P. K. RAY, J. ( 1 ) IN this writ application the writ petitioner, a company, being an undertaking of Government of West Bengal has challenged the award dated 28. 4. 2000 passed by the Presiding Officer, 9th Industrial Tribunal at Durgapur, in Case No. X-6/88 as arose under reference being No. 479-I. R/11l-81 (A)/84 dated 9. 3. 88, whereby and whereunder the learned Tribunal only on the basis of judgment passed by the learned Additional Sessions Judge, 3rd Court, Burdwan, dated 3. 10. 80 answered the reference by holding that the order of dismissal of the workman Sri Pradip Kumar Roy, who is respondent No. 3 herein was unjustified and thereby passed necessary order of reinstatement in service and payment of back wages from the date of suspension till reinstatement. ( 2 ) THE writ petitioner herein has submitted that the learned Tribunal did not consider the legal aspect of the matter and thereby came to an illegal finding relying solely on the basis of a judgment of the criminal appellate Court. It has been further submitted that though the learned Tribunal held that the domestic enquiry was fair and natural justice principle was followed, but only on the basis of judgment of the criminal Court, reference has been answered and thereby the impugned award is attracted for judicial review of this Court on settled principle of law. It has been further asserted by the learned Advocate for the writ petitioner that when in the domestic enquiry the delinquent workman got all the opportunities to contest the matter and availed that and when there is a categorical finding of the learned Tribunal that such domestic enquiry was held properly and fairly, there was no scope before the learned Tribunal to pass an award in favour of the workman directing reinstatement in service upon setting aside the order of dismissal as passed by a valid domestic enquiry following the standing order of the company. It is further asserted that the apex Court judgment as relied upon by the learned Tribunal, namely, M. Paul Anthony v. Bharat Gold Mines Limited and Anr. , reported in 1999 0 Labic 1565 has no applicability in the instant case, by distinguishing the said judgment on the point that therein the apex Court considered the matter relating to a domestic enquiry as reached its finality exparte. , reported in 1999 0 Labic 1565 has no applicability in the instant case, by distinguishing the said judgment on the point that therein the apex Court considered the matter relating to a domestic enquiry as reached its finality exparte. It is further asserted that even in Anthony's case (supra), the apex Court did not shift the said legal position, namely, the jurisdiction of employer to complete the domestic enquiry following the procedures even during pendency of a criminal case on the self-same subject matter, but on the special fact situation of that particular case, the apex Court decided the issue in favour of the workman. It is further submitted by the petitioner company that the question of state claim and/or dispute also was not at all considered by the learned Tribunal although a specific point was taken to that effect relying upon the judgment of the apex Court. It is submitted that the workman concerned was dismissed from service on 9. 5. 77, but reference under section 10 for adjudicating the same as an industrial dispute as passed by the Labour Department, Government of West Bengal, being the order dated 9. 3. 88 which clearly ex facie proves long delay of 11 years when in terms of the said judgment of the apex Court there was no scope for any dispute as has been adjudicated by the learned Tribunal. ( 3 ) LEARNED Advocate of the respondent-workman submitted that since in a criminal proceedings on the identical fact the criminal appellate Court upon quashing the impugned judgment of the learned Judicial Magistrate holding the workman concerned as not guilty of the charges under section 411 of the Indian Penal Code, discharged the accused, adjudication as made in the domestic enquiry even if following the procedure, cannot legally sustain and in that view of the matter, the impugned award is justified and legal. Hence, in adjudicating this matter the cardinal question which centres round in the pivotal contour of the entire issue in question is based on the principle, namely, whether under this fact situation, the aforesaid case of the apex Court in M. Paul Anthony's case (supra) has any applicability, and furthermore on the basis of the findings of the domestic enquiry vis-a-vis following the procedural law, the impugned award can be sustained. ( 4 ) IT is now a settled legal principle that the domestic enquiry under the standing order and/or disciplinary proceeding under the service rule qua criminal proceeding on the identical fact situation, there is no embargo of simultaneous proceeding of both the two matters. It is also settled legal position now that the domestic enquiry and/or departmental proceeding relates to adjudication of the conduct of the workman and/or employee concerned upon being charged for misconduct on issue of factual matrix as mentioned in the article of charge, whereas in a criminal proceeding on the identical fact situation, determination and decision of the Court is to find the guilt of the person concerned in terms of the criminal offence either relating to Indian Penal Code or any other penal statute. Furthermore, it is a settled legal principle that proof of fact and the degree of such proof varies in respect of the two proceedings. In a criminal proceeding, charge is required to be proved without any doubt and strictly following the Evidence Act, whereas in a domestic enquiry and/or departmental proceeding preponderance of probability would suffice for determining the conduct of the delinquent. Even if in identical fact situation, it is now settled that even after acquittal of an accused from a criminal proceeding, domestic enquiry can be completed and punishment can be imposed. Hence, pendency of a criminal proceeding or adjudication of a criminal proceeding on the identical fact, ipso facto will not destroy the findings of the domestic enquiry. Judgments of all these legal propositions are based on: Union of India v. Sardar Bahadur, reported in 1972 0 Labic 627, Nelson Motis v. Union of India and Anr, reported in 1992 0 Labic 2037, State of Rajasthan v. B. K. Meena, reported in 1997-I-LLJ 746 and Depot Manager, Andhra State Road Transport Corpn. v. Mohd. Yusuf Miya, reported in 1997-II-LLJ 902. ( 5 ) IN the instant case, it appears that in the petrol tank of the motor cycle of the delinquent, mercury approximately of 977 Gms. was found by the security personnel while the delinquent after his 'b' shift duty at night was intending to come out of the factory premises. Immediately after this, on 28. 5. ( 5 ) IN the instant case, it appears that in the petrol tank of the motor cycle of the delinquent, mercury approximately of 977 Gms. was found by the security personnel while the delinquent after his 'b' shift duty at night was intending to come out of the factory premises. Immediately after this, on 28. 5. 76 at 11-30 p. m. the delinquent had confessed as appearing at page 31 of the writ application that he was involved in the matter of theft of mercury from the company along with other persons and disclosed their names. This piece of document at page 31 is not self exculpatory statement which is not surely admissible under the Evidence Act, but it is self-inculpatory statement which is very much admissible under the Evidence Act. The delinquent, in the very first stage, upon being caught, submitted before the personnel concerned about his implication along with other persons concerned. Such conduct is a very vital factor for adjudication of the matter in question, which unfortunately has not been looked into by the learned Tribunal. Even in the reply to the article of charge in the domestic enquiry, the delinquent workman has confessed that he was not in conscious possession of the mercury as was recovered from his motor cycle. The delinquent had taken a stand that out of malafide intention some persons as named in paragraph 8 of that reply appearing at page 32 of the writ application, had planted such mischievous action upon him only to cause prejudice to his service career out of grudge. In the enquiry proceeding before the domestic enquiry, unfortunately the delinquent did not at all set up his such case by production of either any document and/or by calling any witness thereto. Though he set up a case of malafide action on the part of some persons, the delinquent did not contend that the said mercury was not belonging to the company, did not contend that the mercury was not in possession of the delinquent as was recovered from the petrol tank of his motor cycle. A case was made out about malafide action of some persons out of grudge as against him and further a case was made out that the key of his petrol tank was possible to be opened by anyone and someone has kept the mercury only to implicate the delinquent in such proceeding. A case was made out about malafide action of some persons out of grudge as against him and further a case was made out that the key of his petrol tank was possible to be opened by anyone and someone has kept the mercury only to implicate the delinquent in such proceeding. Even if assumed for the argument do, that someone had caused mischievous action to fulfil the grudge, the delinquent had the chance and opportunity to make such foundation in the domestic enquiry by examining witness and/or by cross examination to that effect. In the domestic enquiry, the delinquent got every chance to contest the matter. But he did not cross examine at the enquiry stage. The delinquent without placing his witness and without availing his chance, however, in the second show cause when the dismissal order was proposed, simply submitted that in view of the pendency of a criminal proceeding on the allegation of commission of offence under sections 279/411 of the Indian Penal Code, he did not disclose his defence as he would have been prejudiced in the criminal trial. The delinquent never asked for any adjournment of the hearing of the domestic enquiry, as nothing appeared from the records as placed before me. The delinquent very well could have prayed for adjournment of the criminal proceeding during pendency of the domestic enquiry relying upon the settled judgment of the apex Court to that effect. The delinquent allowed the domestic enquiry to be completed and long after 11 years have been successful to refer a dispute by way of a reference under section 10 of the Industrial Disputes Act. In the domestic enquiry, there was a charge of theft and in the criminal proceeding, the charge as was adjudicated relates to section 411 of the Indian Penal Code. The finality of the criminal proceeding reached on 3. 10. 80 by adjudication of the same by the learned Additional Sessions Judge, 3rd Court, Burdwan, but reference of the said dispute was made even 8 years after that, that is, in the year 1988. The learned Tribunal, in the award, has not considered this aspect of the matter though the apex Court in the judgment in the case of the Nedungadi Bank Ltd. v. K. P. Madhavan Kutti and Ors. , reported in JT 2000 (1) SC 388 and in the case of Harnam Singh and Ors. The learned Tribunal, in the award, has not considered this aspect of the matter though the apex Court in the judgment in the case of the Nedungadi Bank Ltd. v. K. P. Madhavan Kutti and Ors. , reported in JT 2000 (1) SC 388 and in the case of Harnam Singh and Ors. v. Punjab State Electricity Board, reported in 2000 (2) LLJ 1413 held that long delay in making a reference under section 10 of the Industrial Disputes Act was bad in law since at the material time, there was no industrial dispute. The learned Tribunal has not considered this aspect that is the delay in making reference, which is a vital point, as taken by the petitioner. On careful scrutiny of the award, it is clear that the learned Tribunal simply passed the award relying upon Anthony's case (supra) and thereby relied upon the judgment of the criminal appellate Court passed by the learned Additional Sessions Judge, 3rd Court, Burdwan, whereby the delinquent was found not guilty of the offence under section 411 of the Indian Penal Code. On careful scrutiny of the judgment of the learned Additional Sessions Judge, 3rd Court, Burdwan, it appears that the judgment is solely based on the legal question that the prosecution shifted the onus of proof about recovery of such mercury without adducing proper evidence that the accused was guilty, upon the accused, which is not permissible in the criminal law. Under the criminal jurisprudence, the prosecution is required to prove the charge though in certain exceptional cases even in a case under section 411 of the Indian Penal Code, sometimes the onus shifts to the accused person also, when there is a prima facie discharge of onus by the prosecution. However, in the instant case, the learned Additional Sessions Judge, 3rd Court, Burdwan, following the principle of criminal jurisprudence held that the prosecution though did not take any steps to prove the matter that the materials as seized from the petrol tank of the motor cycle of the accused was of company proved, but the learned Magistrate fixed the liability to prove that the same was not stolen property, upon the accused person. In that view of the matter, the learned criminal appellate Court quashed the impugned order passed by the learned Magistrate, but that judgment cannot be used to adjudicate the issue of misconduct as was the subject matter of the domestic enquiry. In a domestic enquiry discipline of the concerned company is prime consideration. In the instant case, the company is a Government undertaking and the discipline of the company is prime consideration in the matter in question. The purpose of the domestic enquiry is not to punish a delinquent, but to weed out the rotten woods from the forest. In the instant case, it was to weed out the person concerned whose conduct was not appropriate as an employee of the company on the basis of the standing order. Hence, the parameter of adjudication in criminal proceeding as well as in domestic enquiry are of different dimensions which has not been considered by the learned Tribunal. Once the Tribunal held that the domestic enquiry was fair and proper and natural justice was followed, the Tribunal cannot apply the judgment of a criminal case when discharge of the delinquent workman was only on the ground of lack of proof that the alleged offence was committed by the accused concerned not by weighing the evidence of the witness concerned, bit for the fault of the prosecution for not taking any steps to that effect. Hence same cannot be applied to discharge the delinquent from the charges of the domestic enquiry as has been considered by the Tribunal below. Since the entire award passed by the learned Tribunal is upon placing reliance of Anthony's case (supra), and without consideration of the entire materials on record, namely, question of delay of reference and also consideration of other factual points in the domestic enquiry, including the alleged confession of the delinquent at the first stage, in my view, it is a fit case for remand upon setting aside the impugned order, as passed. The learned Tribunal ought to have taken into account in adjudication and deciding the question, whether after long lapse of 11 years, there was any scope of reference on the basis of the said judgment of the apex Court, as referred to above and also to consider whether in domestic enquiry the delinquent was prejudiced by any illegality to conduct it upon keeping in mind the object and purpose of the domestic enquiry which is only to reach is a conclusion about the conduct of the employee/workman concerned, but not to adjudicate the guilt of the person concerned as per the Evidence Act, as is required to be done in a criminal case in terms of the criminal jurisprudence. In that view of the matter, in my view the learned Tribunal has considered the matter from an angle which is illegal and irregular. Furthermore, the basis of exercising jurisdiction by tribunal since based on the adjudication of point as to due to such delay of 11 years, the reference was maintainable, which admittedly has not been done, the impugned award is illegal. Hence, the impugned award passed by the learned Tribunal is set aside and quashed and the matter is remanded back before the leaned Tribunal for adjudication of the matter, as directed. The writ application is accordingly allowed. Xerox certified copy of the order, if applied for, be supplied on priority basis. Application allowed