ORDER This petition is filed seeking to set aside the final award dated 23.06.2020 (notified on 14.07.220) passed by the Central Government Industrial Tribunal - cum - Labour Court (for short hereinafter referred to as 'the Tribunal') in C.R. No. 23/2011 (Annexure - J). 2. Heard Sri. Syed Kashif Ali, learned counsel for the petitioner and Sri. M. Narayana Bhat, learned counsel for the respondent. 3. The facts leading to the filing of the present petition are that the respondent was working as a Clerk in Mahadevapura Branch of the petitioner -Corporation Bank, Bengaluru, (now Union Bank of India) since 14.03.2008. On 06.12.2008, the Disciplinary Authority issued a charge sheet and the allegation being that on 04.09.2008 while he was working as a Cashier one Sri. C. Doraikanna, customer bearing S.B. account No. 01/001909 remitted cash of Rs.1,000/- and after receiving the said amount the respondent issued counter foil affixing cash received stamp with his initial but did not credit the said amount to the SB account in the Bank. On 05.09.2008 an ECS mandate of the customer was presented and was returned for insufficient funds whereupon Rs.56/-was debited to his account being return charges. On 15.09.2008 the customer visited the Bank and informed the Manager that he had credited Rs.1,000/-on 04.09.2008 and in proof produced the original counter foil after which he gave a complaint seeking credit of Rs.1,000/- with charges debited to his account. The challan could not be traced in the slip bundle of 04.09.2008 and no wrong credits were also noticed. Subsequently, on 17.09.2008 the respondent credited a sum of Rs.1,356/- to the Savings Bank account of the customer following which the customer submitted a letter dated 20.09.2008 stating that his claim was settled and he has no claim against the Bank. Upon ascertaining the details from Core-DRS Division, HO, Mangalore, it came to light that on 04.09.2008 at 12.48 pm the respondent entered in the computer system a sum of Rs.1,000/- credit as cash to the SB account of the customer under batch number 176/1 but deleted the said entry at 12.50 pm. Upon ascertaining the details from Core-DRS Division, HO, Mangalore, it came to light that on 04.09.2008 at 12.48 pm the respondent entered in the computer system a sum of Rs.1,000/- credit as cash to the SB account of the customer under batch number 176/1 but deleted the said entry at 12.50 pm. The conduct of the respondent revealed that he had accepted Rs.1,000/- from the customer on 04.09.2008 and failed to credit it to his account in the books of accounts of the Bank thereby misappropriating the amount which was subsequently returned by him on 17.09.2008 and consequently was charged with misconduct under clause 5(j) of MOS - DP 10.04.2002. Inspite of receipt of charge sheet the respondent did not submit any explanation after which the Disciplinary Authority proceeded to order for enquiry. Sri. P.P.R.V.V. Prasad, Senior Manager (Per) was appointed as the Enquiry Officer and Sri. K.V. Satish, Manager was appointed as the Presenting Officer. The Enquiry Officer commenced the enquiry on 27.01.2009 and it was concluded on 04.03.2009. The Enquiry Officer analyzing the evidence on record submitted his report dated 09.05.2009 holding the respondent guilty of the charges. A copy of the said report was furnished along with the show cause notice dated 21.05.2009 proposing the punishment of discharge from service. The respondent was also granted a personal hearing on the proposed punishment by the Disciplinary Authority on 24.06.2009. Thereafter the Disciplinary Authority passed an order dated 30.06.2009 imposing the punishment of discharge from service with superannuation benefits as provided under Clause 6(d) of the Memorandum of Settlement on disciplinary procedure dated 10.04.2002. Being aggrieved by the said order the respondent filed an appeal to the Assistant General Manager and Appellate Authority. By order dated 23.01.2010 the Appellate Authority rejected the appeal. Being aggrieved by the said action the respondent raised an industrial dispute which was referred for adjudication to the Tribunal vide order dated 27.05.2011. The point of dispute referred for adjudication was, whether the Bank is justified in imposing the punishment of discharge from service on the respondent with effect from 30.06.2009 and if not, for what relief is the workman entitled. The reference was registered as C.R. No. 23/2011 by the Tribunal. The parties entered appearance though counsel and the respondent filed claim statement on 29.06.2011. The reference was registered as C.R. No. 23/2011 by the Tribunal. The parties entered appearance though counsel and the respondent filed claim statement on 29.06.2011. The Tribunal framed a preliminary issue as to whether the domestic enquiry held against the respondent was fair and proper. The petitioner examined the Enquiry Officer as M.W.1 and got marked the enquiry papers as Ex.M.1 to Ex.M.16. The respondent examined himself as W.W.1. After hearing arguments the Tribunal by order dated 06.05.2019 held that the domestic enquiry has been held in a fair and proper manner. The respondent gave evidence regarding gainful employment. After which the Tribunal proceeded to hear arguments on merits and by an award dated 23.06.2020 the reference has been accepted. Order of discharge has been set aside and the Bank has been directed to reinstate the respondent without backwages and with continuity of service. The petitioner has filed this petition challenging the said order in the present petition. 4. Learned counsel for the petitioner would contend that the Tribunal has misconstrued the power and jurisdiction to be exercised under Section 11-A of the Industrial Disputes Act, 1947 while re-appreciating the evidence in the domestic enquiry to find out whether the findings recorded by the Enquiry Officer are to be accepted on the question of proportionality of punishment. He contends that strict rules of evidence are not applicable to departmental enquiries and the standard of proof is not that a misconduct must be proved beyond all reasonable doubt but the test of one of preponderance of probability. He contends that merely because the Tribunal has been conferred with the power of re-appreciation of evidence it cannot interfere with the findings recorded by the Enquiry Officer unless it is found to be perverse. He contends that adequacy and sufficiency of evidence cannot be a ground to interfere with the finding. Merely because another view is possible on the basis of analysis of the material on record no interference is called for. It is his further submission that if the petitioner is reinstated it will affect the faith and trust of the public in the Bank. In support of his contentions the learned counsel for the petitioner has placed reliance on the following decisions: i. State of Haryana and another Vs. Rattan Singh, (1977) 2 SCC 491 ii. M/s. Banaras Electric Light and Power Co. Ltd., Vs. In support of his contentions the learned counsel for the petitioner has placed reliance on the following decisions: i. State of Haryana and another Vs. Rattan Singh, (1977) 2 SCC 491 ii. M/s. Banaras Electric Light and Power Co. Ltd., Vs. the Labour Court, II Lucknow and others, (1974) 3 SCC 103 iii. The Workmen of M/s. Firestone Tyre and Rubber Co of India (Pvt) Ltd. Vs. the Management and others, (1973) 1 SCC 813 iv. Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Limited, (2008) 5 SCC 554 v. Tarachand Vyas Vs. the chairman and Disciplinary Authority and others, (1997) 4 SCC 565 vi. General Manager, Punjab and Sind Vs. Daya Singh, (2010) 11 SCC 233 vii. J.D. Jain Vs. Management of State Bank of India and another, (1982) 1 SCC 143 5. Learned counsel for the respondent has supported the reasoning assigned by the Tribunal in passing the impugned order. He contends that the Tribunal is at liberty to consider not only whether the finding of fact recorded by the employer is correct and also to differ from the said finding if a proper case is made out. He contends that the complainant has not been examined and the CCTV footage even if available, even after the respondent has sought for, the petitioner Bank has not produced. Therefore, the Tribunal has rightly raised an adverse inference in that regard. It is his further submission that by reinstatement of the respondent, trust and faith in the petitioner Bank by the customers will not be affected as the misconduct has not been established in the domestic enquiry. In support of his contention, the learned counsel for the respondent has placed reliance on the following decisions: i. John D Souza Vs. Karnataka State Road Transport Corporation and another, 1997 SCC Online Kar. 754 ii. Workmen of Fire Stone Vs. Management and others, (1973) 1 SCC 813 iii. Ajay Kumar D. Amin Vs. Air France, (2016) 12 SCC 566 iv. Kanhaiyalal Agarwal Vs. Factory Manager, Gwalior Sugar Co. Ltd., (2001) 9 SCC 609 v. State of Haryana Vs. Devidutt, (2006) 13 SCC 32 vi. D.K. Yadav Vs. J.M.A. Industries, (1993) 3 SCC 259 vii. Shankar Das Vs. Union of India, (1985) 2 SCC 358 6. We have carefully considered the rival contentions of the parties and perused the material on record. 7. Factory Manager, Gwalior Sugar Co. Ltd., (2001) 9 SCC 609 v. State of Haryana Vs. Devidutt, (2006) 13 SCC 32 vi. D.K. Yadav Vs. J.M.A. Industries, (1993) 3 SCC 259 vii. Shankar Das Vs. Union of India, (1985) 2 SCC 358 6. We have carefully considered the rival contentions of the parties and perused the material on record. 7. Learned counsel for the petitioner would contend that the Tribunal is not vested with the power to re-appreciate the evidence in domestic enquiry. On the contrary, learned counsel for the respondent would contend that the Tribunal is vested with the power to re-appreciate the evidence in domestic enquiry and come to the conclusion that which of the charges are established and it can also differ from such finding arrived at by the management in a domestic enquiry. 8. To analyse on this point, it is apt to collate the legal principles holding the field. In the case of John D Souza Vs. Karnataka State Road Transport Corporation and another, supra, the Hon'ble Apex Court has held as under: "5....The scope of enquiry in cases where the departmental enquiry is held to be valid has been considered by the Supreme Court in The Workman of Firestone Tyre & Rubber Co., of India,Pvt. Ltd., v. The Management, (1973-I-LLJ-278). At para 33 the Supreme Court, after adverting to the legal position that was earlier present has explained as follows: 'This position, in our view, has now been changed by Section 11-A. The words 'in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicate that the Tribunal is not clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer established the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if the proper case is made out. The limitations imposed on the powers of the Tribunal can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if the proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter.' 9. The Hon'ble Apex court in the case of State of Haryana and another Vs. Rattan Singh,(supra) has held as under: '4....The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainty available for the court to look into because it amounts to an error of law apparent on the record.' 10. The Hon'ble Apex court in the case of Banaras Electric Light and Power Co.Ltd. Versus the Labour Court II, Lucknow and Others,(supra) has observed as under: '4 This Court in several cases while dealing with industrial disputes of this kind, had occasion to point out that an industrial tribunal would not be justified in characterising the finding recorded in the domestic inquiry as perverse unless it can be 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. In a domestic inquiry once a conclusion is deduced 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. The Hon'ble Hon'ble Apex Court in the case of Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Limited, supra, has observed as under: '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. The Hon'ble Hon'ble Apex Court in the case of Usha Breco Mazdoor Sangh Vs. Management of Usha Breco Limited, supra, has observed as under: '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 therefor. 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.' 12. The Hon'ble Apex court in the case of General Manager, Punjab and Sind Bank Vs. Daya Singh,(supra) has observed thus: '24.....Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge- sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the Inquiry Officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at.' 13. In the light of these decisions it can be held that the Tribunal can reassess the evidence, consider absence of evidence and come to the conclusion that the findings of the Enquiry Officer are perverse. 14. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at.' 13. In the light of these decisions it can be held that the Tribunal can reassess the evidence, consider absence of evidence and come to the conclusion that the findings of the Enquiry Officer are perverse. 14. The account holder, i.e., the complainant has deposited Rs.1,000/- on 04.09.2008 in the cash counter with the respondent - CSE and as it is not credited to his account, he filed a complaint. The respondent - CSE has denied that the account holder - complainant deposited cash of Rs.1,000/- on 04.09.2008. In view of the said contention of the respondent - CSE, the CCTV footage of the relevant time and date are very much eesential. The respondent - CSE has sought for production of the CCTV footage in the departmental enquiry but it is not produced. The CCTV footage has been sent to the higher officers. As the deposit of cash by the complainant with the respondent - CSE is disputed, the CCTV footage is material evidence. Non production of the material evidence leads to drawing of adverse inference. 15. The Hon'ble Apex Court in the case of Ajay Kumar D. Amin Vs. Air France, supra, has held that non-production of the documents leads to drawing of adverse inference. There is nothing in the charge sheet regarding showing of the CCTV footage to the respondent - CSE but it is stated that it is shown to the respondent - CSE in the presence of two persons. 16. The complainant has not been examined in the departmental enquiry. The respondent - CSE has taken up the defence that once the complainant enquired about the balance in his account with him and he advised him to enquire in the passbook counter and get his passbook entered and he got angry and left the Branch and as his cheques have been returned for want of funds and frustrated by the same he gave false complaint. When such is the contention of the respondent - CSE, the Presenting Officer ought to have examined the complainant as one of the witnesses in the departmental enquiry. No reasons are forthcoming for non-examination of the complainant in the departmental enquiry. 17. On 04.09.2008 a sum of Rs.1,000/- was not credited to the account of the account holder. When such is the contention of the respondent - CSE, the Presenting Officer ought to have examined the complainant as one of the witnesses in the departmental enquiry. No reasons are forthcoming for non-examination of the complainant in the departmental enquiry. 17. On 04.09.2008 a sum of Rs.1,000/- was not credited to the account of the account holder. There is an entry in the computer at 12.48 pm and in 2 minutes, i.e., at 12.50 pm it was modified to the value 'zero'. In the report of the Manager - Ex.M.2 at Sl.No.3 it is mentioned that 'the relevant credit entry is not made in the system by the cashier i.e., credit is not passed to the customer's account.' Therefore there is a missing link with regard to who made the entry of the transaction at 12.48 pm and who deleted the same at 12.50 pm. Considering all these aspects the Tribunal has held that there was no culpability on the respondent to steal the customer's money. The Tribunal has held that the enquiry report, orders of Disciplinary Authority and Appellate Authority have not appreciated the evidentiary material from a proper perspective and they are all non-speaking and mechanical orders without proper application of mind. The order passed by the Tribunal, in our opinion, is a well considered and reasoned order. 18. Learned counsel for the petitioner would contend that, when there is an allegation of misappropriation it is not proper to reinstate the respondent and it affects the faith and trust of the public in the banking system. Learned counsel for the respondent would contend that when misappropriation itself is not proved there is no question of affecting the faith and trust of the public if the respondent is reinstated into service. 19. The Hon'ble Apex Court in the case of Kanhaiyalal Agarwal Vs. Factory Manager, Gwalior Sugar Co. Ltd., supra, has held as under: '9.....Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the labour court has been reversed in appeal by the Industrial Court on unreasonable grounds. Factory Manager, Gwalior Sugar Co. Ltd., supra, has held as under: '9.....Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the labour court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost.' 20. When misappropriation of the respondent itself is not established, there is no question of loosing confidence in the employee by the petitioner Bank. Therefore, we are of the opinion that the order of the Tribunal for reinstatement of the respondent into his original post with continuity of service and without backwages is justified. We do not find any reason to interfere with the well reasoned order passed by the Tribunal. In the result, the following; ORDER Writ petition is dismissed.