JUDGMENT Bhagabati Prasad Banerjee, J: This is an appeal by the workman against the judgment and order dated 14.12.80 passed by the learned Trial Judge in Matter No. 770 of 1085. By the said order and Judgment the learned Trial Judge have held that the finding of the Industrial Tribunal was not warranted by reasons given by it in award and set aside the award in question. 2. The workman was an employee under the Writ petitioner opposite party. A domestic enquiry was made against the appellant and in the said departmental enquiry the appellant workman was charged with some misconducts as he failed to make entries in the Lorry Control Sheets on the basis of weighment cards which were kept in the possession and custody of the company. After the charge-sheet was served, an enquiry was held and after the enquiry was held the workman was dismissed from service. Thereafter, an Industrial dispute was raised on the question whether the dismissal of the workman was justified or not and to what relief he was entitled. 3. The Third Industrial Tribunal decided the preliminary issue in which it was held that on the basis of the materials on record the workman got adequate opportunity to defend himself before the Inquiring Officer and that the enquiry held was fair and proper and thereafter the Tribunal fixed 17.4.85 for reappraisal of the evidence led before the Inquiring Officer and for hearing under section 11A of the Industrial Dispute Act. The Tribunal after considering the matter and after going through the merits and after perusal of the materials on record found as follows:- "It is common grounds that the workman had to take weights of unladen and laden trucks on the Company's Weigh Bridge and the Weights were recorded on the weighment cards. Curiously enough the company did not produce before the Enquiry Officer those weighment cards which could have shown conclusively the recording of weights of unladen and laden trucks. In point of fact the Enquiry Officer in his cross-examination admitted that the primary entries were made in the Weighment cards which were not exhibited before him. It was the stand of the company that it was the responsibility of the workman to keep despatch documents including weighment card in safe custody. In point of fact the Enquiry Officer in his cross-examination admitted that the primary entries were made in the Weighment cards which were not exhibited before him. It was the stand of the company that it was the responsibility of the workman to keep despatch documents including weighment card in safe custody. It was not the evidence on behalf of the company before the Enquiry Officer that the weighment cards were taken away by the workman after he was charge-sheeted and placed on suspension or even before. So it must be held that the company did not produce best evidence at its disposal, namely, the Weighment cards which, if produced would have shown the Metre reading given by the Weigh Bridge at any particular time. It is not the case of the company that although Metre reading was taken there, but the workman was recording inflated reading in the Lorry Control Sheets. The workman was associated with the job of taking Metre reading at the Weigh Bridge and not with the calculation of standard weight of the materials. The company, therefore, cannot allot to the workman one form of work and challenge with him with incorrectness in his work by resorting to another method with which the workman was not at all concerned. If the company found that over a long span of time the workman was indulging in malpractices by notice inflated weights in the Lorry control sheets for which it had to foot inflated bill of Transport Contractor, the company could have caught the workman red-handed by taking weights again at Weigh Bridge in presence of its responsible Officer. If the company found that correct metre reading was not transferred to these sheets and if the company really had a case, then it could have order is the relating of weights at the Weigh Bridge in presence of the workman, so that he could be charged with misconduct instead of doing this the company embarked upon calculation to arrive at what it called standard weight and tried to prove its space in a circuitous way which is not at all fail-safe. The company therefore, did not bring its best evidence against the workman i.e., the weighment cards nor followed the correct method to arrive at the misconduct of the workman. I believe that the above reasons are cogent enough to displace the findings of the enquiry officer. The company therefore, did not bring its best evidence against the workman i.e., the weighment cards nor followed the correct method to arrive at the misconduct of the workman. I believe that the above reasons are cogent enough to displace the findings of the enquiry officer. In the company's Written Statement, leave has been prayed for to lead evidence afresh in case the domestic enquiry was found to be not legal and proper. As I pointed out above the procedural part of the enquiry was to be fair. As the company led full evidence before the Enquiry Officer and as the enquiry that was held was found to be fair and proper, there is no question again of calling the company to evidence before the Tribunal. On reappraisal of the evidence led before the Enquiry Officer I find that the conclusion reached by him cannot be accepted. The enquiry report is not a full proof document as the important consideration were not considered with care and caution. I, therefore, set aside the order of dismissal and direct the company to take the workman, Sri Sujit Kumar Banerjee, in its service with full back wages throughout." 4. Being aggrieved and dissatisfied with the award of the Industrial Tribunal the management moved the writ application under Article 226 of the Constitution. The matter was contested and the learned Single Judge have held that: “The learned Tribunal although holding that the best evidence was not produced, did not allow such evidence to be produced. It may be reiterated here that the learned Tribunal by the Order No. 16 which is annexure 'N' to the petition found that the enquiry was properly and fairly held. It is further to be noted that the Tribunal did not come to any conclusion that even for non-production of such best evidence, the guilt of the petitioner was not proved. In order to set aside an order passed by the employer it is incumbent upon the learned Tribunal to come to a finding that the conclusion of the Enquiry Officer was either perverse or was not based on the evidence on record or that the evidence on record was not sufficient to warrant the finding of guilt. In order to set aside an order passed by the employer it is incumbent upon the learned Tribunal to come to a finding that the conclusion of the Enquiry Officer was either perverse or was not based on the evidence on record or that the evidence on record was not sufficient to warrant the finding of guilt. In vain I have tried to find any such finding of the learned Tribunal that because of non-production of best evidence the employee concerned has suffered any prejudice or that there was no sufficient evidence before the Enquiry Officer to come to the conclusion of the guilt of the employee. The learned Tribunal merely states that on reappraisal of the evidence led before the Enquiry Officer I find that the conclusion reached by him cannot be accepted. The enquiry report is not a full proof document as the important considerations were not considered with care and caution." The learned Tribunal was eloquently silent as to whether on the basis of the evidence on record the guilt of the employee was at all established or riot. In the absence of such finding the award of the Tribunal is not warranted even under the amended provision of Section 11A of the Industrial Disputes Act. For the reasons stated hereinbefore, I am constrained to hold that the finding of the learned Tribunal is not warranted by the reasons given by it in the award impugned in the writ petition. In the circumstances, this application succeeds. The rule is made absolute. Let a writ in the nature of mandamus issue commanding the respondents to cancel and set aside the impugned award dated April 23, 1985 which is annexure 'O' to the petition." 5. Mr. Partha Sarathi Sengupta, the learned advocate on behalf of the appellant, contended before us that the learned Trial Judge was wrong in setting aside the award on the ground that the Tribunal should have allowed opportunity to the employer to adduce before it fresh evidence, viz., "weighment cards" which were not produced before the Enquiry Officer and further submitted that the learned Single Judge had misconstrued the scope and effect of Section 11A of Industrial Disputes Act in the facts and circumstances of this case. In this connection Mr. Sengupta relied on the decision of the Supreme Court in the case of The Workmen of M/s Firestone Tyre & Rubber Co. In this connection Mr. Sengupta relied on the decision of the Supreme Court in the case of The Workmen of M/s Firestone Tyre & Rubber Co. of India (P.) Ltd. vs. The Management and others reported in AIR 1973 S. C. page 1227 wherein the Supreme Court has considered the scope and effect of Section 11A of the Industrial Disputes Act which was inserted in 1971. In construing that provisions the Supreme Court have held that previously the Tribunal had no power to interfere with the finding of misconduct recorded in the domestic enquiry unless one or other in firmities pointed out by the Supreme Court in Indian Iron & Steel Co. Ltd's case reported in AIR 1958 S.C. page 130 existed. The conduct of disciplinary proceeding and 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 too harsh as to lead to an inference of victimisation or unfair labour practice. This position had now been changed by section 11A of the Act. It was held that 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 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. On the question of admission of new evidence the Supreme Court observed that section 11A of the Act prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. Relying upon the decision of the Supreme Court Mr. Sengupta argued that it was incumbent to the Tribunal to come to the finding that the conclusion of the Enquiry was either perverse or was not based only on the basis of evidence on record or that the evidence on record was not sufficient to warrant the finding of the guilt. Relying upon the decision of the Supreme Court Mr. Sengupta argued that it was incumbent to the Tribunal to come to the finding that the conclusion of the Enquiry was either perverse or was not based only on the basis of evidence on record or that the evidence on record was not sufficient to warrant the finding of the guilt. In view of the fact that the Third Industrial Tribunal has found that the enquiry was held fairly and properly but then the Tribunal went on reappraising the evidence and while reappraising the evidence the Tribunal has to consider the evidence and while doing that the Tribunal cannot travel beyond records. Inasmuch as, the piece of document which was very vital in the instant case, according to the Tribunal, was not produced by the Management and that it is established principle that onus of proof that workman is guilty of charge of misconduct is on the management and when the management has failed to discharge such onus, in that event, it is not the duty of the Tribunal to allow the management to adduce fresh evidence to fillup the lacuna or to patch up the case. This is clearly contrary to the scope and ambit of section 11A of the Industrial Disputes Act as incorporated by the Supreme Court in the case referred to above; 6. Mr. Bhaskar Prosad Gupta learned Advocate for the Management contended in the first place that there was an error of law on the face of the record of the Tribunal in as much as, the Tribunal has taken into account a piece of evidence which was not on record and that in this connection it was pointed out that the Tribunal had no jurisdiction to set aside an order of dismissal on the ground of non-production of a piece of evidence and this non-production of a piece of evidence, according to the learned counsel, amounts to considering an evidence which is not on record. Nextly, it was argued that the writ Court should go into the entire evidence which was before the Tribunal and should come to an independent finding and in this connection it was submitted that the scope of writ jurisdiction under Art. 226 is at par with the jurisdiction of the Industrial Tribunal under section 11A of the Industrial Disputes Act and in this connection reference was made to a decision of the Madras High Court in the case of Management of Madras Fertiliser Ltd. vs. Presiding Officer reported in 1991 Lab. & I. C. page 1039 wherein the Division Bench of the Madras High Court have held that power conferred under the Labour Court under Section 11A of the Industrial Disputes Act could be exercised by the High Court under Article 226 and in support of this contention reliance was placed by the Madras High Court to the decision of the Supreme Court in Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha reported in 1980 Lab. IC 1004. But on perusal of the judgment of the Supreme Court in Gujarat Steel Tube's case we do not find that the Supreme Court has laid down in the proposition that what Labour Court could do under Section 11A of the Industrial Disputes Act the High Court in Writ jurisdiction could exercise the same power and do the same thing which the Industrial Court could do and exercise under section 11A of the Act. 7. Further, the Supreme Court in Gujarat Steel Tube's case (supra) had not deviated from the principle laid down by the Supreme Court in the case of the Workmen of M/s. Firestone Tyre & Rubber Co. of India (P.) Ltd. vs. The Management & Ors. reported in AIR 1973 S. C. 1227. The law is now well settled by the Supreme Court in the case of Firestone Tyre & Rubber case (supra) that the Tribunal after holding that the domestic enquiry was held fairly and properly, can examine the correctness of the finding of the domestic enquiry and at that time it cannot allow production of fresh and new evidence which was not adduced before the Enquiry Officer after the domestic enquiry, and that the Industrial Tribunal followed a course of action which was consistent with the principle laid down by the Supreme Court. According to that principle once the Tribunal has found that the enquiry has been made fairly and properly, in that event the Tribunal under Section 11A reappraised the evidence on record. But the Tribunal cannot travel beyond record and cannot take into consideration of any new evidence which was not on record and the Tribunal cannot be directed to take into consideration any piece of evidence which was not on record. In the instant case, the Tribunal had applied its mind and on reappraised of the evidence laid down before the Enquiry Officer decided on the merits and came to the conclusion that on the basis of the evidence on record the order of dismissal could not be sustained and set aside the punishment order. 8. The power of the High Court under Article 226 of the Constitution of India is very much limited and it is now well settled principle that the High Court under Article 226 of the Constitution cannot function as an Appellate Court and cannot correct an error of fact nor the High Court can reappraise the evidence on record under Article 226 which is a matter to he decided by the Tribunal. When the Industrial Tribunal had reappraised the evidence and came to a clear finding on the basis of the evidence on record that the order of dismissal could not be sustained, in that event there is no scope on the part of this Court to interfere with such findings of the Tribunal unless it has been established that the findings are all perverse or there are errors of law apparent on the face of the record. In the present case we do not find any error of law on the face of the record and that we hold that there was no ground to interfere with the decision of the Tribunal as we do not find that the Tribunal has committed any error which is sought to be rectified by judicial review by this Court under Article 226 of the Constitution. 9. In our view the learned Single Judge was wrong in holding that there was no reappraisal of all the evidence laid before the Tribunal, the learned Trial Judge found that the conclusion reached by the Tribunal could not be accepted. This reappraisal of the evidence is beyond the power of the High Court under Article 226. 9. In our view the learned Single Judge was wrong in holding that there was no reappraisal of all the evidence laid before the Tribunal, the learned Trial Judge found that the conclusion reached by the Tribunal could not be accepted. This reappraisal of the evidence is beyond the power of the High Court under Article 226. We are also of the view that the learned Judge was wrong in holding that the Tribunal acted without jurisdiction in not allowing the management to produce fresh evidence which was not adduced before the Enquiry Officer as this is clearly contrary to section 11A of the Industrial Disputes Act. Accordingly, we are of the view, the learned Trial Judge was wrong in holding that the Award of the Tribunal was not warranted even under the amended provisions of Section 11A of the Industrial Disputes Act. We do not find any reason for such conclusion made by the learned Trial Judge. 10. We respectfully disagree with the view expressed by the Madras High Court in the case of the Management of Madras Fertilisers Ltd. vs. The Presiding Officer reported in 1991 Labour & Industrial Cases 1039. In view of the fact that the Supreme Court in Gujarat Steel Tube's Case (supra) has not laid down the proposition that 1he power of the Writ court is the same as the power of the Labour or Industrial Court under Section 11A of the Industrial Disputes Act. If such a view in this application is accepted contrary to the well established principle laid down not only by the Supreme Court as also by several decisions of the English Court that the extraordinary jurisdiction of the High Court could not be exercised in case of error of fact and that the power of the High Court under Article 226 of the Constitution could not be exercised for reappraisal of the evidence and sit over the judgment of the Tribunal as an Appellate Authority. 11. Lastly, Mr. Chakraborty, learned Counsel on behalf of the respondent submitted that there could not be re-instatement in this case as there was a loss of confidence by the management. This point was not agitated before the Tribunal. The management has not filed any cross-appeal or cross-objection with regard to this question also. 11. Lastly, Mr. Chakraborty, learned Counsel on behalf of the respondent submitted that there could not be re-instatement in this case as there was a loss of confidence by the management. This point was not agitated before the Tribunal. The management has not filed any cross-appeal or cross-objection with regard to this question also. In the absence of any cross-appeal or cross-objection and in the absence of any material on record, we are unable to direct the management to raise such issue for the first time at the time of hearing of the appeal. On the basis of the materials on record we do not find that there was any case of loss of confidence by the management for which the workman was not entitled to reinstatement. 12. Accordingly, for the reasons aforesaid, the order of the learned Trial Judge is set aside. The order of the Tribunal is restored and the appeal is allowed with costs assessed at 60 Gms. All parties to act on a signed copy of the minutes of the operative portion of this judgment and order on usual undertaking. Abani Mohan Sinha, J: I agree. Appeal allowed with costs ; writ petition dismissed ; award restored.