ORDER
G.S. Singhvi, J.
1. This is a petition for quashing of the award dated August 23, 1988 passed by the Labour Court, Bhatinda in Reference No. 1 of 1988 'Ram Singh v. General Manager, Punjab Roadways, Moga and another'.
2. Although none has appeared on behalf of the parties, we do not consider it appropriate to dismiss the petition in default because this Court has not been able to give hearing to the petitioner for last almost one decade.
3. The facts borne out from the writ petition, the written-statement and the impugned award show that after he had served the Punjab Roadways for 11 years, the petitioner (workman) was removed from service on the charge of absence from duty. The dispute raised by him was referred by the Government of Punjab under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short 'the Act') to the Labour Court Bhatinda for adjudication. The petitioner challenged the termination of his service on the ground that the departmental enquiry held by the employer was not fair and proper and also on the ground that the termination of his service was not justified. By the impugned award the Labour Court held that the workman was afforded sufficient opportunity to defend himself and the failure of the Enquiry Officer to give him opportunity to seek the assistance of co-worker does not have the effect of vitiating the enquiry. On the basis of this conclusion, the Labour Court upheld the termination of the service of the petitioner.
4. The petitioner has challenged the action of the employer on those very grounds which were raised by him before the Labour Court. He has questioned the award on the ground that the Labour Court has failed to exercise the jurisdiction vested in it under Section 11-A of the Act inasmuch as it has not examined the merits of the finding recorded on the allegation of misconduct and it has not considered the justness of punishment awarded by the employer.
5. The issue relating to the fairness of the departmental enquiry has been considered by the Labour Court at great length, as would appear from the following extract of the impugned award.
'It is admitted by the workman that his service has been terminated after an enquiry. The short ground on which he assails removal from service is that this enquiry was not fair and proper. Not a word has been said in the written statement what was wrong with the enquiry. In the witness box however the workman disclosed for the first time his grounds of attack. These are (i) that he was not told to bring a co-worker; (ii) that he was not supplied with the copies of enquiry proceedings; and (iii) that he was not supplied the documents and the copy of the complaint and (iv) that he was not given personal hearing. Unfortunately the record of the enquiry proceedings which concluded on October 10, 1974 nearly 14 years ago is not traceable. Mysteriously the workman did not raise the industrial dispute for seven years after his removal from service and served the demand notice on October 31, 1981. In view of the statement of Balraj Kumar, Clerk of the respondent to the effect that the enquiry file is not traceable there is good ground for admitting secondary evidence documents and all of them have come from the custody of the workman himself. Ex.M/1 is charges with statement of allegations. Ex.M/2 is the photo copy of the report of the enquiry officer and Ex.M/3 is the impugned order of the Respondent No. 1 removing him from service on the report of the enquiry officer. Charge against the workman was that he was absent without leave and information from July 15, 1974 onwards (Ex.M/1). The workman replied that he had handed over his leave application for 15th and 16th of July after it was sanctioned by the Assistant Supervisor Sh. Rajinder Singh to the workshop clerk Surinder Singh, that subsequently he had fallen sick in his village Nausherhra Pannuan and sent a Medical Certificate from July 17, 1974 to August 2, 1974. Thus it was not denied that the workman was absent during the period in question. He could succeed only on the plea of defence that his leave application in fact was sanctioned and delivered to Surinder Singh Clerk and that he had subsequently fallen so sick that he could not attend to his duty. The employer however produced before the inquiry officer the very witnesses whom the workman should have examined in defence. Rajinder Singh A. S. S. did not support the workman's plea that he had accepted his leave application, Surinder Singh denied that the workman had handed over to him any application upon which Rajinder Singh had sanctioned his leave for July 15 and 16, 1974. The principal plea of defence was thus belied. The enquiry officer took notice of the Medical Certificate which the workman had sent to the office from his village by post and observed that it disclosed that the workman was an outdoor patient and that the certificate was issued on August 2, 1974. He concluded that if the workman could go to the hospital for obtaining medicine he could well have got his leave sanctioned. He was of the opinion in the report that several opportunities were given to the workman to produce evidence in defence but he did not, Ex.M/3 discloses that a copy of the enquiry report was sent to the workman along with the show cause notice that the same was received by him under his signatures on October 28, 1974 and that inspite of the fact that he was called upon to reply within 15 days, he had not responded till November 27, 1974. Thus in all essential features, the enquiry was fair and proper.
As for the grounds of attack referred to above it was not for the enquiry officer to tell the workman to have the assistance of a co-worker. It was for him to procure such assistance. The workman had participated in the inquiry proceedings throughout. Supplying copies of the enquiry proceedings was not necessary. That besides he did not depose that he had demanded copies of proceedings and these were refused. No documents were relied upon as against the workman. It was necessary to supply to the workman a copy of the complaint made by Surinder Singh, Clerk who had simply stated that the workman was absent from July 15, 1974 a fact which was not in dispute. Lastly when the workman did not avail of the opportunity of replying to the show cause notice, it is futile to allege that he was not given personal hearing. Above all when the success of the workman depended exclusively on the proof of his defence version, no prejudice could possibly have been caused to him by any of the alleged flaws in the enquiry now complained of and none is shown to have been caused. It is well settled that it is not sufficient to point out a technical defect in the enquiry proceedings here and there. The delinquent official must also establish that such defect caused him prejudice for a meaningful challenge. For authority, I rely upon Janaki Nath Sarang v. State of Orissa (1970-I-LLJ-356) (SC) and State of Punjab v. Gurdip Singh 1985 (2) SLR 691 (P&H;)).'
6. We are in complete agreement with the views expressed by the Labour Court that the failure of the Enquiry Officer to call upon the workman to seek assistance of a co-worker does not have the effect of vitiating the enquiry because the petitioner failed to show that he could not defend himself properly and adequately without the assistance of a co-worker. Moreover, no manifest injustice is shown to have been caused to the petitioner due to the failure of Enquiry Officer to ask him to avail the opportunity of assistance by a co-worker. The allegation of absence from duty levelled against the petitioner was quite simple. It did not involve decision of any complex or intricate question of law. Thus, the petitioner could defend himself even without the assistance of a co-worker. Moreover, a look at the record of the departmental enquiry and the Labour Court shows that the petitioner did not make any complaint against the denial of assistance of a co-worker. Thus, we do not find any error of law in the finding recorded by the Labour Court on the issue of fairness of the departmental enquiry.
7. However, we find substantial merit in the petitioner's contention that the Labour Court has failed to exercise the jurisdiction vested in it under Section 11-A of the Industrial Disputes Act, 1947. The petitioner, 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 charge levelled against him 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.
8. 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 limitation of the jurisdiction of the Labour Court, Industrial Tribunal and the National Tribunal to interfere with the findings of guilt and the quantum of punishment awarded by then 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 at pp. 269-270 :
'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 naturaijustice, and (iv) when on the materials the finding is completely baseless or perverse'.
9. The same principle was reiterated in Punjab National Bank Ltd. v. Its Workmen (1959-II-LLJ-666). In that case 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.
10. 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 conclusions reached at the departmental inquiry were perverse or the impugned dismissal is vindictive or malafide and amounts to unfair labour practice.
11. In Hind Construction and Engineering Company Ltd. v. Their 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.'
12. 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.
13. 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.
14. 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 termination 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 that 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 neutral 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 proceedings 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 think 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 ...........'
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 object 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 the finding in an appropriate case and hold that 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 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 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 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 45 of the judgment, their Lord ships of the Supreme Court took notice of the departure 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 emphasises 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 58 of the judgment their Lordships again reiterated this position by making following observations :
'We have already expressed our view regarding the interpretation of Section 11-A. We have held that the previous law, according to the decision 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 the 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. Mohmood 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 stoppage of increments for two years on the basis to its finding that the punishment of termination was 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 extreme punishment of dismissal.
21. In Jitendra Singh v. Vidya Nath Ayurved Bhawan Ltd., (1984-II-LLJ-10), while examining the scope of Section 11-A the Supreme Court observed at p. 11 :
'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 (Suppl)-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 to 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 indiscreet, 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 by 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 had been reserved by the Supreme Court in Palghat BPL and PSP Thozhilali Union v. B. P. L. India Ltd. and 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 and another, decided on November 23, 1994, this Court after a review of various decisions laid down the following proposition 0 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 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 show 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 vested 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 August 23, 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.