JUDGMENT NARENDRA NATH TIWARI-The petitioner has prayed for quashing the award dated 5.5.2006 rendered by the Central Government Industrial Tribunal No.I, Dhanbad in Ref. No.65 of 1994, whereby the learned Tribunal has answered the reference against the Management, directing reinstatement of the concerned workman with 50% back wages. 2. The short fact of the case is that the concerned workmanNizamuddin Ansari was posted as Security Guard in Regional Stores, N. K. Area of Central Coalfields Limited. On 20/21st July, 1989 Patra Shamad, Dashrath Dusadh, Ranjit Singh and Masiah Munda, Security Guards, were also on duty in the regional Stores from midnight till 8.00 a.m. of the following day. One of the Security Guards, namely, Ranjit Singh at about 1.15 a.m. observed that one thief with Khakhi dress entered in the Regional Store. He whispered to other fellow guards and they all became cautious. They closely observed and found that there are several persons and Nizamuddin Ansari-concerned workman was one among the thieves. Ranjit Singh informed the same, on telephone, to the security guards posted at the G.M. Office. One R. K. Singh Havildar came there with Security Guards of G.M. Office, but by that time, the thieves had already fled away. Patra Shamad then lodged first information report to the police, narrating the incident. Case was registered on that basis. Action was also taken departmentally. The charge sheet was issued to the concerned workman on 3/7th August, 1989. The workman was put under suspension. 3. On completion of the investigation by the police, charge sheet was filed against the workman and others for attempting to commit theft in the Regional Store, Dakra of Central Coalfields Ltd. 4. In the domestic enquiry, the Security Guards were examined and claimed to have identified the concerned workman by 'pose and posture' from a distance of about 70 yards in the night. 5. On that basis the concerned workman was found guilty of the charge of misconduct and awarded punishment of dismissal. 6. On the same charge, the workman was tried by the criminal court. The Court acquitted him of the charge for want of evidence. 7. After acquittal by the criminal court, the concerned workman made representation before the Management, requesting for recalling the order of dismissal and reinstating him in service, but that was not accepted. 8. 6. On the same charge, the workman was tried by the criminal court. The Court acquitted him of the charge for want of evidence. 7. After acquittal by the criminal court, the concerned workman made representation before the Management, requesting for recalling the order of dismissal and reinstating him in service, but that was not accepted. 8. The concerned workman, thereafter, preferred departmental appeal before the Chairman-cum-Managing Director of the Company, praying for setting aside the order of dismissal on the ground that he has been acquitted of the charges by the court of law, but the same was also dismissed. 9. The concerned workman, thereafter, raised industrial dispute through the Union. 10. The dispute was taken up for conciliation, but ended in failure. The Conciliation Officer, thereafter, submitted a failure report to the Appropriate Government. 11. The Appropriate Government considered the same and referred the dispute for adjudication by order dated 24th March, 1994 in the following term: “Whether the action of the General Manager (NK) of M/s. Central Coalfields Ltd., P.O. Dakra, District Ranchi is justified in dismissing the services of the workman Shri Nizamuddin Ansari, Security Guard with effect from 19th August, 1991? If not, to what relief the workman is entitled?” 12. Both the parties filed their written statement and adduced evidences before the Tribunal. 13. Learned Tribunal by the impugned award dated 5th May, 2006 answered the reference in favour of the concerned workman holding the action of the Management of Central Coalfields Ltd. in dismissing the concerned workman from service with effect from 19th August, 1991 as not justified and the concerned workman is held entitled to be reinstated in service with 50% back wages with continuity of service. 14. In this writ petition, the impugned award has been challenged on the ground that the same is erroneous, improper and illegal. Learned Tribunal having earlier held, while deciding the preliminary issue that the domestic enquiry was fair and proper it has acted without jurisdiction by entering into appraisal of facts and material on record and disturbing the said finding. Learned Tribunal has also erroneously passed the award for payment of back wages without considering that there was no material on record to show that the petitioner was not gainfully employed during the intervening period. 15. Mr. Learned Tribunal has also erroneously passed the award for payment of back wages without considering that there was no material on record to show that the petitioner was not gainfully employed during the intervening period. 15. Mr. A. K. Mehta, learned counsel, appearing on behalf of the petitioner, submitted that the Tribunal, while exercising power under Section 11(A) of the Industrial Disputes Act, 1947 (hereinafter to be referred as ‘I.D. Act’), has no authority or jurisdiction to reappraise the evidences, particularly when it was already found that the domestic enquiry was fair and proper. The only jurisdiction of the Tribunal is to see the reasonableness of quantum of punishment. Learned counsel referred to the decision of this Court in Management of Usha Breco Limited Vs. Presiding Officer, Labour Court, Jamshedpur & Ors. [2005 LAB IC 986]. He also referred to a decision of the Supreme Court in Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane [ (2005)3 SCC 254 ]. Learned counsel submitted that awarding of back wages is also illegal in view of the law laid down by the Hon’ble Supreme Court in P.V.K. Distillery Limited Vs. Mahendra Ram [ (2009)5 SCC 705 ]. 16. The workman-respondent has supported the award and contested the writ petition on the ground that the award is based on thorough consideration of the facts and relevant legal principles and the same is sound and legal. 17. Mr. M.S. Anwar, learned senior counsel, appearing on behalf of the concerned workman-respondent, submitted that the ground taken by the petitioner for challenging the award is wholly misconceived, erroneous and without any substance. Section 11A of the I.D. Act provides for giving complete relief in case of discharge or dismissal of the workman. The Tribunal has been vested with the power to set aside the order of discharge or dismissal and for directing reinstatement on such terms and conditions, as it thinks fit, or for giving such other relief to the workman, if it is satisfied that the order of discharge or dismissal is not justified. Reference under Section 11A is not confined only to the consideration of quantum of punishment, as has been contended by the petitioner. He submitted that the Full Bench of then Patna High Court interpreted Section 11A of the I.D. Act in Indian Aluminum Co. Ltd. Vs. Labour Court, Ranchi & Anr. [ 1991(1) LLJ 328 ]. Reference under Section 11A is not confined only to the consideration of quantum of punishment, as has been contended by the petitioner. He submitted that the Full Bench of then Patna High Court interpreted Section 11A of the I.D. Act in Indian Aluminum Co. Ltd. Vs. Labour Court, Ranchi & Anr. [ 1991(1) LLJ 328 ]. In the said decision, the Full Bench has held that the Tribunal has wide jurisdiction for ascertaining the correctness of the finding recorded in the domestic enquiry. The workman is entitled to assail the action of the employer before the Tribunal on the ground that the action against him is vitiated on account of violation of principles of natural justice and/or on the ground of victimization or unfair labour practice or mala fide. He further submitted that even if the disciplinary enquiry is found to be fair and proper, the Tribunal can interfere with the finding. Learned counsel in support of the said contention referred to and relied upon the decision of the Hon’ble Supreme Court in Scooter India Limited, Lucknow Vs. Labour Court, Lucknow & Ors. [ AIR 1989 SC 149 ]. 18. Learned counsel submitted that the Tribunal has thoroughly discussed all the facts and materials on record and has found that though there was examination of witnesses in the enquiry and it was proper, yet the conclusion drawn in the domestic enquiry was perverse. The workman was awarded punishment of dismissal on the basis of the statement of the witnesses that they had identified the concerned workman as one of the miscreants, who had entered into the premises and attempted to commit theft. Learned Tribunal found that their statements were based on the alleged identification in the night at 1.15 a.m. from a distance of 70 yards of those persons who were masked, on the basis of 'pose and posture'. Nobody claimed identification by seeing face. Identification in the night even in the electric light of masked persons on the basis of pose and posture is highly doubtful and in absence of any other cogent evidence, there was no sufficient material on record for awarding punishment of dismissal. Learned counsel submitted that on the said consideration, learned tribunal has rightly held that the dismissal of the concerned workman from service is not justified and he is entitled to reinstatement. 19. Learned counsel submitted that on the said consideration, learned tribunal has rightly held that the dismissal of the concerned workman from service is not justified and he is entitled to reinstatement. 19. Learned counsel next submitted that there is no straight jacket formula for awarding or refusing back wages. However, in the recent decision, the Hon’ble Supreme Court is of the view that full back wages should not be granted automatically as a matter of course in case of reinstatement of the workman. There must be some material to show that the workman was not gainfully employed after his dismissal. Learned counsel submitted that the principle is applicable only in the cases where full back wages is awarded. In the instant case, considering the said principle and other facts and circumstances, learned Tribunal has awarded only 50% back wages. There is, thus, no illegality or infirmity in the impugned award and no interference is warranted by this Hon’ble Court. 20. I have heard learned counsel for the parties. I also perused the impugned award and the materials on record. 21. I find that the learned Tribunal has thoroughly discussed the relevant facts and materials and has come to the finding that the Enquiry Officer was not justified in awarding punishment of dismissal to the concerned workman. The evidences, appearing on record and relied on by the Enquiry Officer, lead to a chance of mistaken identification. All the witnesses had admitted that they had concealed their face by wrapping cloths around the face. Identification of concerned workman was claimed to be by pose and posture observed from a distance of 70 yards i.e. 210 fts. in the night at 1.15 a.m. Though it has come that there was an electric light, identification of a person with wrapped face from a distance of about 210 fts. in heavy rain, as admitted by the witnesses, is shrouded by reasonable suspicion and doubts. The workman’s plea that he was falsely implicated when he had objected and did not allow his fellow Security Guards to take wine on duty inside the campus of the store along with some outsiders has been rejected without paying any heed thereon. Learned Tribunal has recorded detailed reason for coming to his conclusion and rendering his award against the Management-petitioner. 22. Learned Tribunal has recorded detailed reason for coming to his conclusion and rendering his award against the Management-petitioner. 22. I find no merit in the plea of learned counsel for the petitioner that under Section 11A of the I.D. Act, the Court/Tribunal can only scrutinize and review the quantum of punishment and cannot interfere with the finding recorded in the domestic enquiry. 23. Section 11A of the I.D. Act runs as follows: “11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not make any fresh evidence in relation to the matter.” 24. On plain reading of the said provision, it is clear that on reference of any industrial dispute relating to discharge or dismissal of a workman to a Labour Court or Tribunal, if it was found that discharge or dismissal was not justified, the Court or the Tribunal by its award may set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, as it thinks fit, or give such other relief as the case may be and may award any lesser punishment in view of discharge or dismissal. 25. 25. The decision of this Court in Management of M/s. Usha Breco Limited (Supra) relied upon by the petitioner is an order passed on the facts of that case and has not laid down any law after taking into consideration the decisions of the Supreme Court and the letters and spirit of Section 11A of the I.D. Act. 26. The decision referred to and relied upon by the counsel for the respondent-workman of the Full Bench of the then Patna High Court in Indian Aluminum Co. Ltd. (Supra) and the decision of the Hon’ble Supreme Court in Scooter India Limited, Lucknow (Supra) are relevant in the context. 27. The petitioner’s challenge to the award of back wages cannot also sustain, as the learned Tribunal has awarded only 50% back wages and not full back wages. In the decision of P.V.K. Distillery Limited (Supra) relied upon in support of the said objection of the petitioner, the Hon’ble Supreme Court has held that the right to full back wages is not absolute even if termination is declared invalid in law. Reinstatement with full back wages is not as a matter of course. Payment of back wages having discretionary element, it has to be dealt with the facts and circumstances of each case and no straight jacket formula can be evolved. In the said case, the Apex Court has modified the award by reducing full back wages to 50% of back wages. The said decision of the Supreme Court is of no help to the petitioner. 28. I, therefore, find no infirmity or illegality in the impugned award or any ground made out to interfere with the same. 29. This writ petition is, accordingly, dismissed. 30. In the circumstances of the case, there shall be no order as to costs.