V. RAJA GOPAL REDDY, J.

( 1 ) THE order of the learned single Judge in W. P. No. 1442 of 1989, quashing the award of the 1st respondent, Labour Court, and holding the 3rd respondent-appellant guilty for the misconduct of theft of cement and awarding punishment of stoppage of one increment with (sic. without) cumulative effect for three years, is under challenge in this Writ Appeal.

( 2 ) FEW facts need to be stated: the 3rd respondent-appellant was the Store-Keeper in the petitioner-lst respondent Management viz. , Bharat Heavy Electricals Ltd. , Hyderabad. There was some theft of cement bags on 5-1-1992. The appellant was suspected of the theft and was proceeded against by the Management. Accepting the enquiry officer s report, the disciplinary authority awarded punishment of withholding one annual increment with cumulative effect. The appellant moved the Labour Court by filing I. D. No. 130 of 1983. The Labour Court allowed both the parties to produce their evidence and on appreciation of the evidence, thus recorded on the side of the appellant/petitioner that there was no evidence to fasten any liability on the appellant for the alleged loss of cement and accordingly set aside the punishment imposed. Aggrieved by the above award, the 1st respondent-Management moved this Court under art. 226 of the Constitution of India. The learned single Judge held that the labour Court fell in error in letting in fresh evidence in the enquiry before it, which was contrary to Sec. 11-A of the Industrial Disputes Act (for short act ) and also (in holding) that there was no sufficient evidence to support the guilt of the appellant. In that view, the learned single Judge set aside the award and held that the petitioner was guilty of theft of cement. Learned single judge, however, awarded punishment of stoppage of one increment without cumulative effect.

( 3 ) LEARNED counsel for the appellant contends that the learned single Judge fell into serious error in setting aside the finding of the Tribunal holding that letting in fresh evidence by the Tribunal was contrary to Sec. ll-A of the Act. It is further contended that the learned single Judge ought not to have entered into the merits of the case and appreciated the evidence. We are constrained to interfere with the impugned order, however, on different grounds.

( 4 ) THE main contention of the petitioner-respondent in the writ petition was that the 1st respondent-Labour Court (R-2 herein) made a fresh enquiry by recording the evidence notwithstanding the fact that the domestic enquiry had already been held by the petitioner-Management, without holding such enquiry was vitiated by reason of its being perverse or that there was no evidence to support the finding of guilt. Such a course was not open to the labour Court when a dispute was referred for its adjudication. Only when the disciplinary enquiry was found to be vitiated for the reasons stated above, then the Labour Court will permit the Management to adduce the evidence to justify the order of punishment against the workman. If the Labour Court finds that the domestic enquiry was properly held, no further question arises as to the misconduct of the workman. It may, however, interfere with the order of punishment, if the punishment was wholly disproportionate to the misconduct established. In the instant case, without such a preliminary enquiry the workman was given opportunity to adduce evidence. This is also not a case where the Management wants to justify the order of punishment. Such a course was not permissible under law.

( 5 ) THE Apex Court in The Workmen of M/s. Firestone Tyre and Rubber Co. of india P. Ltd. vs. The Management and others, analysing the powers of the Labour court prior to insertion of Sec. 11-A of the Act and thereafter, and after elaborate discussion of the case law in this regard, held as follows:"32. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the or

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