G.S. Singhvi, J.
1. The award passed by the Labour Court, Bhatinda on November 3, 1988 in Reference No. 250 of 1988 'Mangat Rai v. The Pepsu Road Transport Corporation and Another' has been called in question in this petition filed by the workman.
2. In order to decide whether the impugned award suffers from an error of law or not, we may notice the relevant facts. The workman-Mangat Rai raised an industrial dispute challenging the termination of his service w.e.f. November 7, 1983 on the ground that the domestic enquiry held by the employer was contrary, to the principles of natural justice and also on the ground that there was no valid ground to terminate his service. The Respondent No. 1 pleaded that the enquiry held by it was fair and proper and reasonable opportunity of hearing was given to the workman. After considering the rival pleadings, the Labour Court, framed the following four issues :
1. Whether reference is incompetent as pleaded in the preliminary objections of the written statement OPP
2. Whether the enquiry was not fair and proper
3. If issue No. 2 is found in favour of the workman whether the termination of his service is lawful and justified
4. Relief.
3. On Issue No. 1, the Labour Court held that the reference made by the Government was not incompetent. On Issue Nos. 2 and 3, it held that the enquiry held against the workman was fair and proper and the termination of his service is lawful and justified. On the basis of these conclusions, the Labour Court answered the reference in the affirmative and held that the workman is not entitled to any relief.
4. The record of the Labour Court shows that a regular enquiry was held against the petitioner on the basis of charge sheet served upon him along with memo dated May 25, 1981. Shri Mohammad Bashir, Deputy Manager (Headquarter) was appointed as Enquiry Officer. After recording the evidence, the Enquiry Officer held that the allegation of having issued used tickets stands proved against the delinquent. On the basis of this conclusion the employer terminated the service of the petitioner.
5. The first contention urged by Shri Sarjit Singh, learned counsel for the petitioner, is that the findings recorded by the Labour Court on the issue of fairness of the enquiry is per se erroneous, inasmuch as the Labour Court has failed to consider the fact that the Enquiry Officer did not give reasonable opportunity of defence to the petitioner. Learned counsel further submitted that although enquiry was held by a legally trained person, the petitioner was denied opportunity to avail the services of a lawyer. In our opinion, this contention is without merit. The law does not recognise the right of the workman to avail the services of a lawyer in a departmental/domestic enquiry merely because the enquiry is being conducted by a legally trained person. The employee can seek assistance of a lawyer only if the employer/department is represented by a legally trained person. Thus, the view taken by the Labour Court that the petitioner was not entitled to avail the services of a legal practitioner does not warrant interference by this Court.
6. We also do not find any error in the conclusion recorded by the Labour Court that the enquiry held against the petitioner was consistent with the principles of natural justice. It has not been disputed before us that a regular charge sheet was served upon the petitioner; he was given opportunity to file reply; the Enquiry Officer recorded the statements of departmental witnesses in his presence and opportunity of cross-examination was given to him; copy of the enquiry report was made available to him along with the show cause notice and the final order was passed after considering his reply. Thus, there is no substance in the petitioner's plea that the employer did not hold enquiry in accordance with the principles of natural justice. However, we find substantial force in the argument of Shri Sarjit Singh that the Presiding Officer of the Labour Court failed to exercise the jurisdiction vested in him under Section 11-A of the Industrial Disputes Act, 1947. Learned counsel, in our opinion, is right in his submission that the Labour Court was duty bound to examine on merits the evidence recorded by the Enquiry Officer and record its own findings on the charges levelled against the petitioner and also to consider whether the punishment awarded by the employer was just or not, having regard to the total length of service, the nature of allegations etc.
7. Section 11-A was inserted in the Industrial Disputes Act, 1947 w.e.f. December 15, 1971. Prior to the insertion of Section 11-A the Apex Court had indicated the limitations of the jurisdiction of the Labour Court, Industrial Tribunal or the National Tribunal to interfere with the findings of guilt and the quantum of punishment awarded by the Management in Indian Iron and Steel Co. Ltd. v. Their Workmen, (1958-I-LLJ-260). The Supreme Court discussed the nature of jurisdiction exercised by the Industrial Tribunal while adjudicating a dispute relating to dismissal or discharge and then observed :
'Undoubtedly, the management of a concern has power to direct its own internal administration and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) where there is want of good faith, (ii) when there is victimisation or unfair labour practice (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the material the finding is completely baseless or perverse.'
8. The same principle was reiterated in Punjab National Bank Ltd. v. Its Workmen, (1959-II-LLJ-666), where the Supreme Court held that, where the employer was not guilty of victimisation or unfair labour practice, the Tribunal will be generally reluctant to interfere with the order of punishment passed on the basis of proper domestic enquiry held in consonance with the principles of natural justice.
9. In Management of Ritz Theatre (P) Ltd. v. Its Workmen, AIR 1963 SC 295, the Supreme Court held that, if on the basis of a properly held domestic enquiry, an order of dismissal is passed against the employee, it can be challenged only if it is shown that the conclusion reached at the departmental inquiry was perverse or the impugned dismissal is vindictive or mala fide and amounts to unfair labour practice.
10. In Hind Construction and Engineering Company Ltd. v. heir Workmen, (1965-I-LLJ-462) their Lordships of the Supreme Court observed at p. 465 :
'The award of punishment for misconduct under the Standing Orders if any, is a matter for the management to decide and if there is any justification for the punishment imposed the Tribunal should not interfere. The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, but, where the punishment is shockingly disproportionate regard being had to the particular conduct and past record or is such as no reasonable employer would ever impose in like circumstances, the Tribunal may treat the imposition of such punishment as itself showing victimisation or unfair labour practice.'
11. In that particular case, the Supreme Court upheld interference, by the Labour Court with the order of dismissal on the ground that such punishment could not have been imposed by any reasonable employer simply on the allegation that the workman was absent from duty.
12. These judgments indicate the broad parameters within which the Labour Court or the Industrial Tribunal could interfere with the findings of guilt recorded by the management and the quantum of punishment imposed by it on its employee. This was the position till December 14, 1971.
13. In order to clarify the position regarding the jurisdiction of adjudicating authorities constituted under the Act, Section 11-A was added. The statement of objects and reasons set out in the bill introducing Section 11-A of the Industrial Disputes Act read as under :
'In Indian Iron and Steel Company Ltd. v. Their Workmen, (1958-I-LLJ-260), the Supreme Court while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the service of a workman, has observed that in case of dismissal on misconduct, the Tribunal does not act as a Court of appeal and substitute its own judgment for the management and the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management.' The International Labour Organisation in its recommendation (No. 119) concerning termination of employment at the initiative of the employer, adopted in June, 1963, has recommended that a worker aggrieved by the termination of his employment should be entitled to appeal against the termination among others, to a neutral body such as an arbitrator, a Court, an arbitration committee or a similar body and that the natural body concerned should be empowered to examine the reasons given in the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination. The International Labour Organisation has further recommended that the neutral body should be empowered (if it finds that the termination of employment was unjustified) to order that the worker concerned unless reinstated with unpaid wages, should be paid adequate compensation or afforded some other relief. In accordance with these recommendations, it is considered that the 'Tribunal's power in an adjudication proceeding relating to discharge or dismissal of a workman should not be limited and that the Tribunal should have the power in cases wherever necessary to 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 reliefs to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. For this purpose, a new Sec. 11-A is proposed to be inserted in the Industrial Disputes Act, 1947 ....'
14. The ambit and scope of Section 11-A came to be considered by the Supreme Court in Workmen of M/s. Firestone Tyre and Rubber Co. v. The Management (1973-I-LLJ-278). In that case, the Apex Court in the first place referred to the law laid down by the Court in respect of the jurisdiction of the Industrial Tribunal/Labour Court. It also referred to the statement of objects and reasons and then proceeded to say :
'The object is stated to be that the Tribunal should have power in cases, where necessary, to set aside the order of discharge or dismissal and direct reinstatement or award any lesser punishment.'
Their Lordships further held that, 'even a mere reading of the Section, in our opinion, does indicate that a change in the law as laid down by this Court has been effected.'
15. Their Lordships took notice of the contentions raised on behalf of the employees and employers and then referred to some principles of interpretation of welfare legislation and held that even after Section 11-A has been inserted the employer and employee can adduce evidence regarding legality and validity of the domestic enquiry, if one had been held by an employer. The Court further held that the Tribunal has to consider the evidence and come to the conclusion one way or the other. Even in cases, where an inquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in an appropriate case and hold this no misconduct is proved. The Court further observed :
'It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found a proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal not justified because the alleged misconduct, itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately, it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion ensures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A.'
16. On the question of quantum of punishment Their Lordships held that prior to Section 11-A the Tribunal had no power to interfere with the punishment imposed by the Management and it had to sustain the order of punishment imposed on the basis of proved misconduct unless it was harsh indicating victimisation, but, under Section 11-A, even if misconduct is held to be proved, the Tribunal may be of the opinion that the order of discharge or dismissal for the particular act of misconduct is not justified. The Tribunal may hold that the proved misconduct does not warrant imposition of penalty by way of discharge or dismissal and it can under such circumstances award to the workman lesser punishment.
17. In para 47 of the judgment, their Lordships of the Supreme Court took notice of the made by the Legislature in certain respects in the law laid down by the Supreme Court by observing that for the first time power has been given to the Tribunal to satisfy itself whether misconduct is proved. This is particularly so even when findings have been recorded by an employer in an inquiry properly held. The Tribunal has also been given power to interfere with the punishment imposed by an employer. The proviso to Section 11-A emphasizes that the Tribunal has to satisfy itself one way or the other regarding misconduct, punishment and the relief to be granted to the workman only on the basis of material on record before it. In para 48 Their Lordships further observed that even if a proper inquiry is conducted and a finding is arrived at regarding misconduct, the Tribunal has the power to differ from the employer and even reduce the punishment. In para 62 of the judgment. Their Lordships again reiterated this position by making following observations at p. 303 :
'We have already expressed our view regarding the interpretation of Section 11-A. We have held that the previous law, according to the decisions of this Court in cases where a proper domestic enquiry had been held, was that the Tribunal had no jurisdiction to interfere with the finding of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by an employer both in cases where the misconduct is established in a proper domestic enquiry as also in cases where the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the powers of the Tribunals were recognised by this Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. That means that the law, as laid down by this Court over a period of years, had recognised certain managerial rights in an employer. We have pointed out that this position has now been changed by Section 11-A. The Section has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him.'
18. In Jaswant Singh v. Pepsu Roadways Transport Corporation, (1984-I-LLJ-33), their Lordships of the Supreme Court upheld that award passed by the Labour Court directing reinstatement of the driver of the Road Transport Corporation in service who had been dismissed from service because in the view of the Supreme Court, the opinion formed by the Labour Court that the punishment of dismissal was rather heavy and was not called for, did not warrant interference by the Supreme Court.
19. In Management of Hindustan Machine Tools v. Mohmmad Usman, (1983-II-LLJ-386), their Lordships of Supreme Court-upheld the award passed by the Labour Court of substituting the penalty of dismissal from service by stopage of increments for two years on the basis of its findings that the punishment of termination is disproportionately heavy.
20. In Ved Parkash v. M/s. Delton Cables India (P) Ltd., (1984-I-LLJ-546), a three Judges Bench of Supreme Court declared that dismissal of an employee on the charge of abuse of some workers and officers of the Management by him was unjustified. The Supreme Court held that, no responsible employer would ever impose in like circumstances, the punishment of dismissal on the employee and that victimisation or unfair labour practice could well be inferred from the conduct of the Management in awarding the ex-treme punishment of dismissal.
21. In Jitendra Singh v. Vaidya Nath Ayurved Bhavan Ltd., (1984-II-LLJ-10), while examamining the scope of Section 11-A the Supreme Court observed :
'Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established, the Tribunal can vacate the order of dismissal or discharge and give suitable direction.'
22. In Baldev Singh v. Presiding Officer, Labour Court, (1995-III-LLJ-(Supl)-462), the Supreme Court upheld an award passed by the Tribunal setting aside the termination of service of a driver of the Roadways for misconduct which resulted in some loss to the Corporation.
23. In Rama Kant Mishra v. State of U. P., (1982-II-LLJ-472), their Lordships of the Supreme Court interfered with an award of the Labour Court which had upheld the dismissal of an employee found guilty of using indirect, improper and abusive language and threatening postures. The Court held that mere use of such language without any other misconduct during 14 years of service did not warrant penalty of dismissal from service. The Court substituted the penalty of dismissal by withholding of two increments with future effect.
24. In B. P. L. India Ltd. v. Palghat BPL and PSP Thozhilali Union (1992-I-LLJ-115), a learned Single Judge of Kerala High Court held that an act of assault on management staff of the striking workers was a grave act of misconduct and such act must attract serious and grave punishment. However, the judgment of Kerala High Court has been reversed by the Supreme Court in Palghat BPL and PSP Thozhilali Union v. BPL India Ltd. & Another (1996-II-LLJ-335).
25. In South India Sugars Ltd. v. First labour Court, Madras, 1990 LLR 86, a Division Bench of Madras High Court also took a similar view while holding that if a worker assaults a security guard it will amount to grave misconduct and would warrant extreme punishment of dismissal.
26. In C.W.P. No. 11456 of 1994 Pepsu Road Transport Corporation, Patiala and another v. Presiding Officer, Labour Court, Jalandhar & Another, decided on November 23, 1994, this Court after a review of various decisions laid down the following proposition of law :
'While exercising its powers under Section 11-A, the Labour Court/Tribunal should consider the question of fairness of the enquiry in the first instance. In case, it is found that the enquiry is not fair, employer can make a request to be given permission to lead evidence for proving the misconduct. In that event, the employee has also to be given an opportunity to lead evidence in his defence. In both types of cases namely where the enquiry is held to be fair and also where it is held to be unfair, but opportunity is given to the employer to lead evidence in support of the plea of misconduct, the Labour Court has to examine the evidence and record its own finding on the allegations of misconduct. If it holds that no misconduct is found proved, ordinarily, an award of reinstatement with consequential benefits has to be passed. However, where it holds that the misconduct is proved, it has further to consider as to whether the punishment imposed by the employer is just or not. While doing so the Labour Court etc. must also look into the entire record including past punishment, if any, nature of misconduct committed by the employee, his length of service, and the impact of misconduct on the industry/service and then decide as to whether punishment is unjust. If its conclusion is positive, the Labour Court can substitute the punishment awarded to the employee with lesser punishment.'
27. An analysis of these decisions shows that the Supreme Court and the High Courts have unequivocally recognised the legislative authorisation to the Labour Courts/Tribunals under Section 11-A of the Act to examine the issue relating to fairness of the departmental/domestic enquiry, the merits of the findings recorded during the course of such enquiry as well as the issue relating to punishment. The Courts have consistently held that in appropriate cases the Labour Court and the Tribunal can substitute the punishment awarded by the employer with a lesser punishment, if on an objective analysis of the facts of a given case it comes to the conclusion that the punishment awarded by the employer is unjust or shockingly disproportionate or unduly harsh. In what circumstances the Labour Court or Tribunal may interfere, with the punishment awarded by the employer depends on the facts of the particular case and no hard and fast rule can be laid down.
28. If we examine the impugned award in the light of the principles discussed hereinabove, we do not have the slightest hesitation to hold that the learned Judge, Labour Court, has failed to exercise the jurisdiction vesting in him under Section 11-A. He has neither discussed the evidence produced during the course of the enquiry with a view to determine whether the charge levelled against the workman is proved or not, nor has he considered whether the punishment awarded to him is just or not and whether any other punishment will meet the ends of justice. It is, therefore, appropriate to direct the Labour Court to reconsider the case and pass a fresh award keeping in view the law laid down by the Apex Court and the High Courts.
29. In the result, we allow the writ petition and quash the award dated November 3, 1988. The case is remanded to the Labour Court for fresh decision in accordance with law and in the light of the findings and observations made hereinabove. The Labour Court shall issue notices to both the parties and decide the dispute within next 4 months after giving opportunity of hearing to the parties. The issue relating to back wages, if any, payable to the workman shall also be decided after giving opportunity to both the parties to produce evidence on that issue.