G.S. Singhvi, J.
1. Of these four writ petitions, Writ Nos. 433/82 and 1025/82 arise out of Award dated January 20, 1982 passed by the Industrial Tribunal-cum-Labour Court, Kota in Reference Case No. 89/78 and Writ Nos. 434/82 as well as 1039/82 arise out of Award dated January 20, 1982 of the Industrial Tribunal-cum-Labour Court, Kota given in Reference Case No. 90/78. Although these four writ petitions relate to two workmen, Shri Makhanlal Gupta and Shri Har Prasad Saxena, the facts of all the cases relate to one common incident and the questions which have been raised in these writ petitions are identical. I am, therefore, disposing of all the four petitions by a common order.
2. Facts which are necessary for the decision of these four writ petitions are that Makhanlal Gupta was appointed as Head Jobber in the service of Rajasthan Textile Mills Ltd. Bhawani-mandi, a Unit of M/'s. Sutlej Cotton Mills Ltd. Har Prasad Saxena was appointed as Ring Sider in the service of Rajasthan Textiles Mills Ltd., Bhawanimandi with effect from January 1, 1963. Both the employees were charge sheeted vide charge sheets dated November 1, 1971. The allegations levelled against the workmen were that they had taken part in an illegal strike; they had incited the workers to go on strike and had prevented loyal workers from going on work. The workmen denied the allegations. Thereafter domestic inquiries were held against both of them. On the basis of report submitted by the Inquiry Officer, the employer passed orders dated December 25, 1971 and removed the workmen from service. Applications were filed by the employer under Section 33(2)(b) of the Industrial Disputes Act, I947(for short 'the Act, 1947') before the Labour Court, Jaipur for approval of its action of terminating the services of the workmen. These applications were dismissed by the Labour Court, Jaipur vide orders dated July 2, 1974 on the ground that the workmen were not the concerned workmen.
3. Thereafter the Rajasthan Textile Mazdoor Panchayat espoused the cases of the two workmen. Conciliation proceedings held by the Conciliation Officer failed and thereafter the State Government in exercise of its power under Section 10(1) of 1947 Act made a references on December 5, 1978 to the Labour Court-cum-Industrial Tribunal, Kota for adjudication of the disputes regarding termination of services of the two workmen Makhanlal Gupta and Har Prasad Saxena.
4. Before the Tribunal separate statements of claim were filed by Rajasthan Textile Mills Mazdoor Panchayat. The Union challenged the fairness of the domestic inquiries and also claimed that the action of the employer in terminating the services of the workmen amounted to victimisation and unfair labour practice and that the employer had acted malafide in terminating the services of the workmen. The Union claimed that the domestic inquiries have been held in total violation of the principles of natural justice and the workmen had not been given opportunity of defending themselves. The employer contested the claim of the Union and asserted that the workmen had been found guilty of grave misconduct in the inquiries which were held in total compliance of the principles of natural justice. The punishment imposed on the workmen were proportionate to the misconduct found proved against them.
The Tribunal decided the question of fairness of inquiry vide its order dated May 28, 1981 holding that the domestic inquiry held by the employer was fair and there had been no violation of the principles of natural justice. Thereafter the Industrial Tribunal-cum-Labour Court considered the merits of the charges found proved against the workmen. It found that the workmen had taken part in an illegal strike and that the charge of instigation and incitement levelled against the workmen had rightly been held proved. The Tribunal also found that the finding of the Inquiry Officer that the workmen had prevented other loyal employees from going on work was also proved. The Tribunal then considered the question of punishment and held that so far as Har Prasad Saxena was concerned, he had rendered a long service and that there was no reason for punishing only two workmen whereas prosecution had been launched against seven workmen at the instance of the employer. It also found that the workmen Makhanla1 Gupta had reached the age of 57 years and as per the certified standing orders, the age of retirement was 58 years. The Tribunal held that punishment of removal from services was disproportionate. It, therefore, ordered reinstatement of Har Prasad Saxena in service without backwages and also ordered that he shall be given the wages which persons appointed along with him were being paid. Regarding Makhanlal Gupta the Tribunal held that award of compensation of Rs. 10,000/-will meet the ends of justice.
5. Before examining the contentions advanced by Shri Kala and Shri Bandhu, learned counsel for the parties, it is necessary to take notice of some important facts which will be relevant for determining the question as to what orders should be passed by this court in these writ petitions. Three unions of the employees, namely, Rajasthan Textile Mills Gandhi Maz-door Sangh, Rajasthan Textile Mills Mazdoor Sangh and Rajasthan Textile Mills Mazdoor Panchayat had made a claim for grant of bonus to the workmen to the extent of 20%. The management of the industry had declared bonus of 8.33%. A call for strike was given by Rajasthan Textile Mazdoor Sangh. The strike commenced in the evening of July 29, 1971. According to the version of Rajasthan Textile Mills Mazdoor Panchayat, the union of the workers which had given call, was a puppet union of the employer. Immediately after giving call for the strike it entered into an agreement with the management on September 28, 1971. The management agreed to raise the amount of bonus from 8.33% to 13%. Since the workmen of the industry were not satisfied with this agreement, they did not withdraw the strike. Hence, the strike continued till October 23, 1971 at the instance of the two remaining unions. On October 23, 1971 the dispute regarding bonus was referred to the sole arbitration of Shri N.K. Joshi, the then Labour Commissioner. The strike was called of at the intervention of Shri K.K. Tiwari, Conciliation Officer, Kota. He had written a letter to the President/Secretary of the Committee constituted by the employees for carrying on their struggle. In his letter dated October 23, 1971 he quoted the assurance of the employer that the workmen will not be subjected to general victimisation for taking part in the strike. The two workmen were, however, chargesheeted on November 1, 1971 and as already mentioned above, they were removed from service by orders dated December 25, 1971. The management also launched prosecution against seven workers including Shri Har Prasad Saxena and Shri Makhanlal Gupta. A complaint was filed by the management. The complaint was, however, dismissed by the learned Munsiff Magistrate, Bhawanimandi on July 25, 1977 and the accused persons including the two workmen were discharged. During the course of strike, the two workers had been got arrested by the employer and they remained in custody between October 7, 1971 to October 13, 1971.
6. During the pendency of the writ petition relating to the case of Shir Har Prasad Saxena, an application dated January 4, 1992 was filed by the employer for dismissal of the writ petition on the ground that a settlement had been arrived at between the employer and the workman Shri Har Prasad Saxena. The employer agreed to pay a sum of Rs. 39,000/- towards full and final settlement and the payment of the aforesaid amount had been made to him on October 25, 1991. Another application dated February 20, 1992 came to be filed on behalf of the employer wherein it has been claimed that in view of the settlement arrived at between the parties, relief of reinstatement or back wages should not be given to the workmen. A third application to the same effect was filed on May 23, 1992. Workman Har Prasad Saxena filed an affidavit dated May 20, 1992 alleging therein that he was forced by adverse circumstances to accept the amount of Rs. 39,000/-. He was in dire need of money and, therefore, he had to accept the settlement. The workman also filed a chart showing that he is entitled to a sum of Rs. 2,13,325.88 and also the other allowances. Another important fact is that in the case of Har Prasad Saxena this Court had made an interim order for payment of Rs. 300/- per month which was 50% of the wages being paid to the workman at the time of his removal from service, and this amount was paid upto September 1991. In the case of Makhanlal Gupta, a stay order was passed in Writ No. 433/ 82 filed by the employer. The interim order passed on April 5, 1982 was modified on August 2, 1982. The Court directed payment of 50% of the amount of the Award to the workman and it has been stated before the Court by Shri Kala that a sum of Rs. 5,000/- had been paid to the workman.
7. Shri R.K. Kala, learned counsel for the petitioner in Writ Petitions No. 433/82 and 434/82, has argued that when the Tribunal has held that the domestic inquiry was fair and proper and the charges levelled against the workmen have been found to be proved, no discretion was left with the Tribunal to have interfered with the punishment awarded by the petitioner mill. Shri Kala argued that the position regarding the jurisdiction of the Tribunal has remained unaltered even after insertion of Section 11A in the Industrial Disputes Act, 1947. Shri Kala argued that Ihc Tribunal has not assigned any reason whatsoever for ordering reinstatement of Har Prasad Saxena though without back wages. Shri Kala submitted that once the workmen have been found guilty of the acts of misconduct, no option was left with the Tribunal to substitute the penalty of dismissal from service. Shri Kala placed reliance on the decision of the Supreme Court in Bharat Iron Works v. Bhagu Bai, AIR 1976 SC 98, and of this Court in Multimetals Ltd. v. Jogendra Singh and Ors., 1992(2) WLC (Raj). 322.
8. Shri Virendra Bandhu, learned counsel for respondent No. 1 in Writ Petitions No. 433/82 and 434/82 and also for the petitioners in the other two Writ Petitions, strenuously argued that the findings recorded by the Tribunal to the effect that the workmen had participated in an illegal strike and had instigated the other workmen to go on strike are perverse and are based on total misreading of the evidence. Shri Bandhu argued that the Tribunal has failed to take notice of the fact that the strike call was given by the three unions and on the next day itself, the puppet union had entered into a settlement with the employer. The other two unions continued the strike for payment of higher bonus. Shri Bandhu submitted that the settlement arrived at between the puppet union and the employer was fraudulent. Shri Bandhu submitted that the settlement entered into between the employer and the puppet union cannot be treated as binding on other unions. He placed reliance on the decisions of the Supreme Court in Tata Chemicals Ltd. v. The Workmen employed under, Tata Chemicals Ltd. (1978-II-LLJ-22) and B.A Singh and Ors. v. Union of India and Ors. (1989-II-LLJ-591). According to Shri Bandhu, once the applications filed by the employer under Section 33(2)(b) had been dismissed by the Tribunal as not maintainable, the action of the employer of dismissing the workmen became void and the workmen became entitled to reinstatement. He submitted that the Tribunal has committed a grave error in relying on the evidence produced during the domestic inquiry. Shri Bandhu argued that the award passed by the Tribunal for reinstatement of Shri Har Prasad Saxena does not call for any interference by this Court because the Tribunal has got wide discretion to interfere with the quantum of punishment and once the Tribunal has exercised its power, there is no occasion for this court to substitute its own opinion for that of the Tribunal. Shri Bandhu further submitted that refusal of the Tribunal to order reinstatement of Shri Makhanlal Gupta is wholly unjustified and arbitrary because no difference could have been made between the cases of the petitioners Makhan Lal Gupta and Har Prasad Saxena.
In the awards passed by it, the Tribunal has observed that, vide order dated May 28, 1981 passed by it earlier, the question of fairness of inquiry had been decided in favour of the employer. The Tribunal then proceeded to take notice of Section 11A as interpreted by the Supreme Court in The Workmen of Firestbne Tyre and Rubber Co. v. The Management, (1973-I-LLJ-278) and observed that the Tribunal or Labour Court has jurisdiction to reap-predate the evidence produced during the domestic inquiry in order to determine as to whether the findings recorded by the Inquiry Officer are correct or not and it can also examine the quantum of punishment awarded by the employer. The Tribunal then examined the charges levelled against the two workmen and on the basis of the evidence produced during the course of inquiry it held that the workmen participated in the strike which took place between September 28, 1971 to October 23, 1971 and that they had given threats to the co-workers. On the basis of its own evaluation of evidence, the Tribunal held that charges levelled against the workmen have correctly been treated as proved. It then examined the question of punishment and while taking note of the letter dated October 23, 1971 written by the Conciliation Officer in which the Management had agreed not to subject the workmen to general victimisation and also the facts that the workmen had remained in employment for a long period without any past allegation of misconduct and also that no allegation of previous misconduct relating to strike was levelled against the workmen, the workmen had remained in custody between October 7, 1971 to October 13, 1971 and that only two workmen had been singled out for being punished, it concluded that the punishment of dismissal from service was wholly disproportionate and was excessive. It then held that since workman Makhanlal Gupta was going to retire next year, ends of justice would be met if he is ordered to be paid compensation of the amount of Rs. 10,000/-. It also ordered that Har Prasad Saxena be reinstated in service without back wages.
9. The argument of Shri Kala, learned counsel for the employer, that once the Tribunal/ Labour Courts holds the allegation of misconduct as proved, it cannot interfere with the quantum of punishment awarded to workmen, is too wide off the mark to be accepted and the two decisions of the Supreme Court and of this Court on which Shri Kala has placed reliance are of little help to his case. Section 11A was inserted in the Act of 1947 by amendment dated December 15, 1971. Prior to insertion of Section 11A, the various High Courts and the Supreme Court had indicated the limits of jurisdiction of the Labour Court, Industrial Tribunal or National Tribunal to interfere with the findings recorded in the domestic inquiry held by the employer and with the quantum of punishment In Indian Iron and Steel Co. Ltd. v. Their Workmen (1958-I-LLJ-260) Punjab National Bank Ltd. v. Its Workmen (1959-II-LLJ-666) Management of Ritz Theatre (P) Ltd. v. Its Workmen (1962-II-LLJ-498); Hind Construction and Engineering Co. Ltd. v. Their Workmen (1965-I-LLJ-462) Their Lordships of the Supreme Court held that the power of the Management to direct its own internal administration and discipline is not unlimited and when a dispute arises, Industrial Tribunal has been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. The Tribunal however cannot act as a Court of appeal and substitute its own judgment for that of the Management It will interfere (1) when there is a want of good faith; (2) when there is a victiminsation or unfair labour practice;(3) when the Management is guilty of basic error or violation of the principles of natural justice, or (4) when on the materials the finding is completely baseless or perverse.
10. Keeping in mind the law laid down by the Supreme Court and particularly in Indian Iron & Steel Co. Ltd. v. Their Workmen (supra), Section 11A was inserted in the Act of 1947. The ambit and scope of Section 11A came to be considered by the Supreme Court in Workmen of Firestone Tyre & Rubber Co. v. The Management (supra). After making a detailed analysis of the various cases decided by the Supreme Court prior to the insertion of Section 11A, Their Lordships held that Section 11A 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 the finding of misconduct arrived at by an employer as well as the punishment imposed by him. Their Lordships clearly recognised that now the jurisdiction of the Tribunal to reappreciate the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which the employer relies on the findings recorded by him in a domestic inquiry.
11. From this decision of the Supreme Court, it is clear that after insertion of Section 11A the Tribunal or other adjudicating authorities have been vested with wide powers to reappreciate the evidence recorded in a domestic inquiry and record their own conclusion in respect of the allegations of misconduct and also to satisfy whether the punishment imposed by the employer is justified or not. If on a proper appreciation of evidence the Tribunal finds that the charge of misconduct is proved, it has still a right to examine the punishment imposed on the workman and substitute the punishment imposed by the employer by a lesser penalty in case it feels that the punishment is disproportionate. These principles have been followed in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, (1981-I-LLJ-137); Jaswant Singh v. Pepsu Roadways Transport Corporation (1984-I-LLJ-33) Management of Hindustan Machine Tools v. Mohd. Usman (1983-II-LLJ-386) VedPrakash v. Delton Cableslndia (P)Ltd., (1984-I-LLJ-456), Jitendra Singh v. Baidya Nath Ayurved Bhawan Ltd. (1984-II-LLJ-10) Baldev Singh v. Presiding Officer, Labour Court, Patiala and Anr., AIR 1987 SC 104, Ramakant Misra v. State of U.P. and Ors., (AIR 1982 SC 1552). In Delhi Cloth & General Mills Co. Ltd. v. Sriram Fertilizers Karamchari Union 1988(1) RLR 984, a Division Bench upheld an award passed by the Tribunal whereby it had substituted the punishment of dismissal with that of stoppage of two grade increments. This Court, however, held that award of full back wages was not justified.
12. These decisions unmistakably show the extent and magnitude of the power which has come to be vested in the Industrial Tribunal or Labour Court or other adjudicating authority by virtue of Section 11A. The Tribunal and other adjudicating authorities are now not restrained to look into the findings recorded in the domestic inquiry only with limited angle to find as to whether the findings are perverse or not. Now the Tribunalor other adjudicating authorities can reappreciate the evidence and record findings on the merits of the charges which may be different from those recorded by the employer. Likewise, the scope of interference with the quantum of punishment awarded by the employer is not limited to the cases of victimisation or unfair labour practice. Now the Tribunal etc. can go into the reasons recorded by the employer for imposition of a particular punishment and if having regard to the totality of the circumstances it feels satisfied that the punishment imposed by the employer is arbitrary or wholly unjust, the Tribunal can substitute the punishment with a lesser penalty.
13. The principles of proportionality of punishment vis-a-vis misconduct have been recognised by the Courts of various European countries as well as British Courts. It has time and again been held that if the punishment imposed on an employee is out of proportion, the Court has power to interfere with the same. In Council of Civil Service Unions v. Minister for the Civil Services (1984) 3 All. E.R. 935, it has been held:
'Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality;, the second 'irrationality' and the third 'procedural impropriety'. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community.'
Their Lordships of the Supreme Court also recognised the theory of proportionality of punishment when they said that 'an order imposing punishment, which is shockingly disproportionate or is highly excessive having regard to the gravity of misconduct, is liable to be declared as arbitrary and thus violative of Articles 14 and 16 of the Constitution of India.'
14. In Bhagat Ram v. State of Himachal Pradesh, (1983-II-LLJ-1) the Apex Court held: (P-7)
'It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution'.
15. In Union of India v. Tulsi Ram Patel (1985-II-LLJ- 206), a Constitution Bench of the Supreme Court was dealing with the scope of Article 311(2) of the Constitution of India. The Court examined various aspects of the concept of 'reasonable opportunity of hearing' embodied in Article 311 and observed (p. 263):
'Where the Court finds that the penalty imposed by the impugned order of punishment is arbitrary or grossly excessive or out of proportion to the offence committed or is not warranted by the facts and circumstances of the norms relevant to that particular government service, the court will strike down the impugned order.'
16. In Shankar Das v. Union of India (1985-II-LLJ-184) Their Lordships of the Supreme Court were dealing with a case of an employee who was dismissed from service on the basis of conviction for a criminal offence. After observing that the competent authority did possess the power to make an order of punishment under Clause (a) of proviso of Article 311(2) of the Constitution, the Apex Court further observed (p.186):
'But, that power like every other power, has to be exercised fairly, justly and reasonably. Hie right to impose penalty carries with it the duty to act justly.'
17. In Ranjit Thakur v. Union of India (1988-I-LLJ-256) as well as in Sardar Singh v. Union of India, AIR 1992 SC 417, Their Lordships of the Supreme Court applied the principle of proportionality even in the cases of members of Armed Forces and declared the orders of punishment to be arbitrary on the ground that the punishment was highly disproportionate. Some of the observations made in Ranjit Thakur's case are extremely relevant in the context and, therefore, it will be useful to refer to them. These are (p. 262):
'The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.'
The concept of rule of law which permeates the working of entire government and which constitutes the edifice of the Constitution which this country had adopted, inheres in itself that State action must be free from arbitrariness. Arbitrariness and fairness are anti-thesis of each other. The State action must be free from arbitrariness and must be fair, is the principle which has been recognised by the Supreme Court in S.G. Jaisinghani v. Union of India and Ors. AIR 1967 SC 1427, E.P. Royappa v. State of Tamil Nadu and Anr. (1974-I-LLJ-172) and in very recent decision in Srilekha Vidhyarthi v. State of U.P., AIR 1991 SC 537 as well as in Delhi Transport Corporation v. D. T.C Mazdoor Congress and Ors., (1991-I-LLJ-395).In the last case, Ray, J. has observed: (P-453)
'The rule of law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Rule of law points that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination.'
18. In the same judgment, Sawant, J. has observed (p. 459):
'There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. Individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not BO with the posts, however high they may
19. The matter deserves to be looked into from yet another angle. The concept of 'life' has undergone dramatic change during last 15 years. The Apex Court gave a lead by giving wide interpretation to the term 'life' used in Article 21 of the Constitution in Maneku Gandhi v. Union of India, (1978) 1 SCC 248. After that decision, the Court has never looked back. It has only added new dimensions to the scope of the term 'life'. Gradually the Court has recognised that the term 'life' used in Article 21 of the Constitution includes within itself right to livelihood. In Delhi Transport Corporation case (supra), Sawant J., observed:- (p. 459):
'The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.'
His Lordship further observed : (p.459) '...in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.'
Another Judge, Justice K. Ramaswamy observed: (p.. 471)
'The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14, 16(1), 19(1)(g) and 21.'
His Lordship further observed: (p.480) 'Article 21 gurantees the right to live which includes right to livelihood, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as to be fair, just and reasonable but not fanciful, oppressive or at vagary.'
20. The new dimensions given to the scope of the term 'life' find its echo in the new Code of Criminal Procedure. The Legislature has now recognised the right of a convict to be heard before imposition of the sentence. By incorporating the opportunity of hearing before use of power of passing sentence, the Legislature has unquestionably taken note of the change in the approach of the Supreme Court. Now a person, who is convicted of an offence, can plead and persuade the Court that no sentence be imposed on him having regard to the nature of offence, its impact on the society and his past antecedents. He can also plead that a severe sentence is not warranted in the light of relevant circumstances. The trial courts as well as the appellate courts are vested with the wide discretion of not imposing sentence or of imposing sentence commensurate with the offence committed by the accused. If that be the scope of life and liberty of an individual, there is little justification of giving restrictive interpretation to the scope of Section 11A, which empowers the Labour Court, Tribunal etc, to interfere with the quantum of punishment once it feels satisfied that the punishment imposed by employer is unjust, unreasonable, unfair or is grossly disproportionate.
21. The decision of the Supreme Court in Bharatlron Works v. Bhagu Bai (supra) has no relevance whatsoever to the question involved in the present case. That was a case which arose out of an application filed under Section 33 of the Industrial Disputes Act. While examining the scope and powers of the Industrial Tribunal under Section 33 of 1947 Act in the matter of approval/permission, the Supreme Court observed that misconduct is antithesis of victimisation. That was not a case arising out of a reference made under Section 10 of 1947 Act and that decision does not contain any discussion on the scope of Section 11A of 1947 Act.
22. In Multimetats Ltd. v. Jogendra Singh and Ors. (supra), the petitioner had challenged an order passed by the Industrial Tribunal allowing the workman to lead evidence regarding victimisation. The facts which are borne out from the judgment show that while terminating the service of the employee on the basis of a domestic inquiry held in respect of the allegation of mis-conduct levelled against the employee, the employer made an application under Section 33 of 1947 Act. The Tribunal found that the inquiry was defective. The Management thereafter led evidence to prove the charges. The workman also led evidence in support of his case. Thereafter the Tribunal granted approval. Thereafter a dispute was raised by the workman through employees* union. The government made a reference for adjudication by the Industrial Tribunal. During the course of proceedings before the Industrial Tribunal, the workman made an application for permission to lead evidence on victimisation. This application was granted by the Industrial Tribunal. The learned Single Bench referred to the decision of Bharat Iron Works (supra) and also to the decision of Tata Engineering and Locomotive Co. v. Prasad, 1969-II-LLJ-799) and then observed that in the proceedings under Section 33(2)(b), evidence had been led by the parties and the plea of victimisation was taken before the Tribunal. Apparently, no evidence was led on that plea and no decision was given by the Tribunal on the question of victimisation. The learned Single Bench held that once a finding has been given by the Tribunal that misconduct of the workman has been proved, then it impliedly means that there was no victimisation by the employer. The learned Single Bench further observed that plea of misconduct and victimisation are contrary to each other and if there is victimisation by the employer, there cannot be any misconduct. The learned Single Bench further held that since the employee has not led evidence on the plea of victimisation in the proceedings under Section 33(2)(b), it would amount to waiver.
23. From a bare perusal of the decision in M/s. Multimetals Ltd,, it is clear that attention of the learned Single Judge was not drawn to a decision of the Supreme Court in Lalla Ram v. D.C.M. Chemical Works Ltd. and Anr. (1978-I-LLJ-507) as well as to the decision of a Division Bench of this Court in Aditya Mills Ltd. Madanganj v. Ram Dayal (1973-I-LLJ-538) It is also apparent that attention of the learned Single Judge was not drawn to the scope of Section 11A of 1947 Act and the distinction between the scope of the reference made under Section 10 and Section 33 of 1947 Act. It is also apparent that attention of the learned Single Bench was not drawn to the decision of the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. v. The Management (supra). In Lalla Ram's case, their Lordships of the Supreme Court have considered the scope of Section 33(2)(b). It observed (p.513):
'In proceedings under Section 33(2)(b), the jurisdiction of the Tribunal is confined to the enquiry as to (a) whether a proper domestic enquiry in accordance with the relevant rules, Standing Orders and the principles of natural justice has been held; (b) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (c) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the settled position that though generally the award of punishment of misconduct under the Standing Orders is a matter for the management to decide the Industrial Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, yet an inference of mala fides may, in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (d) whether the employer has paid or offered to pay wages for one month to the employee; and (e) whether the employer has, simultaneously or within such reasonably short time as to form part of the same transaction, applied to the authority before which the main industrial dispute is pending for approval of the action taken by him....'
The emphasised portion of this judgment clearly shows that even when a finding of misconduct is upheld, the court can in appropriate cases consider the question of victimisation.
24. In Aditya Mills Ltd. case, the court examined the plea of victimisation even where a finding of misconduct was held to be correctly arrived at. The judgment of the Supreme Court in Lalla Ram's case clearly shows that the Supreme Court has not accepted the limited scope of the term 'victimisation' as sought to be given in Bharat Iron Works v. Bhagu Bai (supra) and that decision cannot be read as laying down a proposition of law that inference of victimisation cannot be drawn in any case where the employee is found guilty of misconduct. The very fact that the statute (Section 11A) has conferred wide powers on the adjudicating authorities to set aside the penalty imposed on an employee, once it finds that the penalty is unduly harsh, severe, unconscionable or shockingly disproportionate or is unjust, it will always be possible for the Tribunal to say that the employer has acted with malice and has penalised the workman for extraneous reasons. That apart, the observations made in Multimetals Ltd. v. Jogendra Singh and Ors., have to be confined to the case under Section 33 and that cannot be treated as laying down a proposition of law in the context of a reference made under Section 10 of 1947 Act. If read otherwise, the observation of the learned Single Judge runs contrary to the decision of the Supreme Court and Division Bench of this Court and the same cannot, therefore, be treated as reflecting correct proposition of law.
25. Coming to the facts of the case in hand, it is more than evident that the Tribunal has examined the entire case in a correct perspective. It has correctly analysed the legal position as well as the factual position. The finding of the Tribunal that the two workmen had participated in a strike which was illegal because of violation of Section 23 of 1947 Act, is correct. The facts which have come on record show that an industrial dispute was already pending between the employer and the workmen in respect of Deamess Allowance. It has also been found as a matter of fact that on the question of bonus a settlement had been arrived at between the employer and one union. The settlement was very much in operation on the date of commencement of strike and, therefore, irrespective of the question as to whether the settlement was reasonable and justified, it must be held that the workmen acted in contravention of Section 23(c) by resorting to strike with effect from September 28, 1971. However, it cannot be said that they had incited the workers, it is to be noted that the employer had not come forward with a plea that the workmen were in a position to exercise influence over other authorities or other workers. Therefore, merely because the two workmen had threatened others, it cannot be said that they had instigated or incited the strike. To this extent the Tribunal's finding cannot be held as correct. In the question of presence of the workmen in the incidence which took place on October 7, 1971, the findings recorded by the Tribunal may not be very elaborate but even then it cannot be said to be perverse. These findings of the Tribunal are based on evidence available on record. The Tribunal has made a rational evaluation of evidence produced by both the parties. It has neither ignored any piece of relevant evidence nor has it considered an inadmissible evidence. Therefore, I do not find any justification to hold that the Tribunal has committed any error of law in holding that the findings of misconduct arrived at during the domestic inquiry are correct except to the limited extent pointed out above.
26. On the question of punishment, the Tribunal has given cogent reasons as to why it holds that the punishment imposed on the two workmen is unjust, arbitrary and excessive. The Tribunal has relied on the following factors:
(1) length of service of the two workmen,
(2) absence of any previous misconduct relating to strike,
(3) the fact that the workmen remained in custody between October 7, 1971 and October 13, 1971 and still the strike continued without any incitement or instigation by the workmen,
(4) the strike came to an end on the basis of the offer given by the employer and the employer had agreed not to resort to general victimisation.
(5) the employer had filed complaint against seven workmen for prosecution but initiated disciplinary action only qua the two workmen.
27. Shri Kala, learned counsel for the employer, has not been able to point out as to how any one of the aforesaid reasons given by the Tribunal is perverse or is irrelevant. He has not been able to place any material before the court to show as to why the employer resorted to disciplinary action only against the two workmen. No reason has been advanced by the employer as to why it decided to pick up the two workmen for the purpose of disciplinary action while seven of them were prosecuted simultaneously. The action of the employer in applying the theory of pick and choose has remained totally unexplained. This shows that the employer has acted arbitrarily.
28. In Narendra Kumar Yadav v. State of Rajasthan, 1989(2) RLR 849, this Court declared that all the police employees who were dismissed from service on account of participation in agitation constituted one class and the employer should not have discriminated them in the matter of deciding their appeals etc. In Sengara Singh v. State of Punjab (1984-I-LLJ-161) and in Lt. Governor of Delhi v. Dharam Pal, (1991-I-LLJ-605) Their Lordships of the Supreme Court declared that when a large number of police constables had participated in an agitation and number of them had been reinstated, there was little justification for not taking back the remaining persons in service and that the failure of the employer to do so amounted to discrimination.
29. This Court cannot be oblivious of the scope of interference in a certiorari jurisdiction. This court has always to remember that except in the cases of perversity or excess of jurisdiction, orders passed by the Tribunals do not call for interference under Article 226 of the Constitution. A mere possibility of formation of a different opinion on the question of fact and even on the question of law does not warrant interference by this Court. Before entering into a detailed reappreciation of the findings recorded by the Tribunal and the conclusions reached by it and before entering into a lengthy debate, the Court must see as to whether the order under challenge suffers from an error apparent on the face of it. An error which can be discovered by a minute reappraisal of evidence or by hairsplitting, the finding recorded by the Tribunal cannot be treated as an error of law apparent on the fact of the record. The Legislature has intentionally conferred vast jurisdiction under Section 11A on the adjudicating authorities. These adjudicating authorities consist of the persons having specialised knowledge of Labour Legislations. Therefore, this Court must be extremely slow in interfering with the order/award passed by the I adjudicating authorities like Industrial Tribunal/ Labour Courts. The Apex Court has clearly demarcated the scope of the interference in exercise of its certiorari jurisdiction in Syed Yakoob v. K.S. Radha Krishnan, AIR 1964 SCC 477, when it said:
'The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of record can be correct by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.
A finding of act recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned findings. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court.'
30. In Shaikh Mohammed Umarsahebn v. Kadalaskar Husham Karimsab, AIR 1970 Sc 61, Their Lordships of the Supreme Court made the following observations with reference to the jurisdiction of the High Court under Article 227 of the Constitution:
'Whether the evidence adduced before the trial judge was not so immaculate that another Judge would have taken a different view, it cannot be said that there was no evidence on which the trial Judge could have come to the conclusion he did. When the trial court accepts the evidence, the High Court which is not hearing an appeal cannot be expected to take a different view in exercising jurisdiction under Articles 226 and 227 of the Constitution.'
31. In Jitendra Singh v. Shri Baidya Nath Ayurved Bhawan Ltd. and Anr. (1984-II-LLJ-10 at 11) their Lordships of the Supreme Court examined the scope of interference by the High Court in the award passed by the Labour Court or the Tribunal in exercise of its power under Section 11A and observed: (p-11)
'Under Section 11A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence, the High Court is indisputedly entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and there upon remit the matter to it for fresh disposal in accordance with law and directions, if any....'
32. In view of the above, it must be held that the awards passed by the Tribunal do not call for interference by this Court in either of these writ petitions.
33. So far as Makhanlal Gupta is concerned, he has been paid half of the amount awarded by the Tribunal. For the remaining amount, stay order passed by this Court has operated. The petitioner Company is, therefore, directed to make payment of the remaining amount. Since the Company, had retained the amount of Rs. 5,000/- though under the order passed by the Court, it shall pay the remaining amount of Rs. 5,000/- alongwith interests to the workman at the rate of 12% from January 20, 1982 to the date of actual payment. So far as Har Prasad Saxena is concerned, he has entered into a settlement with the employer during the pendency of the writ petition and has accepted a sum of Rs. 39,000/- from the employer in lieu of reinstatement. Although he has subsequently filed an affidavit to wriggle out of the terms of settlement, I am of the opinion that there is little justification for ignoring the settlement entered by him with the employer. Shri Har Prasad Saxena was being paid Rs. 300/- per month under the orders of this Court He has now received an amount of Rs. 39,000/- under the settlement, therefore, no further relief will be admissible to him.
34. With these observations, all these writ petitions are dismissed.