SHYAMSUNDAR, J. ( 1 ) THE petitioner corporation feigns grievance at the award of the labour court, which to my mind, mauls the first respondent more than the corporation. The impugned award gives a direction to restore the workman to duty without backwages and in addition the workman subjected to penalty of withholding of four annual increments cumulatively and for all times to come. This order has been passed in exercise of the labour court's benign jurisdiction under Section 11-a of the Industrial Disputes Act. The learned judge makes the following observation in support of the award:". . . I do not subscribe to the above line of argument and the counsel for the first party workman has contended that the history extract has not been confronted to the first party workman and no witness has been examined by the second party management to prove the same. However, it is seen that the first party workman has not been given opportunity to explain about the previous case history extract and in the circumstances of the case in my opinion as the imposition of the order of dismissal amounts to economic death of the first party workman and taking away his livelihood once for all, under these circumstances in my opinion taking all the aspects of the case into consideration, the second party management is not justified in imposing the order of dismissal and the order of dismissal is not justified and is a case where minor penally would have met the ends of justice. " ( 2 ) MR. Menon for the corporation assails exercise of discretion by the labour court in interfering with the order of dismissal and supplanting it by an order of reinstatement, as a case of misguided exercise of discretion and power, in relation to a workman who deserved nothing short of dismissal, and urges that the punishment imposed by the corporation should have been held to have been rightly imposed on the workman. All said and done, as pointed out by the labour court, the entire proceedings against the workman emanated from an incident resulting in pilferage of a sum of Rs. 9. 50p. By the workman who was a conductor. At the domestic enquiry held by the corporation, he was however sacked taking into account not merely the instant misdemeanour but also sixty-six earlier misdemeanours said to have been committed by the same workman. 9. 50p. By the workman who was a conductor. At the domestic enquiry held by the corporation, he was however sacked taking into account not merely the instant misdemeanour but also sixty-six earlier misdemeanours said to have been committed by the same workman. ( 3 ) ON a reference to the court challenging the enquiry and the penalty imposed on the workman as aforesaid, the court framed the following issues:"1. Whether the ii party management proves that the domestic enquiry held against the i party workman is valid? 2. Whether the ii party is justified in dismissing the i party from service? 3. If so, to what relief the parties are entitled?"incidentally it took up for consideration issue no. l as a preliminary issue and because of non-contest of the workman himself, it recorded a finding that the department enquiry was valid. It is common ground that thereafter no oral evidence was led by either side. Hence it is when the issue relating to justification of imposing the penalty of dismissal arose for consideration, the court took the view that penalty of dismissal was extremely harsh and (sic) substituted it with a more palliative sentence as indicated hi the award impugned herein. ( 4 ) EXCEPTION is taken to this award on the ground that the court ought to have relied on the previous record of the workman which was dismally bad and counsel says if that had been taken into account, the court would have been left with no option but to affirm the dismissal order imposed by the management. This is an aspect which the learned judge in the court below has considered. I have already accepted his views in that behalf as recorded in para 21 of his order wherein he has said, that for the corporation to rely on the black record of the workman, it should have produced the same and confronted it to the workman as otherwise, asking the court to place reliance on it would be violative of principles of fair play and that is what i take, it to be the purport of the learned judge's view in (sic ). All said and done, the issue in question related to the very survival of the workman and the members of his family. All said and done, the issue in question related to the very survival of the workman and the members of his family. Therefore, before he could be branded as an unforgivable sinner, the corporation ought to have brought home the multi-dimensional accusations it made against the workman, by leading appropriate evidence in that behalf. I do not agree with Mr. Menon who says that the previous punishments being within the knowledge of the workman, there was no need for the corporation to fasten it round his neck once again. I cannot agree. This is not an instance which can be said to be covered by Section 106 of the Evidence Act which makes acts within the knowledge of a particular person to be presumed and not required to be proved. ( 5 ) HERE, what is on the anvil is the justification of the management's action in dismissing the workman from service. That is an aspect which forms the subject matter of an issue before the court and the question arises whether that issue has been proved or established. The corporation, without leading evidence on that issue, cannot call upon the workman to recall his poor record with the management in relation to which it is said he had been dealt with in the past. Be it anything, whether it is an administrative enquiry or judicial enquiry, no material detriment to a delinquent person, could be imported into the format of the enquiry in a clandestine or surreptitious fashion and to that extent, even to ask the person concerned to recall fo his mind the alleged misdeeds he had committed in the past without proving them to the hilt, for justifying the purported Administrative Action, is something which cannot be countenanced and the management cannot be permitted to contend that even though they have not produced any material in the shape of the previous bad record of the workman, since all that was known to the workman himself, he cannot be heard to decry the tenability of the penalty imposed and that he should, on the other hand, not be permitted to speak about the non-obtaining of specific information in that behalf because he had to be necessarily gagged and stifled by the painful memory of his ignoable antecedents. I cannot persuade myself to subscribe to this view which indeed is an extreme contention put forward on behalf of the corporation and i notice such an argument is not led for the first time before this court since (sic) this signature tune is indulged in every writ petition presented by the corporation before this court maligning the action of the labour court in disrupting or dislodging an order of dismissal for making (sic) of reinstatement. This sub-mision, which appears to be somewhat disingenious, runs contrary to the well-known adage 'justice should not merely be done but it must appear to be done'. That being the axiomatic principle of law therefore none can say that a person shall stand condemned for his past action without there being a contemporaneous reminder of the same. I do hope that in future the corporation will bear in mind these parameters as well as these observations, which I have been constrained to make and will not require this court to repeat the same on any future occasion. What is more, this is not a case in which the man has gone scot-free. He had his backwages taken away and he had been denied four increments that will permanently peg down future monetary benefits. Therefore, in a case where the labour court has been satisfied that penalty imposed by the management should be interfered and has chosen to exercise its discretion, in that behalf it is not for this court of find fault with exercise of such discretion in that fashion and thereby to erase the ultimate order made by in exercise of the discretion. All said and done, i must say the discretion herein exercised can neither be said to be arbitrary or capricious and if the corporation which had the chance of pursuading the labour court not to exercise discretion in favour of workman and could have done it by placing appropriate material, being guilty of a lapse, cannot be heard to wail or whimper over lost opportunity. This writ petition therefore fails and is rejected. No costs. Writ petition rejected. --- *** --- .