JUDGMENT : 1. By way of this petition, the petitioner has challenged award dated 12.4.1990 passed by Labour Court, Vadodara, by which order of dismissal passed against the respondent herein is set aside and the petitioner is directed to pay 25% back wages till the age of superannuation and also the retiral benefits including pension to the respondent herein. 2. As per the facts of the case, the petitioner is a Trust incorporated under the Bombay Public Trusts Act and it has established and is managing school known as Baroda High School (Junior Primary Section) at ONGC Colony, Vadodara. 3. The respondent herein was working as Watchman-cum-peon in the school. On 18.2.1988, the respondent was issued charge sheet for dereliction in duty. Respondent filed his reply to the said charge sheet on 23.2.1988. However, such reply was not found satisfactory, therefore, it was decided to held departmental inquiry. On 19.10.1989, the inquiry officer submitted his report in which all the five misconducts alleged against the respondent were held to be proved. Therefore, on 27.3.1990, show cause notice was issued for proposed penalty of dismissal. On 5.4.1990, the respondent submitted his explanation. As it was not found satisfactory, vide order dated 12.4.1990, the respondent was dismissed from service. On 23.7.1990, the respondent herein raised dispute against such dismissal. The same was referred to Labour Court, Vadodara, which was numbered as Reference (LCV) No.524 of 1990. 4. Before the Labour Court, the respondent herein filed Statement of Claim alleging that he was working sincerely and faithfully with the petitioner school from 24.7.1976 as Watchman-cum-Peon and that his services have been terminated illegally from 11.4.1990 pursuant to the inquiry held in breach of principles of natural justice and the charges levelled against him were concocted. On that basis, the respondent herein prayed for reinstatement with full backwages. The petitioner herein filed written statement denying all the allegations made against him. It was specifically averred that if the Labour Court finds that the domestic inquiry was vitiated then the petitioner may be given an opportunity to lead evidence and prove misconduct of the respondent before Labour Court. Record of inquiry was also produced before Labour Court. By its order dated 13.4.2005, while deciding preliminary issue, Labour Court held that domestic inquiry held against the respondent was just, legal and proper. Thereafter, the matter was heard and the respondent gave further evidence at Exh.53. Record of inquiry was also produced before Labour Court. By its order dated 13.4.2005, while deciding preliminary issue, Labour Court held that domestic inquiry held against the respondent was just, legal and proper. Thereafter, the matter was heard and the respondent gave further evidence at Exh.53. By award dated 14.8.2006, Labour Court, Vadodara, set aside the order of dismissal dated 12.4.1990 passed against the respondent and directed the petitioner to pay 25% backwages to the respondent till the age of superannuation and also directed to pay him all retiral benefits including pension. Being aggrieved by said award, the petitioner has preferred present petition. 5. Mr.R.R.Patel, learned advocate for the petitioner-employer has submitted that the respondent-workman was working as a Watchman cum Peon in a school. He has submitted that as the workman was absent from duty on several occasions, chargesheet was given to him. He has also submitted that the departmental inquiry was held against him and several opportunities were given to him. While referring to the report of the inquiry officer, and the ultimate punishment of dismissal from service, he has submitted that in the said departmental inquiry, the workman has not raised any dispute regarding victimization as well as of directing him to work at the house of the Principal. He has submitted that since the workman was dismissed after departmental inquiry, he raised reference before the Labour Court, wherein the Labour Court has granted prayer of pension as well as ancillary benefits with 25% backwages to him. He has also submitted that since during the pendency of the reference before the Labour Court the workman has superannuated, no order for reinstatement was passed. 6. While referring to the impugned award, he has submitted that the Labour Court has expressed that departmental inquiry was proper, however, it has granted aforesaid prayer in favour of the workman. While referring to the documentary evidence placed on record and the impugned award, he has submitted that there was no case of victimization pleaded by the workman in his Claim Statement and yet the Labour Court has treated it as victimization of the workman. He has also submitted that observation of the Labour Court regarding victimization is not proper as the Labour Court cannot sit as an appellate authority over the decision taken in the departmental proceedings. 7. He has also submitted that observation of the Labour Court regarding victimization is not proper as the Labour Court cannot sit as an appellate authority over the decision taken in the departmental proceedings. 7. According to him, the Labour Court has exceeded its jurisdiction since there was no pleading on the part of the workman and nothing is stated in his deposition before the Labour Court as to his victimization as he did not went to the residence of Principal for doing household work. He has also submitted that in the written statement filed by the employer, it was specifically pleaded by the employer that in case Labour Court comes to the conclusion that there is some defect in the departmental inquiry, then opportunity of leading evidence before the departmental authority may be granted. He has also submitted that the Labour Court has not appreciated the evidence placed on record, which includes the departmental inquiry report as well as pleadings of the parties. According to him, the Labour Court has committed serious error of facts and law in awarding backwages as well as retiral benefits to the workman. He has submitted that the Labour Court cannot interfere with the decision of the departmental inquiry even if two views are possible and the Labour Court cannot substitute its own decision, as to imposing punishment upon the workman. While referring to the following decisions, he has prayed to set aside the impugned award granting retiral benefits as well as 25% backwages to the workman. (i) The Banaras Electric Light & Power Co. Ltd. v. Labour Court-II, Lucknow and Others reported in AIR 1972 SC 2182 . (ii) West Bokaro Colliry v. Ram Pravesh Singh reported in (2008) 3 SCC 729 . (iii) Usha Breco Mazdoor Sangh v. Management of Usha Breco Ltd. And Another reported in (2008) 5 SCC 554 . (iv) Oral judgment delivered by learned Single Judge of this Court in case of Sureshchandra S. Mehta v. Diamines and Chemicals Limited dated 4.8.2006 in Special Civil Application Nos.11592 of 1994 and 14091 of 1994. (v) Bharat Forge Company Limited v. A.B.Zodge and Another reported in AIR 1996 SC 1556 . (vi) Bharat Forge Company Limited v. Uttam Manohar Nakate reported in (2005) 2 SCC 489 . (v) Bharat Forge Company Limited v. A.B.Zodge and Another reported in AIR 1996 SC 1556 . (vi) Bharat Forge Company Limited v. Uttam Manohar Nakate reported in (2005) 2 SCC 489 . (vii) Judgment of Apex Court dated 20.9.2018 in Civil Appeal No.9832 of 2018 in the case of Management of Regional Chief Engineer P.H.E.D. Ranchi v. Their Workmen Rep. By District Secretary. 8. On the other hand, Mr.R.R.Vakil, learned advocate for the respondent has vehemently submitted that the Labour Court has every authority to pass appropriate order in case of industrial dispute. He has submitted that Section 11A of the Industrial Disputes Act gives power to the Labour Court. He has submitted that the Labour Court has not made any mistake on facts and law in passing the impugned order as, though the departmental inquiry was conducted properly, the said inquiry was held to victimize the workman as he has denied to work at the residence of the concerned Principal of the school. He has also vehemently submitted that the submissions made on behalf of the petitioner here challenging the authority of the Labour Court is not sustainable in the eyes of law. He has submitted that even if the departmental inquiry is held to be just and proper then in that case also, the Labour Court has power to consider the same and may reach its own conclusion. He has submitted that there is no perversity in the impugned award and prayed to dismiss present petition. He has relied upon following decisions in support of his submissions. (i) Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management and Others reported in (1973) 1 SCC 813 ; (ii) Decision of the Supreme Court in Management of Bharat Heavy Electrical Company Limited v. M. Mani in Civil Appeal No.10766 of 2013 and Civil Appeal No.10767 of 2013 dated 9.11.2017. 9. In rejoinder, Mr.Patel has submitted that the workman has not raised the point of victimization in his written statement filed before the departmental authority. He has submitted that since there was no pleading as to victimization by the workman in his reply to the departmental inquiry as well as in the Claim Statement, the Labour Court ought not to have considered the point of victimization on its own. He has submitted that since there was no pleading as to victimization by the workman in his reply to the departmental inquiry as well as in the Claim Statement, the Labour Court ought not to have considered the point of victimization on its own. He has submitted that the Labour Court has exceeded its jurisdiction and, therefore, this Court needs to interfere with the impugned award. 10. In the case of M/s.The Banaras Electric Light & Power Co. Ltd.(supra), the Apex Court has observed as under:- “4. …..... This Court in several cases while dealing with the industrial dispute of this kind, had occasion to point out that an industrial tribunal would not be justified in characterizing the findings recorded in the domestic inquiry as perverse unless it cannot shown that such a finding is not supported by any evidence, or is entirely opposed to the whole body of the evidence adduced before it. It is further held that “In a domestic inquiry once a conclusion is dedcued from the evidence, it is not permissible to assail that conclusion even though it is possible for some other authority to arrive at a different conclusion on the same evidence.. …............” 11. In the case of West Bokaro Colliery (TISCO Limited) v. Ram Pravesh Singh (supra), the Supreme Court has held as under:- “16. In U.P State Road Transport Corporation v. Vinod Kumar. 2008 1 SCC 115 this Court again observed that in the absence of a challenge to the legality or fairness of the domestic enquiry, the Court should be reluctant to either interfere with the finding recorded by the enquiry officer or the punishment awarded by the punishing authority. 17. After going through the order of the Industrial Tribunal, we are of the opinion that the Tribunal has interfered with the findings recorded by the domestic tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the respondent towards his superiors. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses were not produced. …....... 21. Learned counsel for the respondent cited two cases — Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd. 1973 1 SCC 813 and South Indian Cashew Factories Workers' Union v. Kerala State Cashew Development Corpn. Ltd. 2006 5 SCC 201 , 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. 22. The Labour Court fell into the factual as well as legal error in setting aside the findings recorded by the domestic tribunal. Learned Single Judge as well as the Division Bench have simply affirmed the findings recorded by the Tribunal.” 12. In the case of Usha Breco Mazdoor Sangh v. Management of Usha Breco Limited and Another (supra), the Supreme Court in paragraph 28 to 33 observed as under:- “28. Firestone Tyre and Rubber Co. (supra) must be understood in the context in which it was rendered. Section 11-A of the Act as interpreted by Firestone Tyre and Rubber Co. (supra) must be applied at different stages. Firestone Tyre and Rubber Co. (supra) must be understood in the context in which it was rendered. Section 11-A of the Act as interpreted by Firestone Tyre and Rubber Co. (supra) must be applied at different stages. Firstly, when the validity or legality of the domestic enquiries is in question; secondly, in the event, the issue is determined in favour of the Management, no fresh evidence is required to be adduced by it whereas in the event it is determined in favour of the workmen, subject to the request which may be made by the Management in an appropriate stage, it will be permitted to adduce fresh evidence before the Labour Court. 29. Indisputably, in the event, fresh evidence is adduced before the Labour Court by the Management, the Labour Court will have the jurisdiction to appreciate the evidence. But, in a case where the materials brought on record by the Enquiry Officer fall for re-appreciation by the Labour Court, it should be slow to interfere therewith. It must come to a conclusion that the case was a "proper" one therefore. The Labour Court shall not interfere with the findings of the Enquiry Officer only because it is lawful to do so. It would not take recourse thereto only because another view is possible. Even assuming that, for all intent and purport, the Labour Court acts as an appellate authority over the judgment of the Enquiry Officer, it would exercise appropriate restraint. It must bear in mind that the Enquiry Officer also acts as a quasi-judicial body. Before it, parties are not only entitled to examine their respective witnesses, they can cross-examine the witnesses examined on behalf of the other side. They are free to adduce documentary evidence. The parties as also the Enquiry Officer can also summon witnesses to determine the truth. The Enquiry Officer can call for even other records. It must indisputably comply with the basic principles of natural justice. 30. While determining the issue as to whether the workman is guilty of misconduct alleged to have been committed by him or not, the workman would be entitled to raise all contentions including the contention of lack of bona fide or unfair labour practice as also acts of victimization on the part of the Management. Even evidences in that behalf can be laid. Even evidences in that behalf can be laid. Save and except, however, for sufficient and cogent reasons, neither the Enquiry Officer would arrive at a finding in regard to lack of bona fide or victimization or unfair labour practice on the part of the management; the Labour Court while considering the said findings would ordinarily not do so. Such a question must be appropriately raised. Materials must be brought on records to establish the said allegations. 31. It is one thing to say that the finding of an Enquiry Officer is perverse or betrays the well-known doctrine of proportionality but it is another thing to say that only because two views are possible, the Labour Court shall interfere therewith. In other words, it is one thing to say that on the basis of the materials on record, the Labour Court comes to a conclusion that a verdict of guilt has been arrived at by the Enquiry Officer where the materials suggested otherwise but it is another thing to say that such a verdict was also a possible view. 32. For the aforementioned purpose, certain basic principles must be kept in mind, viz., even the first appellate court although is entitled to interfere with the findings of a Trial Court in terms of Section 96 of the Code of Civil Procedure, ordinarily a finding of fact arrived at on the basis of the oral evidence by the Trial Court should be accepted. In Chinthamani Ammal v. Nandagopal Gounder [ (2007) 4 SCC 163 ], this Court observed: "18. Furthermore, when the learned trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first appellate court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW 2, the learned Judge did not consider any other materials brought on record by the parties. 19. Furthermore, when the learned trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first appellate court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW 2, the learned Judge did not consider any other materials brought on record by the parties. 19. In Madholal Sindhu v. Official Assignee of Bombay it was observed: (AIR p. 30, para 21) "It is true that a judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment." (See also Madhusudan Das v. Narayanibai.)" 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.” 13. Learned Single Judge of this Court in the case of Sureshchandra S. Mehta v. Diamines and Chemicals Limited in Special Civil Application Nos.11592 of 1994 and 14091 of 1994 has observed as under:- “7. I have considered the submissions made by both the learned Advocates appearing on behalf of employer and workman. Learned Advocate, Mr.R.V.Desai, has read almost entire award before this Court and submitted that Labour Court has rightly granted the reinstatement and for back wages part, the matter can be remanded back. Learned Advocate, Mr.K.M.Patel, submitted that the order of reinstatement itself is bad because the Labour Court should not have to scrutinize the evidence or to examine whether there is sufficiency of evidence on record or not. According to him, the Labour Court should have to examine the evidence led in departmental inquiry as it is, whether the finding is based upon any legal evidence or not. The Labour Court has examined it as if the Labour Court has become inquiry officer. According to him, the Labour Court should have to examine the evidence led in departmental inquiry as it is, whether the finding is based upon any legal evidence or not. The Labour Court has examined it as if the Labour Court has become inquiry officer. Looking to the observations and finding of Labour Court while analyzing the evidence led in departmental inquiry, the Labour Court itself become an inquiry officer and discussed the evidence and come to the conclusion that on the basis of this evidence, according to him, charge is not proved against the workman. This is not a function of Labour Court to decide the question of finding being an appellate authority. The question of finding is required to be examined by the Labour Court, whether reasoning given by the Inquiry officer is contrary to the record or it is based on legal evidence or not but, not to scrutinize in a manner as if to work as an inquiry officer and to decide that as if the Labour Court was the inquiry officer, it should have to come to this conclusion. Such approach of the Labour Court itself is contrary to law. When inquiry has been admitted by the workman, the Labour Court having very little scope to interfere with the finding. The discussion in Para.9 after considering the evidence of two witnesses of the Management that itself suggests that Labour Court has become inquiry officer and examined the finding given by the inquiry officer and then to come to the conclusion that allegations may be true to some extent. Such type of half-hearted finding of Labour Court itself is not proper while exercising the power under section 10 of the I.D.Act, 1947. Therefore, according to my opinion, the role which has been performed by the Labour Court being an inquiry officer while scrutinizing the evidence led in inquiry which was on record and then come to conclusion that finding of inquiry officer is contrary to settled law which is beyond the scope of jurisdiction of the Labour Court. The Labour Court cannot substitute its own finding on the basis evidence recorded in inquiry. No doubt, the Labour Court can substitute the punishment but, cannot substitute the finding as if that inquiry was conducted before the Labour Court. The Labour Court cannot substitute its own finding on the basis evidence recorded in inquiry. No doubt, the Labour Court can substitute the punishment but, cannot substitute the finding as if that inquiry was conducted before the Labour Court. Therefore, considering this aspect, the Labour Court has not discussed the question of back wages and no reason has been given by the Labour Court at all as to why and on what ground Labour Court has denied 50% back wages and granted 50% back wages. Such type of award which apparently found non-application of mind on the part of Labour Court while considering such type of award, when serious allegations have been made against the workman. Therefore, entire award is required to be set aside on the aforesaid reasons. Therefore, the matter is remanded back to the Labour Court, Baroda for fresh decision on the basis of the evidence recorded by the Labour Court and also considering the evidence on record before the inquiry officer. Therefore, according to my opinion, the award in question is not sustainable and vitiated because quite different role has been performed by the Labour Court while considering the finding given by inquiry officer in departmental inquiry.” 14. In the case of Bharat Forge Company Limited v. A.B.Zodge and Another (supra), the Supreme Court has observed therein as under:- “7. A domestic enquiry may be vitiated either for noncompliance of rules of natural justice or for perversity. Disciplinary action taken on the basis of a vitiated enquiry does not stand on a better footing than a disciplinary action with no enquiry. The right of the employer to adduce evidence in both the situations is well-recognised. In this connection, reference may be made to the decisions of this Court in Workmen of Motipur Sugar Factory (P) Ltd. Vs. Motipur Sugar Factory (P) Ltd. ( 1965 (II) LLJ 162 (SC). State Bank of India Vs. R.K.Jain (1971 (III) LLJ 599 (SC). Delhi Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh ( 1972 (1) LLJ 180 (SC) and Firestone Tyre Co.s Case (supra). The stage at which the employer should ask for permission to c additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill's case (supra). Delhi Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh ( 1972 (1) LLJ 180 (SC) and Firestone Tyre Co.s Case (supra). The stage at which the employer should ask for permission to c additional evidence to justify the disciplinary action on merits was indicated by this Court in Delhi Cloth and General Mill's case (supra). In Sankar Chakrabarty's case (supra), the contention that in every case of disciplinary action coming before the Tribunal, the Tribunal as a matter of law must frame preliminary issue and proceed to see the validity or otherwise of the enquiry and then serve a fresh notice on the employee- by calling him to adduce further evidence to sustain the charges, if the employer chooses to do so, by relying on the decision of this Court in the case of Cooper Engineering Ltd. ( 1975 (2) LLJ 379 (SC), has not been accepted. The view expressed in Delhi Cloth Mill's case (supra) that before the proceedings are closed, an opportunity to adduce evidence would be given if a suitable request for such opportunity is made by the employer to the Tribunal, has been reiterated in Sankar Chakrabarty's case after observing that on the question as to the stage as to when leave to adduce further evidence is to be sought for, the decision of this Court in Cooper Engineering Ltd. has not overruled the decision of this Court in Delhi Cloth Mill's case. There is no dispute in the present case that before the closure of the proceedings before the Tribunal, payer was made by the employer to lead evidence in support of the impugned order of dismissal. Hence, denial of the opportunity to the employer to lead evidence before the Tribunal in support of the order of dismissal cannot be justified.” 15. In the case of Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (supra), while referring to the concept of victimization, the Supreme Court has held that it is obligatory on the part of the workman to plead and prove the act of victimization. It was observed therein as under:- “31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 32. It was observed therein as under:- “31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 32. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal [ (2004) 8 SCC 218 ], it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. In the facts and circumstances of the case and having regard to the past conduct of the Respondent as also his conduct during the domestic enquiry proceeding, we cannot say that the quantum of punishment imposed upon the Respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary.” 16. In the case of Management of Regional Chief Engineer P.H.E.D. Ranchi v. Their Workmen rep. By District Secretary in Civil Appeal No.9832 of 2018 decided on 20.9.2019, the Apex Court in paragraphs 11, 12, 13 and 14 has observed as under:- “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 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. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 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. Initial burden is, however, on the employee. 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 vs. Jarina Bee(Smt.), (2003) 6 SCC 141 , G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 , U.P. State Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479 , J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., (2007) 2 SCC 433 , Metropolitan Transport Corporation vs. V. Venkatesan, (2009) 9 SCC 601 , Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 ) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324 . 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent.” 17. In the case of Workmen of M/s. Firestone Tyre and Rubber Company of India (Private) Limited (supra), while dealing with jurisdiction of the Labour Court, the Apex Court has observed as under:- “From those decisions, the following principles broadly emerge (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal., the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction. to consider the evidence placed before-it for the first time in justifications of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee, and to enable the Tribunal itself to be satisfied about the alleged misconduct, (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to, suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen(1), within' the judicial decision of a Labour Court or Tribunal. The above was the law as laid down by this Court as on 15-12-1971 applicable to all industrial adjudication arising out of orders of dismissal or discharge.” 18. In the case of Management of Bharat Heavy Electrical Company Limited v. M. Mani (supra) in Civil Appeal No.10766 of 2013 and Civil Appeal No.10767 of 2013, it is observed as under:- “17. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of “dismissal” imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum. 18. In our opinion, once the Labour Court upheld the departmental enquiry as being legal and proper then the only question that survived for consideration before the Labour Court was whether the punishment of “dismissal” imposed by the appellant to the respondents was legal and proper or it requires any interference in its quantum. 18. In other words, the Labour Court should have then confined its enquiry to examine only one limited question as to whether the punishment given to the respondents was, in any way, disproportionate to the gravity of the charge leveled against them and this, the Labour Court should have examined by taking recourse to the provisions of Section 11-A of the Industrial Dispute Act, 1947 (in short “the Act”) and the law laid down by this Court in the case of The Workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. vs. The Management & Ors., (1973) 1 SCC 813 . It was, however, not done thereby rendering the order of Labour Court legally unsustainable.” 19. Considering the submissions made on behalf of both the sides as well as the material placed on record and the decisions referred to herein above, it is crystal clear that the workman has been dismissed vide order dated 12.4.1990 after holding departmental inquiry. It is also an admitted fact that during the pendency of the reference, the Labour Court has already observed that the departmental inquiry held by the institution is legal, valid and proper, vide order dated 13.4.2005. Thus, that fact remains as it is. Now, on perusal of the impugned award, it appears that contrary view has been taken by the Labour Court while granting relief to the workman on the basis that the departmental inquiry has been initiated for victimization of the workman and there is breach of principles of natural justice. When the Labour Court has, after noting every fact and material on record, held that departmental inquiry was legal, valid and proper then there was limited scope for the Labour Court to deal with the proceedings of the departmental inquiry. It is well settled principle of law that the Labour Court has limited jurisdiction to interfere with the decision of the management arrived at in the departmental inquiry against the workman. It is well settled principle of law that the Labour Court has limited jurisdiction to interfere with the decision of the management arrived at in the departmental inquiry against the workman. Now, in this case, the employer has, after holding departmental inquiry, has found the workman guilty and has ultimately passed the order of dismissal. It is well settled by the Apex Court in the case of Workmen of M/s. Firestone Tyre and Rubber Company of India (Private) Limited regarding jurisdiction of the Labour Court has specifically enunciated the principles regarding the jurisdiction of the Labour Court, which are referred to herein above. The principle therein clearly provides that when proper inquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence adduced at such inquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate authority. The interference with the decision of the employer will be justified only when the finding arrived at in the inquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. Of course, while determining the issue as to whether the workman is guilty of misconduct alleged to have been committed by him or not, the workman would be entitled to raise all contentions including the contention of lack of bona fide or unfair labour practice as also acts of victimization on the part of the management. Even evidence in that behalf can be led. Material need to be brought on record to establish the said allegation. 20. Now, in this case, on perusal of statement of claim put up by the workman, he has only submitted that he is serving since 23rd July 1976 as Watchman-cum-Peon i.e. for 14 years and yet without following due process of law and holding inquiry capriciously his services came to be dismissed from 11.4.1990. He has not uttered any words regarding victimization in the said inquiry. At this juncture, it is pertinent to note that the employer has filed its written statement wherein it has highlighted the proceedings, which have been resorted to, to allow departmental inquiry, and has stated that the witnesses have been cross-examined by the defence i.e. the workman and there was no breach of any principle of natural justice. At this juncture, it is pertinent to note that the employer has filed its written statement wherein it has highlighted the proceedings, which have been resorted to, to allow departmental inquiry, and has stated that the witnesses have been cross-examined by the defence i.e. the workman and there was no breach of any principle of natural justice. It has also requested the Labour Court that if the Labour Court comes to the conclusion that there is some defect in the departmental inquiry then appropriate opportunity be given to them to lead necessary evidence in the reference. It is also pertinent to note that the employer has also moved application for seeking necessary order as to the legality of the departmental inquiry. As reflected from the impugned order passed by the Labour Court, which is at pages 114 to 121 of the compilation, it appears that it has perused entire material placed on record and has ultimately came to the conclusion that the departmental inquiry is just, legal and proper. The Labour Court has specifically held that appropriate opportunity has been given to the workman in the departmental inquiry to defend his case and all the materials have been provided to him, which fact has been admitted by the workman. Now, so far as the punishment part is concerned, it is well settled principle of law that it is the authority of the management or the employer to inflict appropriate punishment upon the workman or its employee on the basis of the evidence collected during the departmental inquiry. It is an exclusive right of the employer to take necessary legal action against the workman or employee. Of course, if in a given case, it appears to the Labour Court that the punishment is not proportionate to the charges levelled against the workman/employee then in a given case considering the facts and circumstances of each case Labour Court may interfere with such punishment and may substitute the same. However, such exercise is required to be carried out only in exceptional cases. There must be some cogent reasons and evidence on record to suggest that the punishment imposed upon the workman/employee by the employer is not in consonance with the disciplinary rules, if any, or against the principles of natural justice. 21. However, such exercise is required to be carried out only in exceptional cases. There must be some cogent reasons and evidence on record to suggest that the punishment imposed upon the workman/employee by the employer is not in consonance with the disciplinary rules, if any, or against the principles of natural justice. 21. It is pertinent to note that, in this case, the workman has not raised the point of victimization even in his statement of claim. Therefore, the observations made by the Labour Court in the impugned award regarding victimization is an afterthought defence put up by the workman. 22. The Labour Court ought to have granted opportunity to the authority for leading evidence to substantiate their decision, especially when the employer has clearly asked for that opportunity in their written statement. At this juncture, it is pertinent to note that as per the observations made by the Labour Court in the impugned award, the workman has already superannuated and, therefore, no order of reinstatement has been passed, however, the order for granting him retiral benefit has been passed against the employer with further direction to pay 25% backwages. Considering the reasoning given by the Labour Court for granting retiral benefits and 25% backwages is concerned, it appears that the workman was dismissed in 1990 and he was serving since 1976. It also appears from record that the financial responsibility of his family was on the workman and, almost 14 years have passed in the passing of the award, it cannot be believed that the workman was unemployed during that period. Even the Labour Court has stated in its award that the workman was plying rickshaw and was earning Rs.50/- to Rs.100/- per day. Of course, he has stated that he was plying rickshaw for 10 to 12 days in a month. In that view of the matter, it appears that the workman was gainfully employed during the interim period. Considering the factual aspect of the present case and aforesaid circumstances, the award of granting retiral benefit to the workman is found to be just and legal. However, the order directing to pay 25% backwages is not sustainable in the eyes of law. 23. Since the departmental proceedings has been held just, legal and proper, there was limited scope for the Labour Court to interfere with the punishment awarded to the petitioner. However, the order directing to pay 25% backwages is not sustainable in the eyes of law. 23. Since the departmental proceedings has been held just, legal and proper, there was limited scope for the Labour Court to interfere with the punishment awarded to the petitioner. Having considered the material placed on record, it appears that the punishment imposed by the employer upon the employee/workman regarding his dismissal from service is harsh one. Since the workman has already superannuated, there is no question of granting him reinstatement. As per the material placed on record, the workman was earning by plying rickshaw since his dismissal i.e. from 1990, appropriate relief may be moulded in favour of the workman by tilting the balance. 24. Therefore, considering the entire material on record, the impugned award dated 14.8.2006 passed in Reference (LCB) No.524 of 1999 by Labour Court, Vadodara, is modified to the extent that the workman be paid retiral benefits by treating the period of his dismissal till his superannuation as notional service without any backwages. With this modification, the petition is disposed of.