ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) I.A. No.1675 of 2013 has been filed to condone the delay of 47 days in filing of the appeal. I.A. No.1676 of 2013 has been filed for stay of the operation of the order under appeal. 2. We have heard learned counsel for the parties and are satisfied to condone the delay in filing of the appeal. No separate orders need be passed on the stay application as we are taking up the appeal for disposal on merits. 3. The present appeal arises from order dated 1.11.2012 dismissing C.W.J.C. No. 20331 of 2012 affirming the Award passed by the Labour Court in Reference Case No.33 of 2000 dated 30.1.2012, ordering reinstatement of the employee with 60% back wages. The original respondent has since been deceased and substituted by his son. The surviving issue for consideration is therefore limited to the grant of back wages. 4. Learned counsel for the appellant submitted that the memo of charge dated 26.4.1982 stated that the delinquent was habitual in issuing tickets for shorter distances while allowing passengers to travel longer distances for personal financial gain. The instances of past misconduct were annexed to the memo of charge. The officer who conducted the check, Shri T.N. Singh, was examined as a prosecution-witness and also cross-examined by the respondent. The respondent was unable to demolish the assertion of the checking officer that two passengers were found traveling without ticket. The workman had pre-realised fare from passengers. He was carrying un-booked passengers from Purnea and had given a short stage ticket to one of them at Begusarai. Fair along with fine was subsequently recovered from the passengers. The Tribunal has wrongly held that the history sheet of the respondent was prepared on 16.11.1985 subsequent to the charge. It contained only one more subsequent misconduct by him after the charge-sheet was issued. The charge-sheet was dated 26.4.1982. The workman was discharged after domestic enquiry on 28.1.1986. The appeal was rejected on 8.4.1987. The reference itself was highly belated on 28.12.1999. 5. The original respondent having been deceased during the pendency of the case has been substituted by his son. Learned counsel for the respondent submits that the Tribunal has arrived at its satisfaction that the seized ticket was not produced. All members of the checking squad have not been examined. The reference itself was highly belated on 28.12.1999. 5. The original respondent having been deceased during the pendency of the case has been substituted by his son. Learned counsel for the respondent submits that the Tribunal has arrived at its satisfaction that the seized ticket was not produced. All members of the checking squad have not been examined. Particulars of the history sheet was not disclosed to the delinquent and had been prepared subsequently. 6. The learned Single Judge held that the history-sheet had been considered but did not form part of the charges when the charge otherwise had not stood proved declining to interfere. On the aspect of back-wages, it was observed that no assertion was made on behalf of the Managing Director that the workman was gainfully employed in the meantime. 7. The workman was discharged on 28.1.1986. His appeal was dismissed on 8.4.1987. The reference was made on 28.12.1999, nearly 12 years later. We were inclined to uphold the submission on behalf of the appellant that the Reference itself was highly belated. But, the reference not having been challenged, we shall proceed to consider the matter on merits. 8. The memo of charge dated 26.4.1982 itself stated that apart from the present charge, earlier also he had committed several irregularities for which different punishments were imposed at different times, the list of which was enclosed to the memo of charge. The history-sheet which was produced before the Tribunal incorporated misconduct by the delinquent commencing from 16.7.1970 till 21.8.1982 which was annexed to the memo of charge also. The history sheet prepared subsequently on 16.11.1985 in a composite manner included only one more charge of misconduct dated 10.2.1985. Therefore, the history-sheet was not a document completely foreign to the memo of charge. 9. Reliance has been placed on behalf of the appellant on 1991 (2) P.L.J.R. 677 (Jibachh Jha Vs. The history sheet prepared subsequently on 16.11.1985 in a composite manner included only one more charge of misconduct dated 10.2.1985. Therefore, the history-sheet was not a document completely foreign to the memo of charge. 9. Reliance has been placed on behalf of the appellant on 1991 (2) P.L.J.R. 677 (Jibachh Jha Vs. Bihar State Road Transport Corporation) (D.B.) to submit that under Clause-22 of the Certified Standing Order framed by the Corporation under the Industrial Employment (Standing Orders) Act, 1946 laying down the service conditions of the employees in the employment of the Corporation it has been provided under Item No.8(ii):- “In awarding punishments, the Chairman/Managing Director, Divisional Manager/Works Manager/Regional Works Manager or any other competent authority may take into account the gravity of the misconduct, previous record, if any, of the employee and any other extenuating or aggravating substances that may exist. It was submitted that the charge memo to the extent that it looked into the past conduct also was fully justified. The Director, therefore, committed a gross error in its conclusion that the history-sheet prepared on 16.11.1985 was not disclosed to the workman at the time of enquiry. It is an error of record as it was duly enclosed to the memo of charge.” 10. We further find that Shri T.N. Singh, who was part of the checking squad, had deposed in the enquiry and was cross-examined by the workman. The workman was not successful in eliciting a response from the witness that there were no passengers traveling without ticket and who had tickets purchased for a lesser distance when they traveled from a distance much farther. In a departmental proceeding, the findings are based on preponderance of probability. If a member of the checking squad was examined and cross-examined, the Reference itself was made 12 years later, we are not satisfied to uphold the order of the Tribunal on the ground simpliciter that the original ticket seized may not have been produced. It stands to reason that it is reasonably possible that in 12 long years the tickets may have gone misplaced as the authorities could not anticipate the Reference of the matter at such belated stage. In a departmental proceeding, it is not the quantum of evidence but the quality of evidence that is relevant. It stands to reason that it is reasonably possible that in 12 long years the tickets may have gone misplaced as the authorities could not anticipate the Reference of the matter at such belated stage. In a departmental proceeding, it is not the quantum of evidence but the quality of evidence that is relevant. Even if one member of the checking squad had been examined, cross examined unsuccessfully, there was no need for other members to be examined. Had circumstances warranted otherwise based on the cross-examination, the issue may have become relevant. 11. In a departmental proceeding the findings are to be based on a preponderance of probabilities and not proof beyond reasonable doubt. The mere failure to produce the original ticket cannot lead to any adverse presumption in view of the evidence by a member of the checking squad. In (1964) 3 SCR 25 (State of A.P. v. Sree Rama Rao) it was observed :- “7…….Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence…..” 12. The Tribunal undoubtedly had jurisdiction to sit over the departmental proceeding conducted by the authorities and require them to prove the charges before it. But, there is no finding of the Tribunal that the departmental proceeding leading to dismissal suffered from any procedural irregularities. The Tribunal did not hold any fresh enquiry, but proceeded to reassess matters on basis of the evidence already available on record in the departmental proceeding. The jurisdiction of the Tribunal, in the circumstances, was restricted to examining errors in the decision making process only. We are satisfied after having gone through the order of the Tribunal that no other ground for procedural infirmity in the conduct of the departmental proceeding causing prejudice to the workman was raised on his behalf before the Tribunal. The conclusion that the history sheet was prepared on 16.11.1985 and did not form part of the charge sheet is an error of record. The memo of charge contained the details of past recalcitrant behavior of the respondent on 15 occasions from 16.7.1970 to 28.1.1982. The conclusion that the history sheet was prepared on 16.11.1985 and did not form part of the charge sheet is an error of record. The memo of charge contained the details of past recalcitrant behavior of the respondent on 15 occasions from 16.7.1970 to 28.1.1982. The history sheet dated 16.11.1985 produced before the Tribunal listed the same along with a fresh misconduct dated 10.2.1985. There is no denial of the allegations of past misconduct on part of the respondent and the punishment imposed on each occasion. 13. Grant of back wages also was not a matter of course if the termination order was to be set aside. The law stands well settled that it is for the workman to assert that he was not gainfully employed only where after the claim for back-wages could have been considered. We do not find that any such ground was taken on behalf of the workman before the Tribunal as it finds no discussion in the order. It has been observed in (2009) 2 SCC 288 (Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale), as follows :- “13. It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant. This Court in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey held: “61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. 62. In Kendriya Vidyalaya Sangathan v. S.C. Sharma this Court held: ‘16. … When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. 62. In Kendriya Vidyalaya Sangathan v. S.C. Sharma this Court held: ‘16. … When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.? 14. We find it difficult to sustain the order under appeal which is accordingly set aside. 15. The appeal is allowed.