ORDER
R.J. Kochar, J.
1. The petitioners are aggrieved by the judgment and order passed by the Industrial Court, Maharashtra at Mumbai on January 19, 1998 dismissing the appeal filed by them against an order of 7th Labour Court in Application BIR No. 235 of 1986. In the said application, the respondent employee had challenged the order of dismissal passed by the petitioners as illegal and improper and he had prayed for reinstatement with full back wages and continuity of service.
2. It appears that some of the employees had gone on strike in response to the call given by their union on October 16, 1984. This union was not a representative and approved union in the local area for the petitioners' undertaking. It appears that the respondent employee belonged to the said union. It further appears that on that date, he had threatened another bus driver that if he did not join the strike and if he worked during the strike, he will have to face dire consequences. It appears that the bus driver who was threatened had complained to the management against the respondent employee. It further appears that on his complaint, the respondent employee was charge sheeted under the standing Order 20(1) and 20 (R) i.e. any act subversive of discipline on the premises of the undertaking and intimidation of fellow employee of the Undertaking. The petitioners held a full fledged enquiry wherein, the respondent employee was allowed to be represented by his union representative. The witnesses examined by the petitioners were cross examined and as far as the procedural part of the enquiry is concerned, there is no challenge and it has been held to be fair and proper. The enquiry officer considered the evidence and also gravity of the misconduct and passed an order of dismissal of the employee with effect from April 11, 1985. I may mention here that the enquiry officer who is called as Trying Officer under the rules of the BEST undertaking is also empowered to pass an order of punishment.
2. Being aggrieved by the said order of the Trying Officer, the said employee preferred two appeals as per the rules but he failed in both the appeals. The employee, therefore, filed an application under Section 79 read with Sections 78 and 42(4) of the Bombay Industrial Relations Act, challenging legality and propriety of the order of dismissal. The parties completed their pleadings and the Labour Court by its order dated August 18, 1995 held that the enquiry was fair and proper and the findings were not perverse. However, he held that the punishment of dismissal was shockingly disproportionate and, therefore, the Labour Court granted reinstatement with full back-wages and continuity of service to the respondent employee. The petitioner filed an appeal before the Industrial Court under Section 84 of the Act against the order of the Labour Court. The Industrial Court by its order dated February 28, 1996 remanded the matter back to the Labour Court with a direction to consider, inter alia, and to record its findings as to whether the misconduct was proved and whether it was of serious nature and whether the punishment awarded by the Trying Officer was shockingly disproportionate. On remand the Labour Court held that the enquiry was fair and proper but the findings of the enquiry officer were wrong, illegal and perverse. He also held that the punishment of dismissal was harsh and shockingly disproportionate. The Labour Court directed the petitioner to reinstate him in his original post with continuity of service and full back wages. The petitioner again filed an appeal before the Industrial Court and the Industrial Court by its order dated January 19, 1998 dismissed the appeal and confirmed the order of the Labour Court.
3. The petitioners are aggrieved by the said order of the Industrial Court. Shri Talsania, the learned counsel for the petitioners has pointed out that both the Labour Court and Industrial Court have exceeded their jurisdiction and misdirected themselves by interfering with the well reasoned findings of the enquiry officer. According to the learned counsel, neither the Labour Court nor the Industrial Court had power and jurisdiction to reappreciate the evidence to come to a different conclusion by holding that the charges were not proved and that punishment was shockingly disproportionate. Shri Talsania further pointed out that there was some material before the Trying Officer on the basis of which the order of dismissal was passed against the employee. According to him it is not that the Trying Officer had given a perverse finding without any basis or evidence before him. Shri Talsania also pointed out that the bare minimum facts which are found are that the respondent employee had told his colleague that he should not work during the strike and that he will have to face dire consequences, if he works during the strike period. This fact has been admitted by the employee and has further been corroborated by the management witnesses. The complainant driver was also examined and has given his evidence to the effect that the employee had told him not to work during the strike period and that it will not be good for him. It appears that after lapse of time the complainant employee has watered down its versions. One fact is clear that the so called threat issued by the respondent employee was not carried out in any manner. Both the Courts below have recorded the concurrent findings of facts and have also recorded concurrent conclusions that in the given circumstances, the order of punishment was shockingly disproportionate.
4. In these circumstances, I am not able to agree with the submissions of Shri Talsania that the respondent employee could be punished by way of dismissal merely because he had a talk with the complainant employee not to work during the strike. It is not unusual that during the strike period, the striking employees do always try to persuade their fellow employees to join the strike and they try to dissuade those who go to join their duties. I agree with the contention that the striking employees should not and cannot threaten those who want to join their duties. In the present case, except a talk by the respondent employee with the complainant employee, there is no overt or covert act on the part of the respondent employee. There is no charge of violence or any other threat or intimidation. Even the complainant employee in the enquiry has not said anything else against the respondent employee, who had told the enquiry officer that the complainant was his friend and that he had merely jokingly told him not to work during the strike and that he had no intention to issue any threat to him as he was his friend. It appears that the employees have amicably compromised their stand and the complainant employee also did not want to take the things too far. In these circumstances, I agree with the concurrent conclusion of the Courts below that the order of dismissal of the respondent employee was shockingly disproportionate. Shri Talsania has tried to persuade me with a suggestion that as 50% wages have already been paid to the employee pursuant to the orders passed by this Court on July 2, 1999, as and by way of punishment 50% wages should be cut if at all the workman has to be reinstated with full back wages. I do not agree with such a suggestion. Once the punishment is shockingly disproportionate considering the act of misconduct alleged against the employee and considering his good past records I am not inclined to impose any punishment by way of denial of 50% back wages.
5. The petitioners however, would issue a letter of warning to the respondent employee which would remain on his record. With the above observations the petition is dismissed. Rule is discharged with no orders as to costs.