JUDGMENT Ujjal Bhuyan, J. 1. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of award dated 03.10.2005 passed by the learned Industrial Tribunal, Dibrugarh in Reference Case No. 1/2003 holding the dismissal of the workman from service to be justified. Further prayer made is for a direction to the respondents to re-instate the workman in service. The workman is represented by Assam Chah Mazdoor Sangha. The workman was a daily rated workman of Panitola Tea Estate belonging to respondent No. 1. Management had terminated the service of the workman w.e.f. 21.02.2001 on the charge that the workman had misappropriated money and was involved in stealing five bags of made black tea from the factory of the Tea Estate. The above termination was on the basis of a domestic enquiry conducted by the Management. 2. Termination of service of the workman gave rise to an industrial dispute which ultimately led to making of a reference by the appropriate Government to the Industrial Tribunal at Dibrugarh. The subject matter of reference was justification or otherwise of the dismissal of the workman from service and of his entitlement to reinstatement with full back wages. On behalf of the workman as well as on behalf of the Management, written statements were submitted. In the reference proceeding, the learned Industrial Tribunal simultaneously considered validity of the domestic enquiry as well as dismissal of the workman on merit. The Management side examined six witnesses whereas the workman examined himself as the sole witness on his behalf. 3. Learned Industrial Tribunal by the impugned award dated 03.10.2005 held that the domestic enquiry was conducted in violation of the principles of natural justice and as such the same was improper and invalid. However, on merit, the learned Tribunal on perusal of the evidence adduced, came to the conclusion that the workman was involved in the stealing and selling of five bags of made black tea from the godown of the Tea Estate belonging to the Management and thus acted dishonestly. Holding that the charges against the workman stood proved, the learned Tribunal affirmed the dismissal of the workman from service and declared that the workman was not entitled to any relief. 4. Aggrieved, petitioner has preferred the present writ petition seeking the above reliefs. 5. Heard Mr. C. Baruah, learned senior counsel assisted by Mr. Holding that the charges against the workman stood proved, the learned Tribunal affirmed the dismissal of the workman from service and declared that the workman was not entitled to any relief. 4. Aggrieved, petitioner has preferred the present writ petition seeking the above reliefs. 5. Heard Mr. C. Baruah, learned senior counsel assisted by Mr. P. Sarma, learned counsel appearing for the petitioner. Also heard Mr. S. N. Sarma, learned senior counsel assisted by Mr. A. Zahid, learned counsel for respondent No. 1 and Mr. J. Handique, learned Government Advocate, Assam. 6. Mr. Baruah, learned counsel appearing for the petitioner submits that when the Tribunal had come to the conclusion that the domestic enquiry conducted against the workman was invalid being in violation of the principles of natural justice, same ought to have been quashed and reinstatement of the workman ought to have been directed. He further submits that no request was made by the Management for examination of witnesses on its behalf to support dismissal of the workman. In the absence of such request or permission being granted, learned Tribunal ought not to have adjudicated the issue of dismissal of the workman on merits. This has caused prejudice to the workman. In support of his submission, Mr. Baruah has placed reliance on a decision of the Apex Court in the case of Karnataka State Road Transport Corporation Vs. Lakshmidev Amma and Anr. reported in (2001) 5 SCC 433 . 7. Per contra Mr. S. N. Sarma, learned senior counsel appearing for the Management submits that learned Tribunal was well within its jurisdiction to simultaneously consider validity of the domestic enquiry as well as merit of dismissal from service of the workman. A long line of judicial pronouncements support the course of action adopted by the learned Tribunal. He further submits that since the learned Tribunal on the basis of evidence adduced had arrived at the conclusion that the workman was involved in stealing and selling of tea from the godown of the Tea Estate belonging to the Management, penalty of dismissal from service was justified and was rightly affirmed by the learned Tribunal. According to the learned senior counsel, quantum of misappropriation or degree of dishonesty is immaterial in matters of discipline, once misappropriation or dishonesty is proved. Since the workman had lost the confidence of the Management, question of reinstatement does not arise. According to the learned senior counsel, quantum of misappropriation or degree of dishonesty is immaterial in matters of discipline, once misappropriation or dishonesty is proved. Since the workman had lost the confidence of the Management, question of reinstatement does not arise. He has placed reliance on the following judgments: 1. (1972) 1 SCC 595 (Delhi Cloth and General Mills Company Vs. Ludh Budh Singh). 2. AIR 1984 SC 289 (Shambhu Nath Goyal Vs. Bank of Baroda and Ors.). 3. (2007) 1 SCC 222 (A. P. SRTC Vs. Raghuda Siva Sankar Prasad). 4. 2013-II-LLJ-1 (State Bank of India and Ors. Vs. Narendra Kumar Pandey). 8. Submissions made have been considered. 9. Section 10 of the Industrial Disputes Act, 1947 (Act) provides for reference of dispute to Boards, Courts or Tribunal by the appropriate Government if in its opinion any industrial dispute exists or is apprehended. Under Section 11A, 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 adjudication, 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 or grant such other relief including award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. As per the proviso, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. 10. In Ludh Budh Singh (supra), it was held that if a domestic enquiry has been held, it is open to the Management to rely upon the domestic enquiry at the first instance and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. When the Management relies on the enquiry conducted by it and also simultaneously adduce evidence before the Tribunal, the Tribunal in the first instance should consider whether the enquiry proceedings conducted by the Management are valid and proper. When the Management relies on the enquiry conducted by it and also simultaneously adduce evidence before the Tribunal, the Tribunal in the first instance should consider whether the enquiry proceedings conducted by the Management are valid and proper. If the enquiry proceedings are held to be valid and proper, question of considering the evidence adduced before the Tribunal on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held that it derives jurisdiction to deal with the merits of the dispute and in such a case, it has to consider the evidence adduced before it by the Management and decide the matter on the basis of such evidence. The Tribunal may also deal with the issue of validity of the domestic enquiry as a preliminary issue but if the finding on the preliminary issue is against the Management, the employer is required to be given an opportunity to cite additional evidence and also give similar opportunity to the employee to lead evidence in his defence. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry and decide the matter. If the domestic enquiry is held to be not proper, the Tribunal may suo moto ask the Management to adduce evidence to justify its decision. 11. The Apex Court in Shambhu Nath Goyal (supra) took the view that when a case of dismissal or discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry is legal and valid. This issue has to be decided as a preliminary issue and depending on the decision being pronounced, it will be for the Management to decide whether it will adduce any evidence before the Labour Court or not. If it chooses not to adduce any evidence, it will not be permissible thereafter to raise the issue. 12. In Lakshmidev Amma (supra), a Constitution Bench of the Supreme Court upheld the above proposition of law. 13. Having broadly noticed the relevant legal principles, the decision of the learned Tribunal may now be looked into. 14. If it chooses not to adduce any evidence, it will not be permissible thereafter to raise the issue. 12. In Lakshmidev Amma (supra), a Constitution Bench of the Supreme Court upheld the above proposition of law. 13. Having broadly noticed the relevant legal principles, the decision of the learned Tribunal may now be looked into. 14. As already noticed above, the following schedule was referred to the Tribunal for adjudication: (1) Whether the dismissal of the service of Shri Abdul Khaleque Mazumdar from Panitola Tea Factory is justified? (2) If not, is Shri Abdul Khaleque Mazumdar entitled to re-instatement in his service with full back wages or what relief is he entitled to? 15. A perusal of the impugned order would show that the learned Tribunal simultaneously heard the issue relating to the validity of the domestic enquiry as well as dismissal of the workman on merit. Six witnesses on behalf of the Management were examined and the workman also examined himself as a witness. On the issue of domestic enquiry, learned Tribunal found that no list of witnesses was furnished by the Management along with the charge to the workman. While the Management side was represented by the Manager, the workman was present without any assistance. The enquiry officer did not ask the workman whether he wanted the assistance of any of his co-worker. In such circumstances, learned Tribunal came to the conclusion the domestic enquiry was conducted in violation of the principles of natural justice and held the same to be improper and invalid. 16. After holding so, learned Tribunal considered the pleadings and the evidence adduced. At this stage, the charge against the workman may be briefly referred to. The charge was that on 20.12.2000, the workman approached the driver of a company vehicle and offered to despatch five extra bags of tea fraudulently along with the normal despatch of tea for delivery at Kolkata. He along with a few others arranged to steal from the factory and loaded five extra bags of tea onto the said vehicle and proceeded to Tinsukia to meet the driver to receive the money for the stolen tea. Further charge was that the workman made dishonest entries in the despatch register to show different weight vis a vis actual weight of despatch. 17. Further charge was that the workman made dishonest entries in the despatch register to show different weight vis a vis actual weight of despatch. 17. In his written statement, the workman had stated that he had followed wrong instruction from his seniors for which he expressed regret. He promised not to repeat such action in future and sought pardon. Thus there was admission of delinquency on the part of the workman. The evidence of the Management witnesses which have been recorded by the learned Tribunal clearly showed involvement of the petitioner. In his evidence, the workman admitted that he had approached the truck driver to collect Rs.2,500/- from him. The relevant portion of the finding of the learned Tribunal reads as under:- 16. From the foregoing evidence it is seen that at the relevant time Sri Paritosh Biswas was the Excise Clerk and Sri Mohan Baruah was the Sorting staff in the management's factory and the workman was a junior worker working under the instructions of Sri Paritosh Biswas. From the evidence it is also established that on 20.12.2000 one truck load of made tea was despatched to Kolkata from the management's factory and three workers namely, Sri Paritosh Biswas, Sri Mohan Baruah and the chargesheeted workman Sri Abdul Khalik Mazumdar took part in despatching tea. It is also not disputed that full loaded truck was brought back to the factory on the next day and five extra bags of tea which were loaded into the truck on the previous day, were unloaded. It is also in evidence that the truck driver gave his statement before the manager identifying the workman as one of the three staff members who were involved in loading the tea bags on truck on 20.12.2000. It is in evidence that two of three workman Sri Paritosh Biswas and Sri Mohan Baruah resigned from their services owing the responsibility of stealing five bags of tea. The workman also in his reply to the chargesheet, admitted that he issued gate pass to the truck and went to Tinsukia for collecting money from the driver of the truck at the instruction of his senior Sri Paritosh Biswas. The workman in his evidence has admitted that on 20.12.2000 he weighed the truck before and after loading of tea bags and that he recorded in weighment register by adding extra 170 Kg of tea. The workman in his evidence has admitted that on 20.12.2000 he weighed the truck before and after loading of tea bags and that he recorded in weighment register by adding extra 170 Kg of tea. The plea taken by the workman is that although he was one of the staff members who worked for despatching tea, all that he had done was under the instructions of his senior Sri Paritosh Biswas and he is not responsible for that. In his written statement dated 21.12.2000 [Ext. 1(9)], the workman has mentioned that under the instructions of Paritosh Biswas, he asked one of the labourers of the truck whether they were willing to take extra bags of tea. Asking of labourers whether they are willing to take/load extra bags of tea, recording of extra weight of tea while weighing the loaded truck and to go to Tinsukia for collecting money for extra tea bags, all these show that the workman had knowledge of the illegal deal of stealing and selling of extra bags of made tea and the workman who worked for five years in the tea estate cannot get rid of his responsibility as an individual workman on the plea that all that he did was under the instructions of his senior staff. In his written statement, the workman has stated that Sri Paritosh Biswas and Sri Mohan Baruah in their statement said that they were the persons who had attempted to steal the tea bags without implicating the workman. While cross-examining the M.W. 6, the workman has suggested that Sri Paritosh Biswas and Sri Mohan Baruah in their resignation letters had clearly stated that Abdul Khalique Mazumdar has nothing to do with the transaction of five bags of extra tea. But the workman did not call for these resignation letters of Paritosh Biswas and Mohan Baruah to establish this fact. In view of the above discussion and reasons, I find the workman Sri Abdul Khalik Mazumdar was involved in stealing and selling of five bags of made tea from the godown of the management of Panitola T.E. on 20.12.2000 and acted dishonestly while performing the company's business. Thus, I find the charges against the workman proved. 17. I, therefore, hold that the dismissal of services of the workman Sri Abdul Khalik Mazumdar from Panitola factory is justified. Consequently, the workman is not entitled to any relief. 18. Thus, I find the charges against the workman proved. 17. I, therefore, hold that the dismissal of services of the workman Sri Abdul Khalik Mazumdar from Panitola factory is justified. Consequently, the workman is not entitled to any relief. 18. I do not find any error in the approach of the Tribunal in simultaneously considering the two issues relating to validity of the domestic enquiry as well as dismissal of the workman on merit. When the Management had adduced evidence, it was a clear indication that it desired to pursue both the issues simultaneously. The materials on record do not indicate that the workman had raised any objection regarding non-seeking of permission by the Management to adduce evidence independently. Moreover, the workman himself gave evidence in his defence. Furthermore, on merit, the charge against the petitioner was held proved on consideration of the evidence on record. Therefore, the charge of theft of company's property having been established, the Court would not like to interfere with the quantum of punishment imposed by the Management which was affirmed by the learned Tribunal. 19. For the aforesaid reasons, I find no merit in the writ petition, which is accordingly dismissed. No cost. Petition dismissed.