JUDGMENT Srinivasan, J. 1. This writ petition is directed against the award of the Labour Court, Coimbatore made in I.D. No. 96 of 1981 by which the non-employment of two workers was held to by unjustified. The award directed reinstatement of the workers with backwages in accordance with law. 2. The charge against the two workmen viz. Shanmugam and Albert Leo was that, while working in the factory in the day-shift on 28-6-1980, they removed the fuse wire in the fuse carrier of the main O.C.B., when electricity was being supplied from the generator. According to the management/petitioner, when the third shift started current was available from the main grid and due to absence of fuse wires, there was no supply of electricity from the grid to the factory, with the result that the factory could not be run for quite some time. The Electrical Supervisor checked all the electrical installations and found that the fuse wire was missing, which caused the dislocation of work in the factory. On the basis of that charge an enquiry, was held, after an explanation was called from the two workers. The two workers denied the charges. In the domestic enquiry it was found that the two workmen was guilty of the charges and they were dismissed from service from 17-11-1980. 3. When the matter was referred to the Labour Court, no fresh evidence was let in. The Labour Court found that the evidence recorded in the domestic enquiry did not warrant the finding given by the Enquiry Officer that the two workmen were guilty of the charges and that the order of dismissal was not justified. Consequently, the Labour Court directed re-instatement as stated earlier. 4. The main complaint in this Writ Petition is that the Management was not given an opportunity to let in evidence before the Labour Court, as the Management had been insisting upon the preliminary point as to the validity of the domestic enquiry being decided in the first instance by the Labour Court. An affidavit has been filed by the Industrial Relations Officer (Law) of South India Mills Association, Coimbatore, to the effect that he conducted the case on behalf of the Management before the Labour Court and that he raised a preliminary point stating that the validity of the domestic, enquiry must be decided first, before arguments on merits could be advanced. An affidavit has been filed by the Industrial Relations Officer (Law) of South India Mills Association, Coimbatore, to the effect that he conducted the case on behalf of the Management before the Labour Court and that he raised a preliminary point stating that the validity of the domestic, enquiry must be decided first, before arguments on merits could be advanced. According to the said affidavit, the other side also addressed its arguments only on the validity of the domestic enquiry, and a list of authorities was also cited only relating to the preliminary point. It is further stated that he did not advance any arguments on the merits of the case, as it was not taken up for hearing on merits by the Labour Court. In the affidavit filed by the Director of the Mills, the same position was reiterated and it was stated that various documents were filed before the Labour court, only in respect of the preliminary issue which was raised, and no oral evidence was let in by both the parties because the issue that was tried was only with reference to the validity of the domestic enquiry. Hence, the first complaint made by the writ petitioner is that the Labour Court having heard arguments on the preliminary point, erred in disposing of the case on merits and passing an award on that basis, without giving any liberty to the management to let in evidence to sustain the order of dismissal. 5. Learned Counsel for the petitioner drew our attention to the counter statement filed by the Management before the Labour Court, wherein, in Paragraph 31, the following plea is raised: The respondent management submits the validity of the enquiry proceedings and findings may be tried as preliminary issue along with other preliminary issues raised by the management in the earlier part of the counter statement before going into the merits of the case. 6. In the counter filed by the second respondent in this writ petition, the claim of the - management that arguments before the Labour Court were confined to the preliminary issue was disputed. It was stated that the Management did not file any application separately requesting the Labour Court to try the issue as a preliminary issue and even at the argument stage it never contended like that. It was stated that the Management did not file any application separately requesting the Labour Court to try the issue as a preliminary issue and even at the argument stage it never contended like that. It was further stated that the counsel who appeared for the second respondent herein argued the case on merits including Section 11-A of the Industrial Disputes Act and the representative of the management consented for marking the documents and arguing the case on merits. 7. Thus, there is a dispute as to what exactly happened before the Labour Court and whether the arguments before the Labour Court were confined to the preliminary issue or whether the parties argued on the merits of the case also. 8. A perusal of the award passed by the Labour Court shows that it does not refer to the request alleged to have been made by the Management for deciding the preliminary issue in the first instance and taking up the case on merits later, after giving a decision on the preliminary issue. The award proceeds as if the entire matter was argued at one stretch and the Labour Court decided the case on merits. There is no indication in the award that any request was made on behalf of the writ petitioner that the preliminary issue should be decided in the first instance. A perusal of the list of exhibits also shows that documents relating to the merits of the claim were also filed before the Labour Court and they were not cow-fined to the preliminary issue. Hence, in the face of contesting claims, we decide that arguments before the Labour Court were not confined to the preliminary issue, but related to the merits also and that was the reason why the Labour Court decided the case on merits. We reject the contention put forward on behalf of the Writ Petitioner that no opportunity was given to the Management to let in evidence before the Labour Court, as we find from the list of exhibits that sufficient opportunity had been given and on number of documents had been filed on both sides before the Labour Court. 9. We reject the contention put forward on behalf of the Writ Petitioner that no opportunity was given to the Management to let in evidence before the Labour Court, as we find from the list of exhibits that sufficient opportunity had been given and on number of documents had been filed on both sides before the Labour Court. 9. It is also pointed out by learned Counsel for second respondent that in the counter statement filed before the Labour Court by the management, there was no plea on behalf of the management that they would let in additional evidence before the Labour Court, in the event of the preliminary issue being held against them. According to him it is necessary to state that in the counter even in the first instance, that the Management is desirous of letting in additional evidence before Labour Court in S.S.N. Goyal v. Bank of Baroda and Ors. (1983)2 L.L.J. 415 wherein the law has been stated thus: The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence is support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workmen in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do. No doubt, even before the judgment of the Supreme Court was delivered in that case, the award in the instant case had been passed by the Labour Court, the Labour Court did not have the benefit of the pronouncement of the Supreme Court at that time. Hence, learned Counsel for the petitioner contends that at the time when the enquiry was held by the Labour Court, the law was as laid down by the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe (1975)2 L.LJ. 379 , wherein it was observed that when a case of dismissal or discharge of an employee was referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry is violative of the principle of natural justice and, on that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. Learned Counsel for the petitioner submits that the point of time at which the management has to decide whether any additional evidence should be adduced before the Labour Court arises only after the decision on the preliminary issue is given by the Labour Court. But the Supreme Court also made it clear in the very name judgment that, if the Management chooses not to adduce any evidence, it will not be thereafter permissible in any proceedings to raise that issue and that there will be no justification for any party to stall the final adjudication of the disputes by the Labour Court. In this instant case, as we have taken the view that the Management choose to argue on the merits as well as the preliminary issue together at one stretch, it is not necessary for us to consider whether the Management ought to have pleaded in the counter statement itself that opportunity should be given to adduce additional evidence. Whatever evidence was available on the merits, had been produced by the Management in the enquiry. 10. Whatever evidence was available on the merits, had been produced by the Management in the enquiry. 10. It is then contended by the learned Counsel for the writ petitioner that, when the finding of the Labour Court is that the Enquiry Officer's finding is perverse, the Management is entitled to let in additional evidence and an Opportunity should have been given to the Management there for. We do not find any finding in the award of the Labour Court that the Enquiry Officer's finding in the domestic enquiry is perverse. All that the Labour Court observed was that the evidence adduced in the domestic enquiry does not make out the alleged guilt of the workers and that the finding thereof by the Enquiry Officer is not supported by the evidence on record; That would not mean, the finding of the Enquiry Officer is held to be perverse. 11. After the introduction of Section 11-A in the Industrial Disputes Act, the Labour Court of Tribunal functions like an Appellate Authority and it is entitled to appreciate the evidence and come to a different conclusion, if neccessary. Hence, the fact that the Labour Court has come to a conclusion, different from that of the Enquiry Officer does not mean that the Enquiry Officer's finding has been held to be perverse. 12. Learned Counsel for the writ petitioner produced before us an unreported Judgment of a Division Bench of this Court in India Forge and Drop Statnping Ltd. v. The Presiding Officer, Addl. Labour Court, Madras and Anr.(Writ Appeal No. 35 of 1978, dated 26.9.1984) in which a view was taken that if the finding in the domestic enquiry is held to be perverse, the Management is entitled to let in evidence. The Division Bench placed reliance on certain observations made by the Supreme Court in Ritz Theatre v. Its Workmen (1962)2 L.L.J. 498 and stated that the Law had not changed after the introduction of Section 11-A in the Industrial Disputes Act. It also extracted some passages from the judgment of the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management (1973)1 L.LJ. 278 . It also extracted some passages from the judgment of the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management (1973)1 L.LJ. 278 . It is not necessary for us to consider whether the dictum of the Division Bench is correct or not, as we are of opinion that the decision will not apply to the facts of the case, since there is no finding in this case that the Enquiry Officer's finding in the domestic enquiry is perverse. 13. In The Management of Sundaram Motors v. The Presiding Officer, II Additional Labour Court, Madras and Ors. (1987)2 L.L.J. 47 It was argued before Sathiadev, J. that if the word 'perverse' is used by the Labour Court in its award, it has a legal connotation and the whole issue will be at large before the Tribunal, which will give rise to the Labour Court giving an opportunity to the Management to let in additional evidence at that stage. In that case, the learned Judge held that the Labour Court did not give a finding that the finding of the Enquiry Officer was perverse and that the argument advanced by the management was not available to it. The learned Judge also held that there could be no third stage of hearing by the Labour Court after rendering a finding of perversity, alleged to have been committed by the Enquiry Officer. The learned Judge pointed out that there could be only two stages of enquiry; one consisting of preliminary issue as to the validity of the domestic enquiry and the second with regard to the merits of the case. The Learned Judge has rightly pointed out that there cannot be a third stage, after the Labour Court arrives at the conclusion that the finding of the Enquiry Officer in the domestic enquiry is perverse. In this case, there is no finding by the Labour Court that the Enquiry Officer's finding is perverse. Hence, it is not necessary to dwell at length on this aspect of the matter. 14. However, it will be useful it extract the following passages from the judgment of the Supreme Court in Workmen of firestone Tyre and Rubber Co. v. Management (1973) 1 L.L.J. 278 A.I.R. 1973 S.C. 1227. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. 14. However, it will be useful it extract the following passages from the judgment of the Supreme Court in Workmen of firestone Tyre and Rubber Co. v. Management (1973) 1 L.L.J. 278 A.I.R. 1973 S.C. 1227. We will first consider 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 its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron and Steel Co. Ltd., 1958 S.C.R. 667: A.I.R. 1958 S.C. 150 existed. 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 inference of victimization or unfair labour practice. This position in our view, has now been changed by Section 11-A. The words "in the course of the adjudication proceeding, the Tribunal in Satisfied that the order or discharge or dismissal was not justified a clearly indicated that the Tribunal is not clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. 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 India Iron and Steel Co. Ltd., 1958 S.C.R. 667: A.I.R. 1958 S.C. 130 case can no longer be invoked by an employer. The Tribunal is now at liberty is 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. All parties are agreed that even after Section 11-A the employer and employee can adduce evidence regarding the legality or validity of the domestic enquiry, if one had been held by an employer. All parties are agreed that even after Section 11-A 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, it will be seen that both in respect of cases where a domestic enquiry has been held and also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A 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 or 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. We will now pass on to consider the proviso to Section 11-A. Mr.Deshmukh relied on the terms of the proviso in support of his contention that is now obligatory to hold a proper domestic enquiry and the Tribunal can only take into account the materials placed at that enquiry. The counsel emphasised that the proviso places an obligation on the Tribunal 'to rely only on the materials on record' and it also prohibits the Tribunal from taking' any fresh evidence in relation to the matter.' According to him, the expression materials on record' refers to the materials available before the management at the domestic enquiry and the expression fresh evidence' refers to the evidence that was being adduced by an employer for the first time before the Tribunal. From the wording of the Proviso, he wants to infer that the right of an employer to adduce evidence for the first time has been taken away, as the Tribunal is obliged to confine its scrutiny only to the materials available at the domestic enquiry. We are not inclined to accept the above contention of Mr. Deshmukh. The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. The expression materials on record" occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record in the Proviso must be held to refer to materials on record before the Tribunal. The expression materials on record" occurring in the Proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the 'materials on record in the Proviso must be held to refer to materials on record before the Tribunal. They take in- (1) The evidence taken by the management at the enquiry and the proceedings of the enquiry, or (2) The above evidence and in addition any further evidence led before the Tribunal, or (3)evidence placed before the Tribunal for the fist time in support of the action taken by an employer as well as the evidence adduced by the workmen contra. The above items by and large should be considered to be the 'materials on record' as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confers the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for the altering the punishment. From the Proviso it is not certainly possible to come to the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to made by the Tribunal. Nor does it follow the proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression fresh evidence' has to be read in the context in which it appears namely, as distinguished from the expression 'materials on record'. If so read, the Proviso does not present any difficulty at all." "The legislature in Section 11-A has made a departure in certain respects in the law as laid down by this Court. For the first time power has been given to a Tribunal to satisfy itself whether misconduct is proved. If so read, the Proviso does not present any difficulty at all." "The legislature in Section 11-A has made a departure in certain respects in the law as laid down by this Court. For the first time power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to be satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record' before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by Subordinate body. The 'matter' in the Proviso refers to the order of discharge or dismissal that is being considered by the Tribunal. 15. From the statement of law as found in the above passages it is clear that it is open to the Labour Court to come to a finding of its own, on the appreciation of evidence adduced at the domestic enquiry and, if the Labour Court finds that there was no invalidity attached to the domestic enquiry, the Labour Court can decide the matter on the evidence which was placed at the domestic enquiry. 16. Thereafter, learned Counsel for the petitioner took us through the evidence recorded in the domestic enquiry and contended that the finding arrived at by the enquiry officer is supported by the evidence on record and the Labour Court was in error in coming to a different conclusion. Learned Counsel submitted that M.W. 1 is the Supervisor who gave evidence that he saw the two workers at about 2.45 P.M on the relevant date near the O.C.B., that one of them viz. Learned Counsel submitted that M.W. 1 is the Supervisor who gave evidence that he saw the two workers at about 2.45 P.M on the relevant date near the O.C.B., that one of them viz. Shanmugham had a fuse carrier in his hand and was doing something with the aid of a screw driver, that, when he went near them, the fuse carrier was re-fixed in the Board, that it was found out at about 11 P.M. in the night that the fuse wire had been removed from the fuse carrier, and that the only inference possible from what he saw at about 2.45 P.M. and the absence of fuse wire in the fuse carrier at about 11P.M. was that the two workers had removed the fuse wire from the fuse carrier. This evidence is not acceptable as it is based on inference. It was his case before the Enquiry Officer that he saw them both near the main Board. If his version is true, as a Supervisor, he would have made an enquiry and found out as to why they had removed the fuse carrier and kept the same in their hands and as to what they were doing with a screw driver. Admittedly he did nothing. There is no record to support his version. Ex.M.30 is the 'daily report' with regard to what work had taken place on 28.6.1980 and it has not been recorded therein that Shanmugham and Albert Leo were the two workers concerned in doing some work in the OCB (Main Road.) The record only shows that they were working in other Departments. The Labour Court has pointed out rightly that there was a lapse of ab6ut eight hours between the time when M.W.I claims to have seen these workers near the OCB and the time when the removal of fuse wire was discovered, and there cannot be an automatic interference that the two workers removed the fuse wire. The Labour Court pointed out that one Kannan., who was an essential witness, was not examined. It is the said Kannan who had made a note in Ex.M. 30. He was not examined by the management and the explanation attempted was that Kannan was being threatened by the other workers from giving evidence. This was not made out. The Labour Court pointed out that one Kannan., who was an essential witness, was not examined. It is the said Kannan who had made a note in Ex.M. 30. He was not examined by the management and the explanation attempted was that Kannan was being threatened by the other workers from giving evidence. This was not made out. The Labour Court has discussed the entire evidence on record and come to the conclusion that the evidence does not make out the case put forward by the Management. There is no link between the removal of fuse wire and the two workers and hence, it is not possible to hold the said two workers guilty, merely on the basis of suspicion. Suspicion cannot take the place of proof. 17. Sitting in writ jurisdiction, we do not find any error in the appreciation of evidence made by the Labour Court. There is no warrant for interfering with the finding of fact arrived at by the Labour Court. 18. Learned Counsel for petitioner contended that the question of punishment should be considered by us. Once it is held that the workers are not guilty of the charges levelled against them, there is no question of punishment being imposed. Hence, this contention cannot be accepted. 19. In the result, all contentions put forward by petitioner's counsel are rejected. The Writ Petition fails and is dismissed. No costs.