Yogeshwar Dayal, J. ( 1 ) C. W. No. 152 of 1973 and C. W. No. 860 of1973 are two cross-writ petitions against the Award dated 18th October,1972 passed by the Labour Court presided over by Shri B. B. L. Hajelay. The former is on behalf of the Management of M/s. May and Baker (1)Pvt. Ltd. , and the later is on behalf of Shri M. N. Kumar, the workmanconcerned. ( 2 ) BROADLY stating the facts are; that the Management had chargesheeted the workman for misconduct and a domestic enquiry was held inwhich workman was found guilty of misconduct alleged against him. Though after the misconduct was proved instead of dismissing him fromservice, they terminated his services by way of discharge simplicitor by tendering one month s wages in lieu of notice. ( 3 ) ON disputes having arisen the Delhi Administration made a reference dated 13/11/1966 to the Labour Court for determination ofthe following issue: "whether the termination of services of the workman is unlawful and illegal and if so, to what relief is the workman entitled?" ( 4 ) THE Labour Court by its order dated 31/05/1969 held that thedomestic enquiry was vitiated as principles of natural justice was not fullycomplied with and gave an opportunity to the Management to lead evidenceon merits of termination of services. Accordingly the Management ledevidence before the Labour Court by examining various witnesses and thereafter the impugned Award was given. ( 5 ) THE charges levelled against the workman were as follows :- "on 20/05/1966 in the morning at about 10 a. m. when Shriabdul Rafiq went to the water tap to bring water, you told Shriabdul Rafiq ABAY KYA DEKHTA HAI It appears that Shri Abdulrafiq abused you in filthy language-ABAI BHOSRIWALA-MERITARAF KYA DEKHTA HAI. On this you gave him a blow withyour fist with the result that the water glass from Shri Abdul Rafiq shands fell to the grounds and broke. When Shri Rafiq again went totake water both you and Shri Abdul Rafiq indulged in fighting on thepremises of the Company during working hours. The above allegations constitute acts subversive of discipline and are acts of grossmisconduct. " ( 6 ) THE defence of the workman was, inter alia, that the assault byshri Abdul Rafiq was at the instance of the officers of the Company. The above allegations constitute acts subversive of discipline and are acts of grossmisconduct. " ( 6 ) THE defence of the workman was, inter alia, that the assault byshri Abdul Rafiq was at the instance of the officers of the Company. However, this defence of the workman has been dis-believed by the Labourcourt in its Award, and at page 237 of the record it is observed asfollows:- ". . . . . . THERE are clearly circumstances on record which show thatthe assertion in claim statement that Shri Rafiq assaulted at the instance of employers is false and has been made just to strengthen Shrikumar s claim. . . . . . "at page 238 it is again observed as under :- ". . . . . . IF this was true and Shri Livangia or the Branch Manageror other Senior Officers were at the back of the incident as is nowsuggested then one could have found a mention of this fact in Mr. Kumar s representation to the management made in connection withthis incident. . . . . . " ( 7 ) AFTER discussing the evidence at great length the Labour Courtgave a finding at pages 240-241 as under :- ". . . . . . I will therefore, hold that the suggestion that the assaultwas made by Shri Abdul Rafiq at the instance of Shri Lavangia orother local senior officers of the company has absolutely no foundationand this stand has been taken by Shri Kumar only after his own andrafiq s termination of services. "again the further defence of the workman that he did not hit Rafiq at allhas been dis-believed and at page 253 the finding of the Tribunal is asunder: - ". . . . . . I will therefore, reject the defence version that Shri Kumardid not hit Shri Rafiq at all. I would on the other hand accept thestatement of P. W. s in so far as they say that they saw both Rafiq andkumar fighting with each other in office. Shri Kumar merely usedhis hands because nobody has suggested that he used any other articleduring the fight while on the other hand there is abundant evidenceon record to show that Rafiq used his hands, tray and glass in causingassault. Shri Kumar merely usedhis hands because nobody has suggested that he used any other articleduring the fight while on the other hand there is abundant evidenceon record to show that Rafiq used his hands, tray and glass in causingassault. It is further abundantly clear that Shri Rafiq gave provocation for this incident by addressing the vulgar abuse to Shri Kumarduring office hours in side the office where other employees were alsopresent. " ( 8 ) AFTER giving this finding of mis-conduct and distinguishing variouscases cited on behalf of the Management, at page 279 of the record thelabour Court thought it fit to exercise powers under Section 11-A of theindustrial Disputes Act to do justice between the parties by finding that thepunishment in question was unreasonable and directed reinstatement of theworkman with continuity of service but he should get only the basic salarywhich he had last drawn at the time of his discharge from service minusother allowances. The Management will be entitled to adjust the gratuityif already paid against the amount payable to the workman on account of hisback wages. The same will be the position in respect of notice period wagesif they have been received by the workman. So far as the Provident Fundor employees retirement fund is concerned it was directed that if the employee had withdrawn the same he should be required to redeposit it and itwill carry no interest for the period while it had remained with the employee. ( 9 ) MR. O. G. Mathur, learned counsel on behalf of the Management,submitted that in this case the reference was made to the Labour Court bynotification dated 12/12/1966 whereas Section 11-A of the Industrial Disputes Act came into operation with effect from 15/12/1971by an Amendment Act 45 of 1971. It was submitted that the law prior tothe introduction of Section I I-A was that the Labour Court could not interfere with the quantum of punishment but inference of victimization could bedrawn if no reasonable person could award that punishment. It was submitted that that was so held in the case of Hind Construction and Engineeringcompany Ltd. and Their Workmen 1965 (1) LLJ. 462 . I may mention atthe outset that the Labour Court has not found any case of victimizationwhatsoever. It was submitted that that was so held in the case of Hind Construction and Engineeringcompany Ltd. and Their Workmen 1965 (1) LLJ. 462 . I may mention atthe outset that the Labour Court has not found any case of victimizationwhatsoever. In the aforesaid case of Hind Construction it was observedby Hidayatullah,j. as under :- "it is now well settled that the Industrial Tribunal is not to examine the finding or the quantum of punishment because the wholeof the dispute is not really open before the Tribunal as it is ordinarilybefore a Court of appeal. The industrial tribunal can only interfereif the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The tribunalmay in a strong case interfere with a basic error on a point of fact ora perverse finding, but it cannot substitute its own appraisal of theevidence for that of the officer conducting the domestic enquirythough it may interfere with the principles of natural justice or fairplay have not been followed or where the enquiry is so perverted inits procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconductunder the standing orders, if any, is a matter for the managementto decide and if there is any justification for the punishment imposedthe tribunal should not interfere. The tribunal is not required to consider the propriety or adequacy of the punishment or whether it isexcessive or too severe. But where the punishment is shockinglydisproportionate regard being had to the particular conduct and thepast record or is such, as no reasonable employer would ever imposein like circumstances, the tribunal may treat the imposition of suchpunishment as itself showing victimization or unfair labour practice. " ( 10 ) THE question as to whether the industrial disputes referred for adjudication prior to coming into force of Section 11 (A) of the Industrial Disputesact and pending adjudication are to be disposed of by applying the provisionsof the said section or not came to be decided by the Supreme Court in the caseof The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Put) Ltd. andthe Management and others, 1973 (1) L. L. J. 278; Vaidialingam, J. afterexamining the provisions of the Industrial Disputes Act and what was theprior law and how Section 11a has changed the law observed, in paragraphs 62 at page 303, as under :- "we have already expressed our view regarding the interpretationof S. 11 A. We have held that the previous law, according to thedecisions of this Court, in cases where a proper domestic enquiry hadbeen held, was that the Tribunal had no jurisdiction to interfere withthe finding of misconduct except under certain circumstances. Theposition further was that the Tribunal had no jurisdiction to interferewith the punishment imposed by an employer both in cases where themisconduct is established in proper domestic enquiry as also in caseswhere the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the powers of thetribunals were recognised by this Court mainly on the basis that thepower to take disciplinary action and impose punishment was part ofthe managerial functions. That means that the law, as laid down bythis Court over a period of years, had recognised certain managerialrights in an employer. We have pointed out that this position hagnow been changed by S. 11a. The section has the effect of alteringthe law by abridging the rights of the employer inasmuch as it givespower to the Tribunal for the first time to differ both on a finding ofmisconduct arrived at by an employer as well as the punishment imposed by him. Hence in order to make the section applicable evento disputes, which had been referred prior to the coming into forceof the section, there should be such a clear, express and manifest indication in the section. There is no such express indication. Aninference that the section applied to proceedings, which are alreadypending, can also be gathered by necessary intendment. In the caseon hand, no such inference can be drawn as the indications are to thecontrary. We have already referred to the proviso to S. 11a whichstates "in any proceeding under this section". A proceeding under thesection can only be after the section has come into force. Further thesection itself was brought into force some time after the Amendmentact was passed. These circumstances as well as the scheme of thesection and particularly the wording of the proviso indicate thats. A proceeding under thesection can only be after the section has come into force. Further thesection itself was brought into force some time after the Amendmentact was passed. These circumstances as well as the scheme of thesection and particularly the wording of the proviso indicate thats. 11 A does not apply to disputes which had been referred prior to15-12-1971. The section applies only to disputes which are referredfor adjudication on or after 15-12-1971. To conclude, in our opinion,s. 11a has no application to disputes referred prior to 15-12-1971. Such disputes have to be dealt with according to the decisions of thiscourt already referred to". ( 11 ) IT will thus be noticed that in view of this pronouncement, thelabour Court could not have taken the help of Section 11a for interferingwith the punishment awarded by the Management. The Management hadinstead of dismissing the employee taken recourse to Clause 20 of the Servicerules by simply discharging the workman. ( 12 ) THIS view in the Firestone case was affirmed by Jaganmohanreddy, J. sitting in Division Bench in the case of The Gujarat Mineral Development Corporation and P. H. Brahmbhatt, 1974 (1) L. L. J. 97 at page 108 andit again came up for consideration before larger Bench in the case of Theeast India Hotels and Their Workmen and others, 1974 (1) L. L. J. 282. Jaganmohan Reddy, J. affirmed the view taken by Vaidialingam, J. in theaforesaid case of Fireftone. It was observed "that the complaint, enquiry,report and reference were all prior to the coming into operation of Section 11a of the Act i. e. 15/12/1971 and Section 11a has no retrospective operation".( 13 ) MR. Sanjiv Seth, learned counsel for Shri M. N. Kumar, theworkman, however, submitted that the real findings of the Labour Court isat pages 260, 262, 263 and 264. In this connection he drew my attention tothe finding of the Labour Court "that there is no evidence that Sh. Kumarhad uttered harsh words to Shri Rafiq", and on the other hand the furtherobservation of the Labour Court is "that it was the conduct-of Rafiq whichled to the unfortunate incident". Learned counsel also brought to mynotice the further observation of the Labour Court at pages 263-264 asunder:- "there is also suggestion that Kumar had made a complaint thatshri Rafiq was a Pakistani Spy though there is nothing to establishthis fact and Shri Kumar had denied it. Learned counsel also brought to mynotice the further observation of the Labour Court at pages 263-264 asunder:- "there is also suggestion that Kumar had made a complaint thatshri Rafiq was a Pakistani Spy though there is nothing to establishthis fact and Shri Kumar had denied it. In this setting there can belittle doubt that Shri Rafiq was actually responsible for the ugly incident which took place in the office on 20/05/1966. Shri Kumarcertainly fought with Sh. Rafiq in that ugly incident and so it cannotbe said that he was not a party to the disorderely incident of fightingwhich took place on that day but in the circumstances of the case hispart of the misconduct of 20/05/1966 was certainly much lesserthan the grave misconduct on the part of Shri Rafiq who gave provo-cation and started with day s ugly incident. The Management hasplaced both of them at par by discharging their services and in myopinion in the circumstances of this case the action of the managementin placing both of them at par and discharging Shri Kumar fromservice cannot be considered as justified. " ( 14 ) IT will be noticed that this discussion on the part of the Labourcourt is while distinguishing various cases cited on behalf of the Management to show that when there was misconduct, the Tribunal could notinterefere with the punishment awarded by the Management. The finding that the workman was guilty of misconduct had already been given by thelabour Court, as I have noticed earlier and the further discussions andfindings are in the light of recourse to the provisions of Section 11 A of theact. ( 15 ) THE Labour Court felt that the extent of injuries to Rafiq wasinconsequential and has also made certain observations while dealing withthe medical evidence led by the Nianagement. The management hadexamined Dr. V. P. Karnik, who was Medical Officer of the Managementcompany. He deposed that he had examined Abdul Rafiq in May, 1966and proved Exts. MW. 5/1 to MW. 5/4 having been received by him fromthe Company regarding examination of Abdul Rafiq and deposed that inthe second column of these memos the remarks are in his hand. It wasdeposed by him that in Exs. MW5/1 his remarks are "medicine as directed"and he made these remarks at 11. 30 A. M. and was made by him, the datenext to the incident. The incident was of 20/05/1966. He furtherdeposed that in Ext. It wasdeposed by him that in Exs. MW5/1 his remarks are "medicine as directed"and he made these remarks at 11. 30 A. M. and was made by him, the datenext to the incident. The incident was of 20/05/1966. He furtherdeposed that in Ext. MW5/2 his remarks are "i p. m. visited. Restrictedmovement at the bandage hand. Chest bandage with some indigenous medicine. Advised 2 days rest and report on 25th May for the examination". He further deposed that findings in the first column are also in his handwhich are "bed ridden and hand bandage with pain, chest bandage withpain, undergoing treatment at local bone setter. Inability to work". Healso deposed that he had visited his residence and then had made thesereports, and since Abdul Rafiq did not come on 25th May, he visited hisresidence and after examining him made the report Ext. MW5/3. He furtherdeposed that he found the condition of Abdul Rafiq same and remarked"chest pain tenderness, difficulty in breathing, hand swollen, swellingreduced advised to visit Hindu Rao Hospital for necessary investigation andtreatment and advised rest for 25th and 26th May". He further stated thatrafiq came to him on 3rd June and brought the discharge slip which showedthat he was admitted in the hospital on 25th and was discharged on 27thmay. He also noted his out patient ticket receipt. He further stated thatrafiq showed him the hospital slip and discharge slip etc. Ext. MW5/5 isthe medical certificate given by him about Abdul Rafiq. He further deposedthat he certified in this that Rafiq, who was referred to Hindu Rao Hospital,had pain injury as referred to in his certificate. ( 16 ) IN the claim statement there was no plea by the workman thatthere was any provocation for his beating Rafiq. Sh. A. K. Banerjee, Branchmanager of the Company, who appeared as MW-2 produced certain hospitalrecords of Irwin Hospital, Exts. MW2/17, MW2/18 and MW2/19. Mr. Banerjee also placed on record documents which had been filed by Rafiqsoon after the incident with the Management. All these documents showthat Rafiq was bed-ridden for number of days and was admitted in thehospital. However, at page 244 the Labour Court took the view "that sincerafiq himself has not appeared in the witness box his writings incriminatingsh. Kumar can hardly be relied upon as evidence against Shri M. N. Kumar. All these documents showthat Rafiq was bed-ridden for number of days and was admitted in thehospital. However, at page 244 the Labour Court took the view "that sincerafiq himself has not appeared in the witness box his writings incriminatingsh. Kumar can hardly be relied upon as evidence against Shri M. N. Kumar. Similarly, Shri Banerjee s statement can hardly establish the prescriptionor other injuries or treatment record which was never prepared in hispresence . ( 17 ) IT will be noticed that it is a highly technical approach by thetribunal who are not bound by the strict rule of evidence. The Labourcourts and other Administrative Tribunals are created so that they are notcircumscribed by the technical rules of evidence while appreciating evidence,otherwise there is no point in creating Tribunals if they are to be guidedby same Rules of evidence as of Civil Courts or Criminal Courts are tobe observed. These documents are produced by the Branch Manager onrafiq s having supplied to the Management much before the reference. For purposes of Labour Court they were good evidence and admissibleevidence. The Management had also examined Dr. B. K. . Vohra, who wasjunior Honorary Surgeon in the Hospital. He proved the discharge slipof 27/05/1966 He further deposed that after discharge the patient hadagain reported to him on 2/06/1966, and after seeing the dischargeslip and the patient he advised him the treatment as mentioned in hisreport Ex. MW8/1 and the prescription Ext. MW. 1/17. He further deposedthat Rafiq was directed to report again on 6th Juneas he had a fractureof proximal phelanx of the right little finger as noticed by him in thecolumn of Ext. MW. 8/1. " ( 18 ) THE injuries on the ribs and the finger show that Sh. Kumar,the workman, had used considerable violence. Even though the Labourcourt is right in finding that Rafiq is a person, who provoked him but thisdoes not mean that this type of free fight on which the Managementawarded the simple punishment of discharging him could be held tohave acted unreasonably or have been guilty of harsh treatment orvictimization. ( 19 ) IT is true that none of the Management witnesses could deposeabout witnessing the actual start of fighting hut the medical evidenceregarding injuries to Rafiq sufficiently speak of the part played by theworkman while assaulting the Rafiq. ( 19 ) IT is true that none of the Management witnesses could deposeabout witnessing the actual start of fighting hut the medical evidenceregarding injuries to Rafiq sufficiently speak of the part played by theworkman while assaulting the Rafiq. ( 20 ) THE Labour Court at page 247 of the Award observed "we arenot much concerned with the magnitudes of injuries so far as this case isconcerned, the only point to be considered is that whether the fight asalleged took place. The medical evidence specially that of Shri Karnikwould only establish that Shri Rafiq was in pain in chest and had when hewas examined the days following the day of occurrence. " ( 21 ) THE observations of the Labour Court regarding documentsproduced by Shri A. K. . Banerjee are: "that evidence cannot be strictlyof any help in this case because the Irwin Hospital doctors and recordsspeak of one Abdul Rafiq but there is absolutely nothing in the testimonyof those doctors which may properly connect Abdul Rafiq, employee ofmay and Baker with Rafiq about whom they are deposing". ( 22 ) TO say the least this part of the approach of Labour Court isperverse. The documents were contemporaneous. There was no allegationthat the Management was manufacturing evidence. These documentiwere used in the domestic enquiry. They were coming from proper custodyand there was no other Abdul Rafiq so far as the Management was concerned. There was no reason whatsoever to doubt the veracity of Shri A. B. Banerjee,a senior officer of the company,, who had produced them and they werecorroborated not only by the Doctor of the comany but also by the clerk ofthe Hospital. Rafiq, of course could not appear as a witness for themanagement as he had been dismissed. ( 23 ) EVEN at the cost of repetition the advantage of creating Domestictribunals as opposed to established Courts for deciding various disputeslike Industrial Disputes inter alia is that they are not bound by strict Rulesof evidence particularly relating to the mode of proof. ( 24 ) THE Management had treated both - Rafiq, who created theincident as well as Shri M. N. Kumar, who indulged and used force to theextent that Rafiq had to be hospitalised for the injuries on the ribs andfracture on the right little finger alike. ( 24 ) THE Management had treated both - Rafiq, who created theincident as well as Shri M. N. Kumar, who indulged and used force to theextent that Rafiq had to be hospitalised for the injuries on the ribs andfracture on the right little finger alike. ( 25 ) SINCE the entire approach of the Labour Court in interferingwith the punishment after finding the workman guilty of misconduct isbased on its taking recourse to Section 11 A of the Industrial Disputes Act,which had no application, I have no option but to set aside the award. ( 26 ) THE result is that the writ petition filed by the Management (G. W. No. 152 of 1973) is allowed and the impugned award of the Labourcourt dated 18/10/1972 in so far as it grants relief to Shri M. N. Kumar is set aside and the writ petition (G. W. No. 860 of 1973) filedby Shri M. N. Kumar, workman, is dismissed.