The Labour Court has the power to re-appraise the evidence and examine the correctness of the finding on misconduct, even where a dismissal is preceded by a proper valid enquiry, but the Management can give fresh evidence only if the domestic enquiry is held to be unfair or that, in fact, no enquiry was held at all.

Lalit Mohan Sharma, J. – By this writ application, the Management of the Cawnpur Sugar Works has challenged the Award as contained in Annexure ‘4’, of the Labour Court, Muzaffarpur, respondent no. 2

2. The respondent no. 3 was in the employment of the petitioner as a watchman. He was entrusted with the duty of guarding a god own belonging to the petitioner during the night hours and, according to the case of the Management, a theft of 19 bags of manure took place from the godown for which he was held responsible after a chargesheet was served on him and a departmental inquiry was made. Both the Management and the workman led evidence and the Enquiry Officer held the workman guilty all the basis of which the Management passed an ORDER :of dismissal us contained in Annexure 4. The workman objected to the ORDER :and after a futile attempt by the Conciliation Officer to resolve the dispute, the matter was referred under section 10 (1)(c) of the Industrial Disputes Act by the State Government. The parties led evidence and the Labour Court held that the domestic enquiry held by the Management was fair and proper. The Court further proceeded to examine the evidence led by the parties in domestic enquiry and held that the charges leveled against the workman were not established and the conclusion of the Enquiry Officer was erroneous. The ORDER :of dismissal has been accordingly set aside and the respondent workman has beer reinstated.

3. According to the management the theft of fertilizer took place during the night of the 10th and 1lth November 1975, that is during the duty hours of the workman. The evidence led in the domestic enquiry indicated that the theft was detected by the officers in the afternoon of the 11th November and subsequently 10 bags were recovered from a nearby cane field.

4. If the theft is not established to have taken place before 6 A.M. the workman obviously cannot be held to be responsible. The Management examined M.W. 4 Paresh Rai, Tractor driver in the domestic enquiry who stated that one Mankeshwar Mahto who was not examined by the Enquiry Officer, had told him that the respondent workman Dubar Rai had committed the theft. A similar statement was made by another person Bijadhar Rai. The Labour Court after discussing the entire evidence led in the domestic enquiry held that there was no evidence on the record to incriminate the respondent Dubar Rai excepting the aforementioned hearsay evidence. The Court refused to rely on hearsay evidence and recorded a finding on the basis of the remaining evidence that the conclusion arrived at by the Enquiry Officer was not correct. The Management led some additional evidence before the Court on the basis of which it was suggested that the guilt of the workman was established. The Labour Court rejected the prayer of the Management to consider the same and base its findings thereon on the ground to have been fair, no additional evidence could be relied on under section 11A of the Act.

5. Mr. Gupta contended that the petitioner was entitled to lead the rely on the additional evidence led before the Labour Court. He referred to the following observations of the Supreme Court in paragraph 44 of the JUDGMENT : in Workmen, Firestone Tyre and Rubber Co. v. The Management (A.I.R. 1973 S.C. 1227).

“The expression ‘materials on record’ occurring, in the proviso, in our opinion, cannot be confined only to the materials which were available at the domestic enquiry. On the other hand, the materials on record in the proviso must be held to refer to, materials on record before the Tribunal. They take in –

(1) the evidence taken by the Management at the enquiry and the proceedings of the enquiry, or

(2) the above evidence and in addition, any further evidence led before the Tribunal, or

(3) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as evidence adduced by workman contra.”

I do nut agree with Mr. Gupta’s reading of the Su