Judgment : GIRISH CHANDRA GUPTA, J. (1) THE subject matter of. challenge in this writ petition is an award dated 20th September, 1988 by which the delinquent workman has been reinstated along with all back wages and benefits. The employer has come up before this Court invoking the writ jurisdiction. (2) IT appears that, the charge-sheet was issued on 22nd October 1982, the sum and substance whereof was that at. 1. 10 p. m. on 21st October, 1982 at the search barrier the private respondent was searched whereupon one cloth bag containing about 150 grams of grease wrapped in cellophane paper was recovered from his possession. A seizure list was prepared which the private respondent refused to sign and that he forcibly went out of the factory. (3) THE charge-sheet dated 22nd October, 1982 was amended under the cover of a letter dated 7th December, 1982 which included some more particular about the aforesaid charge and an additional fact that at about 2. 50 p. m. the private respondent managed to slip out of the factory. with the help of others on the plea of going to the toilet. The charges against him included wilful insubordination and theft. The employer held a departmental enquiry and passed an order of dismissal. (4) THE matter was referred to the Tribunal. The Tribunal by the impugned award has directed reinstatement. I have gone through the award made and published by the Tribunal. The Tribunal, it appears has overstressed the timing of the incident. Great deal of energy was wasted by the Tribunal in analyzing the evidence as regards the time of occurrence. Some of the witnesses told that the incident took place at about 1 p. m. whereas someone else told that the incident took place at 1. 20 p. m. and yet some other told that it took place at around 1. 30 p. m. On the aforesaid basis the Tribunal concluded that there is contradiction in the evidence. Some of the witnesses told that the incident took place at about 1 p. m. whereas someone else told that the incident took place at 1. 20 p. m. and yet some other told that it took place at around 1. 30 p. m. On the aforesaid basis the Tribunal concluded that there is contradiction in the evidence. That there was no signature in the seizure list that there was contradiction about the nature of the bag in which the grease was kept, that the witnesses were not unanimous as to the actual weight of the grease found in the possession of the private respondent; that with regard to exit of the private respondent from the factory there were two contradictory theories available; that grease is a commodity which is available in the open market and that it had not been proved that the grease belonged to the employer are the reasons for passing the award under challenge. The Tribunal also found itself difficult to believe that a permanent employee would indulge in such a foolish act as to commit theft of such a small quantity of grease and would, thus, incur the risk of losing a permanent job. (5) MR. Dasan, learned Advocate appearing for the private respondent drew my attention to the judgment of the Apex Court in the case of Indian Overseas Bank v. I. O. B. Staff Canteen Workers Union and anr. , reported in AIR (2000) 4 SCC p. 245. He relied on paragraph 17 which reads as follows:- "the learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally re-appreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by the Tribunal, presided over by a judicial officer. The findings of fact recorded by a fact finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single judge and in ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be. unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of ones own, altogether giving a complete go-by even to the facts specifically found by the Tribunal below". (6) HE also relied on a Division Bench Judgment of this Court in the case of Sital Chandra Ganguly v. Ninth Industrial Tribunal, W. B. and Ors. , reported in 2003 (4) Calcutta High Court Notes, Page 22. He relied on paragraph 14 which reads as follows: the proposition as contended by Mr. Ghosh seems to be settled proposition of law. If we proceed on the basis of the submission made by Mr. Ghosh, in that event, the absence of reasons given in the order of termination would not be material to affect the consequence. But if the finding of the learned tribunal can be shown to be perverse, in that event, the question would be different. If we proceed on the basis of the submission made by Mr. Ghosh, in that event, the absence of reasons given in the order of termination would not be material to affect the consequence. But if the finding of the learned tribunal can be shown to be perverse, in that event, the question would be different. Our attention was drawn to the award passed by the learned Tribunal and the materials placed before this Court. Even if we go by the finding of the learned Tribunal as recorded by it, even then, one thing that troubles us is that in fact there is nothing to indicate that the alleged article was ever identified to belong to the employer. Even if it was so said orally, even then we could have gone with that. But the learned tribunal proceeded to record that even if the identity of the billet was not established as belonging to the employer, even then, there was reason for the employer to lose confidence with the workman. In our view, this seems to be wholly perverse a finding. Evidence must be dependent on certain facts. There must be some nexus between the workman and the billet. It was shown that there was shortage of stock. But there is nothing to show that the billet recovered from the workman belonged to the employer and that it is not available in the market and was drawn from the stock of the employer company. Until the billet recovered was identified, there cannot be any nexus established with the incident and the workman. Thus, we find that the finding of trie learned Tribunal was perverse. This fact was not placed before the learned single Judge and the attention of the Court was not drawn to this aspect. We, therefore, find that this is a case fit for interference". (7) MR. Dasan submitted that the jurisdiction of the high Court is not appellate and, therefore, the High court cannot reappraise the evidence and come to an independent finding. Relying on the Division bench Judgment he submitted that so long as the grease has not been proved to have belonged to the employer, there was no case against the private respondent and the Tribunal has rightly directed reinstatement and this Court should not interfere with the award. (8) MR. Relying on the Division bench Judgment he submitted that so long as the grease has not been proved to have belonged to the employer, there was no case against the private respondent and the Tribunal has rightly directed reinstatement and this Court should not interfere with the award. (8) MR. Partha Bhanja Chowdhury, learned Advocate appearing for the writ petitioner submitted that the tribunal started with a mind set to find fault. There was lack of impartiality in appreciating the evidence and the Tribunal introduced theories which were not suggested by anyone. He submitted that the award cannot be allowed to stand and should beset aside. (9) I have considered the rival submissions made by the learned Advocates. The Tribunal does not appear to have taken notice of the fact at all that the private respondent was directed to offer his explanation to the charge-sheet, the amended charge-sheet to which he did reply. His case was that he did not commit the offence/misconduct. He has thrown no challenge to the petitioners ownership of the grease. (10) THE contradiction, which appear to have greatly influenced the Tribunal, to my mind, is not of much significance because no one deposed before the tribunal that upon search nothing was found from the possession of the private respondent. Everyone has said that the grease was found from the possession of the private respondent. Whether it was found at 1 p. m. or 1. 20 p. m. or 1. 30 p. m. is not material nor was the enquiry directed to the time of discovery. The point in issue was whether the private respondent committed the misconduct of stealing the property of the employer. The Tribunal would have done well to direct its attention to the relevant fact rather than wasting its energy in finding out the contradiction in the deposition of the witnesses as regards the time of detection. The incident took place in the year 1982 and the witnesses were examined by the Tribunal some times in the year 1987 and 1988. If the witnesses are supposed to tell the truth minor variations such as the one with regard to the timing of the incident is bound to be there. To insist upon mathematical accuracy from the witnesses is to invite perjury. If the witnesses are supposed to tell the truth minor variations such as the one with regard to the timing of the incident is bound to be there. To insist upon mathematical accuracy from the witnesses is to invite perjury. (11) THERE is some substance in the submissions made by the learned Advocate for the petitioner when he submitted that the Tribunal started the enquiry with a particular mind set to find fault with everything. No Tribunal nor any Court is interested in any matter, far less in the consequence of any cause. The Tribunal or the Court should solely confine to finding out the truth and to give the parties what they deserve. There is no scope for any sympathy. Benefit of doubt cannot be given on the basis of fanciful thinking. The time of detection to my mind is a matter of lesser significance than the fact that the detection was in fact made with regard to which there is no contradiction. (12) THE ground assigned by the Tribunal that it had not been proved that the grease belonged to the company is equally erroneous. The private respondent did not suggest any such case. Therefore the ownership of the Company as regards the grease was never in dispute. I had adjourned the matter in order to enable Mr. Dasan to scan the evidence adduced before the Tribunal and to find out if any suggestion was given to any witness of the company that the grease did not belong to the company or that it had been brought by the private respondent from his own house as also to find out whether any such evidence had been adduced by the private respondent or his witnesses. After going through the evidence Mr. Dasan has told me on the adjourned date that there is no such thing in the deposition. When there is no such thing in the deposition and nothing has been shown from the charge-sheet to suggest that this was the case of the private respondent then it was not for the Tribunal to create a dispute for the parties. The Tribunal is there to resolve a dispute and not to create one. It is not for the Tribunal or for any Court to introduce something which was never the case of any of the parties. This is precisely what the Tribunal did. The Tribunal is there to resolve a dispute and not to create one. It is not for the Tribunal or for any Court to introduce something which was never the case of any of the parties. This is precisely what the Tribunal did. (13) THE doubt entertained by the Tribunal that no one would do such a foolish thing as to indulge into stealing of 150 gms. grease is again a fanciful thinking. The Tribunal should have reminded itself that all base acts are founded in impulse and not in reason. It is now well settled that the quantity of the article stolen by the delinquent is not material. However, insignificant the quantity stolen might be, the charge of theft remains nonetheless. Reference in this regard can be made to the judgment of the apex Court in the case of U. P. S. R. T. C. v. Mahindranath Tiwari and Anr. reported in 2005 AIR 6045 wherein the following view was expressed- "it is a misconception to consider that the amount involved in an offence of this nature has a material bearing, while considering whether there has been misconduct on the part of an employee. It may be relevant in a criminal prosecution, when considering the quantum of punishment to be imposed. When a person like the conductor of a bus, who has the obligation to make proper collection of the charges from the passengers on issuing tickets to them, is found to have passengers in the bus, even if it be only one, to whom he had not issued a ticket. . It clearly amounts to a clear violation of the duty imposed on him. It is really a breach of the duty cast on the conductor who is acting on behalf of the employer. Whether it be one passenger or ten passengers it would make no difference in principle in the absence of any explanation in that behalf; it was simply the case of conductor who had violated the Regulations or the terms of his employment and had betrayed his employer, which in any event, is a grave misconduct justifying a dismissal". (14) THE cases cited by Mr. Dasan do not really help him. I am aware of my limitations. I have not re-appreciated the evidence. I have only directed my attention to the decision-making process which I have already indicated hereinabove. (14) THE cases cited by Mr. Dasan do not really help him. I am aware of my limitations. I have not re-appreciated the evidence. I have only directed my attention to the decision-making process which I have already indicated hereinabove. Therefore, the judgment in the case of Indian Overseas Bank cited by Mr. Dasan has no manner of applicability. Similarly, the judgment of the Division Bench cited by Mr. Dasan in the case olsital Chandra Ganguly has no application because here there is no suggestion given by the private respondent that the grease did not belong td the company or that he had brought the same from his own house so that ownership of the grease was not in issue. Unless a fact is in issue there is no obligation to prove that fact. The Division Bench has not taken any contrary view. (15) FOR the aforesaid reasons, this Court is of the view that the impugned award cannot be sustained. The impugned award is as such set aside. The Tribunal shall reconsider the evidence and shall pass a reasoned award in accordance with law within four months from the date of communication of this order. Xerox certified copy of this dictated order be made available to the parties, it applied for, upon completion of all formalities on urgent basis.