Judgment :- The Order of the Court was as follows : The Management of Thanjavur Textiles Limited, Thanjavur has filed this writ petition against the Presiding Officer, I Additional Labour Court, Madras and an individual/workman viz. V. P. Rajendran praying to issue a Writ of Certiorari calling for the records of the Award passed by the first respondent in I.D. No. 35 of 1982, dated 30-3-1990 and quash the same. In the affidavit filed in support of the writ petition, narrating his case, the petitioner would contend that pursuant to the order of reference made by the Government of Tamil Nadu in G.O. Ms. No. 80 Labour and Employment dated 11-1-1982, I.D. No. 35 of 1982 was taken up by the first respondent for adjudication of the dispute between the petitioner and the second respondent. The petitioner would further contend that according to the work load fixation award Ref. No. 80 Labour and Employment dated 11-1-1982, I.D. No. 35 of 1982 was taken up by the first respondent for adjudication of the dispute between the petitioner and the second respondent. The petitioner would further contend that according to the work load fixation award Ref. B. 1 14865, dated 1-4-1974 by the Deputy Commissioner of Labour, the question of production for an operator in the Dobbler Winding Section had been fixed as follows : ------------------------------------------------------------- As per Award As Regard to the consul- tations with the Union ------------------------------------------------------------- Day shift --------- 116 kilos 110 kilos Half night shift ---------------- 116 kilos 110 kilos Full night shift ---------------- 93 kilos 90 kilos ------------------------------------------------------------- The petitioner would further contend that as agreed by the Union, all the workmen in the Section used to take the stipulated production, that after August, 1980, the second respondent chose to take a lesser production as against the stipulated quantity, that in spite of several oral and written warnings, he continued to take only lower production and he did not choose to improve and give production as agreed by the Union and hence the petitioner was left with no option but to issue charge sheet to the second respondent and his wages were proportionately cut with the warning to improve the production, but in spite of all this, the second respondent pursuaded in deviating from the provisions of the Award, consequent to which he was once again issued with the charge sheet followed by an enquiry conducted by the Personnel Officers of the petitioner/company.The petitioner would further contend that to the charge-memo dated 1-4-1981, the second respondent gave an explanation, dated 5-4-1981 stating thereby that the materials given by the Management were not upto the mark and he was not given assistance and hence there was less production, that not being satisfied with such of the explanations, the Management conducted a domestic enquiry on the charges and the second respondent fully availed the opportunity, participated in the domestic enquiry held on 6-5-1981 and 7-5-1981 and let in evidence on his behalf, that in the domestic enquiry, the second respondent was allowed to be assisted by a co-worker of his choice and full opportunities were afforded to cross examine the Management witnesses and in due compliance of the principles of natural justice, supplying with all the records that the second respondent wanted and with further supply of the copy of the proceedings of the enquiry, thus enabling him to present his statement; but, however, accusing the Management that he was not afforded with adequate opportunity both in cross-examining the witnesses of the Management and supply of documents required, the second respondent insisted for the reference; that the Enquiry Officer, in consideration of all materials placed on record, gave his finding holding the charges proved against the second respondent and further taking into account his past conduct and records, the petitioner dismissed the second respondent from service as on 16-7-1981. The petitioner would further contend that in the reference made to the first respondent/Labour Court, the second respondent took the plea that the enquiry conducted by the Management was not fair and proper as preliminary objection, which was negatived by the first respondent; that then on a detailed enquiry, invoking the provision under Section 11-A of the Industrial Disputes Act, the first respondent/Labour Court, though gave a finding that the charges have been proved, interfered with the quantum of punishment and ordered reinstatement of the second respondent without back wages and aggrieved with this Award, the petitioner has come forward to file the above writ petition on certain grounds as set out in the writ petition.During arguments, the learned counsel appearing for the petitioner narrating the sequence of events till the dismissal of the second respondent from service on 16-7-1981, would contend that in the reference made to the first respondent/Labour Court, the second respondent herein raised a plea that the enquiry was defective, but that plea was negatived by the Labour Court and that under Section 11-A of the Industrial Disputes Act, the Labour Court interfered in the quantum of punishment and ordered reinstatement of the second respondent without back wages. The learned counsel for the petitioner would contend that on three grounds, the writ petition has been filed, they are (i) whether the Labour Court is right in considering the subsequent events to decide the matter ? (2) since the scope of Section 11-A of the Industrial Disputes Act being very limited, the Labour Court, having arrived at the conclusion that the charges were proved, should not have interfered with the punishment of dismissal since the Supreme Court in a judgment delivered in Bharat Sugar Mills Ltd. v. Jai Singh reported in 1961 II(LLJ) 644 held that "go slow" is a very serious offence or a misconduct rather in the following terms : "Go-slow" which is a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontented or disgruntled workmen sometime resort to. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output, the workmen claim to have remained employed and thus to be entitled to full wages. It would not be far wrong to call this dishonest. For, while thus delaying production and thereby reducing the output, the workmen claim to have remained employed and thus to be entitled to full wages. Apart from this also, "go-slow" is likely to be much more harmful than total cessation of work by strike. For, while during a strike much of the machinery can be fully turned off, during the "go-slow" the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts. For all these reasons "go-slow" has always been considered a serious type of misconduct. "and (iii) once the Court comes to the conclusion that the enquiry is fair and proper, the question of asking for new records and arriving at the conclusions as the first respondent has done, won't arise and this process is wrong. The learned counsel for the petitioner would further contend that looking at the manner in which the events have taken shape from August, 1980, when the second respondent started showing less production and the warning, reduction in wages etc., will not in any manner show discrimination. The learned counsel for the petitioner would exhort that from 1980 onwards, the petitioner was waiting for the second respondent to reform and increase the production, but he did not improve, since he had resolved not to give increased production and purposely doing so. The learned counsel would end up saying that since the Labour Court finds that the enquiry was fair and proper, it cannot interfere into the question of penalty and would cite the judgment of the Apex Court delivered in The Workmen of M/s. Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management reported in 1973 Lab IC 851 wherein it is held : "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. 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 : 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 first 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 confines 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 those 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 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 be made by the Tribunal. Nor does it follow that 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 Legislaure in S. 11A 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. 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 emphasises that the Tribunal has to 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 a subordinate body. The "matter" in the proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.It is to be noted that an application made by an employer under S. 33(1) for permission or S. 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act. It has been held by this Court that even in cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though the Tribunal is exercising only a very limited jurisdiction under this section, nevertheless, it would have applied its mind before giving permission or approval. Section 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under S. 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under S. 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh that if no enquiry is held, the order of dismissal will have to be set aside, if accepted, will lead to very incongruous results. The Tribunal would have allowed an employer to adduce evidence before it in proceedings under S. 33 for the first time, even though no domestic enquiry had been held. It is held that another Tribunal, which adjudicate the main dispute, has to ignore those proceedings and straightaway order reinstatement on the ground that no domestic enquiry had been held by an employer, it will lead to very startling results. Therefore, an attempt must be made to construe S. 11-A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognised in an employer has not been disturbed by S. 11-A ".The learned counsel for the petitioner would cite yet another judgment of this Court delivered in Management of Thanjavur Textiles Ltd. v. Presiding Officer reported in 1998 (93) FJR 368 wherein it is held that -" When the enquiry is found to be unfair or defective, the Tribunal should go only to the evidence adduced before it. It is for the management to adduce evidence before the Tribunal if it wants to sustain the punishment imposed by the management. The evidence led before the domestic enquiry can be looked into by the Tribunal only if both the sides agree for it and the Tribunal also gives its assent. "The other judgment cited by the learned counsel for the petitioner is one delivered in Neeta Kaplish v. Presiding Officer, Labour Court reported in : 1999 AIR(SCW) 157) wherein it is held at page 166 of Lab IC :" In all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. The Labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which it did not do. If such evidence has not been led, the Management has to suffer the consequences. "Citing the above judgments the learned counsel for the petitioner would end up his argument praying to allow the above writ petition. In reply, the learned counsel appearing for the second respondent would contend that the second respondent has put in ten years of service in the petitioner's company and was dismissed on ground that he had shown less production in terms of kilos and that three issues will arise in the above circumstances of the case for consideration; they are (1) in the textile mills whenever there is less production, there is proportionate wage deduction and that is done regarding the case of all other workmen excepting in the case of the second respondent, hence, it is a discriminatory attitude exhibited on the part of the petitioner/textile mills; (2) that the required 110 kilos was not an arbitration award passed under Section 10-A of the Industrial Disputes Act and there is no legal course nor is it binding on the workman; and (3) that the Labour Court exercised power under Section 11-A of the Industrial Disputes Act and ordered reinstatement but denied back wages for about nine years. The learned counsel for the second respondent citing the judgment reported in (1973 Lab IC 851) (supra) would contend that it was the first time that the Labour Court was giving the power to interfere with matters of punishment and prior to that, the Labour Court did not have such powers at all. The learned counsel for the second respondent citing the judgment reported in (1973 Lab IC 851) (supra) would contend that it was the first time that the Labour Court was giving the power to interfere with matters of punishment and prior to that, the Labour Court did not have such powers at all. For discrimination, the learned counsel for the second respondent would cite a judgment of the Apex Court delivered in Sengara Singh v. State of Punjab reported in (1983 Lab IC 1670) wherein when 1100 members of Police Force were dismissed for participating in agitation and criminal prosecutions were also launched against them, only 100 of them were reinstated after withdrawing criminal cases against them, the Apex Court held :" All the 1, 100 dismissed members of the Police Force were guilty of same misconduct, namely, indiscipline to the same extent and degree as the present appellants. If the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them could be reinstated, there is no justification in treating the present appellants differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher when compared to those who were reinstated. Since the respondents failed to explain the distinguishing feature, all of them are put in the same bracket. On that conclusion the treatment meted out to the few sufferers from the vice of arbitrariness and Art. 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Art. 14 of the Constitution. The Court must accordingly interpose and quash discriminatory action. "The other judgment cited by the learned counsel for the second respondent for the same proposition is one delivered in Workmen of India Cements Ltd., Salem v. Labour Court, Coimbatore by a single Judge of this Court reported in 1988 (II) LLN 755 wherein it is held :" It is seen that the charges and the findings are the same in all the nineteen cases. It is well settled that whether it is a case of criminal trial or a domestic enquiry, the parties are confined to the charges framed and the Court or the enquiry officer, as the case may be, cannot travel outside the charges, admit evidence or give any finding in respect of any matter extraneous to the charge. The mere fact that some witnesses have alleged intimidation against the dismissed five workmen is totally irrelevant and cannot be taken into consideration for the simple reason that the delinquent workmen have not been called upon to meet that allegation, no charge having been framed in respect thereof. The learned counsel for the Presiding Officer of the Labour Court has not considered this aspect of the matter in the proper perspective. When the charges against all the nineteen workmen are the same, the dismissal of five workmen only certainly amounts to discrimination. "The learned counsel for the second respondent would contend that the above judgment of the learned single Judge was later on confirmed by the Division Bench of this Court in a judgment reported in 1989 (II) LLN 319. Regarding the powers of Tribunal under S. 11-A of the Industrial Disputes Act, the learned counsel for the second respondent would cite two judgments. The first one delivered by the Division Bench of this Court in The President, Cholan Pokkuvarathu Kazhagam, Madras v. The Presiding Officer, Industrial Tribunal, Madras reported in 1989 II(LLJ) 233 and the other delivered by the Apex Court in Palghat BPL & PSP Thozhilall Union v. BPL India Ltd. reported in 1996 II(LLJ) 335. In the first judgment cited above, it has been held :" After the introduction of Section 11A into the Industrial Dispute Act, the Tribunal cannot only consider whether the finding of misconduct recorded by an employer is correct but also differ from the said finding if a proper case is made out. What was once in the realm of satisfaction of the employer has now come within the purview of the powers of the Tribunal. There is a power to interefere with the punishment and alter the same conferred on the Tribunal. What was once in the realm of satisfaction of the employer has now come within the purview of the powers of the Tribunal. There is a power to interefere with the punishment and alter the same conferred on the Tribunal. Section 11-A was brought in because of the felt needs of the time and this benevolent power must be exercised in the spirit in which the provision has been enacted." In the second judgment cited above, it has been held that : " The Labour Court had discretion under Section 11-A of the I. D. Act to consider the quantum of misconduct and the punishment. The Labour Court was well justified in taking a lenient view and in setting aside the order of dismissal. The discretion exercised by the Labour Court was, in the opinion of the Supreme Court, proper and justified in the circumstance of the case." With the above arguments the learned counsel for the second respondent would pray for dismissing the above writ petition. The discretion exercised by the Labour Court was, in the opinion of the Supreme Court, proper and justified in the circumstance of the case." With the above arguments the learned counsel for the second respondent would pray for dismissing the above writ petition. In consideration of the facts and circumstances encircling the whole case as pleaded by parties concerned and having regard to the materials documents placed on record and upon hearing the vivid arguments advanced by the learned counsel for both, what comes to be known is that it is the case of the petitioner that for having shown lesser production, without reaching the norms fixed and agreed upon, the second respondent had been time and again warned, followed by cut in wages; that in spite of such exercises, since no progress was shown on the part of the second respondent and continued his lethargic attitude in the manner wilful and wanton, causing inconvenience and material loss to the petitioner, explanation was sought for from him and on submission of the explanation by the second respondent, since being not satisfied, charges were framed against him and enquiry was ordered; that a fair enquiry was held in a reasonable manner with due opportunity for the second respondent to be heard with proper supply of documents relied upon by the Management and ultimately the Enquiry Officer submitted his finding holding the second respondent guilty of the charges, based on which, with further opportunity to explain, the second respondent was inflicted with the penalty of dismissal from service; that upon a dispute raised by the second respondent under the relevant provisions of the Industrial Disputes Act, Award was passed by the first respondent thereby accepting the delinquency committed on the part of the second respondent thus ratifying the finding of the enquiry proceeding but holding the penalty of dismissal, a too harsh a punishment in the circumstances of the case, the first respondent interfered with the penalty inflicted upon the second respondent in exercise of its discretionary powers conferred under Section 11-A of Industrial Disputes Act and moulded the relief from one of dismissal from service to reinstatement without back wages and aggrieved, the petitioner/Management has come forward to file the writ petition in hand seeking to issue the Writ of Certiorari calling for the records of the I.D. No. 35 of 1982 and quash the Award dated 30-3-1990 made by the first respondent.On the part of the Management it would be contended that the act perpetrated on the part of the second respondent was deliberate and wilful and in spite of sufficient warning, he did not reform but continued to show less production and hence the petitioner/Management was left with no option but to issue the charge sheet seeking explanation from the second respondent and not being satisfied with the explanations, enquiry was instituted and a fair enquiry was held with due opportunity for the second respondent to be heard; that in the enquiry the second respondent was found guilty and consequently he got dismissed by the petitioner/Management; that there is absolutely no room for the Labour Court to interfere with either the finding or the penalty inflicted by the Management and while such being the uniform case of the petitioner, the interference caused by the Labour Court in its exercise of discretion provided under Section 11-A of the Industrial Disputes Act, which is expected to be exercised sparingly and only in unavoidable and inevitable circumstances and the case in hand not falling under any such circumstance, but on a systematic go slow method adopted in a deliberate manner, the extreme penalty that has been awarded is justified and quite warranted and the Labour Court should not have exercised its option to interfere with the penalty inflicted so as to order reinstatement of the second respondent and hence the writ petition to quash the said Award passed by the Labour Court. On the other hand, on the part of the second respondent, it would be contended on his behalf that there was no question of any deliberate or wilful act perpetrated on his part in showing less production; that the machinery was defective and in spite of his efforts, only that much of production could be shown; that many such workmen have shown either on par with or even less than the production made by the second respondent and they have not been taken to task as the second respondent had been dealt with by the petitioner/Management and it is not only discriminatory but also an arbitrary exercise of power in victimising a workman under pretext that he showed less production; that production depends on various factors and it cannot be materially estimated; that since the Management had some hostility towards the petitioner, it started systematically treating the second respondent with hostile discrimination and such hostility culminating in the show cause notice calling for explanation followed by the enquiry, not a fair enquiry as contemplated by law with due opportunity for him to be heard with, the required documents supplied with and in the slipshod enquiry held, an arbitrary decision holding him guilty had been arrived at, based on which, the extreme penalty of dismissal had been deliberately inflicted by the petitioner/Management and thus he would enddeavour to justify the reinstatement ordered by the first respondent/Labour Court.No writ petition has been filed on the part of the second respondent challenging the denial of back wages and hence the only question that has to be solved in the writ petition is, whether the Labour Court is right in making its interference under Section 11-A of the Industrial Disputes Act, ordering reinstatement of the second respondent without back wages and whether the same is justifiable ? A careful perusal of the impugned order dated 30-3-1990 would clearly show that the Labour Court has gone deep into the evidence and has assessed the evidence in its proper perspective. The Labour Court has found out from the statement i.e. Ex.M. 16 that every employee has produced less than the expected production from the year 1978 to 1980, particularly in the years 1985 and 1986. The Labour Court has found out from the statement i.e. Ex.M. 16 that every employee has produced less than the expected production from the year 1978 to 1980, particularly in the years 1985 and 1986. While so, just for the simple reason that the second respondent was not able to reach the norms, for a month or two, he had been deliberately taken to task and it is nothing but a hostile discrimination and the Labour Court has not accepted the contention put forth on the part of the Management to the effect that all other workmen excepting the second respondent have caused the production to the extent fixed by the Labour Commissioner. It is patently seen from Exs. W 3 and W 4 pertaining to the year 1985-86 that for less production, deductions have been effected from the salary of each and every employee and hence the Labour Court opining that as in the case of others, for the less production made by the second respondent also such a method of deducting from his salary could have been adopted and hence the penalty of dismissal from service is highly rigorous a punishment. The Labour Court has further observed that since it comes to be known that many such labourers, for similar irregularities having been placed under suspension, have been ultimately reinstated in service, as it comes to be seen from Ex. W 5, however in the estimate of the Labour Court the punishment meted out, in the light of various judgments delivered by the upper forums of law, is quite rigorous and disproportionate and such a punishment is not at all required in the circumstances of the case, even in the event of the delinquency being held proved. W 5, however in the estimate of the Labour Court the punishment meted out, in the light of various judgments delivered by the upper forums of law, is quite rigorous and disproportionate and such a punishment is not at all required in the circumstances of the case, even in the event of the delinquency being held proved. The Labour Court has further observed that the long period of unemployment itself is a proper punishment for the second respondent and opining that there is absolutely nothing wrong in reinstating the second respondent in service without back wages has ordered accordingly, in exercise of its discretion conferred under Section 11-A of the Industrial Disputes Act.The decision arrived at by the Labour Court, which is under challenge in the writ petition, in all respects, seems to be quite reasonable and justifiable and it should be stated that the Labour Court in proper appreciation of evidence and on sound reasons has rightly interfered with the penalty inflicted by the petitioner against the second respondent, in exercise of the powers conferred under Section 11-A of the Industrial Disputes Act in the right earnest way. There is absolutely no room or reason to conclude that either the Labour Court has arbitrarily or unreasonably exercised its discretionary powers conferred under Section 11-A of the Industrial Disputes Act or exceeded its jurisdiction in ordering reinstatement of the second respondent without back wages. Needless to point out that the exercise of power in ordering reinstatement without back wages as it has been done by the Labour Court is quite appropriate and fitting. In short, there is no patent error of law or perversity in approach much less in the exercise of discretion by the Labour Court under Section 11-A of the Industrial Disputes Act, so as to call for the interference of this Court. In the above circumstances, the only course left with is to decline to interfere with the order of the Labour Court, thus confirming the same. In result, the above writ petition fails and the same is dismissed. No costs.