A tribunal cannot mechanically exercise its discretion under Section 11A of the Industrial Disputes Act, 1947, without weighing the circumstances of the case. A tribunal must consider the justification for the dismissal of an employee, particularly in light of the findings of a domestic enquiry. A tribunal cannot reinstate an employee without considering the employer's loss of confidence in him.

1. THIS Rule is directed against the award passed by the Seventh Industrial Tribunal- West Bengal, in Case No. VIII 44/75. The award is Annexure "G" to the writ petition. It appears that the respondent No. 1 Sri Nanda Kumar Singh was a durwan of M/s. Ludhlow Jute Co. Ltd. and he was charge sheeted under sub-clauses (viii) and (ix) of c 14 (c) of the Standing Orders of the company. The said durwan submitted his written explanation, but the management not being satisfied with the explanation held a domestic enquiry. The said Sri Singh, however, did not examine any witness and/or cross-examine any of the witnesses examined by the company. The enquiring officer found the said Sri Singh guilty of the charges and submitted a report. The said report was accepted by the management of the company and Sri Singh was dismissed from service. An industrial dispute was thereafter raised by the union and a reference was made by the Government of West Bengal to the Seventh Industrial Tribunal, West Bengal, for deciding the issue to the following effect:

"Whether the termination of service of Sri Nanda Kumar Singh, T. No. 98-117, is justified? To what relief, 30 if any, is he entitled."

It appears that before passing the award the Tribunal decided the preliminary issue as to whether or not the domestic enquiry was conducted properly and the Tribunal after considering the materials on record came to the finding that th: domestic enquiry was held properly and the finding of the enquiring officer were n t perverse and the said finding were also based on evidence. The Tribunal also came to the finding that the enquiry was not only fair and proper, but the findings of the enquiring officer were unassailable. After the said preliminary finding, the reference was set down for further hearing on merits. It was contended by the petitioner - company that the Tribunal having held that the domestic enquiry was properly made and the findings of the domestic enquiry were also just and proper the reference must be answered in favour of the company and the concerned employee was not entitled to any relief whatsoever. It a; pears that the Tribunal although accepted the finding made in the domestic enquiry as just and reasonable, the Tribunal was of the view that the punishment given to the concerned employee was harsh and disproportionate. Therefore, in exercise of the power conferred by S.ll A of the Industrial Disputes Act, the Tribunal held that instead of an order of dismissal it would be an adequate punishment if the workman was treated as under suspension from the date of the order of dismissal till the publication of the award in the official gazette. It was further held that during the said period the concerned workman would receive no wages and he would not be entitled to any suspension allowances. He would also not be entitled to any increment for the said period. It was further directed that the management would be at liberty to deduct a sum of Rs. 100 from his wages as the cost of two drums which were found missing. It was, however, provided for in the award that there would be no break of service of the said Sri Singh. The said adjudication and award are under challenge in the instant rule.

2. MR. Dutta, the learned counsel appearing for the petitioner, company, contends that after the amendment of the Industrial Disputes Act by incorporation of S. 11 A, the Tribunal has the authority to re-assess the evidence adduced before the domestic Tribunal and/or before the Industria Tribunal and on such re-assessment, the Tribunal can decide as to whether or not an order of dismissal was justified. The Tribunal has also power to give an award imposing lesser punishment if the Tribunal is satisfied from the facts and circumstances of the case that the punishment was harsh and disproportionate to the guilt committed by the concerned employee, MR. Dutta, however, contends that although the Tribunal has such power to minimise the punishment in certain c