Rao, purposely delayed the despatch of cheques presented by Bhaskara Rao at the Nungambakkam Branch and thereby committed the offences with which he stood charged under charges Nos. 1, 2 and 4. If not, to what relief is the employee entitled?”. The Tribunal found that Muthukrishnan, in collusion with Bhaskar Rao, purposely delayed the despatch of cheques presented by Bhaskara Rao at the Nungambakkam Branch and thereby committed the offences with which he stood charged under charges Nos. 1, 2 and 4. The Tribunal also found that there were no extenuating circumstances to award a lesser punishment to the delinquent. Thus, the Tribunal upheld the action taken by the Management in discharging Muthukrishnan from service. As against this award of the Tribunal, Muthukrishnan filed W. P. No 2384 of 1976. 4. While disposing of W. P. No. 2384 of 1976, Sathiadev, J held on the question whether the authority who took the disciplinary proceeding against Muthukrishnan had no competence, that the Staff Superintendent is the competent authority to initiate the proceedings and rightly it has been done in the case of Muthukrishnan. On the second charge, the learned Judge found that since no gross negligence or serious loss to the Bank had been made out under that charge, it could not be said that Muthukrishnan is guilty of gross misconduct. Dealing with charge No. 4, also, the learned Judge found there was no gross misconduct on the part of Muthukrishnan. The learned Judge observed: “To read sub-paragraph (4) (j) of paragraph 521 of the Shastri Award to include all kinds of acts even though they may not be due to gross negligence or they may not result in serious loss to the Bank, would lead to a misreading of the classifications made in para.521 of gross misconduct and minor misconduct. The learned Judge further said: “Unless the act committed by an employee and which is found to be prejudicial to the interests of the bank stems out of a gross negligence or results in serious loss, such acts will be outside the ambit of para.521 (4) (j) of the Shastri Award.” According to the learned Judge, since the charges framed would not come within the ambit of paragraph 521 (4) (j) the matter would have to be remanded, and accordingly he remanded the matter to the Tribunal for the purpose of finding out as to under which category of ‘minor misconduct’ the acts committed by Muthukrishna would fall. It is as against this order of remand with certain observations, both Muthukrishnan and the Bank have filed the above appeals. 5. It is as against this order of remand with certain observations, both Muthukrishnan and the Bank have filed the above appeals. 5. Writ Appeal No. 524 of 1979 is by the Bank, while Writ Appeal No. 680 of 1979 is by Muthukrishnan. For purposes of convenience, the parties would be referred to in this judgment as the Bank of Muthukrishnan, as the case may be. 6. Mr. M.R. Narayanaswamy, learned counsel appearing for the Bank contended that when the delinquent has taken a plea that no misconduct has been committed by him, he must stand or fail on it and it is not open to the Court to find that only minor misconduct has been committed. The next contention was that when the Tribunal has recorded its finding regarding the fraudulent intention of the delinquent in encashing the cheques covered by the charges, the decision of the Tribunal cannot be reviewed in Writ Proceedings. The learned counsel further submitted that the interpretation to paragraph 521 (4) (j) and (1) of the ‘Shastri Award’ given by the learned Judgq is erroneous. Finally, the learned counsel submitted that inasmuch as the delinquent had not raised the plea of minor misconduct before the Industrial Tribunal, the Court has gone wrong in giving a decision to the effect that the offence committed is only a minor misconduct. Further the Court should not have directed the Tribunal to give a finding as to under which category of minor misconduct the offence would fall, but, instead, it should have remitted the matter to the Tribunal to find out whether the minor or major misconduct has been committed by the delinquent concerned. 7. Mr. Ramachandran, learned counsel appearing for Muthukrishnan contended that the conduct of the enquiry was vitiated since the Staff Superintendent had no authority to frame the charges against Muthukrishnan and that there was discrimination in awarding the punishment to Muthukrishnan Mr. Ramachandran fairly stated that these were the two points he would raise in the appeal filed by his client. As regards the contention of Mr. M. R. Narayanaswamy learned counsel appearing for the Bank Mr. Ramachandran said that when he pleads that the discharge from service itself is wrong, it cannot be taken that Muthukrishnan had not pleaded for lesser punishment. As regards the contention of Mr. M. R. Narayanaswamy learned counsel appearing for the Bank Mr. Ramachandran said that when he pleads that the discharge from service itself is wrong, it cannot be taken that Muthukrishnan had not pleaded for lesser punishment. The learned counsel pointed out to the stand taken by Muthukrishnan at various stages wherein he has asked for the imposition of a lesser punishment. In order to substantiate that it is only a minor misconduct on the part of Muthukrishnan, Mr. Ramachandran took us through various facts in this case as establishing that there was no fraud or collusien as between Muthukrishnan and others who have encashed the cheques in question. According to the learned counsel, the Bank has not proved, fraud on the part of Muthukrishnan in this case, and to this effect, Sathiadev, J., has given a finding Finally, the learned, counsel submitted that under section 11-A of the Industrial Disputes Act the Tribunal has ample power to impose a lesser punishment on the delinquent concerned. 8. It is clear from the statement of claim filed by Muthukrishnan that absolutely no objection was taken as regards the jurisdiction or competence of the Staff Superintendent in framing the charges. It is also significant to note that in the additional claim statement Muthukrishnan has taken the stand that the Staff Superintendent alone could take action and not the Manager before the Industrial Tribunal; an argument was advanced to the effect that the agent is not empowered to take disciplinary action and that the charge-sheet etc., were issued by him and he is not the Disciplinary Authority. As a matter of fact, the Tribunal has found that Exhibit M. 10 which is the order of discharge, was issued only by the Staff Superintendent who is the Disciplinary Authority, and that the domestic enquiry was conducted strictly in conformity with the provisions of the Shastri Award. As per paragraph 521 (12) of the Shastri Award the Bank should decide which officer shall be empowered to take disciplinary action in the case of each office or establishment, and it should also make provision for appeals against orders passed in disciplinary matters. As per paragraph 521 (12) on 23rd October, 1967, the Bank notified, T. Shanmugam as Enquiry Officer and V.S. Natarajan, Deputy Secretary and Treasurer of the Bank as the appellate authority. As per paragraph 521 (12) on 23rd October, 1967, the Bank notified, T. Shanmugam as Enquiry Officer and V.S. Natarajan, Deputy Secretary and Treasurer of the Bank as the appellate authority. From Exhibits M. 32 and M. 33, it is clear that it was that disciplinary authority who took disciplinary action and he instructed his subordinates to serve copies of the charge etc., on Muthukrishnan and obtain his explanation. Exhibit M-10 is the order of discharge and it clearly shows that it is only the Staff Superintendent, i. e., the disciplinary authority, who passed the order. Inasmuch as Muthukrishnan had not objected to the Staff Suprintendent being the disciplinary authority, in his objections before the Enquiry Officer and the Tribunal, and in view of the fact that such an irregularity, if any, does not affect the jurisdiction as such, we do not find there is any merit in the said contention of Mr. Ramachandran learned counsel appearing for Muthukrishnan. We are in agreement with the finding of the learned single Judge on this aspect of the case. 9. In this connection, it is useful to refer to the decision reported in Pradyat Kumar v. C.J. of Calcutta1, wherein the Supreme Court has recognised the delegation of power by the competent authority to another authority to enquire into the charges framed against a delinquent. No doubt, such a power is limited in nature, and as far as the present case is concerned, only such limited delegation is made by the Staff Superintendent (Disciplinary Authority) as we have noticed in the foregoing paragraphs. 10. In Workmen of Indian Overseas Bank v. Indian Overseas Bank2, the Delhi High Court has held, following the ruling in State of M. P. and others v. Bhardul Singh3, that it is not necessary for the authority which is to pass the order of dismissal to initiate the enquiry itself, that even if the charge-sheets were issued by some other person who is not the designated authority, the same is not such an infirmity as to render the whole proceeding illegal and void and that if the workman had not objected to the issue of the charge-sheet by another person at the earliest stage, he could not be permitted to urge the same as a ground to challenge the ultimate order of his dismissal by the Disciplinary Authority. The above ratio of the Supreme Court followed in the above referred Delhi decision, in our opinion, will squarely apply to the present case. 11. The next question we have to consider is one of discrimination alleged by Mr. Ramachandran, learned counsel for Muthukrishnan. It is stated that in the case of one K.P. Ramachandran who, admitted the guilt, he has not been discharged from service, while, Muthukrishnan has been discharged from service for the very same misconduct alleged against him. The Tribunal has discussed this aspect clearly. K.P. Ramachandran was encashing his own cheques, while Muthukrishnan was purchasing cheques of his close friend who was working in the local Head-Office of the State Bank of India and helping him to replenish the amounts while he had no funds in the local Head-Office in his account. Further, it is seen that K.P. Ramachandran admitted his guilt which related to four instances, while in the case of Muthukrishnan there were 21 instances of purchase of cheques by him to accommodate his friend Bhaskara Rao. Besides there were also other instances of purchasing cheques by Muthukrishnan from others. All these factors, in our opinion, definitely demolish the contention of discrimination put forth by Mr. Ramachandran, learned counsel appearing for Muthukrishnan. We do not find any substance in the argument on this aspect, and we are in agreement with the learned Judge in his finding on the question of discrimination. 12. Finally, we have to consider the contention of Mr. M.R. Narayanaswamy regarding the remand made by the learned Judge in order to find as to what kind of minor misconduct that has been committed by Muthukrishnan. We have already noticed in the paragraphs supra, the contention of the learned counsel on this aspect. Before dealing with this contention it will be useful to refer to the affidavit filed by Muthukrishnan in I.D. No. 43 of 1974 wherein he has prayed for the reception of certain documents by the Industrial Tribunal. In that affidavit, dated 5th November, 1975, Muthukrishnan has stated that in view of section 11-A of the Industrial Disputes Act, the Tribunal has wide powers to interfere even in the matter of punishment. The Industrial Tribunal in its Award has stated that Mr. N.G.R. Prasad arguing for Muthukrishnan submitted that the punishment of discharge from service was excessive and that the Tribunal could award some lesser punishment instead. The Industrial Tribunal in its Award has stated that Mr. N.G.R. Prasad arguing for Muthukrishnan submitted that the punishment of discharge from service was excessive and that the Tribunal could award some lesser punishment instead. These were the representations before the Tribunal for awarding a lesser punishment of Muthukrishnan. 13. In the light of the above materials, we can now usefully refer to the decision reported in Gujarat Steel Tubes Limited v. G.S.T. Mazdoor Sabha1, wherein the Supreme Court has considered the powers of the High Court and the Tribunal for awarding lesser punishment in proceedings under the Industrial Disputes Act. The Supreme Court has approved the observation of the Gujarat High Court in Navinchandra Shakerchand Shah v. Ahmedabad Co-op. Department Stores Limited2, to the effect that the amended Article 226 of the Constitution would enable the High Court to interfere with an award of the Industrial Adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. Continuing, the Supreme Court has observed: “102. This long excursion has become important because, once in a while social legislation which requires sharing of social philosophy between the Parliament and the Judiciary meets with its Waterloo in the higher Courts because the true role of interpretation shifts from Judge to Judge. We are clearly of the view that statutory construction which fulfils the mandate of the statute must find favour with the Judges, except where the words and the context rebel against such flexibility. We would prefer to be liberal rather than lexical when reading the meaning of industrial legislation in the growing economy of India. The necessary conclusion from this discussion is that the expression” tribunal “ includes, in the statutory setting, an Arbitrator also. Contemporaneous paralegislative material may legitimately be consulted when a word of wider import and of marginal obscurity needs to be interpreted. So viewed, we are not in a sound-proof system and the I.L.O. recommendation accepted by India and the objects and reasons of the amending Act leave no doubt about the sense, policy and purpose. Therefore, section 11-A applies to the Arbitrator in the present case and he has the power to examine whether the punishment imposed in the instant case is excessive. Therefore, section 11-A applies to the Arbitrator in the present case and he has the power to examine whether the punishment imposed in the instant case is excessive. So has the High Court, if the award suffers from a fundamental flaw. “103. A study of the lengthy award discloses no mention of section 11-A, and presumably, the authority was unmindful of that provision while rendering the verdict. In a limited sense, even prior to section 11-A, there was jurisdiction for a Labour Tribunal, including an Arbitrator, to go into the punitive aspect of the Management's order. This Court has, in a catena of cases, held that a mala fide punishment if grotesquely condign or perversely harsh or glaringly discriminatory an easy inference of bad faith, unfair labour practice or victimisation arises. The wider power to examine or prescribe the correct punishment belongs to the Tribunal/ Arbitrator even under section 11 if no enquiry (or a defective enquiry which is bad, therefore can be equated with a no-enquiry situation) has been held by the management For, then there is no extant order of guilt or punishment and the Tribunal determines it afresh. In such a virgin situation both culpability and qualification of punishment are within the jurisdiction of the Tribunal/Arbitrator. The present is such a case. “105. Lastly, as rightly urged by counsel for the Sabha, an Arbitrator has all the the powers the terms of reference, to which both sides, are party, confer, Here, admittedly, the reference is very widely worded and includes the nature of the punishment. The law and the facts do not call for a further elaboration and we hold that, in any view, the Arbitrator had the authority to investigate into the propriety of the discharge and the veractity of the misconduct. Even if section 11 -A is not applicable, an Arbitrator under section 10-A is bound to act in the spirit of the legislation under which he is to function. Even if section 11 -A is not applicable, an Arbitrator under section 10-A is bound to act in the spirit of the legislation under which he is to function. Commercial Arbitrator who derives his jurisdiction from the terms of reference will by necessary implication, be bound to decide according to law and, when one says” according to law”, it only means existing law and the law laid down by the Supreme Court being the law of the land, an Aribitrator under section 10-A will have to decide keeping in view the spirit of section 11-A (see Union of India v. Bungo Steel Furniture Private Limited1.) 14. The question of fraudulent intention on the part of Muthukrishnan was discussed by the learned Judge in detail. No doubt, the Industrial Tribunal has held that there was fraudulent intention on the part of Muthukrishnan and that is why he delayed the despatch of cheques of Bhaskar Rao in order to benefiit Bhaskar Rao and to give time to him to replenish the amounts in the interval. The Tribunal has also held that if all the items mentioned in the Annexure to Exhibit M-3, are compared with Exhibit M-19, the fraud is apparent. The learned single Judge discussed the question of fraud in relation to the negligence of Muthukrishnan and loss to the Bank and has held there was no gross misconduct on the part of Muthukrishnan or serious loss to the Bank. There-fore, the learned Judge found that presumption as regards fraud from the attendant circumstances of the case cannot be sustained. We are in complete agreement with the said finding of the learned Judge. 15. We have, in the paragraphs supra, considered the effect of Muthukrishnan pleading for a lesser punishment. He has also prayed for invoking the provisions of section 11 -Aof the Industrial Disputes Act for awarding a lesser punishment. In the decision reported in Gujarat Steel Tubes Limited v. G.S.T. Mazdoor Sabha2, observations from which we have extracted already, the Supreme Court has held that in a limited sense, even prior to section 11-A there was jurisdiction for a Labour Tribunal, including an Arbitrator, to go into the punitive aspect of the Management's order. In the decision reported in Gujarat Steel Tubes Limited v. G.S.T. Mazdoor Sabha2, observations from which we have extracted already, the Supreme Court has held that in a limited sense, even prior to section 11-A there was jurisdiction for a Labour Tribunal, including an Arbitrator, to go into the punitive aspect of the Management's order. section 11-A of the Industrial Disputes Act states:— “Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Provided that in any proceeding under this section the Labour Court, Tribunal or National 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. 16. section 10-A (4) states that the arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. 17. Construing section 10 -A, the Supreme Court, in the Gujarat Steel Tubes Limited case1, has stated that even if section 11 -A is not applicable, an arbitrator under section 10-A is bound to act in the spirit of the legislation under which he is to function. 18. In this case, the reference under the Industrial Disputes Act was made to the Tribunal on 15th November, 1976 and much earlier to the said date, section 11 -Ahas been introduced into the Act. Hence section 11 -Ais available to the party in this case. If this position is indisputable the Tribunal has ample power to award a lesser punishment in lieu of discharge or dismissal from service as the circumstances of the case may require. 19. Hence section 11 -Ais available to the party in this case. If this position is indisputable the Tribunal has ample power to award a lesser punishment in lieu of discharge or dismissal from service as the circumstances of the case may require. 19. Paragraph 521 (3) of the Shastry Award states that if after steps have been taken to prosecute an employee, or to get him prosecuted, for an offence he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of gross misconduct or of minor misconduct as defined in the succeeding sub-paragraph; provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution; it shall be open to the management to proceed against the employee under the provisions set out in sub-paragraphs (9) and (10) relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. 20. Paragraph 521 (4) enumerates what all constitutes gross misconduct. The charge made against Muthukrishnan is one under Paragraph 521 (4) (j) and (1). Paragraph 521 (4) (j) states “doing any act prejudicial to the interests of the bank, or gross negligence or negligence involving or likely to involve the bank in serious less” Sub-para. (4) (1) states abetment or instigation of any of the acts or omissions abovementioned” 21. Paragraph 521 (5) provides for punishment if the employee is found guilty of gross misconduct. 22. Paragraph 521 (6) enumerates acts of minor misconduct. 23. Paragraph 521 (7) provides for punishment for minor misconduct. 24. We have already seen that the Tribunal has power to consider a lesser punishment and has ample power to bring the offence under any category envisaged in Paragraph 521 of the Shastry Award. Undoubtedly, such power is available to the High Court while dealing with such cases under Article 226 of the Constitution. The basis of the accusation is misconduct. Paragraph 521 (4), as already seen, deals with gross misconduct and Paragraph 521 (6) deals with minor misconduct. Undoubtedly, such power is available to the High Court while dealing with such cases under Article 226 of the Constitution. The basis of the accusation is misconduct. Paragraph 521 (4), as already seen, deals with gross misconduct and Paragraph 521 (6) deals with minor misconduct. The discussion made by the learned single Judge is based upon the acts of commission and omission done by Muthukrishnan, which acts of commission and omission are borne out by the evidence on record”. After proper discussion, the learned Judge held that the acts committed by Muthukrishnan would come only under the category of ‘minor misconduct’ and therefore he has set aside the award of the Tribunal and remitted the matter to the Tribunal to find out as to what kind of ‘minor misconduct’ Muthukrishnan is liable for. We have already noticed that the Tribunal and the High Court have ample power to bring the offence committed by Muthukrishnan under the proper provision of law, even though he had been charged for a serious offence. This power is derived both from section 11 -A of the Industrial Disputes Act and also under the law as it existed prior to the introduction of section 11 -Ainto the Act. When such power is there and when it is seen that relevant matters have been taken into account by the learned single Judge to bring the acts of Muthukrishnan within the scope of minor misconduct, we cannot interfere in this writ appeal with such a conclusion arrived at by the learned Judge. 25. From the foregoing discussion, we do not find any merits in both the writ appeals, and accordingly, both the writ appeals are dismissed. There will be no order as to costs. 26. The Tribunal is directed the expedite the matter as speedily as possible, since the show cause notice issued by the management to the appellant. Muthukrishnan dates back to 23rd August, 1967, and the reference of the dispute by the Government to the Tribunal to 15th November, 1976. R. S. ----- Appeals dismissed.