JUDGMENT Hrishikesh Roy, J. 1. These 2 cases arise out of the Award dated 5.10.2012 in Reference Case No. 13/1986 given by the learned Labour Court, Dibrugarh. The WP (C) 6247/2012 is filed by the Management of the Baghjan Tea Estate (hereinafter referred to as the Management), whereas the WP (C) 1450/2013 is filed for the workmen represented by the Assam Tea Workers Union. The workmen are aggrieved since the learned Court upheld the dismissal of the 28 workmen, whose case was referred under Section10 of the Industrial Disputes Act (hereinafter referred as the I.D. Act) and held that they are disentitled to reinstatement The Management on the other hand challenges the direction given by the learned Labour Court for reinstatement of 5 workmen with back wages, whose cases were not covered by the reference made to the Labour Court I have heard Mr. S.N. Sarma, the learned Senior Counsel appearing for the Management while workmen are represented by advocate Mr. B. Chakraborty. Since common arguments are advanced and same facts are being considered, both the cases are disposed of by this order. For the records, the facts are taken from the WP (C) 1450/2013. 2. The matter pertains to the Baghjan T.E. in Tinsukia district and the starting point of the case is an incident of 25.4.1984 when a large group of T.E. workers assembled in front of the manager's office and after forcible trespass, physically assaulted the manager to the extent of beating him unconscious. Then the senseless victim was dragged out to the street and some of the co-workers who tried to give medical assistance to the manager were prevented by the unruly mob. The T.E. manager suffered serious injuries and was subsequently shifted to hospital with police help. 3. On 30.4.1984 the Management issued charge sheet against 28 workmen involved in the assault of 25.4.1984. However the charge sheet could be served only on few of the available workmen and those who were arrested, were furnished copies of the charge sheet on 8.6.1984, after they were released on bail. A common reply to the charge memo was given by all the workmen on 14.6.1984 and considering the reply to be unsatisfactory the Management decided to conduct a domestic enquiry against the charged workmen. 4. One Mr. A common reply to the charge memo was given by all the workmen on 14.6.1984 and considering the reply to be unsatisfactory the Management decided to conduct a domestic enquiry against the charged workmen. 4. One Mr. H.C. Rajkhowa, a practicing lawyer of Tinsukia was appointed as the enquiry officer and the first hearing of the enquiry was scheduled on 9.7.1984. But through a joint letter of 6.7.1984 addressed to the Management, the workmen requested for adjourning the enquiry to 5th August 1984. The Management allowed 14 days time fixing 23rd July 1984 as the next date of enquiry through their reply of 7.7.1984. But four days before the next scheduled date, on 20.7.1984, the workmen made a request to the Management to be represented by an advocate and also sought postponement of the enquiry to the 1st week of August 1984. The adjournment request however was turned down on 21.7.1984 by the Management 5. On the date fixed for enquiry i.e. on 23.7.1984, the workmen gave a joint letter to the Management giving the names of 124 witnesses whom they wanted to produce in the domestic enquiry. But considering the unmanageable number of witnesses, the Management suggested that 10/12 witnesses may be chosen from the side of the workmen. 6. On 24.7.1984 individual letters were addressed to each of the charged workmen by the manager of the T.E., informing them that the enquiry is scheduled next on 26.7.1984. In this letter, the manager informed that if me workmen wish to produce 124 witnesses, the T.E. employer will grant them leave without pay. But it will be the decision of the enquiry officer as to how many of those witnesses should be examined in the domestic enquiry. On the request for lawyer's assistance, the workmen were informed that this can't be permitted as the Management too is not being represented by any outsider, but if the workmen wish to involve a few co-workers to assist them in the enquiry, the employer offered to give them paid leave during the continuation of the enquiry. 7. But despite the above intimation of the Management, on the next date of enquiry i.e. on 26.7.1984, the workmen wrote a joint letter to the Management reiterating their prayer for engagement of a lawyer on their behalf. 7. But despite the above intimation of the Management, on the next date of enquiry i.e. on 26.7.1984, the workmen wrote a joint letter to the Management reiterating their prayer for engagement of a lawyer on their behalf. Interestingly, the workmen never appeared before the enquiry officer on any of the scheduled dates i.e. 23.7.1984 and 26.7.1984 and accordingly the enquiry officer decided to proceed with the enquiry ex parte, against the workmen. 8. After due deliberation, the enquiry officer declared that the charges were proved and on the basis of his enquiry report, individual dismissal order was issued to the 28 charged workmen on 4.9.1984. Thereafter the matter was taken up for conciliation by the Assam Chah Mazdoor Sangh on behalf of the workmen and since the conciliation foiled, reference was made on the following two issues on 20.10.1986 by the Government, under Section 10 of the I.D. Act. As the referred issues have a bearing on the cases, they are extracted hereinbelow for ready reference:-- 1. Whether the management of Bogijan T.E. was justified in dismissing (1) Sarbashree Esmil (2) Jiban, (3) Mikha, (4) Samel, (5) Simon, (6) Amrush, (7) Chakha, (8) Dubrej, (9) Essak, (10) Hadiush, (11) Joshep Kemras, (12) Silbstor Silash, (13) Asamlal, (14) Dhumra, (15) Ramlal, (16) Atowa, (17) Badol, (18) Sukra Lodha, (19) Asom Muka, (20) Smti. Albina Hazaroo, (21) Smti. Birosmoni, (22) Smti. Solopina, (23) Smti. Elius Hara, (24) Smti. Kamini, (25) Smti, Victoria Doyamoni, (26) Smti. Anjana, (27) Smti Julie and (28) Smti. Tarala? (2) If no, whether the said workmen are entitled to reinstatement with full back wages and other benefits or any other reliefs in lieu thereof? 9. Since the workmen failed to appear in the Labour Court, an Award of no dispute was given on 21.5.1987 and this decision was challenged by the aggrieved workmen by filing the WP (C) 5156/2000. But during the pendency of me writ petition, the Government issued an order on 11.10.2004 reviving the reference. While the workmen's case was withdrawn from the High Court because of the Government's revival order, this time the aggrieved Management challenged the Government's decision through the WP (C) 1768/2006. This case was allowed by the learned Single Judge by quashing the Government's revival order dated 11.10.2004. While the workmen's case was withdrawn from the High Court because of the Government's revival order, this time the aggrieved Management challenged the Government's decision through the WP (C) 1768/2006. This case was allowed by the learned Single Judge by quashing the Government's revival order dated 11.10.2004. But in the resultant Writ Appeal No. 271/2010, the Division Bench through the judgment dated 3.5.2012 upheld the Government's order and accordingly the reference was thereafter adjudicated by the Labour Court. 10. This time both the parties participated in the reference and in the was given on 1.8.2012 the Management took the plea that the workmen were dismissed through a valid proceeding consistent with the principles of natural justice. Projecting the validity of the domestic enquiry, a request was made to the learned Labour Court to proceed on the merit of the dismissal only it the domestic enquiry is found to be defective by the Labour Court. Accordingly a decision on the preliminary issue, as to whether the domestic enquiry proceeding was valid and proper, was sought by the Management from the Labour Court. 11. The learned Labour Court considered the legality of the domestic enquiry and also examined the mode and manner of participation by the Management and the workmen in the said enquiry. The request made by the workmen to be represented by a lawyer and their indication to produce 124 witnesses with further request to the T.E. Manager to grant them leave with pay was noted. After due consideration the Court found that the enquiry officer was left with no option but to proceed ex parte since the workmen didn't participate in the enquiry. After examining the facts and the law on the issue, the Labour Court declared that the domestic enquiry was validly held and that principles of natural justice were observed by the enquiry officer. With this finding, the Award upholding the dismissal of the 28 workmen was given by the learned Court. 12. In addition to the above declaration, the learned Labour Court proceeded to also deal with the cases of 5 other dismissed workmen namely Isak Kharkari, Zenus, Prem, Ganesh and Jaljit and the Court directed reinstatement of these 5 workmen, with frill back wages. 13. 12. In addition to the above declaration, the learned Labour Court proceeded to also deal with the cases of 5 other dismissed workmen namely Isak Kharkari, Zenus, Prem, Ganesh and Jaljit and the Court directed reinstatement of these 5 workmen, with frill back wages. 13. Consequently while the workmen challenge that part of the Award whereby their reinstatement was refused, the management challenges the other part of the Award whereby, reinstatement of 5 workmen were ordered. 14. Representing the workmen, Mr. B. Chakraborty, the learned Counsel submits that the workmen did not have any opportunity to adduce evidence in the domestic enquiry or even before the Labour Court and accordingly the Counsel argues that the Award upholding the dismissal of the workmen is without any material evidence. Projecting that the enquiry officer was a practicing lawyer and the Management was represented by an educated and competent person like the manager of the T.E., the Counsel argues that denial of assistance of a lawyer was unfair and this by itself vitiates the enquiry. Referring to the fact that in the criminal case arising out of the incident of 25.4.1984, all the accused workmen were acquitted by the Criminal Court, Mr. B. Chakraborty submits that if evidence could have been adduced, the workmen would have certainly proved their innocence in the domestic enquiry. 15. Representing the management on the other hand, Mr. S.N. Sarma, the learned Senior Counsel firstly questions the maintainability of the writ petition filed by the workmen. He submits that originally the workmen were represented by the Assam Chah Mazdoor Sangha in the domestic enquiry and in the Labour Court. But now they are sought to be represented by another Trade Union i.e. the Assam Tea Workers Union represented by its Secretary, Mr. Isak Korkoria. But interestingly Mr. Isak Korkoria is also arrayed as a respondent in the WP (C) 1450/2013 and therefore it is argued that a case filed by one in his official capacity against himself in his individual capacity as one of the arrayed respondent, is not maintainable. The senior Counsel also submits that most of the workmen have either died or have crossed the retirement age of 58 years and since there is no information on the dead persons, the Assam Tea Workers Union can't make the current challenge. But advocate Mr. B. Chakraborty for the workmen submits that Mr. The senior Counsel also submits that most of the workmen have either died or have crossed the retirement age of 58 years and since there is no information on the dead persons, the Assam Tea Workers Union can't make the current challenge. But advocate Mr. B. Chakraborty for the workmen submits that Mr. Isak Korkoria was one of the 5 workmen ordered to be reinstated by the learned Labour Court and this part of the reinstatement order is under challenge by the Management in the WP (C) 6247/2012. Accordingly Mr. Chakraborty argues that since the writ petition is filed by the Trade Union to represent the interest of the aggrieved workmen, the same is maintainable. 16. On the maintainability issue raised by the Management, I find that the history of this case started with the physical assault incident of 25.4.1984 in the T.E. and nearly 3 decades have gone by in this litigation process in various forums. In such backdrop, I am of the view that the parties deserve a decision on merit and the case should not be thrown out at the threshold. Therefore the merit of the impugned Award is being examined 17. In support of the Management's challenge against the reinstatement ordered for the 5 workmen, the learned Senior Counsel submits that reference was limited to dismissal of only 28 workmen under Section 10 of the I.D. Act and the dismissal issue of 5 other workmen who were ordered to be reinstated by the Labour Court, was not covered by the reference made on 20.10.1986. Accordingly it is argued that the order for reinstatement of these 5 workmen was wholly without jurisdiction as it was beyond the issues referred for adjudication to that Court in support of his contention, Mr. S.N. Sarma relies upon the Supreme Court decision in Precision Bearing India Ltd. v. Baroda Mazdoor Sabha reported in (1978) ILLJ 170 SC and also the decision in State Bank of Bikaner v. Om Prakash Sharma reported in (2006) 5 SCC 123 . In these cases, the Supreme Court held that the jurisdiction of the Labour Court emanates from the order of reference and it could not have passed any order, going beyond the terms of the reference. In these cases, the Supreme Court held that the jurisdiction of the Labour Court emanates from the order of reference and it could not have passed any order, going beyond the terms of the reference. Consequently the Apex Court declared that the Labour Court is not entitled to travel beyond the scope of the reference and such decision (rendered on an unreferred issue), is an illegality and suffers from jurisdictional error. In the present case dismissal of the 5 respondents of the WP (C) 6247/2012 was not a referred issue to the Labour Court. Therefore I find sufficient merit in the management's case and accordingly the WP (C) 6247/2012 is allowed by setting aside the reinstatement order for the 5 workmen, whose cases are not covered by the reference dated 20.10.1986. 18. Since the Labour Court confined its scrutiny to the fairness of the domestic enquiry, this Court is now to consider whether the Labour Court was also obliged to examine the merit of the dismissal order. As earlier noted, the Management in their written statement requested for a decision on the preliminary issue on whether the domestic enquiry was valid and proper. This issue was answered against the workmen as the Labour Court declared that the domestic enquiry was a valid proceeding and accordingly the Award against the workmen was given on that basis. 19. The Supreme Court in Delhi Cloth and General Mills Co. v. Ludh Budh Singh reported in (1972) 1 SCC 595 had declared 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 if the Industrial Tribunal is satisfied that the enquiry was held properly and is valid, the Court is not obliged to consider the evidence on merit in this case, the Labour Court found that the domestic enquiry was fair and due opportunities were provided to the workmen. After a finding of this nature, the law doesn't require the Labour Court thereafter to consider the merit of the evidence as was held in Ludh Budh Singh (supra). Consequently on this basis, the submission of the workmen is rejected. 20. But considering that the workmen challenge the merit of the Labour Court's decision, for the sake of justice, let me also examine as to whether the workmen were provided a fair opportunity to defend the charges. Consequently on this basis, the submission of the workmen is rejected. 20. But considering that the workmen challenge the merit of the Labour Court's decision, for the sake of justice, let me also examine as to whether the workmen were provided a fair opportunity to defend the charges. As earlier recorded, the workmen never appeared before the enquiry officer and in fact sought multiple adjournment firstly with the plea for being represented by a lawyer and next with intimation for production of 124 witnesses and request for granting them leave with pay. But the management took the stand that while leave (without pay) can be allowed for all the witnesses, paid leave cant be granted to these 124 T.E. workers. However an offer was made to grant paid leave for few T.E. workers whose assistance might be requested by the workmen. But despite all the communications including the management's letter of 27.4.1984 addressed individually to all the charged workmen, they didn't to appear before the enquiry officer. Therefore it is a clear case where the workmen despite service of notice, chose to remain absent and that is why the enquiry proceeded ex parte against the workmen. Therefore as has been stated by the Apex Court in Pepsu Road Transport Corporation v. Rowel Singh reported in (2008) 4 SCC 42 , it is not a case "of not extending an opportunity to the employee but not availing of opportunity by the employee". In such circumstances, I am of the view that a correct conclusion was reached by the learned Labour Court about the legality domestic enquiry in the face of non cooperation by the workmen and their deliberate absence from the enquiry proceeding. 21. The charged workmen who were also the accused in the GR. Case No. 463/1984 were acquitted on 29.6.1998 by the learned Magistrate, Tinsukia. But I find from the order of the Trial Court that the accused were given the benefit of doubt That apart, the Supreme Court in Ajit Kumar Nag v. General Manager (PJ), IOCL reported in AIR 2005 SC 4217 Haldia has held that acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force since, criminal and departmental proceedings operate in separate fields and have different objectives. Moreover, strict rules of evidence and procedure applicable to a Criminal Court do not apply to a departmental proceeding and degree of proof to record a finding in a domestic enquiry is not at par with the degree of proof required for criminal prosecution. This is not a case of honourable acquittal but was on the basis of benefit of doubt in such circumstances, the acquittal order in my view will have no impact on the legitimacy of the domestic enquiry or the adverse conclusion reached against the dismissed workmen. 22. Finally, the Court is called upon to consider the severity of punishment inflicted on the workmen. In this context, one can usefully refer to Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh re-ported (2004) 8 SCC 200 . The facts in this case are somewhat similar to the incident which took place in the Baghjan T.E. on 25.4.1984. In the case before the Supreme Court, the concerned workmen entered the estate with a view to gherao the manager and in that process they caused damage to the property of the estate and caused wrongful confinement of the manager. In these facts the Apex Court held that the charges are grave enough to attract the punishment of dismissal. In the case in hand not only the manager was attacked and garden property damaged but he was brutally beaten to the extent of leaving him unconscious in the street His shifting to the hospital was inhumanly resisted by the charged workmen and the injured manager could be provided medical aid only with police intervention. In such circumstances, having regard to the ratio in Krishnakali Tea Estate (supra), I am of the view that the punishment of dismissal can't be considered to be disproportionate to the charge in the present case. 23. In view of the above discussion, the Award of the Labour Court on answering the reference against me workmen is found to be legally justified and consequently the WP (C) 1450/2013 is dismissed. With the above decision, both the cases are disposed of without any order on cost.