ORDER : Heard, Mr. Anoop Kumar Mehta, learned counsel for the petitioner. None appears on behalf of the respondents. 2. This application is directed against the award dated 20.06.2001 in Reference No. 110/95 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 2 at Dhanbad by which the reference has been answered in favour of the workman and he has been directed to be reinstated along with full back wages. 3. A departmental proceeding was initiated against the concerned workman with respect to the charge against him of destruction of Company records which is a misconduct in terms of Clause 26.1.11 and 26.1.29 of the Certified Standing Orders of the Company applicable to the employees. 4. On submission of the enquiry report the Disciplinary Authority vide order dated 08.11.1993 had dismissed the concerned workman from the services of the Company. 5. An industrial dispute was raised and since the conciliation proceedings ended in a failure the Government of India, Ministry of Labour vide notification dated 30.08.1995 had referred the dispute for adjudication before the Tribunal and the terms of reference are as follows : “Whether the action of the management of Bhowra(S) Colliery of Bhowra Area of M/s. BCCL in dismissing the services of Sri Anand Prasad Baidyakar w.e.f. 8.11.93 is justified ? If not, to what relief the concerned workman is entitled ?” 6. In the written statement which had been filed by the workman it has been stated that he was working as a Register Keeper although he was designated as a General Mazdoor in Bhowra (S) colliery of M/s. BCCL. It has further been stated that the Management was approached by the workman for his regularization as a Register Keeper. A charge-sheet dated 24.10.93 was issued to the concerned workman on the allegation that he had torn the page of Form C Register in 'A' shift duty on 24.10.93 which was seen by the General Manager(O). It was indicated therein that such action on the part of the concerned workman was a gross misconduct as per the provision of the Certified Standing Orders. It has been stated that a reply was given to the charge-sheet denying the allegations but having found the reply unsatisfactory departmental proceeding was initiated against the concerned workman. It was indicated therein that such action on the part of the concerned workman was a gross misconduct as per the provision of the Certified Standing Orders. It has been stated that a reply was given to the charge-sheet denying the allegations but having found the reply unsatisfactory departmental proceeding was initiated against the concerned workman. It has further been stated that no appropriate opportunity of hearing was given to the concerned workman which was in violation of the principles of natural justice. It has also been stated that the order of dismissal from service was on the basis of perverse findings recorded in course of inquiry. Statement has also been made that the enquiry report was not supplied to the workman. 7. In the written statement cum rejoinder of the management it has been stated that the workman was deployed as Attendance Clerk in 'A' shift. On inspection the General Manager (Operation), Bhowra Area had put his remark on the attendance register of the employees and again after sometime he had asked the concerned workman to produce the said register. It was detected that the original pages in which the attendance was marked were not available in the register and it was torn off by the concerned workman. Further statement has been made that the workman was charge sheeted as per the provision of the Certified Standing Orders on the charge of fraud, dishonesty in connection with Company's business and deliberate falsification and destruction of the Company's record. In the enquiry proceedings the charges were proved and the concerned workman was dismissed from service. It has further been stated that considering the gravity of the offence the concerned workman was liable for dismissal as the act of the workman would have greatly jeopardized the safe working of the Mines as the attendance register is a valuable piece of document showing the persons going underground. 8. Mr. Anoop Kumar Mehta, learned counsel for the petitioner has stated that the fairness and propriety of the departmental proceeding was taken up as a preliminary issue and it was decided in favour of the management. It has further been stated that the award rendered is perverse as it has not appreciated the stand taken by the management. 8. Mr. Anoop Kumar Mehta, learned counsel for the petitioner has stated that the fairness and propriety of the departmental proceeding was taken up as a preliminary issue and it was decided in favour of the management. It has further been stated that the award rendered is perverse as it has not appreciated the stand taken by the management. Learned counsel submits that the departmental proceeding was not perverse but the learned Tribunal did not consider the fact that the proof which is required in a departmental proceeding is preponderance of probabilities. Learned counsel adds that the entire documents were brought on record and the same have been marked as exhibits. 9. The fairness and propriety of the domestic enquiry was taken up as a preliminary issue and it was held to be fair and proper. It is not in dispute that the concerned workman was on 'A' shift duty on 24.10.93. It also appears that seven pages of the attendance register were found missing having been torned/removed from the said register. It is to be seen as to whether it was the concerned workman who was responsible for tearing off the pages or not. The learned Tribunal had come to a conclusion that the concerned workman was not responsible for tearing off the pages of the attendance register. At the same time it has also come to a conclusion that the concerned workman cannot be exonerated from his responsibility of explaining as to how the pages were torned. There is a dichotomy in the findings of the learned Tribunal. The findings of the Enquiry Officer reveal that the concerned workman had arrived late for his 'A' shift duty after the General Manager(O) had checked and marked/encircled the attendance register which was in the custody of Sri Dhoopchand, the Register Clerk posted at night shift. While leaving the attendance room the attendance register was handed over to the concerned workman by Sri Dhoopchand. Necessary instructions were given by the General Manager (O) to the concerned workman in presence of Sri Dhoopchand that whoever comes late their attendance must be booked/marked by putting the time of arrival against each of their names and register should be closed. The tenor of the impugned order reveals that the learned Tribunal was perhaps oblivious to the preponderance of probabilities which clearly demarcated the role of the concerned workman. The tenor of the impugned order reveals that the learned Tribunal was perhaps oblivious to the preponderance of probabilities which clearly demarcated the role of the concerned workman. In the case of “West Bokaro Colliery (Tisco Ltd.) versus Ram Pravesh Singh” reported in (2008) 3 SCC 729 , it was held as follows: “20. The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well-settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.” 10. In the case of “Usha Breco Mazdoor Sangh versus Management of Usha Breco Limited and Another” reported in (2008) 5 SCC 554 , it was held as follows: “33. Before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of preponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the management was very high. When both the parties had adduced evidence, the Labour Court should have borne in mind that the onus of proof loses all its significance for all practical purpose.” 11. The concerned workman in the inquiry proceeding as well as in the proceeding before the Tribunal could not bring anything on record to counter the assertions of the management that he was not the custodian of the attendance register on the date of the incident. If he was the custodian of the attendance register it was for him to explain as to how the pages got torned. The preponderance of probabilities would in such circumstances point the needle of suspicion upon the concerned workman. If he was the custodian of the attendance register it was for him to explain as to how the pages got torned. The preponderance of probabilities would in such circumstances point the needle of suspicion upon the concerned workman. The learned Tribunal perhaps proceeded on the assumption of requirement of a definite proof that it was the concerned workman who was instrumental in tearing off the pages of the attendance register. The presence of Dhoopchand the person who was on a night shift duty and his duty having spilled over to 'A' shift on 24.10.93 had been a witness to the directions issued by the General Manager (O) to the concerned workman. There was no complaint at the time of handing over of the attendance register to the concerned workman. The incident of tearing off the pages apparently occurred when the concerned workman was the sole custodian of the attendance register and he has not been able to discharge his liability in explaining the accusation brought against him. 12. The learned Tribunal has also not considered the fact regarding presence of two possible scenarios. The Enquiry Officer had found the concerned workman guilty of the charges levelled against him while the Tribunal had disagreed with such findings, although recording a finding that the concerned workman could not be exonerated from his liability to explain as to how the pages of the attendance register was torned which would indicate that even the learned Tribunal was conscious of the probability of the involvement of the concerned workman. Thus when two views are possible the Tribunal should have endorsed the finding recorded by the Enquiry Officer. 13. In similar circumstances, in the case of ““West Bokaro Colliery (Tisco Ltd.) (supra), it was held thus: “21. Learned counsel for the respondent cited two cases — Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. and South Indian Cashew Factories Workers’ Union v. Kerala State Cashew Development Corpn. Ltd., to contend that the Labour Court in exercise of its jurisdiction under Section 11-A could have come to a different conclusion. There is no quarrel with this proposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. Ltd., to contend that the Labour Court in exercise of its jurisdiction under Section 11-A could have come to a different conclusion. There is no quarrel with this proposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic tribunal by substituting its opinion in place of the opinion of the domestic tribunal.” 14. Therefore, the findings of the learned Tribunal is perverse and ought to be interfered with. Accordingly, the award dated 20.06.2001 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 2 at Dhanbad in Reference No. 110/95 is hereby set aside. 15. However, so far as the punishment is concerned the same appears to be grossly disproportionate to the charges proved against the concerned workman. Removal of some pages of the attendance register would be a misconduct but certainly would not invite dismissal from service as the same does not involve financial irregularities or misappropriation of funds or for that matter moral turpitude to name a few instance where stringent punishment is the order of the day. 16. Therefore it is concluded and held that the punishment of dismissal by the management of Bhowra (S) colliery if Bhowra Area of M/s. BCCL is grossly disproportionate as compared to the charges proved against him. The concerned workman therefore deserves reinstatement in service. 17. So far as the question of back wages is concerned specific pleading has to be made that the workman concerned was not gainfully employed during the period he was out of service and in such situation the management would have the opportunity to rebut such evidence. In such context reference may be made to the case of “Rajasthan State Road Transport Corporation, Jaipur versus Phool Chand (Dead) through Lrs” reported in AIR 2018 SC 4534 , wherein it has been held as follows: “11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board v. Jarina Bee(Smt.), (2003) 6 SCC 141 : ( AIR 2003 SC 2657 ), G.M. Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 : ( AIR 2005 SC 3966 ), U.P. State Brassware Corporation v. Uday Narain Pandey, (2006) 1 SCC 479 : ( AIR 2006 SC 586 ), J. K. Synthetics Ltd. v. K.P. Agrawal and Anr., (2007) 2 SCC 433 : (2007 AIR SCW 1357), Metropolitan Transport Corporation v. V. Venkatesan, (2009) 9 SCC 601 : ( AIR 2010 SC 206 ), Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr., (2009) 15 SCC 327 ) : ( AIR 2009 SC 3004 ) and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors., (2013) 10 SCC 324 : (2013 AIR SCW 5330). 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 17. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer).” 18. Therefore back wages cannot be granted as a matter of course consequent to an order of reinstatement. In the present case none of the factors guiding payment of back wages have been considered by the learned Tribunal and it has also not taken note of the fact that there was absence of specific pleading by the workman concerned that during the intervening period when he was out of service he was not gainfully employed anywhere. Such conclusion is therefore bereft of any appropriate reasoning and cannot be sustained. 19. In view of the findings recorded above, this writ application stands disposed off by modifying the Award dated 20.06.2001 to the extent that the workman concerned shall not be entitled to any back wages on reinstatement.