ORDER : The petitioner is before this Court under Article 226 of the Constitution of India assailing the order dated 31.05.2013 in C.R.No.73/2001 on the file of the Central Government Industrial Tribunal-cum-Labour Court, Bangalore (for short the ‘Tribunal’). 2. It is stated that the respondent joined the duty in the petitioner-Railways as Assistant Station Master on 02.05.1989. He remained unauthorized absent from the duty from 11.03.1993 to 31.08.1993 for a period of 174 days. The petitioner initiated enquiry against the respondent by issuing charge sheet dated 16.11.1993 for unauthorized absence of the respondent. The respondent states that he was unwell and he was taking treatment at Gulbarga. Subsequently, an Enquiry Officer was appointed to conduct the enquiry. The Enquiry Officer submitted his report dated 16.10.1995 holding that the charges are proved against the respondent. Based on the enquiry report, the petitioner took a decision to remove the respondent from services of the petitioner-Railways. Accordingly, passed an order dated 21.12.1995 dismissing the respondent from the services of the railways. The respondent raised dispute and the same was referred to the Central Industrial Tribunal for adjudication under Section 10 of the Industrial Disputes Act, 1947 (for short the ‘Act’). The respondent filed his claim statement before the Tribunal and the petitioner herein had also filed reply. Based on the pleading, the Tribunal framed the preliminary issue as to whether the domestic enquiry conducted by the 2nd party petitioner herein against the respondent 1st party is fair and proper. Based on the material, the Tribunal held that the enquiry held by the petitioner was not fair and proper. Thereafter, both petitioner and respondent did not lead any evidence on merit before the Tribunal. The Tribunal by its order dated 31.05.2013 allowed the reference and directed the Railway Authorities to reinstate the respondent with continuity of service. Aggrieved by the said award, the petitioner is before this Court in this writ petition. 3. Heard the learned counsel for the petitioner and learned counsel for the respondent. Perused the writ petition papers. 4. Learned counsel for the petitioner submits that the Tribunal committed an error in allowing the reference and directing the reinstatement of the respondent. The Tribunal could not have come to the conclusion that the enquiry held by the petitioner is not fair and proper without examining the material on record. Perused the writ petition papers. 4. Learned counsel for the petitioner submits that the Tribunal committed an error in allowing the reference and directing the reinstatement of the respondent. The Tribunal could not have come to the conclusion that the enquiry held by the petitioner is not fair and proper without examining the material on record. Learned counsel further submits that the respondent-official has not produced any document from Railway Hospital for having taken treatment, it is only from private doctors, the petitioner has obtained certificates and produced before the Enquiry Officer. It is his submission that the Disciplinary Authority has passed a reasoned order, which would not call for interference. 5. Per contra, the learned counsel for the respondent submits that the petitioner has not challenged the order dated 09.03.2011 passed by the Tribunal on preliminary issue as to whether the domestic enquiry conducted by the 2nd party against the 1st party is fair and proper. The Tribunal has rightly held that the enquiry conducted by the management is not fair and proper. Further, he submits that even though opportunity was granted to the petitioner, the petitioner has not led any evidence on merit before the Tribunal. Failure to adduce the evidence and prove the charge, the petitioner cannot contend that the Tribunal failed to look into the enquiry records. Once the enquiry is held as not fair and proper, the Tribunal cannot look into the records of the enquiry. The learned counsel for the respondent relies upon the decision of the Hon’ble Supreme Court reported in 1999-I LLJ Page 275 in support of his contention that once the Tribunal having held that the enquiry is not fair and proper, it is not for the Tribunal to look into the enquiry records. 6. On hearing the learned counsels and on perusal of the petition papers, the only question requires consideration is “whether the award passed by the Tribunal requires interference in the facts and circumstances of the case.” 7. Answer to the said question is in the negative. The respondent was appointed as Assistant Station Master on 02.05.1989. That the respondent remained unauthorizedly absent from 11.03.1993 to 31.08.1993 for a period of 174 days. The petitioner issued charge memo dated 16.11.1993 to the respondent for alleged unauthorized absence, which amounts to failure to maintain devotion to duty and contravention of conduct rules. The respondent was appointed as Assistant Station Master on 02.05.1989. That the respondent remained unauthorizedly absent from 11.03.1993 to 31.08.1993 for a period of 174 days. The petitioner issued charge memo dated 16.11.1993 to the respondent for alleged unauthorized absence, which amounts to failure to maintain devotion to duty and contravention of conduct rules. Enquiry Officer appointed by the petitioner, conducted enquiry and submitted his report on 16.10.1995 holding the charges leveled against respondent as proved. It is stated that before the Enquiry Officer PW1 was examined and six documents were marked. Based on the enquiry report, the petitioner passed order on 21.12.1995 removing the respondent from the petitioner-railway services. The respondent raised dispute and the same was referred under Section 10 of the Act to the Tribunal. The Tribunal based on the pleadings framed preliminary issue as to whether the domestic enquiry conducted by the 2nd party against the 1st party is fair and proper. The Tribunal by its order dated 09.03.2011 held that the enquiry conducted by the petitioner is not fair and proper. Admittedly, the petitioner-railway authorities have not challenged the said order. The order dated 09.03.2011 holding that the enquiry held by the petitioner is not fair and proper has become final and binding on the parties. Thereafter, the petitioner herein was given sufficient opportunity to lead its evidence to prove the charges leveled against the respondent before the Tribunal. As the petitioner did not lead evidence even after several opportunities, the same was taken as ‘nil’ by order dated 19.10.2011. The respondent also submitted that he has also no evidence; the matter was posted for argument. After hearing, the Tribunal has partly allowed the reference and set aside dismissal of respondent and directed reinstatement with continuity of services, but rightly denied backwages. 8. It is an admitted fact that the petitioner did not lead any evidence before the Tribunal after the enquiry conducted by the petitioner was held as not fair and proper. There was no documents whatsoever before the Tribunal to look into with regard to alleged charge against the respondent. The alleged charge was that the respondent was unauthorizedly absent from 11.03.1993 to 31.08.1993 for a period of 174 days. The petitioner failed to lead evidence and to prove that the respondent was unauthorizedly absent for a period of 174 days. There was no documents whatsoever before the Tribunal to look into with regard to alleged charge against the respondent. The alleged charge was that the respondent was unauthorizedly absent from 11.03.1993 to 31.08.1993 for a period of 174 days. The petitioner failed to lead evidence and to prove that the respondent was unauthorizedly absent for a period of 174 days. The contention of the petitioner that the documents produced before the Enquiry Officer could have been looked into cannot be accepted. Once the domestic enquiry is held to be not fair and proper, the documents produced before the Enquiry Officer cannot be looked into for any purpose. When once the enquiry is held as not fair and proper, the law requires the parties to avail an opportunity to lead evidence before the Tribunal. If the parties failed to adduce evidence before the Tribunal to prove the charge, there would be no record before the Tribunal in support of the alleged charge. The petitioner appears to have led evidence only on the preliminary issue and no evidence is led on the main matter. The Hon’ble Supreme Court in the case cited supra at Para 27 has held as follows: “27. The record pertaining to the domestic enquiry would not constitute "fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute "material on record", as contended by the counsel for the respondents, within the meaning of Section 11-A as the enquiry proceedings, on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and, were, in fact, relied upon by the management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the management ceased to be "material on record' within the meaning of Section 11-A of the Act and the only course open to the management was to justify its action by leading fresh evidence as required by the Labour Court. In view of the nature of objections raised by the appellant, the record of enquiry held by the management ceased to be "material on record' within the meaning of Section 11-A of the Act and the only course open to the management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the management has to suffer the consequences.” 9. The above decision would make it clear that the evidence in the enquiry would not constitute fresh evidence when domestic enquiry is held as not fair and proper. It is necessary to lead fresh evidence before the Tribunal to prove the charge. As there was no material on record to prove the unauthorized absence of the respondent, the Tribunal having no other option proceeded to pass the award directing the petitioner to reinstate the respondent with continuity of service without backwages. The award passed by the Tribunal is neither perverse nor erroneous so as to call for interference. Accordingly, the writ petition is rejected.