Judgment :- N.V. Balasubramanian,J. This writ appeal is preferred against the order of the learned Judge of this Court made in W.P.No.5411 of 1988 dated 27.4.1998. 2. Tiruchendur Sarvodaya Sangam is the appellant before us and the first respondent, Natarajan was an Assistant in the establishment of the appellant. The Secretary of the Sangam transferred the first respondent from Tiruchendur to Sathankulam and thereby, the first respondent was also reduced in rank. After the transfer, since the first respondent could not get a suitable accommodation in Sathankulam, he continued to reside in Tiruchendur and at the time of his transfer, it is his case that his wife was in the advanced stage of pregnancy and his children were also studying in school and he was asked to vacate the house by the Secretary. It is the case of the first respondent that the Secretary of the appellant Sangam gave a charge sheet dated 5.9.1981 stating that the first respondent assaulted the Secretary of the appellant Sangam on 28.8.1981 at about 8.30 p.m. and on account of the said charge sheet, the first respondent was placed under suspension. A police complaint was also given. The first respondent gave an explanation on 7.9.1981 and an enquiry was ordered on 14.11.1981. The first respondent did not attend the enquiry on 14.11.1981 and also on the adjourned dates on the ground that his wife was seriously ill and admitted in hospital and the first respondent was set ex parte and in the enquiry, witnesses were examined and on the basis of the report of the Enquiry Officer, the first respondent was removed from service. 3. In the criminal proceedings, the first respondent was acquitted. The first respondent raised an industrial dispute and the Labour Court found that there was violation of principles of natural justice and hence, witnesses were examined in the Labour Court and the evidence was taken by the Labour Court and on the basis of evidence, the Labour Court, by award dated 31.12.1986, found that the first respondent was guilty of the charge levelled against him and held that the order of dismissal from service was correct and rejected the claim of the first respondent. 4. The first respondent preferred a writ petition before this Court challenging the award of the Labour Court. 4. The first respondent preferred a writ petition before this Court challenging the award of the Labour Court. The learned Judge, in the writ petition, interfered with the award of the Labour Court and held that the first respondent should be reinstated with backwages. The order of the learned Judge is the subject matter of appeal before us. 5. The first submission of Mrs.Rita Chandrasekar, learned counsel for the appellant is that the learned Judge was not correct in interfering with the award of the Labour Court as the Labour Court, on the basis of evidence, held that the charge against the first respondent was proved. The charge framed against the first respondent was that he assaulted the Secretary of the appellant Sangam who was examined as M.W.1. He has stated in his evidence that the first respondent was transferred to Sathankulam from Tiruchendur and he was also requested to vacate the premises which he was occupying after the order of transfer was made. He has also stated that a notice was given by the management to vacate the house. He has stated that because of the transfer and the request to vacate the house, the first respondent nursed a grudge against him and on 28.8.1981 at about 8.30 p.m., when he was leaving the office after inspection along with M.W.2 Diraviyam, the first respondent who got down from Sathankulam bus, waylaid and assaulted him with the tiffin carrier and caused injury on his right shoulder. Immediately after the assault, he sent a telegram to the President of the appellant Sangam which was marked as Ex.M-49 wherein it is stated that at about 8.30 p.m. on 28.8.1981 the first respondent assaulted the Secretary of the appellant Sangam and caused injury to him and requested him to come to Tiruchendur immediately. The telegram was sent at about 11.30 p.m. on the same night. M.W.1 also stated that he did not prefer a complaint to the police immediately as he reported the matter to the President of the appellant Sangam and soon after the arrival of the President from his Office at Tiruppur, a police complaint was preferred. It is also stated that the first information report could not be lodged earlier as necessary permission from higher authority had to be obtained and the Secretary took treatment from a country doctor and hence, there was delay in filing the first information report. It is also stated that the first information report could not be lodged earlier as necessary permission from higher authority had to be obtained and the Secretary took treatment from a country doctor and hence, there was delay in filing the first information report. 6. The victim M.W.1 was examined by the Doctor attached to the Government Hospital, Tiruchendur and the doctor issued the certificate Ex.A-15. The Labour Court relied upon Exs.M-49 and M-50 and the evidence of witnesses to come to the conclusion that M.W.1 Secretary was assaulted by the first respondent with tiffin box and he sustained injury on his right shoulder and he was sent to the Government Hospital for taking treatment and since he felt pain in the right shoulder, though there was no fracture, he was taking treatment in the Government Hospital after the initial treatment from a native doctor. The suggestion that he gave a false complaint was rejected by M.W.1 The Labour Court also noticed the evidence of M.Ws.2 and 3 and found that the plea of the first respondent that a false case was foisted against him was rejected by the High Court in the Revision filed by him against the order made in the criminal case. We find that there were two independent eye-witnesses to the incident, namely, M.Ws.2 and 3 who have stated that the first respondent assaulted M.W.1 and M.W.1 took treatment initially from a native doctor and thereafter in the Government Hospital. The Labour Court noticed the relevant Standing Orders and on the basis of evidence, the Labour Court has recorded the finding that the first respondent assaulted the Secretary of the appellant Sangam on 28.8.1981 at 8.30 p.m. and the charge was proved and the dismissal of the first respondent by the appellant Sangam was correct. 7. Mrs.Rita Chandrasekar, learned counsel for the appellant submitted that the finding of the Labour Court was arrived at on the basis of evidence and the learned Judge also after recording a finding that if the act of assault had been established, the action of appellant Sangam against the first respondent would not have been impugned, erred in holding that the order of dismissal was not sustainable in law. 8. Mr.Hariparanthaman, learned counsel for the first respondent, on the other hand, submitted that the charge against the first respondent was not proved. 8. Mr.Hariparanthaman, learned counsel for the first respondent, on the other hand, submitted that the charge against the first respondent was not proved. He referred to the evidence before the criminal Court in C.C.No.340 of 1982 on the file of Judicial Second Class Magistrate, Tiruchendur wherein one Diraviyam Pillai was examined as P.W.3 in the criminal case, but, the said Diraviyam Pillai has not stated before the criminal Court that the first respondent assaulted the Secretary of the appellant Sangam (M.W.1) with the tiffin carrier. He also referred to the evidence of Dr.Jagathrachakan who was examined as P.W.6 in the above said criminal case and the judgment rendered by the learned Judicial Second Class Magistrate dated 4.1.1983 in C.C.No.340 of 1982 and submitted that because of previous enmity between the Secretary of the appellant Sangam and the first respondent herein, the Secretary foisted a false complaint against the first respondent and the criminal Court also found that the case preferred was a false one, though in the revision such finding was reversed. He submitted that on the basis of same evidence of same witnesses, the criminal Court acquitted the first respondent and hence, the Labour Court was not correct in holding that the charge against the first respondent was proved. Learned counsel further submitted that the Labour Court has not considered the question of applicability of section 11-A of the Industrial Disputes Act. He submitted that though witnesses were examined in the Labour Court, the Labour Court did not discuss the evidence and the rebuttable evidence before the Labour Court was not considered. He submitted that one other witness cited was not examined. He also submitted that because of the previous enmity between the Secretary and the first respondent, the appellant Sangam gave a false complaint on the basis of which the charge sheet dated 5.9.1981 was issued. In support of his submissions, learned counsel relied upon the following decisions:- 1. PALGHAT BPL & PSP T.U. v. BPL INDIA LTD & ANR ( 1996 (2) LLJ 335 ) 2. MGT. OF TAFE v. R. VENKATRAMAN & ORS. ( 1990 (2) LLJ 468 ) 3. INDIAN RLY. CONSTRUCTION CO., LTD. v. A.KUMAR (2003 (3) LLN 43). 4. WORKMEN, E.V.L. v. ENGINE VALVES LTD ( 1983 (2) LLJ 232 ) 5. U.P. STATE ROAD TRANSPORT CORPN. v. MAHESH KUMAR MISHRA (2000) 3 SCC 450 ) 6. GUJARAT STEEL TUBES LTD. MGT. OF TAFE v. R. VENKATRAMAN & ORS. ( 1990 (2) LLJ 468 ) 3. INDIAN RLY. CONSTRUCTION CO., LTD. v. A.KUMAR (2003 (3) LLN 43). 4. WORKMEN, E.V.L. v. ENGINE VALVES LTD ( 1983 (2) LLJ 232 ) 5. U.P. STATE ROAD TRANSPORT CORPN. v. MAHESH KUMAR MISHRA (2000) 3 SCC 450 ) 6. GUJARAT STEEL TUBES LTD. v. G.S.T. MAZDOOR SABHA ( 1980 (1) LLJ 137 ) 7. M.PAUL ANTHONY v. BHARAT GOLD MINES, LTD. ( 1999 (3) SCC 679 ) 8. PARRY & CO. LTD. v. DEPUTY COMMISSIONER OF LABOUR & ANR ( 1996 (1) LLJ 169 ). 9. We are of the view, it would be proper to consider the reasonings of learned Judge while allowing the writ petition before considering the submissions made by learned counsel for the parties. Learned Judge held that there was a delay in filing the first information report. The said reasoning of the learned Judge is not sustainable as it was found by the Labour Court that on 28.8.1981 at about 8.30 p.m. when the Secretary was leaving the Office, the first respondent assaulted the Secretary with tiffin carrier and immediately after the incident, at about 11.30 p.m. the Secretary sent a telegram to the President of the appellant Sangam informing him that the first respondent assaulted the Secretary as the President of the appellant Sangam was in a different town and the permission of higher authority was necessary to lodge police complaint against another employee and soon after the arrival of the President, the permission was obtained and the first information report was lodged. The issue of the telegram was not doubted. We are of the view that the Labour Court found that the delay in lodging the first information report was properly explained and further, the delay in lodging the first information report has no consequence in so far as departmental proceedings are concerned though it may have some relevance in the criminal case. Moreover, the Supreme Court has repeatedly held that the delay in lodging first information report is not fatal if the delay is properly explained even in criminal cases. When that is the position, learned Judge was not correct in coming to the conclusion that there was a delay in lodging the first information report and the delay is one of the grounds to vitiate the order of dismissal. When that is the position, learned Judge was not correct in coming to the conclusion that there was a delay in lodging the first information report and the delay is one of the grounds to vitiate the order of dismissal. Learned Judge overlooked the telegram sent at about 11.30 p.m. immediately after the incident to the President of the appellant Sangam. When the Labour Court found that the delay has been properly explained, the view of the learned Judge that there was a delay in lodging the F.I.R. which would vitiate the order of termination is not sustainable. 10. Learned Judge was also not correct in holding that the management need not wait for approval of the President of the appellant Sangam for lodging first information report as it is not disputed that criminal action could be set in motion against a co-employee only with the approval of higher authority and it is an internal matter for the Sangam and it is for the Sangam to formulate its own rules and regulations to decide whether the approval of the higher authority is required or not to lodge the criminal complaint against its employees. It is not the case of the first respondent that there was no such requirement and we are of the view that if the Secretary of the Sangam had lodged the police complaint without the permission of the higher authority, he would have exposed himself to the disciplinary proceedings. 11. The next reason given by the learned Judge is that the Secretary, the victim, was treated first by an indigenous doctor, but the doctor was not examined. We are of the view, the non-examination of the country doctor before the Labour Court has no relevance as the victim has given evidence that he was treated by the country doctor and soon after that, he was admitted in the Government Hospital. The Doctor in the Government Hospital has also issued necessary certificate and deposed before the Court that he treated the victim Arumugam for nearly 21 days as an inpatient. Hence, the reasoning of learned Judge that the non-examination of the country doctor would constitute one of the reasons to reverse the order of termination is not sustainable. 12. The Doctor in the Government Hospital has also issued necessary certificate and deposed before the Court that he treated the victim Arumugam for nearly 21 days as an inpatient. Hence, the reasoning of learned Judge that the non-examination of the country doctor would constitute one of the reasons to reverse the order of termination is not sustainable. 12. Learned Judge also came to the conclusion that there was no reason for the victim Arumugam for being admitted in the Government Hospital as inpatient as there was no fracture. However, the Labour Court found that the victim complained of pain in his right shoulder and the doctor himself who gave the treatment was examined as a Court Witness and he stood the test of cross-examination. The Labour Court had the opportunity to see the demeanour of the victim and the doctor and chose to place reliance on their evidence and the medical certificate issued by the doctor. The doctor is a doctor from the Government Hospital and he is an independent witness and there is nothing in the statement of the doctor or the records to disbelieve his statement that he was giving treatment to the victim Arumugam as inpatient as false as the victim was complaining pain and the source of pain had necessarily to be investigated. Learned Judge also observed that the allegation of pain might be an absolute falsehood. We have gone through the evidence of the doctor and he has not stated that the allegation of pain was false and what he has stated that so long as the patient complains of pain, the treatment is necessary as inpatient and he has stated that there may be allegation of pain which may be an absolute falsehood and his statement does not mean that the allegation of pain in the instant case was false. Learned Judge proceeded on the basis that there was no assault on the victim Arumugam and he seems to have proceeded on the basis that the complaint was a false one. But, there is no evidence at all for the learned Judge to come to the conclusion that it was a false complaint, and the said finding has been arrived at without any evidence on record. But, there is no evidence at all for the learned Judge to come to the conclusion that it was a false complaint, and the said finding has been arrived at without any evidence on record. Before the Labour court two independent witnesses were examined as M.Ws.2 and 3 apart from the victim (M.W.1) himself who has given a statement in his deposition that the first respondent assaulted him. M.W.2 Diraviyam has stated that he saw the incident and the first respondent hit the victim with tiffin box on his right shoulder. One Lakshmanan was examined as M.W.3 and he has stated that he is the Manager of the appellant Sangam and the first respondent shouted at Arumugam Pillai and hit him with tiffin box and the blow fell on his right shoulder of Arumugam Pillai. M.Ws.2 and 3 are independent witnesses and the Labour Court had the opportunity to see the demeanour of the witnesses M.Ws.2 and 3 apart from the evidence of doctor who examined the victim Arumugam and recorded a finding that the charge against the first respondent was proved. It is also relevant to notice here that though the Judicial Second Class Magistrate held that the case might be a false one, in the revision preferred by the victim Arumugam this Court reversed the said finding and held that the case was not a false case and the said finding was expunged by this Court. We find that the Labour Court has arrived at its finding on the basis of evidence. 13. Learned Judge seems to have also proceeded on the basis that the acquittal in the criminal case cannot be ignored, and in view of non-examination of the indigenous doctor, learned Judge came to the conclusion that there was no proof for the assault on Arumugam Pillai by the first respondent. We are of the view that the said finding of learned Judge is not based on any evidence at all and the learned Judge should have seen whether the Labour Court had any material for arriving at its finding that the first respondent assaulted Arumugam. The acquittal in the criminal case has no bearing as fresh evidence was let in before the Labour Court and on the basis of the evidence let in before the Labour Court, it came to the conclusion that the charge of assault on Arumugam by the first respondent was proved. The acquittal in the criminal case has no bearing as fresh evidence was let in before the Labour Court and on the basis of the evidence let in before the Labour Court, it came to the conclusion that the charge of assault on Arumugam by the first respondent was proved. In our view, it is not correct to appreciate the evidence once again and render a factual finding, that too, on the basis of the view that non-examination of the indigenous doctor is fatal and the acquittal in the criminal case would assume importance. We are of the view, learned Judge should have seen that there is nothing to disbelieve the evidence of M.Ws.1 to 3 who have spoken cogently about the incident and their evidence cannot be discarded only on the assumption that Arumugam gave a false complaint which assumption is not warranted as this Court has already expunged the finding of learned Judicial Second Class Magistrate to the effect that the complaint was a false one. Learned Judge noticed various decisions of the Supreme Court as well as this Court on the scope of judicial review, but clearly exceeded his jurisdiction in rejecting the finding of the Labour Court which is based on evidence. We are of the view, there is absolutely no evidence for the learned Judge to come to the conclusion that there was a false complaint and the view of learned Judge that there was a false complaint is not sustainable either on facts and in law. 14. Mr.Hariparanthaman, learned counsel for the first respondent submitted that the charge and the evidence in the criminal case as well as before the Labour Court were same and the Labour Court was bound to consider the judgment of acquittal by the criminal Court and he relied on the decision of the Supreme Court in M.PAUL ANTHONY v. BHARAT GOLD MINES, LTD. ( 1999 (3) SCC 679 ), particularly paragraph-35 which reads as under:- "Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instance case." However, that judgment is not applicable on the facts of the case as in Paul Anthony case, the Supreme Court has pointed out as under:- "As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that is required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being any variance." The case on hand does not fall within the exception to the general rule as fresh evidence was let in before the Labour Court and on the basis of fresh evidence, the finding that the charge was proved was arrived at. 15. Moreover, this Court in THE STATE OF TAMIL NADU v. MUNAFF (2002) 2 M.L.J.282), after noticing Paul Anthony case and also other decisions, held as under:- " ... it is not axiomatic that in all the cases where the criminal proceedings based on the very same set of facts ended in acquittal, the departmental action should not be proceeded with. It is by how settled that if the acquittal in the criminal proceedings is not a honourable one, it is always open to proceed with the departmental proceedings. it is not axiomatic that in all the cases where the criminal proceedings based on the very same set of facts ended in acquittal, the departmental action should not be proceeded with. It is by how settled that if the acquittal in the criminal proceedings is not a honourable one, it is always open to proceed with the departmental proceedings. It is also now made clear that having regard to the fact that the delinquent may apprehend prejudice in the event of the criminal proceedings and the departmental enquiry being simultaneously proceeded with, the departmental enquiry can be commenced after the final conclusion of the criminal proceedings. A honourable acquittal would only mean an acquittal which is free from any doubt. Therefore merely because a person came to be acquitted on the ground that the charge was not proved beyond all reasonable doubts, it cannot be held that the person was honourably acquitted so as to hold that he was given a clean chit of the charges levelled against him." 16. The next submission of Mr.Hariparanthaman, learned counsel is that there is a variation between the statement of Diraviyam Pillai when he was examined before the criminal court and the statement given by him before the Labour Court. He referred to the statement of Diraviyam Pillai before the criminal Court wherein he has not stated that there was an assault on the victim by the first respondent. He also referred to the evidence given by Diraviyam Pillai before the Labour Court where he has stated that there was an assault on victim by the first respondent. He submitted that the said Diraviyam Pillai was examined as M.W.2 and he was cross-examined and there is contradiction in his evidence. Diraviyam Pillai has stated that the incident took place at about 50 feet away from his shop and he saw the incident when he was going to take food. He has also stated that there was a quarrel between the first respondent and Arumugam Pillai. In his statement he has stated that Arumugam Pillai was hit by the first respondent with his tiffin carrier on his right shoulder. Apart from M.W.2, one Lakshmanan was examined as M.W.3 who has stated in his chief-examination that the first respondent assaulted Arumugam Pillai and he stood the test of cross-examination in the Labour Court. In his statement he has stated that Arumugam Pillai was hit by the first respondent with his tiffin carrier on his right shoulder. Apart from M.W.2, one Lakshmanan was examined as M.W.3 who has stated in his chief-examination that the first respondent assaulted Arumugam Pillai and he stood the test of cross-examination in the Labour Court. The Labour Court found that there is nothing to disbelieve the statements of M.Ws.2 and 3. These witnesses are independent witnesses and it cannot therefore be stated that the evidence before the criminal court and the evidence before the Labour Court are one and the same. 17. The next submission of Mr.Hariparanthaman, learned counsel was that one other person whose name was cited was not examined. For that, learned counsel relied upon the decision of this Court in PARRY & CO. LTD. v. DEPUTY COMMISSIONER OF LABOUR & ANR ( 1996 (1) LLJ 169 ). The judgment has really no application. The appellant Sangam examined two independent witnesses besides the victim and their evidence regarding the assault on Arumugam Pillai by the first respondent show that the charge of assault has been established as all of them have spoken about the assault on Arumugam Pillai by the first respondent and hence, the non-examination of other witness is not material and on that account, an adverse inference cannot be drawn against the appellant Sangam. 18. The other submission of Mr.Hariparanthaman, learned counsel is that the Labour Court has not exercised its discretion under section 11-A of the Industrial Disputes Act. It is no doubt true that the Labour Court is statutorily bound to apply section 11-A of the Industrial Disputes Act which has been established by this Court in WORKMEN, E.V.L. v. ENGINE VALVES LTD ( 1983 (2) LLJ 232 ). Though the Labour Court has not considered the question of applicability of section 11-A of the Industrial Disputes Act in so many terms, we are not inclined to remit the matter as the charge of assault has been proved and the Labour Court has also found that the first respondent assaulted the victim Arumugam Pillai and in the circumstances, the dismissal of the first respondent from service is correct. Learned Judge also proceeded on the basis that if the assault had been proved, the action taken by the appellant Sangam would not have been impugned. Learned Judge also proceeded on the basis that if the assault had been proved, the action taken by the appellant Sangam would not have been impugned. It is not disputed that the misconduct is covered by the Standing Orders and the punishment for such violation would be dismissal from service. Hence, we are not inclined to remit the matter to the Labour Court to consider the question of applicability of section 11-A of the Industrial Disputes Act as we find that the punishment of dismissal is proper, proportionate and sustainable as there was an assault on the superior officer by the first respondent. 19. Mr.Hariparanthaman, learned counsel also referred to certain other decisions where this Court interfered with the punishment, namely, (1) PALGHAT BPL & PSP T.U. v. BPL INDIA LTD & ANR ( 1996 (2) LLJ 335 ), (2) MGT. OF TAFE v. R. VENKATRAMAN & ORS. ( 1990 (2) LLJ 468 ) and (3) INDIAN RLY. CONSTRUCTION CO., LTD. v. A.KUMAR (2003 (3) LLN 43), however, all the decisions are distinguishable as on the facts of the case it was found by the Labour Court that the charge against the first respondent stood proved and the Labour Court upheld the order of dismissal and in the circumstances, we are of the view that the learned Judge need not have interfered with the award of the Labour Court upholding the order of dismissal especially when fresh evidence was let in before the Labour Court and the Labour Court analysed the evidence and on appreciation of the evidence, recorded a finding that the charge against the first respondent was proved, and the charge is a grave one warranting dismissal from service. Hence, we are unable to accept the submissions of Mr.Hariparanthaman, learned counsel for the first respondent. 20. Consequently, the judgment of learned Single Judge is set aside and the appeal stands allowed and the award of the Labour Court is confirmed. No costs.