JUDGMENT : J.N. Sarma, J.—This writ application has been filed against the award dated December 30, 1988 passed by the Presiding Officer, Labour Court, Dibrugarh in reference case No. 29 of 1984 whereby the Labour Court upheld the dismissal of the workmen Sri P.N. Roy by the Management to be justified. 2. On November 4, 1981 a Charge Sheet was delivered to the workman listing certain irregularities therein and thereafter a domestic enquiry was held and the workman was dismissed from service. Thereafter a Reference was made by the Government and that was registered as Reference Case No. 29/84 before the Labour Court, Assam at Dibrugarh. The two points which arose for decision in the reference are as follows: "1. Whether the Management of Anandabari T.E. is justified in dismissing Shri P.N. Roy, Hazira Mohorer? 2. If not, is Sri Roy entitled to reinstatement in his former position with all back wages and other fringe benefits for the period of unemployment or any other relief as deemed proper in lieu thereof?" 3. A written statement was submitted on behalf of the Assam Chah Karmachari Sangha wherein it was contended that the workman was innocent and there was no justification for his dismissal and it was further contended that the dismissal comes for victimisation as the workman was actively associated with treading, and that the charge sheet was vague. That a departmental enquiry was conducted in violation of Principle of Natural Justice and that it was unfair. It was also contended that the dismissal was not in the manner with the Standing Order and it was not issued by the competent and authorised person. The management filed a written statement wherein the enquiry was claimed to be valid and in accordance with Rules. Before the Labour Court, the Management examined 7 (seven) witnesses and exhibited 33 documents while on behalf of the workman he examined himself. The Labour Court interalia found as follows: "(i) The dismissal order was issued by the competent authority. (ii) I find no means to disagree with the arguments put forward by the learned advocate for the management." 4. Regarding Section 11A of the Industrial Disputes Act, 1947, it is stated by the Tribunal that no material was placed by the workman to consider his case under that Section. (ii) I find no means to disagree with the arguments put forward by the learned advocate for the management." 4. Regarding Section 11A of the Industrial Disputes Act, 1947, it is stated by the Tribunal that no material was placed by the workman to consider his case under that Section. Section 11A is quoted below: "11A Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on the materials on record and shall not take any fresh evidence in relation to the matter." 5. I have heard Shri D.C. Mahanta, learned Advocate for the petitioner and Shri S. Kataky, learned Advocate for the Management, Respondent No. 2. The Lower Court record was called for and the same was produced at the time of hearing. An affidavit-in-opposition was filed on behalf of the Respondent No. 2. Shri Mahanta, learned Advocate for the petitioner urges as follows: (i) That the award passed by the Tribunal is absolutely perverse and perfunctory and there is no discussion of evidence both oral and documentary. (ii) That the Labour Court did not consider Section 11A as required to be considered in accordance with law. 6. The law is settled that the Labour Court is entitled to examine the evidence in the departmental enquiry in order to find out whether a prima facie case is made out or the findings are perverse. The Labour Court is not competent to reappreciate or reappraise the evidence before the domestic Tribunal. 6. The law is settled that the Labour Court is entitled to examine the evidence in the departmental enquiry in order to find out whether a prima facie case is made out or the findings are perverse. The Labour Court is not competent to reappreciate or reappraise the evidence before the domestic Tribunal. The Court has no jurisdiction to act as a Court of appeal as if in a Criminal case and to interfere with the findings of the departmental enquiry. But that does not mean that the Labour Court should not consider the case put up by the workman. In the instant case a bare perusal of the award will show that the Labour Court came to the finding as follows: (a) "From side of the management at least 4 labourer witnesses have been examined to show that the workman not only attended pay table but also took cash from them stating that co-operative dues were not deducted in the pay-book. These witnesses could not be dislodged from their stand in cross examination although they and few other management's witnesses admitted that the workman did not have to and did not handle cash. But, as argued by the learned Advocate for the management not handling of official cash and taking money from labourers are two different things and proof of the 1st does not prove the impossibility of the 2nd." (b) "I find no means to disagree with the arguments point forward by the learned advocate for the management." 7. This is not the finding in the eye of law as the Labour Court is required to pursue the evidence in order to find whether prima facie a case was established. Further, there was a plea of victimisation on the part of the workman. Victimisation is a serious charge by an employee against an employer. Therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The onus of establishing a plea of victimisation will be upon the person pleading it. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and the conclusion should be reached on a totality of the evidence produced. Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, AIR 1976 SC 98 . But that is what was not done in this case. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and the conclusion should be reached on a totality of the evidence produced. Bharat Iron Works Vs. Bhagubhai Balubhai Patel and Others, AIR 1976 SC 98 . But that is what was not done in this case. The Labour Court did not apply its mind to the plea of victimisation and also did not come to the finding that the domestic inquiry was fairly conducted. 8. A defective enquiry stands on the same footing as no enquiry and in either case, the Labour Court would have jurisdiction to go into the facts and the employer would have to satisfy the Labour Court that on the facts, the order of dismissal or discharge was proper. High Court in exercise of the writ jurisdiction can examine to find out whether the basis for the finding was warranted. 9. Regarding jurisdiction of the Labour Court u/s 11A of the Industrial Disputes Act it is settled law (sic.) that the Labour Court has the jurisdiction and power to substitute the measure of punishment enabling managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. Even a High Court can examine whether the Labour Court has properly approached the matter for exercising or without revision exercising the power u/s 11A. No doubt before the power u/s 11A can be exercised, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. The words in the Section itself indicate that even though misconduct is proved and penalty has to be imposed, the extreme penalty of dismissal or discharge shall not be justified in the facts and circumstances of the case emanating thereby that the punishment was either disproportional, heavy or excessive. It is well established principle of service/jurisprudence that penalty to be imposed for misconduct must be commensurate with the gravity of offence. It is also true that the justice must be tempered with mercy and if it is possible and justice demands that the erring workman should be given an opportunity to prove to be loyal and disciplined employee. Power u/s 11A can be exercised by the Labour Court. 10. It is also true that the justice must be tempered with mercy and if it is possible and justice demands that the erring workman should be given an opportunity to prove to be loyal and disciplined employee. Power u/s 11A can be exercised by the Labour Court. 10. It is also settled law that the Labour Court must decide the following things in order to find out whether the enquiry has been properly held: (i) The enquiry proceeded against has been clear with regard to the charges levelled against the petitioner. (ii) Witnesses are examined ordinarily in the presence of the employee in respect of the charges. (iii) The employee is given a fair opportunity to cross-examine the witnesses. (iv) He is given a fair opportunity to examine the witnesses including himself in his defence if he wants on relevant matters, and find that the Enquiry Officer's records, the findings are based on evidence with reasons in his report. 11. Examining the matter from all these angles in the case, it is found that the award of the Labour Court is absolutely perfunctory in nature. The Labour Court did not apply its mind to the requirement of law as indicated above. 12. Accordingly, this award dated December 30, 1988 passed in Reference Case No. 29 of 1984 by the Presiding Officer, Labour Court, Dibrugarh is quashed and the matter is remitted back to the Labour Court to examine the matter afresh and pass a fresh award in accordance with law. 13. This disposes of the writ application.