Judgment :- (1.) The petitioner in this Article 226 petition dated June 16, 2008 is questioning the award of the First Industrial Tribunal, Kolkata dated February 22, 2008, annexure P21A at pp. 212-228, directing it to reinstate the sixth respondent, Binod Singh, in service without back wages. (2.) The petitioner appointed Binod as a caretaker on January 10, 1979. By a letter dated June 12, 2000, annexure P6 at p.73, it called upon Binod to show cause why, for the charges mentioned in the letter, he should not be discharged from service. The charges were: "1) On 4.6.2000 at noon you in a drunken condition used abusive language and threats against a member of the Society Sri Bharat Bhai Thakkar and Durwan of the School Sri Baiju Singh and tried to Man handle them. 2) You have been negligent in supervising the duties and attendance of the sweepers. 3) You have tried to interfere with the powers and duties of the Management by the members in the administration of the Societys building at 16A, Brabourne Road in the matter of supply of services to tenants." (3.) By a letter dated June 14, 2000, annexure P7 at p.74, Binod denied the correctness of the charges. Under the circumstances, the petitioner decided to hold a domestic enquiry. Binod participated in the enquiry. The enquiry officer submitted his report dated September 7,2000, annexure P11 at p.81. that the, charges were proved. By a letter dated September 12, 2000, annexure P12 at p.98, the secretary of the petitioner gave Binod opportunity to make representation against the findings of the enquiry officer. Binod submitted a detailed representation considering which the secretary of the petitioner issued an order dated October 24, 2000, annexure P15 at p.109, inflicting the penalty of dismissal from service with immediate effect. (4.) Thereupon by an order dated September 5, 2001, annexure P17 at p. 111, the State Government, in exercise of power conferred by section 10 of the Industrial Disputes Act, 1947, referred the dispute specified in the order to the Tribunal. The issues specified are as follows: "1. Whether dismissal of Shri Binod Singh from his service w.e.f. 25.10.2000 is justified? 2. What relief, if any, is he entitled to?" (5.) By an order dated July 12, 2004, annexure P20 at pp. 179-186, the tribunal held that the domestic enquiry was not valid. The issues specified are as follows: "1. Whether dismissal of Shri Binod Singh from his service w.e.f. 25.10.2000 is justified? 2. What relief, if any, is he entitled to?" (5.) By an order dated July 12, 2004, annexure P20 at pp. 179-186, the tribunal held that the domestic enquiry was not valid. Under the circumstances, the petitioner examined three witnesses and exhibited documents in proof of the charges; and in proof of his case and also to disprove the case of the petitioner, Binod examined himself. By the impugned award the tribunal answered the reference in the affirmative and directed Binods reinstatement in service without back wages. (6.) Mr. Gupta, counsel for the petitioner, has argued three points: (i) the petitioner, a society registered under the Societies Registration Act, -1860, is not an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947; (ii) Binod, actually discharging duties of supervisory nature, was not a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947; and (iii) as to merit, the tribunal decided the issues without considering clinching evidence of the petitioner. (7.) Mr. Das, counsel for Binod, has argued that the question whether the petitioner is an industry, not raised before the tribunal, cannot be raised for the first time in this Court; that the question whether Binod was a workman has been rightly decided by the tribunal that referred to the petitioners own case stated in its written statement; and that it is apparent from the award that as to merit, the tribunal considered all evidence adduced by the parties and reached the conclusion that the charges were not proved. He has relied on S.A. Sarong v. W.G. Forge and Allied Industries Ltd. and Ors., 1995 I CLR 837 (Bom). (8.) It is evident from the award that the question whether the petitioner is an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947 was not pressed at the time of arguments before the tribunal. Under the circumstances, I find no reason to permit the petitioner to raise the question, essentially a question of fact, for the first time in this Court. Under the circumstances, I find no reason to permit the petitioner to raise the question, essentially a question of fact, for the first time in this Court. Even if there is evidence adduced by the petitioner in proof of the claim, in my opinion, it is not entitled to invite the High Court exercising power under Article 226 to appreciate such evidence and record a finding of fact. As the point was not pressed before the tribunal, the tribunal did not express its opinion on it. (9.) The question whether Binod was a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947 was raised before the tribunal. In its written statement the petitioner specifically raised the question, and in proof of its case that Binod actually discharging duties of supervisory nature was not a workman, it gave oral evidence of CW 3 and proved Exs P4, P5, P6 and Q through Binod. (10.) In his evidence CW 3 said that Binods official duties were enumerated in the letter dated January 7, 1986, Ex J and the memorandum of settlement dated March 17, 1992, Ex K; that the society entrusted Binod with the supervision of duties of the sub-staff; that it was Binods duty "to see if the code of conduct was being maintained by the members of the sub-staffs"; and that sweepers, durwans and liftmen were under Binods direct control. While in cross-examination it was suggested to CW 3 that no member of the staff was under Binods control and supervision, in his evidence Binod admitted that the nature of his job was described by the management in Ex J; that the documents marked Exs P4, P6 and Q were signed by him; that he did not grant leave to the person named in Ex P4, a leave application; and that he issued Ex Q, a letter to a liftman, using the societys letterhead, under instructions of the societys secretary. (11.) On the question whether Binod was a workman, the tribunals conclusions are as follows: "Before entering into the merits of the case, first of all, I shall consider the preliminary points raised by the Society. Now, let me see whether Shri Binod Singh is a workman under section 2(S) of the ID. Act or not. (11.) On the question whether Binod was a workman, the tribunals conclusions are as follows: "Before entering into the merits of the case, first of all, I shall consider the preliminary points raised by the Society. Now, let me see whether Shri Binod Singh is a workman under section 2(S) of the ID. Act or not. In this context, I may refer para 39 of the written statement of the Society wherein the Society has stated that a domestic enquiry is being held and is still continuing in which Shri Singh and his representative/assistant are actively participating as per rules and all such procedures are followed lawfully as per norms, practices and provisions provided under the Industrial Disputes Act and the management of the Society will take its decision on the findings of the Enquiry Officer. Again at para 46 of the written statement, the Society claimed that the Society fully relies on the domestic inquiry as a preliminary issue as the same has been held in accordance with the principles of natural justice and the law of land and all provisions of the Industrial Disputes Act has been followed. In view of such statements, the objections relating to application of section 2(k), 2(j) and 2(s) of the Industrial Disputes Act have no legs to stand at all. Thus, the argument advanced by the Society that Sri Singh is not a workman within the meaning of section 2(s) is not tenable in law and this Tribunal clearly holds that Shri Binod Singh is a workman within the meaning of section 2(s) of the Industrial Disputes Act." (12.) The tribunal was required to decide whether Binod was a workman, because the petitioner contended that he was not a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. For the purpose the tribunal was to consider the case of the parties stated in their respective written statements and evidence adduced by them in proof of their respective cases, and in the process it could consider the conduct of the parties revealed by the facts and circumstances of the case. Here the tribunal has considered only the petitioners conduct in that it terminated Binods service by holding such a domestic enquiry as would have been necessary in case of a workman. Here the tribunal has considered only the petitioners conduct in that it terminated Binods service by holding such a domestic enquiry as would have been necessary in case of a workman. It has ignored the petitioners case in its written statement, except certain statement made in paras.39 and 46 thereof, and the evidence it gave in proof of its case. (13.) Mr. Das is wrong in saying that the petitioner admitted that Binod was a workman. There is a distinction between admission and estoppel. The petitioners acts and conduct may invoke the doctrine of estoppel, but cannot be treated as admission to suggest an inference that Binod was a workman. In the written statement the petitioner categorically contended that Binod was not a workman, and in proof of the case it gave evidence. It is a different thing whether it has been able to prove its case. This was to be decided by the tribunal that has not done it. And, in my opinion, the tribunals failure has vitiated the award by a jurisdictional error. (14.) As to the tribunals conclusions on merits, it seems to me that once again Mr. Gupta is justified in arguing that the tribunal, concluding that the charges were not proved, totally ignored the petitioners evidence of "clinching nature" in proof of the charge that on June 4, 2000 Binod was found drunk. CW1, apart from saying that Binod was under the influence of liquor, produced Ex B, an order of the Metropolitan Magistrate, 13th Court, Calcutta dated June 5, 2000 convicting Binod under section 68 of the Calcutta Police Act, 1866 and sentencing him to a fine of Rs.5 that was paid by Binod. (15.) On Ex B, CW1 was not cross-examined at all. Mr. Das has argued that in his written statement Binod stated a case that on false allegation the criminal case was instituted. According to him, Binod, alleging that the criminal case was the outcome of a conspiracy, was not required to give any evidence. Mr. Gupta has drawn my attention to para 30 of Binods written statement to show that Binod himself admitted that he was convicted under section 68 of the Calcutta Police Act, 1866. To this, Mr. Das has said that the conviction was for an incident taking place some other day and not for any incident taking place on June 4, 2000. Gupta has drawn my attention to para 30 of Binods written statement to show that Binod himself admitted that he was convicted under section 68 of the Calcutta Police Act, 1866. To this, Mr. Das has said that the conviction was for an incident taking place some other day and not for any incident taking place on June 4, 2000. Binod did not give any such evidence. (16.) Regarding the allegation that on June 4,2000 Binod was found drunk, the tribunal held that the petitioner did not produce any document ; that CW1 stated that he had no document to show that Binod was asked by the police to appear before the magistrate on June 5, 2000 ; that it was not clear from Ex B whether Binod pleaded guilty; that if Binod pleaded guilt, then the petitioner should have produced a copy of the order; that in the absence of material document, an adverse inference should be drawn that Binod did not plead guilty before the magistrate. (17.) It is evident that the tribunal totally misdirected itself, and that, in the process it completely ignored the worth of Ex B, in the context of the oral evidence of CW1 and Binod, the cases of the parties stated in their respective written statements, and the Calcutta Police Act, 1866, section 68, providing: "68. Penalty for drunkenness or riotous or indecent behaviour, in public.-Whoever is found drunk and is incapable of taking care of himself, or is guilty of any riotous or indecent behaviour, in any public street or thoroughfare, or in any place of public amusement or resort, shall be liable, on summary conviction before a Magistrate, to a fine not exceeding twenty rupees, or to imprisonment, with or without hard labour, for a term not exceeding eight days." (18.) As to the second charge that Binod was negligent in supervising duties and attendance of the sweepers, once again I find that Mr. Gupta is justified in contending that the tribunal did not record its findings on the charge at all. With respect to this charge, the tribunal, except saying that Binod, examined as WWI, in his evidence "has categorically denied the allegation of using invective languages, drunken condition, negligence in duty", did not say anything at all. Gupta is justified in contending that the tribunal did not record its findings on the charge at all. With respect to this charge, the tribunal, except saying that Binod, examined as WWI, in his evidence "has categorically denied the allegation of using invective languages, drunken condition, negligence in duty", did not say anything at all. (19.) In proof of the charge CW3 gave evidence that Binod "failed to discharge his official duties properly, efficiently; rather, he was totally negligent and he appeared to be careless about his duties"; that "many times letters were sent" to him for his lapses; and the letters produced by CW3 were marked Ex L series. In the face of such oral and documentary evidence, in my opinion, when the petitioner was given the opportunity to prove the charge by adducing evidence, the tribunal could not ignore the charge altogether. In my opinion, the absence of the tribunals decision about the second charge has vitiated the award by a jurisdictional error. (20.) I am also of the view that applying a wrong test, the tribunal decided the question whether the charges against Binod were proved. In the last para of the award the tribunal has said as follows: "Thus, from the evidences adduced by the parties, this Tribunal holds that the management has failed to establish the charges levelled against the concerned workman, Shri Binod Singh beyond reasonable doubts." (21.) The tribunal was not acting as a criminal Court, and before it the petitioner was not required to prove the charges beyond reasonable doubt. The tribunal was required to apply the test of preponderance of probability, and not the one of proof beyond reasonable doubt, - the principle applicable only to criminal cases tried by criminal Courts. (22.) The petitioner has taken out an application (GA No. 1052 of 2009) for an order directing Binod to vacate the quarters. It has been submitted that the petitioner provided the accommodation while Binod was in its employment. Binod is not occupying the quarters on the strength of any order made by the tribunal or by this Court. Under the circumstances, I am unable to see how the petitioner can seek an order in this petition asking Binod to vacate the quarters. In my opinion, the application is misconceived. Binod is not occupying the quarters on the strength of any order made by the tribunal or by this Court. Under the circumstances, I am unable to see how the petitioner can seek an order in this petition asking Binod to vacate the quarters. In my opinion, the application is misconceived. (23.) It is to be noted that during pendency of this petition Binod filed an application under section 17B of the Industrial Disputes Act, 1947, and that, allowing the application, this Court directed the petitioner to pay him per month full wages last drawn by him. It is not disputed that the petitioner has been paying in terms of the order. I am of the view that during the period the matter remains pending before the tribunal, in view of the remand order I have decided to make, Binod should get interim relief at the same rate at which he has been getting relief under section 17B. (24.) For these reasons, I allow the petition, set aside the impugned award and order as follows. Treating the case as one of open remand entitling the parties to raise all questions and issues afresh, the tribunal shall make a fresh award on the basis of the evidence already recorded, but after giving the parties fresh opportunity of hearing. During pendency of the matter before the tribunal the petitioner shall pay Binod interim relief at the rate at which he has been getting relief under section 17B. GA No. 1052 of 2009 is dismissed. No costs. Certified xerox according to law. Petition allowed.