IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 13232 of 2024 Belle Vue Clinic & Anr. Vs The State of West Bengal & Ors. For the Petitioners : Mr. Soumya Majumder, ld. Sr. Adv. Mr. S.K. Singh, Mr. Rananeesh Guha Thakurta, Mr. Saket Raj Singh. For the Respondent No. 3 : Mr. Balai Ch. Paul, Ms. Tithi Roy. Judgment reserved on : 14.08.2026 Judgment delivered on : 10.09.2026 Shampa Dutt (Paul), J.: 1. The writ application has been preferred being aggrieved by an order no. 54 dated April 28, 2022 and the impugned Award passed on February 12, 2024 in Case No. VIII-01/2017 passed by the learned Fifth Industrial Tribunal, West Bengal. 2. Vide the impugned award, the learned Industrial Tribunal held as follows:- “Now admittedly the delinquent workman Shir Tapadhan Mukherjee has already been retired from 2 his service. So the quest on of reinstatement does not arise at all. Ld. Advocate for the workman in his usual frankness submitted that the question of reinstatement does not arise at present but the workman is entitled to get to full back wages from the date of his illegal dismissal of employment till the date of his attaining the age of superannuation. The workman in his written statement submitted that he has been suffering financially in his hard economic days with his sick wife along with his five dependents and also his dwelling house is in dilapidated condition for which he compelled to withdraw his PF and Gratuity amount but whole leave travel allowances and medical allowances are still lying with the management. Nothing has transpired before this Tribunal to hold that since the date of dismissal from service till the attaining the age of superannuation the concerned workman did not have any independent income of his own It is necessary for the employee to plead that he was not gainfully employed from the date of his dismissal. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income, then the burden will shift to the employer. There is no dispute that the concerned workman was an employee of Belle Vue Clinic It is admitted position that due to such illegal dismissal, the workman could not participate in the functioning of the Belle Vue Clinic from the date of his dismissal and during this long period he contributed nothing towards the productivity of Belle Vue Clinic and the said period 3 was spent unproductively. In view of the decisions reported in 2009 IV LLJ 304 Metropolitan Transport Company Vs. V. Venkatesan this Tribunal is of the opinion that interest of justice will be served if the management of M/s. Belle Vue Clinic is asked to pay the delinquent workman Mr. Tapadhan Mukherjee 75% of back wages since the period of illegal dismissal of employment till the age of his superannuation.” 3. The petitioner’s case in short is that the private respondent was a Steno Typist in the Pathology Department of the petitioner Hospital. On the allegation, that the said respondent having defied checking of bag during exit from the office by the security guard, a show cause notice dated 27th September, 2014 was issued to him. The reply was that he had gone upstairs to switch off the computer, when the security had asked him to be checked. 4. An enquiry proceeding was conducted, where the private respondent was allowed a defence representative. The enquiry report found him guilty. The Enquiry Officer had verified the CCTV footage with plain eyes and found that while the security personal asked the show-caused employee for his bags to be checked, he without allowing the said security personnel to check his bags, made a U-turn and went back inside the Clinic. 5. The private respondent did not give reply to the enquiry report and thereafter he was dismissed from service by a letter dated 5th May, 2015. 4 6. The dismissal issue was referred to the Learned Tribunal by the appropriate Government by an order of reference dated 17th March, 2017. 7. By an order dated 28th April, 2022, the domestic enquiry conducted by the management was invalidated by the Learned Tribunal. 8. The petitioner has challenged the impugned award on the ground that:- (a) While deciding the validity of domestic enquiry as a preliminary issue, Industrial Tribunal should only consider the enquiry on the anvil of principles of natural justice, and not on perversity of report. 9. The petitioner has relied upon the following judgments in support of his contention:- (i) The Workman of Firestone Tyre & Rubber Co. vs the Management & Ors., AIR 1973 SC 1227, (Paras 47,48,49,50,51). “47. We will now pass on to consider the Proviso to Section 11-A. Mr Deshmukh relied on the terms of the Proviso in support of his contention that it is now obligatory to hold a proper domestic enquiry and the Tribunal can only take into account the materials placed at that enquiry. The counsel emphasised that the Proviso places an obligation on the Tribunal “to rely only on the materials on record” and it also prohibits the Tribunal from taking “any fresh evidence in relation to the matter”. According to him, the expression “materials on record” refers to the materials available before the management at the domestic enquiry and the expression “fresh evidence” refers to the evidence that was being 5 adduced by an employer for the first time before the Tribunal. From the wording of the Proviso he wants us to infer that the right of an employer to adduce evidence for the first time has been taken away, as the Tribunal is obliged to confine its scrutiny only to the materials available at the domestic enquiry. 48. We are not inclined to accept the above contention of Mr Deshmukh. The Proviso specifies matters which the Tribunal shall take into account as also matters which it shall not. 49. 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. 50. 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 the evidence adduced by the workmen contra. The above items by and large should be considered to be the “materials on record” as specified in the Proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The Proviso only confines the Tribunal to the materials on record before it as specified above, when considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justifies the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment. From the Proviso it is not certainly possible to come to 6 the conclusion that when once it is held that an enquiry has not been held or is found to be defective, an order reinstating the workman will have to be made by the Tribunal. Nor does it follow that the Proviso deprives an employer of his right to adduce evidence for the first time before the Tribunal. The expression “fresh evidence” has to be read in the context in which it appears namely, as distinguished from the expression “materials on record”. If so read, the Proviso does not present any difficulty at all. 51. The legislature in Section 11-A has made a departure in certain respects in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the Proviso. The Proviso only emphasises that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the “materials on record” before it. What those materials comprise of have been mentioned earlier. The Tribunal for the purposes referred to above, cannot call for further or fresh evidence, as an Appellate Authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The “matter” in the Proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.” (ii) Cholan Roadways Ltd. vs. G. Thirugnanasambandam, (2005) 3 SCC 241 (Para 34). 7 “34. This decision also has no application to the facts of the present case. In the instant case, the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.” (iii) Neeta Kaplish vs. Presiding Officer, Labour Court & Anr., (1999) 1 SCC 517, (Para-26). “26. Learned counsel for the appellant (sic respondent) contended that in spite of the direction by the Labour Court to the respondent- Management to lead evidence, it was open to the Management to rely upon the domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the “materials on record” and since the enquiry proceedings constituted “material on record”, the same could not be ignored. The argument is fallacious.” 8 (iv) High Court of Judicature at Bombay vs. Uday Singh, (1997) 5 SCC 129, (Para 10). “10. It is seen that the evidence came to be recorded pursuant to the complaint made by Smt Kundanben, defendant in the suit for eviction. It is true that due to time-lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of “proof beyond doubt” has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved. In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statements to be recorded 9 from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly cross-examined, the question arises whether their evidence is acceptable or not. In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.” (v) State of Bihar & Ors. vs. Phulpari Kumari, (2020) 2 SCC 130, (Para 6.1, 6.2). 10 “6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer.” (vi) Allahabad Bank & Ors. vs. Krishna Narayan Tewari, (2017) 2 SCC 308, (Para 7 & 8). “7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the 11 orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority. 8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.” 10. It is further stated by the petitioner that at the time of argument, a vague submission was advanced by the learned counsel for the 12 private respondent that the workman was not given a charge sheet, but only a show cause notice was issued. It is stated that the said argument is weak and unsustainable, since the private respondent had admitted in his statement before the learned tribunal about the admissibility and understandability of the charge and as such both the impugned preliminary order and the impugned award are liable to be set aside. 11. The respondent no. 3 on filing an affidavit in opposition and written notes has argued that the impugned show-cause notice served upon the said respondent/workman on 27th September, 2014 was vague and with concocted allegations. 12. The respondent further states that it is false that his duties were challenged by the petitioner. It is further submitted that the Security Guard did not register any official complaint and in the domestic enquiry the Security Guard did not adduce any evidence in favour of the petitioner’s claim. 13. It is further stated that the petitioner did not issue any charge- sheet prior to conducting the domestic enquiry and he submits that the workman could not prove that the workman was in the habitual practice of defying check up. 14. The petitioner states that he has served 34 long years and the show-cause notice was created to illegally terminate the service of the workman. 15. The respondent relies upon the following judgments in:- a) Paragraph 35 of The Workman of Firestone Tyre (supra). 13 “35. We will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with its finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation of unfair labour practice. 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 now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes 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 by the decision in Indian Iron & Steel Co. Ltd. case, 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 a 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.” b) Cholan Roadways Ltd. (supra), (Para 35). “35. Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt. [(2004) 2 WLR 1351 (CA)] ) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. titled “Judicial Review, Appeal and Factual Error” published in 2004 Public Law, p. 788.” 14 c) The respondent also relies upon Para 24 and 27 of the judgment of Neeta Kaplish (supra). “24. In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. 27. The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If 15 such evidence has not been led, the Management has to suffer the consequences.” d) Paragraph 6 in the judgment in Phulpari Kumari (supra). “6. The criminal trial against the respondent is still pending consideration by a competent criminal court. The order of dismissal from service of the respondent was pursuant to a departmental inquiry held against her. The inquiry officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the respondent:……….” 16. The respondent also relies upon the judgment in Allahabad Bank vs. Krishna Narayan Tewari (2017) 2 SCC 308, (Paras 4,5,7,8). “4. The High Court came to the conclusion that neither the disciplinary authority nor the appellate authority had applied their mind or recorded reasons in support of their conclusions. Relying upon the decisions of this Court in Roop Singh Negi v. Punjab National Bank [Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 : (2009) 1 SCC (L&S) 398] , Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429] , Nand Kishore Prasad v. State of Bihar [Nand Kishore Prasad v. State of Bihar, (1978) 3 SCC 366 : 1978 SCC (L&S) 458] , Kailash Nath Gupta v. Allahabad Bank [Kailash Nath Gupta v. Allahabad Bank, (2003) 9 SCC 480 : 2003 SCC (L&S) 1137] , State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L&S) 721] and Mohd. Yunus Khan v. State of U.P. [Mohd. Yunus Khan v. State of U.P., (2010) 10 SCC 539 : (2011) 1 SCC 16 (L&S) 180] , the High Court held that the orders passed by the disciplinary authority and the appellate authority were unsustainable in law. The High Court found that the findings recorded by the disciplinary authority and affirmed by the appellate authority were perverse and were based on no evidence whatsoever. The High Court observed that the appellate authority had not applied its mind independently and simply cut and pasted the findings of the disciplinary authority while dismissing the appeal. 5. On behalf of the appellant Bank it was contended before us that the High Court had exceeded its jurisdiction in reappreciating the evidence and holding the respondent not guilty. It was argued that so long as there was some evidence on which the disciplinary authority could rest its findings, sufficiency or insufficiency of such evidence could not be gone into by a writ court. Alternatively, it was submitted that even if there was any infirmity in the orders passed by the disciplinary authority or the appellate authority, on account of absence or insufficiency of the reasons in support of the findings recorded by them, the proper course for the High Court was to remand the matter back to the appellate authority or the disciplinary authority as the case may be for doing the needful afresh. The High Court could not, on account of absence of reasons or unsatisfactory appraisal of the evidence by them, quash the order of punishment and direct release of the service benefits due to the respondent. 7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of 17 natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority. 8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.” 18 17. Affidavits were exchanged by the parties wherein the respondent/workman has stated that he was working with the petitioner establishment since 01.04.1982. 18. The show-cause notice was served on 27.09.2014 and without any charge-sheet being issued and not granting any opportunity to the workman to defend himself, the enquiry officer proceeded with the enquiry and a report was submitted on 05.05.2015 dismissing the respondent/workman from service. 19. On hearing the learned counsels for the parties and on perusal of the materials on record, it appears that the proceedings before the learned Tribunal was on the basis of an order of reference dated 17.03.2017 made by the State Government. 20. The State Government made a reference on the following issues:- “ii) Whether the termination of service of Shri Tapadhan Mukherjee by the management of Belle Vue Clinic w.e.f. 05.05.2015 is justified? 2) If not, what relief they are entitled to? 21. It appears from the impugned order that the Tribunal proceeded to decide the validity of the enquiry proceedings and finally substituted its findings in place of the finding of the enquiry officer. The Tribunal has discussed the evidence adduced as to the validity of the domestic enquiry conducted by the petitioner in detail. It also appears from page 15 of the impugned award that the Tribunal viewed the C.C.TV footage in open Court and was of the view that nothing transpired before the trial Court to hold that the volume of bags of the employee was heavy when he was 19 proceeding towards the main gate or the volume of his bag was less when he returned. The Tribunal thus held that the charges against the employee was neither proved nor the domestic enquiry was justified and the tribunal relying solely on it’s opinion decided against the enquiry report. 22. This Court considering the fact that the Tribunal had seen the C.C.TV footage, to come to an apparent finding, also watched the said C.C.TV footage, which was also placed before this Court. This Court on watching the C.C.TV footage finds that the learned Tribunal’s observation was prima facie erroneous. The C.C.TV footage clearly proves that other than his normal office small bag, the employee was carrying heavy (white) plastic bags (more than 2), which look new (plastic bags). 23. The establishment company is a clinic and there was no justification in the employee carrying so many heavy plastic bags while leaving the office. The C.C.TV footage clearly shows that when stopped by the Security Guard, the employee within a few seconds, turned around and behaved as if someone was calling him and hurriedly returned to the clinic with the bags, which were prima facie lighter when he returned. Admittedly the employee did not leave the bags behind to be checked, when he allegedly went to switch of his computer as stated by him. The reason for the hurry in switching of a computer which was not an urgent or immediate requirement, also does not justify the reason 20 to avoid security check which is a routine procedure in such establishments. 24. The sudden extreme hurry to return from the security check post, waving at someone, prima facie also does not support the reason given by the employee. 25. Section 11A of the Industrial Disputes Act lays down:- “11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. ]” 26. It appears that the learned Tribunal on appreciation of evidence before the enquiry officer and also adduced before it gave the relief in the impugned award. 27. Section 11A proviso clearly provides that neither any fresh evidence can be taken by the Court or Tribunal and it only can rely upon the materials on record and while doing so, it is clear that the Tribunal cannot sit in appeal over the said order. The 21 Tribunal is only empowered to ensure that the order of discharge or dismissal was justified or not but cannot substitute itself in place of the enquiry officer and in cases which seem appropriate may modify the penalty imposed. 28. From the documents annexed including the proceedings before the enquiry officer, it appears that M.W. 1 is the security guard, who had stopped the employee for checking on 23.09.2014. 29. All relevant management witnesses were examined and cross examined sufficient opportunity was granted to the employee to place his case. The enquiry officer finally concluded the proceeding by following proper procedure and principle of natural justice. Certain discipline and rules/regulations are required to be mandatorily followed in an establishment for its proper functioning including security, measurements which the employees are bound to follow. 30. Admittedly the employee has worked for 34 years, from 1980 to 2014. Though the tribunal deemed it fit to hold the enquiry was not proper or just, which this Court finds it not based on proper appreciation of evidence. 31. The impugned award setting aside the order of dismissal is prima facie perverse, as there was sufficient and proper evidence on record, to hold the employee guilty, which is also justified. 32. In view of the observations above, the impugned award dated February 12, 2024, in Case No. VIII-01/2017 passed by the learned Fifth Industrial Tribunal, West Bengal, is hereby set 22 aside, with the direction that the penalty imposed by the disciplinary authority is modified from “dismissal from service” to “compulsory retirement” considering that long 34 years of service has been put in by the respondent/employee. 33. All dues to which the respondent/employee is entitled, be paid within 3 months from the date of this order. 34. WPA 13232 of 2024 is thus disposed of. 35. Connected application, if any, stands disposed of. 36. Interim order, if any, stands vacated. 37. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously after due compliance. (Shampa Dutt (Paul), J.)