JUDGMENT : S.N. Prasad, J. The award dated 1st February, 1994 passed by the Industrial Tribunal, Orissa, Bhubaneswar in Industrial Dispute Case No. 17 of 1990(Central) is under challenge, whereby and where under order of dismissal has been reversed with the order of reinstatement in service with 50% back wages to be paid by the Management to the workman and punishment of withholding of one increment when his next increment falls due has been inflicted. 2. Brief facts of the case is that the workman who was working as Helper under the Management of Sargipali Mines Project of Hindustan Zink Limited faced departmental proceeding on the allegation of committing theft of a steel sheet, crow bar and some other articles from the Mines premises. An officer of the Mines who was enquiring into the charges having found him guilty submitted a report whereupon the management discharged him from service, this action of the Management is under challenge in Reference which has been answered by the Industrial Tribunal which is under challenge in this writ petition. The Management has challenged the award mainly on the ground that considering the nature of allegation of committing theft of steel sheet by the workman who was caught red-handed by the C.I.S.F. Constable who took him along with the stolen article to the control room of the C.I.S.F. where a formal seizure list of the said articles was prepared a report was made and thereafter show cause notice was issued upon the workman to participate in the domestic enquiry, in which he had participated fully, Enquiry Officer found the charges proved against him, in consequence disciplinary authority has dismissed him from service. Considering the nature of allegation which pertains to moral turpitude hence order of dismissal has been passed by the Industrial Tribunal reversing the punishment of dismissal with a direction to reinstate the workman in service and has imposed lesser punishment of withholding one increment for one year which is absolutely improper for the reason that where a question of moral turpitude is there, it is up to the employer to retain the employee in service but without taking into consideration this aspect of the matter Industrial Tribunal has reversed order of punishment of dismissal to reinstatement in service with 50% back wages. Further the award is illegal for the reason that the Industrial Tribunal is not suppose to judicially review the finding given by the Management with respect to proof of guilt in a domestic enquiry in which the workman has fully participated and not raised any objection at any time that he has not been given adequate and sufficient opportunity to defend himself and the moment charge has been found to be proved in the domestic enquiry by the Enquiry Officer, the disciplinary authority after accepting the same has passed order of dismissal from service, as such Industrial Tribunal can only interfere with the same if there is perverse finding given by the Enquiry Officer in the enquiry report or the enquiry has not been conducted in proper manner, but these two conditions are not available but even thereafter the award has been passed reversing punishment of dismissal with reinstatement with 50% back wages and inflicting punishment of withholding one increment when his next increment falls due, by doing this the Industrial Tribunal has exceeded its jurisdiction as provided under Section 11A of the Industrial Disputes Act, 1947 without taking into consideration the fact that the allegation pertains to moral turpitude. 3. Learned counsel representing the workman has submitted that the Industrial Tribunal has passed the award after taking into consideration o f the fact that this was the first instance having no criminal antecedents that too article worth of meager amount was stolen, taking into consideration this aspect of the matter the Labour Court came to conclusion that the punishment imposed is disproportionate to the gravity of the allegations and as such order of dismissal has been reversed to the order of reinstatement with 50% back wages. It has further been submitted that the Industrial Tribunal after taking into consideration the judgment rendered by Hon’ble Gujarat High Court in the similar situation has passed order and hence same has got no infirmity. It is contended by learned counsel for the workman that after interim order of having been passed staying the award, an order has been passed under section 17B of the Industrial Disputes Act, 1947 and after making payment of wages for some time it has been stopped and to that effect Miscellaneous application has also been filed. 4. It is contended by learned counsel for the workman that after interim order of having been passed staying the award, an order has been passed under section 17B of the Industrial Disputes Act, 1947 and after making payment of wages for some time it has been stopped and to that effect Miscellaneous application has also been filed. 4. Having heard learned counsel for the parties and on perusal of the materials available on record, we, before going into the issue involved in this case, thought it proper to have discussion with respect to the power conferred upon the Industrial Tribunal under Section 11A of the Industrial Disputes Act, 1947 which confers power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. The Hon’ble Apex Court has discussed the scope of Section 11A of the Industrial Disputes Act in Indian Iron and Steel Co. Ltd. -vs- Workmen, reported in (1958) 1 LLJ 260 (SC) and has been pleased to observe that while considering the tribunal’s power to interfere with the management’s decision to dismiss, discharge or terminate the services of a workman, while doing so the tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the tribunal will interfere only when there is want of good faith, victimization, unfair labour practice, etc. on the part of the management. Thus the Industrial Tribunal is supposed to interfere with the order of dismissal only when there is want of good faith, victimization, unfair labour practice on the part of the management. 5. Power of judicial review with respect to the punishment imposed upon the delinquent it has been held in the judgment rendered by the Hon’ble Apex Court in the case of Bharat Heavy Electricals Ltd. -vs- Chandrasekhar Reddy and others reported in (2005) 2 SCC 481 their Lordships has held at paragraphs 19, 20, 21, 22, 23 and 24 by taking into consideration the case of loss of confidence which is being quoted herein below: “19. The learned counsel for the appellant has rightly relied upon the decisions of this Court in support of her argument. The learned counsel for the appellant has rightly relied upon the decisions of this Court in support of her argument. In Air India Corporation -vs- V.A. Rebellow, (1972) 1 SCC 814 , this Court held with reference to loss of confidence as follows :- "Once bonafide loss of confidence is affirmed the impugned order must be considered to be immune from challenge." 20. In Francis Klein & Company Private Ltd., this Court held :- "In our view when an employer loses confidence in his employee, particularly in respect of a person who is discharging an office of trust and confidence, there can be no justification for directing his reinstatement. Even this direction is not a valid direction because if once the Company has lost confidence in its employee, it is idle to ask them to employ such a person in another job. What job can there be in a Company which a person can be entrusted with and which does not entail reposing of confidence in that person." 21. In Janatha Bazaar South Kanara Central Coop. Wholesale Stores Ltd. -vs- Secy., Sahakari Noukarana Sangha, (2000)7 SCC 517 this Court held :- "Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. In case of proved misappropriation, in our view, there is no question of considering past service record. It is the discretion of the employer to consider the same in appropriate cases, but the Industrial Tribunal cannot substitute the penalty imposed by the employer in such cases." 22. In UP SRTC -vs- Mohan Lal Gupta, (2000) 9 SCC 521 this Court held :- "The employee has been found to be guilty of misappropriation and in such an event, if the appellant-Corporation loses its confidence vis-a-vis the employee, it will be neither proper nor fair on the part of the Court to substitute the finding and confidence of the employer with that of its own in allowing reinstatement. The misconduct stands proved and in such a situation, by reason of the gravity of the offence, the Industrial Tribunal cannot exercise its discretion and alter the punishment." 23. The misconduct stands proved and in such a situation, by reason of the gravity of the offence, the Industrial Tribunal cannot exercise its discretion and alter the punishment." 23. With reference to Section 11-A of the Act, in the case of The Workmen of Firestone Tyre & Rubber Company Ltd., (1973) 1 SCC 813 this Court held :- “Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation." "If a proper enquiry is conducted by an employer and a correct finding arrived at regarding the misconduct, the Tribunal, even though it has now power to differ from the conclusions arrived at by the management, will have to give every cogent reasons for not accepting the view of the employer." 24. In CMC Hospital Employees' Union & Anr. -vs- CMC Vellore Association, (1987) 4 SCC 691 this Court held :- "Section 11-A– cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision." In the case of State Bank of Hyderabad and another -vs- P. Kata Rao reported in (2008) 15 SCC 657 wherein at paragraph-18 Hon'ble Apex Court has said that there cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. In the case of Nirmala J. Jhala -v- State of Gujarat and another, reported in (2013)4 SCC 301 it has been held at paragraphs 25 and 26 which is being reproduced herein below: “25. In Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., AIR 1996 SC 1249 , this Court held as under: 4. .....In a case of such nature – indeed, in cases involving corruption – there cannot be any other punishment than dismissal. In Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., AIR 1996 SC 1249 , this Court held as under: 4. .....In a case of such nature – indeed, in cases involving corruption – there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. 26. In NEKRETC v. H. Amaresh, (2006) 6 SCC 187 , this court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal. Similar view has been reiterated in U.P. SRTC -v- Vinod Kumar, (2008)1 SCC 115 and U.P. SRTC -v- Suresh Chand Sharma, (2010)6 SCC 555 .” In the case of Deputy Commissioner, Kendriya Vidyalaya Sangthan and others -vs- J. Hussain, reported in (2013) 10 SCC 106 wherein their Lordships at paragraphs 14 and 16 has been pleased to observe as has been quoted herein below: “14. Thus, in our view entering the school premises in working hours i.e. 10.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal’s room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the court. Though it does not appear to be excessive either, but even if it were to be so, merely because the Court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too to the extent that it shocks the conscience of the court and the court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the repletion that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty.” “16. Once it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty.” “16. In the present case, it cannot be imputed that the departmental authorities while imposing the punishment acted n a manner which manifests lack of reasonableness or fairness. In Karnataka Bank Ltd. -v- Al.L.Mohan Rao, (2006)1 SCC 63 , charge against the delinquent employee was that he had colluded with one of the Branch Managers and enabled grant of fictitious loan. The High Court interfered with the punishment of dismissal and ordered reinstatement on sympathetic ground even when it found that the misconduct was proved. This Court reversed the judgment of the High Court. Repeatedly this Court has emphasised that the courts should not be guided by misplaced sympathy or continuity ground, as a factor in judicial review while examining the quantum of punishment.” In the case of General Manager(Operations), State Bank of India and another -vs- R. Periyasamy, reported in (2015) 3 SCC 101 wherein at paragraph-9 it has been said by Hon’ble Apex Court which is being quoted herein below: “In State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, (2011)4 SCC 584 , this Court observed as follows:- “7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India : (1995) 6 SCC 749 , Union of India v. G. Ganayutham : (1997) 7 SCC 463 , Bank of India v. Degala Suryanarayana : (1999) 5 SCC 76 and High Court of Judicature at Bombay v. ShashiKant S. Patil (2000) 1 SCC 416 ).” It is not necessary to multiply authorities on this point. Suffice it to say that the law is well settled in this regard. ” 6. After going through the provision of Section 11A of the Industrial Disputes Act, 1947 as well as the authoritative pronouncement while discussing scope of Section 11A of the Industrial Disputes Act, 1947 in the case of Indian Iron and Steel Co. -v- Workmen (supra) and other pronouncements with respect to the jurisdiction of the Industrial Tribunal, Tribunal or the Court of law to interfere with punishment, it is settled that power of judicial review is very limited and it can only be interfered if there is perversity in the finding or in case of violation of principle of natural justice. So far as the case of Labour Court is considered, it has been held by Hon’ble Apex Court that order of dismissal should not have been reversed by order of reinstatement since it is question of lack of confidence upon the employee by the employer and the fact that the employer does not want to get such employee whose integrity is found to be adverse, then order of dismissal can be reversed by the court of law if finding is perverse or charge has been found to be proved without following principle of natural justice. 7. 7. We have examined finding of the award given by the Labour Court in the light of the provision of Section 11A of the Industrial Disputes Act and the authoritative pronouncements as referred herein above and from its perusal it is evident that the workman was working as Helper under the Management and while on duty he was caught red-handed on 13.3.1987 with a steel sheet, crow bar and some other articles, C.I.S.F. personnel has taken him to the control room where a formal seizure list of the said articles was prepared and report to that effect was submitted. Confession of the workman has been recorded at the time of preparation of seizure list. Management has initiated a preliminary enquiry, found the allegations true against the workman, show cause notice was issued upon him to appear before the Enquiry Officer, in pursuance to the same the workman had appeared before the Enquiry Officer, participated in the same. He has submitted valid documents, deposed before the Enquiry Officer, cross-examined the witnesses. The Enquiry Officer has found the charge proved against him. Report was forwarded before the disciplinary authority, same having been accepted, order of dismissal has been passed. The workman being aggrieved with the order of dismissal has raised dispute which culminated into Reference, the same has been answered in favour of workman and order of reinstatement with 50% back wages has been passed, inflicted minor punishment of withholding one increment for one year. 8. Question arose what led the Industrial Tribunal to reverse the order of dismissal with order of reinstatement with 50% back wages and inflicted minor punishment of withholding of one increment. We have found from the award that the Industrial Tribunal has given finding that the domestic enquiry is not proper and fair, reason being that the enquiry has proceeded in hot-haste. According to the Industrial Tribunal the enquiry has proceeded on 30.3.1987 and adjourned to 3.4.1987 and from that date onwards it was taken day-to-day and completed on 5.4.1987. We have examined the enquiry report, from its perusal it is evident that the enquiry sittings were held on the following dates and timings as per the detail which is reproduced herein below: Meeting no. Date Time 1. 30.3.87 From 3.40 PM to 5.30 PM 2. 3.4.87 From 9.30 AM to 1.30 PM 3. 4.4.87 From 9.05 AM to 12.00 AM 4. Date Time 1. 30.3.87 From 3.40 PM to 5.30 PM 2. 3.4.87 From 9.30 AM to 1.30 PM 3. 4.4.87 From 9.05 AM to 12.00 AM 4. 4.4.87 From 3.15 PM to 3.80 PM 5. 5.4.87 From 9.10 AM to 12.30 PM 6. 6.4.1987 From 3.20 PM to 4.00 PM It transpires from the enquiry report that witnesses had appeared before the Enquiry Officer who has been cross-examined by the workman in detail but however in spite of opportunity having been given to him, he has not produced any witness before the Enquiry Officer. It further transpires from the enquiry report that the workman has never said that the enquiry is not conducted properly and he has not been given proper opportunity to defend himself rather it is evident from the enquiry report that on each and every date the workman had appeared before the Enquiry Officer and accordingly cross-examined the witnesses. Finding of the Industrial Tribunal in this respect that the enquiry has commenced in a hurried manner and only on that account domestic enquiry has been said to be not proper and fair but that finding is not correct for the reason that if the enquiry is being concluded in a week or even for two or three days, days will not be important rather it would be seen that the workman or the delinquent employee had been provided with adequate opportunity or not and whether the workman has made complaint that he is not being provided any adequate opportunity to defend himself, this is not available either in the defence reply of the workman or anywhere on record, hence merely on the ground that the enquiry proceeding has commenced on 30.3.1987 and ended on 6.4.1987, it cannot be said that the domestic enquiry is not fair. 9. Industrial Tribunal has given finding questioning the action of the management who has conducted a preliminary enquiry before initiating a regular domestic enquiry since it is not provided under the Certified Standing Order, but even accepting this when preliminary enquiry has been conducted contrary to the provisions of Certified Standing Order then what prejudice has been caused to the workman has at all not been discussed by the Industrial Tribunal. Moreover, this point has never been raised by the workman before the enquiry officer. Moreover, this point has never been raised by the workman before the enquiry officer. Further the Industrial Tribunal has passed award by committing error that on the one hand that the finding of the domestic enquiry is not proper and while on the other hand lesser punishment of withholding of one increment for a year has been imposed, if the domestic enquiry is not fair the Industrial Tribunal ought to have quashed the order of dismissal by reversing with the order of reinstatement. The Industrial Tribunal should not have passed order inflicting punishment even lesser quantum which suggests that the Industrial Tribunal has not properly applied its mind while passing the award. The Industrial Tribunal has taken into consideration the order passed by the Gujarat High Court where in similar circumstances i.e. in the matter of theft of Rs.50/-, order of dismissals has been reversed with order of reinstatement and taking into consideration such fact, award has been passed by reversing order of dismissal with order of reinstatement but while doing so the Industrial Tribunal has not taken into consideration the ratio laid down by the Hon’ble Apex Court in the cases of Indian Iron and Steel Co. -v- Workmen (supra) and other judgments as has been referred herein above having its binding precedence upon the High Court and Industrial Tribunal under Article 141 of the Constitution of India. 10. So far as jurisdiction of Industrial Tribunal under section 11A of the Industrial Disputes Act, 1947 is concerned, it has been decided by the Hon’ble Apex Court in the case of Indian Iron and Steel Co. -v- Workmen (supra) that in what circumstance the Labour Court or Industrial Tribunal should interfere by making judicial review of order of dismissal, i.e. in case of want of good faith, victimization, unfair labour practice, but no such finding has been given by the Industrial Tribunal in the award while interfering with the decision of the Management in exercise of power conferred under section 11A of the Industrial Disputes Act, 1947. The judgments referred by us herein above in the case of Bharat Heavy Electricals Ltd. -vs- Chandrasekhar Reddy and others (supra), State Bank of Hyderabad and another -vs- P. Kata Rao (supra), Nirmala J. Jhala -v- State of Gujarat and another (supra), Deputy Commissioner, Kendriya Vidyalaya Sangthan and others -vs- J. Hussain (supra) and taking into consideration the fact that in case of lack of confidence where allegation of theft is there which denotes moral turpitude and lack of integrity and as such no order should be passed merely on sympathy, taking into consideration this aspect of the matter the award cannot said to be perfect. 11. We are aware with the jurisdiction of the High Court under Article 226 of the Constitution of India not to interfere with the fact finding given by the Labour Court/Industrial Tribunal but in case of perversity or error apparent on face of record, High Court sitting under Article 226 of the Constitution of India may judicially review it and according to us the finding given by the Industrial Tribunal so far it relates to interference in domestic enquiry, reversing order of dismissal with the order of reinstatement by inflicting lesser punishment without taking into consideration the ratio laid down by the Apex Court in the case of Indian Iron and Steel Co. -v- Workmen (supra) and other judgments referred herein above, we are of the considered view that the Industrial Tribunal has not applied its mind judicially since with respect to the fact finding where charge is found to be proved by the Enquiry Officer, jurisdiction of Court of law is very limited, as such taking into consideration this aspect of the matter, we find that the award is not proper. In the result, the writ petition stands allowed and the order of dismissal is restored. Before parting with this order we thought it necessary to pass appropriate order regarding the arrears of dues of the workman as per the provision of Section 17(B) of the Industrial Disputes Act, which provides provision to pay wages last drawn by the worker in case of stay of operation of award by Higher Court. Admittedly, the award has been stayed and as such order has been passed by this Court too on 21.9.1995 directing the Management to disburse the arrears, in terms thereof wages has been paid for some period and thereafter it has been stopped. Admittedly, the award has been stayed and as such order has been passed by this Court too on 21.9.1995 directing the Management to disburse the arrears, in terms thereof wages has been paid for some period and thereafter it has been stopped. Accordingly we direct the Management to pay the arrears of dues as per the direction passed by this Court on 21.9.1995 within a stipulated period preferably within period of four weeks from today, if not already paid. With the above observation and direction, the writ petition stand disposed of.