JUDGMENT : Bharat Bhushan Parsoon, J. Petitioner Ashok Kumar while serving respondent No. 3 as a Fitter was terminated on 25.9.1984 resulting in reference of an industrial dispute for adjudication to the Industrial Tribunal-cum-Labour Court, Hisar (hereinafter mentioned as the Tribunal). Plea of the petitioner-workman for reinstatement with full back wages did not find favour with the Tribunal and Award (Annexure P-1) was verdicted against him. By way of this petition, the petitioner seeks quashing of the Award dated 24.12.1991 (Annexure P-1) with directions to respondents No. 2 and 3 to reinstate him with all consequential benefits. 2. Admitted facts are being recapitulated hereunder: The petitioner was appointed as a helper by respondent No. 3 in the year 1971. On the basis of his seniority and satisfactory record, he was promoted as Assistant Fitter and then going up the status ladder, he became a Fitter, on which post he worked upto 29.5.1984. Thereafter, he was shown exit gate by respondents No. 2 and 3 pursuant to his indictment vide enquiry report, agreeing with which respondent No. 2, had passed order for his removal. Charge against the petitioner was that he had removed the file of enquiry against him so as to save himself from punishment. 3. Challenging the Award (Annexure P-1) as patently illegal, arbitrary and without any foundation in evidence, it is claimed as follows: (i) The domestic enquiry against the petitioner was not held in accordance with law. There was violation of principles of natural justice resulting in the petitioner having been condemned unheard. Neither list of documents nor of witnesses was supplied to the petitioner before start of the enquiry nor the petitioner was permitted to be represented by a defence assistant, though the department was represented by its Law Officer; (ii) Though Sh. Phool Singh, Clerk was custodian of the enquiry file but he had not stepped into the witness box. Enquiry proceedings were lopsided and were without any concrete evidence; (iii) Loss of enquiry file was in fact to result in indictment of Sh. Phool Singh, Clerk was custodian of the enquiry file but he had not stepped into the witness box. Enquiry proceedings were lopsided and were without any concrete evidence; (iii) Loss of enquiry file was in fact to result in indictment of Sh. Phool Singh, Clerk and to escape his responsibility, name of the petitioner was traded for fastening responsibility of loss of enquiry file; (iv) There was no direct or indirect evidence of removal of the file but he was made scapegoat by the Management and the Tribunal had failed to appreciate complete lack of evidence against the petitioner; (v) Enquiry officer acted as the Presenting Officer as he had himself asked many questions to the petitioner, whereas the petitioner was denied the assistance of a legal expert to cross-examine the witnesses; and (vi) Punishment imposed upon the petitioner is disproportionate to the alleged misconduct. Award and order of dismissal are sought to be set aside. 4. Contesting respondents asserting validity and legality of order dated 25.9.1984 and of impugned Award (Annexure P-1) while denying all the allegations and pleas of the petitioner, have asserted that he was given full opportunity to defend himself but he could not prove himself to be innocent. It is canvassed that the enquiry was held as per procedure in compliance with the principles of natural justice and further that there was no remissness of the Enquiry Officer. Asserting that respondent No. 1 had rightly answered the reference against the petitioner vide Award (Annexure P-1), dismissal of the petition was sought. 5. Learned counsel for the parties have been heard while going through the paper book. 6. At the outset, it may be mentioned that the Court is not to act as an Appellate Authority against the Award (Annexure P-1) and thus is not to re-appraise evidence and record produced before the Enquiry Officer and the Labour Court. Nonetheless, the Court is not to remain passive observer ignoring vital flaws in conduct of the enquiry or in rendering of the Award (Annexure P-1). 7. There is no denying the fact that the petitioner while working as a Fitter with the contesting respondents was served with a charge-sheet on 23.5.1983 on the ground that he had taken away the office file pertaining to a departmental enquiry against him about breakdown of bus No. 2614. Concedingly, enquiry file used to remain in possession of Sh. 7. There is no denying the fact that the petitioner while working as a Fitter with the contesting respondents was served with a charge-sheet on 23.5.1983 on the ground that he had taken away the office file pertaining to a departmental enquiry against him about breakdown of bus No. 2614. Concedingly, enquiry file used to remain in possession of Sh. Phool Singh, Clerk. Merely because the petitioner had once gone to said Sh. Phool Singh, Clerk to enquire about his enquiry, no presumption can be raised against him that he only had misplaced the file, since he was to be a beneficiary. 8. No doubt, the petitioner in his reply (Ex. MW1/4) before the Enquiry Officer had admitted his one visit to Sh. Phool Singh, Clerk, about his enquiry but he had mentioned many more things in the reply, which apparently have neither been taken into account by the Enquiry Officer nor by the Tribunal. 9. The respondents have nowhere denied version of the petitioner in his reply that Sh. Phool Singh, Clerk who was custodian of the enquiry file, even earlier had misplaced yet another enquiry file against one Sohan Singh, Assistant Fitter. Claim of the petitioner in the reply was that it was misdeed of Sh. Phool Singh, Clerk himself, who as its custodian, was thus exclusively responsible for its safe custody. In these circumstances, reply of the petitioner-workman made to the Enquiry Officer needed to be dealt more seriously but in fact the same had been dealt with casually. There is another angle projected by the petitioner in his statement made by him as a witness; which had gone unnoticed. He had specifically mentioned in his statement that even Head Mechanic who, inter alia, had repaired the bus (which had met with an accident), could be the person responsible for loss of the file. 10. Thus, version of the petitioner is that Head Mechanic who had repaired the bus and Sh. Phool Singh, Clerk who was in-charge of safe custody of the enquiry file, were in fact responsible for loss of the enquiry file. In this background, finding in the departmental enquiry as also by the Tribunal that the petitioner was the only one, who had removed the enquiry file from the office of the Works Manager is casual and recklessly made without any foundation in the oral or documentary evidence. 11. In this background, finding in the departmental enquiry as also by the Tribunal that the petitioner was the only one, who had removed the enquiry file from the office of the Works Manager is casual and recklessly made without any foundation in the oral or documentary evidence. 11. The Tribunal had gone even a step ahead raising an adverse presumption against the petitioner-workman, holding, that the petitioner was to hand over charge-sheet, copy of his reply and other connected documents to the Management in order to enable the Management to reconstruct the previous enquiry file. It is strange that without any refusal or nagging attitude of the petitioner, the Tribunal without there being any communication made to the petitioner-workman by the management to hand over documents of previous Enquiry file whatsoever were in his possession, has raised such a strong adverse presumption against the petitioner-workman which had cost him even loss of his job. When there was no communication from the Management to the petitioner for handing over the relevant documents of previous enquiry, no adverse inference thus could be drawn against the petitioner. 12. Non-delivery of list of witnesses as also of documents of the present enquiry to the petitioner-workman by the Management which is his basic right, has very conveniently been ignored by the Tribunal on the premise that no prejudice was caused to the petitioner on that count. It is to be noticed that the petitioner remained unrepresented, whereas the department was represented by its Law Officer. Not only this, ignoring the fact that it was an uneven fight between an undefended and unrepresented illiterate petitioner-workman on the one hand and well armed & legally supported respondent-Management (which in addition to being placed on a higher pedestal than that of the workman, was also represented by its Law Officer). On the other hand, the Enquiry Officer had not only dwarfed the petitioner in his defence but himself had also put on the robes of a prosecutor even. Thus, simultaneously, he was discharging two roles and was two-in-one in the enquiry conducted by him. 13. Not only this, the Enquiry Officer did not give any opportunity to the petitioner to enter into his defence to competently rebut the claim of the department. Thus, simultaneously, he was discharging two roles and was two-in-one in the enquiry conducted by him. 13. Not only this, the Enquiry Officer did not give any opportunity to the petitioner to enter into his defence to competently rebut the claim of the department. Rather, calling the petitioner to enter the witness box undefended by representative and unsupported by his witnesses and providing him no opportunity on that account, had defeated the principles of natural justice against the petitioner, who was thus condemned unheard. 14. Contesting respondents also had revealed less and concealed more. Neither during the enquiry nor before the Tribunal, Sh. Phool Singh, Clerk entered the witness box. Undefended petitioner was thus not only deprived of his right to cross-examine Sh. Phool Singh, Clerk but also two witnesses of the Management during the enquiry viz. Sohan Singh and Ramesh Kumar. It is also noteworthy that these witnesses had neither been named in the enquiry proceedings nor in the list of witnesses but were produced by the Management springing a surprise. The petitioner was undefended and probably could not even understand as to what was happening against him in the enquiry. Findings of the Tribunal that the petitioner was given opportunity of cross-examining witnesses produced by the Management in the enquiry and that he had also been given opportunity to produce his own witnesses, are ununderstandable particularly when neither list of witnesses nor of documents was supplied to the petitioner-workman nor he was having any representative for his defence whereas the Management was duly represented by its Law Officer. 15. Learned counsel for the respondent-Management has drawn attention of this Court to para 10 of the impugned Award, which para for ready reference, is appended as below: The management has also examined two other witnesses in the enquiry as is evident from their statements Ex. MW-1/9. These are Sohan Singh and Ramesh Kumar. Both these witnesses have said nothing against the workman and as such no prejudice has been caused to the petitioner if the names of these two persons have not been mentioned as witnesses in the charge sheet. 16. If both the witnesses of the Management viz. MW-1/9. These are Sohan Singh and Ramesh Kumar. Both these witnesses have said nothing against the workman and as such no prejudice has been caused to the petitioner if the names of these two persons have not been mentioned as witnesses in the charge sheet. 16. If both the witnesses of the Management viz. Sohan Singh and Ramesh Kumar who were produced in the enquiry by the Management without any prior information or notice to the workman, have entered the witness box but have not spoken anything against the petitioner as is claimed by the Tribunal and when admittedly, there is no other evidence against him, entire exercise by the Enquiry Officer and later by the Tribunal in rendering Enquiry report indicting the workman and later in affirming correctness of the enquiry report (rendered by the Enquiry Officer), is nothing but presumptuous and turns out to be a mere camouflage to oust the petitioner from his employment. 17. Keeping in view the totality of facts and circumstances, when the Enquiry Officer as also the Management have gone whole hog against the petitioner and that too without having any legal moorings, findings rendered by the Tribunal in favour of the Management holding that proper and fair enquiry was held, are not only wrong on facts but are also not sustainable in law. Sequelly, bestowing of validity and legality to the dismissal order dated 29.5.1984 by the Tribunal is palpably wrong and unsupportable. In view of the above discussion, the petition is allowed and the Award (Annexure P-1) and order of dismissal of the petitioner-workman made vide order dated 29.5.1984 are set aside. As a consequence, the petitioner is held entitled for payment of back wages and all other consequential benefits from the date of termination of his services as he would be deemed to be in continuous service of the respondent-employer. Arrears would be paid with interest @ 9% per annum within two months. If the payment is not made within two months, interest would be charged @ 12% per annum.