Order The Management of Food Corporation of India, the petitioner, in this application, seeks to challenge an award, dated February, 18, 1994, given by Central Government Industrial Tribunal No. II, Dhanbad, on a reference made to it under Section 10(1)(d) of the Industrial Disputes Act. The dispute related to the dismissal of respondent no. 3, the workman, on certain charges of misconduct. At the material time (1988-89) the workman was working as an Assistant Grade-I and was posted as Incharge of the Food Storage Depot, Suriya, Hazaribagh. In that capacity the Food Storage Depot was under his direct control and supervision and all the workman and staff posted there worked under his control, supervision and direction; he had all the keys of the depot in his personal custody and possession and all operations at the depot were carried out under his direct supervision. 2. A physical verification of the stocks of wheat and empty bags at the depot was undertaken by a committee of some high officials of the Corporation between January 5 to 14, 1989. The committee found a shortage of 984 bags of wheat, weighing 1058 quintals 47 Kgs. and 500 grams. It also detected a shortage of 1018 empty gunny bags. In course of the physical verification, the workman abscor1ded from 07.01.89 taking all the keys as a result of which the depot could not be opened from 07.01.89 to 10.01.89. The depot could finally open on 11.01.89 when he sent keys through one Sunil Kumar Sharma, the Shifter, working at the depot only after the committee took the decision to break open the locks. The verification was completed on 14.01.89 and the report of the aforesaid shortages was prepared on that date. 3. For the shortage in the depot's stock and for absconding in course of the physical verification, the petitioner was charged with (1) failure to maintain absolute integrity, and (ii) unauthorised absence from 07.01.89 to 16.01.89, on which date he was put under suspension. In the departmental enquiry the charges relating to the shortage of wheat and unauthorised absence were found established. The charge relating to the shortage of empty gunny bags, however, could not be proved. The enquiry officer submitted his report on 27.11.90 on the basis of which the workman was dismissed from service by order, dated 30.3.91, passed by the disciplinary authority. The charge relating to the shortage of empty gunny bags, however, could not be proved. The enquiry officer submitted his report on 27.11.90 on the basis of which the workman was dismissed from service by order, dated 30.3.91, passed by the disciplinary authority. The workman preferred an appeal before the Zonal Manager, Food Corporation of Indian, Calcutta, but, it was rejected confirming the order of his dismissal. Thereafter an industrial dispute was raised which gave rise to the reference in which the impugned award was given by the Industrial Tribunal. 4. Before the Tribunal the validity, propriety and fairness of the departmental enquiry was not disputed on behalf of the workman, and, in this regard, the Tribunal (vide paragraph 16 of the award) noted as follows : “It may be mentioned at the very out-set that the fairness and propriety of the domestic enquiry has also been accepted by the workman and, therefore, the Tribunal is not required to go into the fairness or otherwise of the enquiry. . ....” 5. The Tribunal found (vide paragraphs 23 and 24 of the award) that there were sufficient materials before the enquiry officer to hold the concerned workman guilty of the charges relating to the shortage of the stock of wheat and unauthorised absence and the pleas advanced in his defence were wholly untenable. The Tribunal also found that the enquiry officer rightly came to the conclusion that the concerned workman was guilty of the two charges. However, the Tribunal agreed with the contention advanced on behalf of the workman that in the absence of any standing orders framed by the Corporation, the provisions of the Industrial Employment (Standing Orders) Central Rules, 1946, were applicable to this case. It also noted that the Central Rules provided that the workman should be given a reasonable opportunity of making representation on the question of the proposed punishment and found that no such notice was given to the concerned workman after he was found guilty of the misconducts in the enquiry report. 6. It also noticed that the workman's appeal had been turned down without affording him an opportunity of oral hearing. 6. It also noticed that the workman's appeal had been turned down without affording him an opportunity of oral hearing. On the aforesaid findings the Tribunal held that notwithstanding the fact that his guilt had been established in a fairly conducted domestic enquiry and that the enquiry officer had rightly come to the conclusion that the concerned workman was guilty of the two charges, the dismissal of the workman could not be sustained and the workman was entitled to reinstatement due to two omissions on the part of the Management. These were the failure to afford him an opportunity of making representation in respect of the proposed punishment and the denial of an oral hearing before the appellate authority. The Tribunal has made its award, accordingly. 7. An argument was advanced before this Court regarding the applicability of the Standing Orders Act, the Rules and the Model Standing Orders framed thereunder in the case of a workman of the Food Corporation of India. 8. Mr. Tekriwal submitted that a disciplinary proceeding against an employee of the Food Corporation of India was governed by the provisions of Section 12 (5)(b) of the Food Corporation's Act. He further pointed out that previously the provision contained in Section 12(5)(b) envisaged an opportunity of making representation on the penalty proposed and it was dispensed with by the amendment introduced in the section by the Amendment Act 53 of 1982 with effect from 12.10.89. Mr. Tekriwal submitted that the amendment of Section 12 (5)(b) of the Food Corporation Act does not leave any room for an argument claiming an opportunity to make representation on the question of the proposed punishment. 9. Mr. Shivajee Pandey, learned counsel appearing on behalf of respondent no. 3, on the other hand, with reference to Section 1(3) of the Industrial Employment (Standing Orders) Act, submitted that the provisions of the Act and the Rules and the Standing orders framed' thereunder would surely apply to the industrial establishments under the Food Corporation of India. 10. In this case there is no need to enter into this controversy, as in my opinion, the Tribunal's award cannot be sustained even proceeding on the basis that the provision of the Model Standing Orders requiring an opportunity to make representation on the question of the proposed punishment applied to this case. My reasons for saying so are as follows : 11. My reasons for saying so are as follows : 11. Schedule 1 to the Industrial Employment (Standing Orders) Central Rules, 1946, contains the Model Standing Orders in respect of Industrial Establishments not being Industrial Establishments in coal mines. Standing Order 14 of the Model Standing Orders lays down the provisions relating to disciplinary action for misconduct; sub clause (c) of clause (4) of the Standing Order is as follows: "If on the conclusion of the enquiry or, as the case may be of the criminal proceedings the workman has been found guilty of the charges framed against him and it is considered after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed, that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the end of justice, the employer shall pass an order, accordingly." 12. It is the failure on the part of the petitioner to give the workman a reasonable opportunity of making representation on the penalty proposed that has been held to have rendered the dismissal non est and untenable. The question is how far can it be said to be the correct legal position? 13. It may be noted, in this regard, that before sub-clause (c), as quoted above, are sub-clauses (ba), (bb) and (be) of clause 4 which provide for the holding of a departmental enquiry on the charges levelled against the delinquent workman. Now, in Workmen of Motipur Sugar Factory Pvt. Ltd. Vs. Motipur Sugar Factory Pvt. Ltd., A.I.R. 1965 SC, 1803, it was contended on behalf of the workmen that as the employer held no enquiry, as required by the Standing Orders, before discharging the appellants on the ground that they had indulged in "go slow" in the sugar factory, the Tribunal, in a reference under Section 10 of the Act, was in error in holding that the appellants had, in fact, indulged in "go slow" tactics and the employer was justified in discharging them from service. The pointed submission was that in a case where no domestic enquiry was held before terminating the services of a workman, the Tribunal was obliged to direct reinstatement for violation of the statutory provisions of the Model Standing Orders. The pointed submission was that in a case where no domestic enquiry was held before terminating the services of a workman, the Tribunal was obliged to direct reinstatement for violation of the statutory provisions of the Model Standing Orders. Rejecting the contention, the Supreme Court held as follows: "It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been properly held (see Indian Iron and Steel Co. v. Their Workmen, 1958 SCR 667 : AIR 1958 S.C., 130) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s Sasa Musa Sugar Works (P) Ltd v. Shobrati Khan, (1959) Supp 2 SCR 836 ( AIR 1959 S.C. 923 ); Phulbari Tea Estate v. Its workmen 1960 1 SCR 32 (AIR 1959 S.C. 111) and the Punjab National Bank Ltd. v Its Workmen (1960) 1 SCR 806 : ( AIR 1960 SC 160 ). These three cases were further considered by this Court in Bharat Sugar mills Ltd. v. Shri Jai Singh 1962 (3) SCR 684 and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belsund Sugar Co. Ltd., 1951 Lab AC 697. It was pointed out that the important effect of omission to hold an enquiry was merely this; that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out. It is true that three of these cases except Phulbari Tea Estate's case, (1960 1 SCR 62 : AIR 1959 S.C. 1111 ) were on applications under S. 33 of the Industrial Disputes Act, 1947. It is true that three of these cases except Phulbari Tea Estate's case, (1960 1 SCR 62 : AIR 1959 S.C. 1111 ) were on applications under S. 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under S. 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's case (1960) 1 SCR 32 : ( AIR 1959 SC 1111 ) was on a reference under Section 10 and the same principle was applied there also, the only difference being that in that case there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper." 14. Thus, when the failure to hold a departmental enquiry before dismissing the workman from service would not ipso facto lead to the setting aside of the dismissal order it does not stand to reason that the failure to give an opportunity of making representation on the penalty proposed as required under sub-clause (c) would automatically lead to that result. 15. It may also be borne in mind at this stage that the decision in Workmen of Motipur Sugar Factory Pvt. Ltd (supra) was given by the Supreme Court before Section 11A was inserted in the Industrial Disputes Act in 1971. The introduction of Section 11A vastly enlarged the jurisdiction and authority of the Labour Court and Industrial Tribunal in a dispute relating to the discharge or dismissal of a workman and now the entire matter is practically open before the Industrial Tribunal. The true import and scope of Section 11 A came up for consideration before the Supreme Court in Workmen of M/s Firestone Tyre & Rubber Co. of India Pvt. Ltd. Vs. The Management & Ors., A.I.R. 1973 SC, 1227. The true import and scope of Section 11 A came up for consideration before the Supreme Court in Workmen of M/s Firestone Tyre & Rubber Co. of India Pvt. Ltd. Vs. The Management & Ors., A.I.R. 1973 SC, 1227. In that case the Supreme Court made a comprehensive review of the decisions of the question of Industrial adjudication arising out of orders of dismissal or discharge before the introduction of Section 11A and formulated the principles arising from those decisions in paragraph 27 of the judgment. In this case I may note the principles enumerated at serials 4 and 7 which are as follows : "(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra." "(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be defective." 16. An argument was, again, advanced in the Firestones case that Section 11A had made it obligatory to conduct a domestic enquiry and if no such appropriate and valid domestic enquiry preceded the order imposing punishment, the Tribunal after the introduction of Section 11A had no option but to direct reinstatement on that ground alone. The Court rejected the workmen's contention in the following words : "In our opinion, the analogy placed before us by the counsel cannot stand scrutiny. It is no doubt true that Standing Orders, which have been certified under the Industrial Employment (Standing Orders) Act, 1946, became part of the statutory terms and conditions of service between the employer and his employee and that they govern the relationship between the parties. But there is no provision either in this statute or in the Act which states that an order of dismissal or discharge is illegal if it is not preceded by a proper and valid domestic enquiry. But there is no provision either in this statute or in the Act which states that an order of dismissal or discharge is illegal if it is not preceded by a proper and valid domestic enquiry. No doubt it has been emphasised in the various decisions of this Court that an employer, is expected to hold a proper enquiry before dismissing or discharging a workman. If that requirement is satisfied, the employer will by and large escape the attack that he has acted arbitrarily or malafide or by way of victimisation. If he has held a proper enquiry, normally his bonafides will be established. But it is not correct to say that this Court, when it laid down that 'an employer has a right to adduce evidence for the first time before the Tribunal, was not aware of a breach committed by an employer of the provisions of the Standing Orders. A similar contention, though in a different form, advanced on behalf of the workmen was rejected by this Court in Workmen of Motipur Sugar Factory (P) Ltd., (1965) 3 SCR 588 = (A.I.R. 1965 SC, 1803), It was specifically contended before this Court by the workmen therein that when an employer had held no enquiry, as required by 'the Standing Orders, it was not open to him to adduce evidence before the Tribunal for the first time and justify the order of discharge. This contention was rejected by this Court and it was held that if the enquiry was defective or no enquiry had been held, as required by tile Standing Orders, the entire case would be open for the Tribunal and the employer would have to justify on evidence as well that its order of dismissal or discharge was proper. Therefore, this contention cannot be accepted. We may also state that the Industrial Employment (Standing Orders) Act, 1946, applies only to those industrial establishments which are covered by Section 1 (3), But the field of operation of the Act is much wider and it applies to employers who may have' no Standing Orders at all. If the contention or Mr. Deshmukh regarding Standing Orders is accepted, then the Act will have to be applied in a different manner to employers who have no Standing Orders and employers who are obliged to have Standing Orders. That is certainly not the scheme of the Act." 17. If the contention or Mr. Deshmukh regarding Standing Orders is accepted, then the Act will have to be applied in a different manner to employers who have no Standing Orders and employers who are obliged to have Standing Orders. That is certainly not the scheme of the Act." 17. The decision in the Firestone case has been consistently followed and it is now well established by judicial pronouncements that the introduction of Section 11A extended the Tribunal's jurisdiction beyond tile limitations imposed on it by the Supreme Court decision in the Indian Iron & Steel Co. Ltd. Vs. Their Workman, A.I.R. 1958 SC, 130. By virtue of Section 11 A the Tribunal has not only the power to set aside the order of discharge or dismissal of a workman and direct his reinstatement but it has also the discretion to mould the relief including the imposition of some lesser punishment in lieu of discharge or dismissal as may be warranted in the given facts and circumstances of a case. Even if the charges were proved the Tribunal was no longer bound to uphold the order of discharge or dismissal; it has the discretion to direct reinstatement with or without back wages. Conversely, the Tribunal is also not pound to direct reinstatement simply because the order of dismissal or discharge suffered from some technical lacunae. The question as to whether or not the delinquent workman was entitled to any relief; the nature of relief which in a given case may be just and reasonable was wholly open before the Tribunal in terms of Section 11A of the Act. 18. In view of the aforesaid legal position the Tribunal in this case should not have given a direction for reinstatement straightway on the ground that the workman was not given any opportunity to make representations against the proposed punishment and was denied an oral hearing by the appellate authority but should have independently considered whether or not the concerned workman was entitled to any relief in view of the proved charges. 19. In my view the learned Tribunal overlooked this legal position and consequently failed to exercise the jurisdiction vested in it under Section 11A of the industrial Disputes Act by not applying its independent mind to the question whether in the facts of this case, the petitioner was entitled to any relief. 19. In my view the learned Tribunal overlooked this legal position and consequently failed to exercise the jurisdiction vested in it under Section 11A of the industrial Disputes Act by not applying its independent mind to the question whether in the facts of this case, the petitioner was entitled to any relief. The award, therefore, is unsustainable in so far as it directs reinstatement of respondent no. 3. 20. I, accordingly, set aside the operative portion of the award, leaving undisturbed the findings recorded. therein, and remit the matter back to the Tribunal to consider, after hearing the parties, as to whether or not in view of the finding of proved charges and regard also being had to the nature of the misconduct the concerned workman was entitled to the relief of reinstatement or was he entitled to any lesser relief or no relief at all. 21. It is expected that the Tribunal will finally decide the question and will give its award within three months from the date of receipt/production of a copy of this order. 22. In the result this application is allowed to the extent indicated above.