Reliance Jute Mills (international) Ltd. Vs. Fifth Industrial Tribunal and ors. - Court Judgment

D.P. Kundu, J.

1. The writ petitioner, a company registered under the provisions of the Companies Act, 1956 (hereinafter referred to as the Employer), has called in question an award dated April 13, 1999 passed by the 5th Industrial Tribunal, West Bengal in Case No. VIII-93/97.

2. The respondent No. 3 (hereinafter referred to as the workman) while serving the employer was charge-sheeted on the allegation that on May 18, 1983 while the workman was on duty and going home after completing his duties, the darwan of the mill found him carrying one tin containing three gunny bags belonging to the company. The darwan asked the workman why he was taking away gunny bags of the company without any authority but the workman could not give any explanation. Thereafter a disciplinary proceeding enquiry was conducted against the workman on the basis of the chargesheet and the workman was found guilty of the charges levelled against him and the workman was dismissed from the service of the employer.

3. Consequent upon the dismissal of the workman an industrial dispute between the employer and the workman was raised and the said dispute had been referred to by the appropriate company to the 5th Industrial Tribunal, West Bengal for adjudication of the following issues.

Issue

'Whether dismissal of Shri Om Prakash is justified?; To what relief, if any, is he entitled?'

During the pendency of the Industrial Dispute before the 5th Industrial Tribunal, West Bengal, the validity of domestic enquiry was heard and decided by the Tribunal at first and both the parties were given opportunities to adduce their evidences and on the basis of such hearing and evidence on record the Tribunal arrived at a conclusion by its order No, 98, dated September 17, 1998 that the domestic enquiry held against the workman was proper, valid, and no natural justice had been avoided or violated and the workman had got nothing to say about domestic enquiry.

4. After the aforesaid order No. 98 dated September 17, 1998 was passed by the Tribunal, the workman filed a petition under Section 11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) and prayed for taking a lenient view about the punishment imposed by the employer.

5. By the award under challenge the Tribunal passed its order in connection with the application preferred by the workman under Section 11-A of the said Act. The relevant portion of the said award is quoted herein below:

'So in my view, as a Court of law and justice, a lesser punishment should be imposed considering the gravity of offence committed by the workman in the instant case. In doing so I fully rely upon the recent rulings of Supreme Court of India as reported in 1995 L.L.N. Vol. 2 p. 291 and 1997 L.L.R. p. 70, where in both the cases, Hon'ble Supreme Court took a lenient view and directed reinstatement of the workman. Relying on the above rulings I like to take a lenient view under Section 11-A of the Industrial Disputes Act, 1947, I hold that the order of dismissal issued by the company against the workman is not proportionate with the nature of offence committed by the workman and as such I set aside the said order of dismissal against the concerned workman. I direct the company to reinstate the concerned workman, Sri Om Prakash in his original service with immediate effect. For ends of justice I direct the company to pay him 25% of his back wages from the date of dismissal till the date of reinstate. Hence, it is ordered that the present reference be and the same is hereby allowed in part. For ends of justice I allow the petition of workman under Section 11-A of the Industrial Disputes Act. The order of dismissal issued by the company against the workman is hereby set aside. I direct the company to reinstate the workman, Sri Om Prakash in his original service with 25% of his back wages from the date of dismissal till the date of reinstatement.

This is my final award on contest. The instant reference is thus disposed of.'

6. It is apparent from the above-quoted portion of the award under challenge that the Tribunal allowed the petition of the workman under Section 11-A of the said Act and the order of dismissal issued by the employer against the workman was set aside. It further appears from the above-quoted relevant portion of the award that the Tribunal directed the employer to reinstate the workman in his original service with 25% of his back wages from the date of dismissal till date of reinstatement.

7. While passing the above-quoted order the Tribunal referred to and relied upon two decisions alleged to have been passed by Supreme Court of India as reported in 1995 (II) LLN 291 and 1997 LLR 70. The reason recorded by the Tribunal for setting aside the order of dismissal is that the punishment imposed upon the workman is not proportionate with the nature of offence committed by the workman. The Tribunal observed 'admittedly, this workman has committed theft of three gunny bags of the company on May 18, 1983 which has been duly proved by the company. He has done a wrong no doubt but what should be the punishment inflicted. The company has taken a very harsh step and gave extreme penalty by dismissing him from the service. In my view, such punishment has been too much and too harsh in comparison with the offence committed by him. It is a fact that the workman has committed theft in respect of three gunny bags whose value, in my view, would be maximum Rs. 100/-. For this petty offence the management was not justified in dismissing from service by giving him a capital punishment.'

8. The learned advocate appearing for the employer argued that the award of the Tribunal is arbitrary. The learned advocate for the employer argued that when theft committed by the workman has been proved, then he cannot be retained in service and Tribunal wrongly exercised its discretion under Section 11-A of the said Act by interfering with the punishment imposed by the employer. On the other hand, the learned advocate for the workman argued Section 11-A of the said Act conferred wide power upon Tribunal to interfere with the order of dismissal passed by the employer against a workman whenever the Tribunal thinks it fit and proper. Both the sides referred to and relied upon number of decisions. I, therefore, propose to refer those decisions later on in this judgment.

9. In Govinda Menon v. Union of India, reported in : (1967)IILLJ219SC , Supreme Court laid down:

'If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justified immediate dismissal. That misconduct according to my view need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master and the master will be justified, not only if he discovered it at the time, but also if he discovers it afterwards, in dismissing that servant.'

10. It is clear from the aforesaid decision of Supreme Court that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justified immediate dismissal. There can be no doubt that theft committed by a workman while he was on duty is consistent with the faithful discharge of his duty in the service. Following the above principle laid down by the Supreme Court in Govinda Menon's case (supra) I am of the view that when a workman is found guilty of committing theft while on duty, dismissal from the service is justified and cannot be interfered with by a Tribunal under Section 11-A of the said Act.

11. A Division Bench of this High Court in Wimco Shramik Union v. 7th Industrial-Tribunal, reported in 1987 LIC 77, held:

'When in the instant case, the employee concerned was really guilty of stealing Company's property his act or action can certainly be deemed to be an act of misconduct and while on this point we agree with Dr. Pal's submissions that unless such an employee of the present nature, who was found guilty of such misconduct of stealing as mentioned above, is allowed to proceed with or such admitted finding of the guilty conduct is allowed to be exonerated by a lesser punishment under Section 11-A of the said Act, it would be very difficult for the employer to maintain discipline in the organisation. Such being the fact and when on the basis of the findings of the respondent Tribunal it is abundantly clear that the respondent Company, in the instant case took necessary steps in terms of their certified standing orders, there was no violation of any natural justice or lack of any opportunity to the employees concerned and over and above that there was concession made by the learned lawyer appearing for and on behalf of the employee concerned on the point as indicated hereinbefore, the respondent Tribunal was justified in the making of the impugned order. We observe so and we are also of the view, that although Section 11- A of the said Act gives some discretionary powers to the authorities as mentioned therein, to interfere with the punishment as imposed in some cases, but such discretionary power is not absolute and the same must be used and exercised sparingly and in proper case or in such case where the employee concerned has not been found to be guilty of offence charged under the certified standing orders and there has been no violation of any principles of natural justice and fundamentals of fair play.'

'.....in this case, of course, the act as complained of against the employee concerned was a misconduct under the certified standing orders of the company and more particularly under Clauses 52(d) and 52(p). The offence as alleged against the employee concerned, in our view, would expose him to penal consequences under the Standing Orders of the respondent Company and considering the gravity of the offence, we also feel that the order of dismissal as was passed, was not justified. We further feel that the offence of theft as in this case, which was committed by the employee concerned, showed that he was dishonest and his stability and reliability to continue in service may be affected by that reason and would have a bearing on his contract of service and as such, in terms of the observations in J. K Cotton and Spinning & Weaving Co. Ltd. v. Its Workmen, 1965-II-LLJ-153 (SC) the said offence would be a good ground for dismissing the employee concerned from the service. While on the point of theft, we also feel that in inflicting the punishment for the misconduct of the theft, the nature of theft will have an important bearing and in this case on thebasis of the offence as committed, the punishment as imposed was neither harsh nor improper or unwarranted. Such being the position, the submission of Mr. Dutt that the respondent Tribunal, while making the impugned Award, should have considered the long period of unblemished service rendered by the employee concerned to his employer, had no merit in terms of the determination in Rustom Hornsby (P) Ltd. v. T.B. Kadam : (1975)IILLJ352SC even an attempt to steal the employer's property on the part of the workman was serious charge and deserves nothing short of dismissal.'

12. Thus, it is well-settled principle of law that when a workman is found guilty of stealing company's property (whatever may be the value of the property) his such misconduct cannot be lightly taken into account. If such workman is allowed to be exonerated by a lesser punishment under Section 11-A of the said Act, then it would be difficult for the employer to maintain discipline in the organisation. Under these circumstances, I am of the view that the punishment of dismissal imposed upon the workman was absolutely appropriate and proportionate to the gravity of the misconduct and is also justified and should not have been interfered with by the Tribunal under Section 11-A of the said Act.

13. In Garden Reach Ship Builders and Engineers Ltd. v. 3rd. Industrial Tribunal and Ors. reported in 1998 CLR 1195, I held that where workman is dismissed for theft of about 875 grams of tea dust after holding departmental enquiry, interference by the Tribunal on the ground that punishment of dismissal was excessive and therefore, unjustified cannot be held as good and legal.

14. The learned advocate appearing for the petitioner referred to and relied upon Mukund Engineering Works v. Bansi Purshottam, 1994 (Supp) 2 SCC 725 : 1995-II-LLJ-62. This was the judgment which the Tribunal relied upon while passing the award. The judgment is very short, and quoted herein below : 1995-II-LLJ-62 at 62:

'Judgment

1. Leave granted.

2. Heard learned counsel for the parties. In view of the finding recorded by the Labour Court as also by the High Court, the misconduct of the respondent workman stood proved. In this situation of gravity it becomes understandable as to why the respondent should get reinstatement and that too with back wages. In the totality of circumstances, we feel that the respondent should be bound to opt for either of the two, i.e. he should either get reinstatement with no back wages or just back wages without reinstatement. However, Sri Mehta appearing for the appellant has offered that should the respondent be held entitled to back wages only, the management is prepared to pay a further sum of Rs. 20,000/- to close the issue. We find this offer to be more opt and reasonable. Therefore, we alter the orders of the High Court as also that of the Labour Court in denying to the respondent reinstatement but holding him entitled to the back wages till date plus another sum of rupees twenty thousand as offered by Sri Mehta. The appeals are allowed accordingly with the aforesaid terms. The respondent be paid the sum he is entitled to within six weeks, subject to adjustments, if any. No costs.'

15. From this judgment it does not appear what was the charge against the employer. The learned advocate for the petitioner argued since the nature of the charge against the workman cannot be gathered from the reported decision, such decision has no manner of application in the facts and circumstances of the present case where the workman was found guilty of committing theft of the employer's property. A bare perusal of the said judgment makes it clear that it is not possible to find out what was the charge against the workman in the said case. Under these circumstances, I am of the view that the ratio of that decision cannot be made applicable in the facts and circumstances of the present case.

16. The next case, the learned advocate for the writ petitioner referred to is Godrej & Boyce . v. Principal Labour Court, Madras and Anr., reported in 1998-1- LLJ-117 (Mad). This is a judgment relied upon by the Tribunal while passing the award in favour of the workman in connection with the application under Section 11-A of the said Act. The Tribunal thought that the decision was delivered by the Supreme Court but it appears from the reported decision that this decision was rendered by a single Bench of Madras High Court. The learned advocate for the petitioner argued that this shows that the Tribunal did not apply its mind at all. However, I must consider the relevant portion of the decision of the learned Single Bench of the Madras High Court, of the reported decision in Godrej & Boyce . v. Principal Labour Court, Madras (supra) reads as follows:

'The nature of charge of misconduct in this case being acts of dishonesty and forgery, in my view, cannot be condoned, by exercising power under Section 11-A so as to interfere with the punishment awarded by the management. The reasons given by the Labour Court for interfering with the award exercising powers under Section 11-A, in my view, are totally undesirable and perverse. Difficulty of securing employment is known to everyone, and respondent No. 2 ought to have been aware of the same. The difficulty of getting employment should have detained and deterred the second respondent from indulging in the acts of grave misconduct. The difficulty of getting employment cannot be a ground to put premium on the grave misconduct of respondent No. 2. Continuance of such persons in the employment would not be in the interest of the industry or organisation. It may even demoralise others in the industry. The punishment awarded by the management was just having regard to the facts and circumstances of the case and the charges found established.'

17. It is apparent that the learned single Bench of the Madras High Court held that forgery and dishonesty are very serious offences which call for, if proved, dismissal from service. The Tribunal did not notice this paragraph of the single Bench decision of Madras High Court. I respectfully agree with the above quoted view.

18. The learned advocate for the writ petitioner referred to Christian Medical College Hospital Employees' Union and Anr. v. Christian Medical College, Vellore Association and Ors., reported in : (1988)ILLJ263SC . The relevant portion from relevant paragraph 14 of the reported decision reads as follows at p. 274 of LLJ:

'14. Section 11-A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Section 11 -A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision.'

19. Thus, it is clear that Section 11-A ofthe said Act does not confer any arbitrarypower on the Industrial Tribunal or the LabourCourt. It is also clear that the power conferredupon the Industrial Tribunal or the LabourCourt under Section 11-A of the said Act hasto be exercised judicially and the IndustrialTribunal or the Labour Court is expected tointerfere with the decision for a managementunder Section 11-A of the said Act only whenit is satisfied that the punishment imposed bythe management is highly disproportionate tothe degree of guilt of the workman concerned.

The Industrial Tribunal or the Labour Court has to be given reasons for its decisions. I have already referred hereinabove the decision of Supreme Court in Govinda Menon's case (supra), in that case the Supreme Court without any ambiguity laid down that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty or the service, it is misconduct which justified immediate dismissal. Therefore, I am of the view that in view of principle laid down by the Supreme Court in Christian Medical College Hospital Employees' Union (supra) the Tribunal, in the instant case arbitrarily interfered with the order of dismissal passed by the employer.

20. The learned advocate for the employer referred and relied upon the State of Karnataka v. H. Nagaraj, reported at : (1999)ILLJ1124SC in paragraph 3 of the reported decision Supreme Court observed as follows at p. 1125 of LLJ:

'3. The same view has been reiterated in a more recent decision of this Court in Union of India v. G. Ganayutham : (2000)IILLJ648SC . This Court has held that the principle of proportionality can be invoked regarding punishment only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standards. Such is not in the present case. Hence, the order of the Tribunal which is impugned before us is set aside and the order of the appellate authority is restored. The appeal is accordingly allowed. No costs.'

21. It appears that principle of proportionality can be invoked by the Tribunal in exercise of its power under Section 11-A of the said Act regarding punishment of dismissal only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standards. I am of the opinion that such is not the position present in the present case. Hence, I am of the view that the order of the Tribunal which is impugned before this Court should be set aside.

22. The learned advocate for the writ petitioner relied upon New Shorrock Mitts v.Maheshbhai T. Rao, reported at : (1997)ILLJ1212SC . In this case in paragraph 8 of the reported decision the Supreme Court held that Labour Court completely misdirected itself in ordering the respondent's reinstatement with 40% back wages. In that case the workman was dismissed from the service because he was found guilty of seriously misbehaving. The Supreme Court observed at p. 1214 of LLJ:

'8. It appears to us that the Labour Court completely misdirected itself in ordering the respondent's reinstatement with forty per cent back wages. The Labour Court was exercising jurisdiction under Section 78 of the Bombay Industrial Relations Act, 1946. It had the jurisdiction, inter alia, to decide the disputes regarding the propriety and legality of an order passed by an employer acting or purporting to act under the Standing Orders. The Labour Court, in the present case, having come to the conclusion that the finding of the departmental inquiry was legal and proper, respondent's order of discharge was not by way of victimisation and that the respondent workman had seriously misbehaved and was thus guilty of misconduct, ought not to have interfered with the punishment which was awarded in the manner it did.'

23. In the instant case also the Tribunal had arrived at a conclusion that the departmental enquiry held against the workmen was fair and not violative of principles of natural justice therefore the Tribunal should not have interfered with the order of dismissal, particularly when the workman found to be guilty of committing theft of employer's property.

24. The learned advocate for the writ petitioner referred to Municipal Committee Bahadurgarh v. Krishan Behari and Ors., reported in : [1996]2SCR827 . That was case of an employee who was governed by Article 311(2) of the Constitution of India. Paragraph 4 of the reported decision reads as follows:

'It is obvious that the respondent has been convicted of a serious crime and it is a clear case attracting proviso (a) to Article 311(2) of the Constitution. In a case of such nature -indeed, in cases involving - corruption there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The Director had interfered with the punishment under a total misapprehension of the relevant factors to be borne in mind in such a case.'

25. In this case the Supreme Court clearly laid down that in a case involving corruption there cannot be any other punishment than dismissal, it was held that any sympathy shown in such case is totally uncalled for and opposed to public interest. It was pointed out by the Supreme Court that the amount misappropriated may be small or large but it is the act of misappropriation that is relevant. In the instant case also the value of the property wanted to be stolen may not be big one but the very nature of the misconduct that is the theft of the employer's property that is very, serious one which calls for penalty of dismissal from service.

26. The learned advocate for the workman vehemently opposed the argument of the learned advocate for the petitioner. He referred to the Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. Management and Ors., reported in : (1973)ILLJ278SC . The learned advocate referred to paragraphs 33 and 38 of the reported decision. The Supreme Court held that after inclusion of Section 11-A in the Industrial Disputes Act, 1947 the Tribunal is now at liberty to consider not only whether the finding of misconduct referred by an employer is correct but also to differ from the said finding if a proper case is made out. The Supreme Court held that what was once largely within the realm of the satisfaction of the employer has seized to be so, and now it is the satisfaction of the Tribunal that finally decides the matter. The Supreme Court also laid down that the Tribunal cannot re-appraise the evidence for itself. But in the instant case the Tribunal held that the workman was found guilty of the charges of committing theft of employer's property. The Workmen of Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. case (supra) did not lay down that in exercise of power under Section 11-A of the said Act the Tribunal can interfere with the just and proper order of dismissal passed by the employer when the workman was found guilty of committing theft of the employer's property. It is extremely difficult to hold, relying upon the decision of Supreme Court in the Workmen Firestone Tyre and Rubber Co, of India (Pvt.) Ltd. (supra), that the Supreme Court intended that even the Tribunal can interfere with the order of dismissal in a case where the workman was found to be guilty of committing theft of the employer's property. Therefore, I am of the view that this case has no manner of application in the facts and circumstances of the present case.

27. The learned advocate for the workman relied upon Sri Ganeswar Aluminimum Factory, Madras v. Industrial Tribunal, Madras, 1982-I-LLJ-159 (Mad-DB). The learned advocate relied upon paragraph 4 of the reported decision which reads as follows at p. 161:

'4. There could therefore be no doubt that even in a case where the Tribunal agrees with the management that the misconduct is proved, it may award a lesser punishment if it were of opinion that the proved misconduct does not merit punishment by way of discharge or dismissal.'

28. There is no doubt about the proposition of law that Tribunal can in a given case interfere with the order of punishment but the facts and circumstances of the present case do not deserve such interference by the Tribunal in exercise of power under Section 11-A of the said Act.

29. The learned advocate for the workman relied upon R. M. Farmer v. Gujarat Electricity Board, 1983-I-LLJ- 261 (Guj-DB). The learned advocate referred to sub-paragraph 4 of paragraph 6 of the reported decision which reads as follows at p. 264, 265:

'6. (4) Be it administration of criminal law or the exercise of disciplinary jurisdiction indepartmental proceedings, punishment is not and cannot be the end in itself. Punishment for that sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered:

(1) In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.

(2) The main purpose of a punishment is tocorrect the fault of the employee concernedby making him more alert in the future andto hold out a warning to the other employeesto be careful in the discharge of their dutiesso that they do not expose themselves tosimilar punishment. And the approach to bemade in the approach parents make towardsan erring or misguided child.

(3) It is not expedient in the interest of the administration to visit very employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.

(5) When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed.

(6) It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, be might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.

(7) When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.

(8) Every harsh order of removal from service creates bitterness and arouses a feeling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society.

(9) Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a storekeeper from stores in his charge for instance, may be viewed with seriousness). A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of kleptomania when committed by the rich.

The Labour Court is exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the legislation.'

30. There cannot be any dispute about the proposition of law laid down in mat case. But the question is whether the workman can take benefit of such proposition. As stated by me earlier in this judgment the Supreme Court in Govinda Menon's case (supra) and Municipal Committee v. Krishan Behari (supra) held that serious misconduct of the employee calls for immediate dismissal from the service. Since the facts and circumstances of the present case call for dismissal from service, I am of the view that the decision of Gujarat High Court in R. M. Farmer's case (supra) does not help the workman.

31. The learned advocate for the workman also relied upon Jitendra Singh Rathor v. Sri Baidyanath Ayurved Bhavan and Anr,, : (1984)IILLJ10SC . In that case the Supreme Court in paragraphs 5 and 6 of the reported decision observed as follows at pp. 10 at 11, 12 of LLJ:

'5. 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 directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.

'6. Under Section 11-A 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 indisputably 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 thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the directions of reinstatement and computed compensation of Rs. 15,000/- in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the Tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing Orders. The salary and other service benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation of Rs. 15,000/- it acted without any legitimate basis.'

32. These two paragraphs also do not help the workman for the very simple reason that here the allegation against the workman was committing theft of employer's property which calls for only one penalty that is dismissal from service.

33. The learned advocate for the workman referred to Scooter India Ltd. v. Labour Court, Lucknow, : (1989)ILLJ71SC . The learned advocate relied upon paragraphs 2 and 4 of the reported decision. But the facts and circumstances involved in that case are absolutely different from those of the instant cases. In Girija Shanker (supra) the allegation against the employee was not that of committing theft of employer's property. Therefore, the said decision has no manner of application in the facts and circumstances of the present case.

34. The learned advocate for the respondents relied upon a decision of Division Bench of Madras High Court in T. Muthuswami v. P.O. Labour Court, Coimbatore, 1991-11-LLJ-405 (Mad-DB). The learned advocate for the workman referred to paragraph 7 of the reported decision. The relevant Mines of the paragraph 7 read as follows at p. 408 of LLJ:

'7. A perusal of the Award of the Labour Court shows that there is sufficient indication in that Award of the fact that the Labour Court was aware and alive of the norms and requirements of Section 11-A of the Act. Having found the misconduct of the appellant to have been proved it then proceeded to consider the desirability to interfere with the punishment imposed by the management. While considering the relief to be granted, the Labour Court took into account the various mitigating circumstances which have been extracted elsewhere in this judgment. The approach of the Labour Court thus was perfectly right. The Labour Court recorded a finding that in the totality of circumstances the charges proved do not warrant the extreme punishment of dismissal. We, therefore, find the Labour Court to have exercised the discretion properly and judiciously and after taking all such relevant factors into consideration as are required by law to be so taken. The Parliament by enacting Section 11-A of the Industrial Disputes Act had advisedly left a wide discretion in the Labour Court or the Tribunal and, in our opinion, that discretion was exercised by the Labour Court both judicially and judiciously.'

35. In the instant case I am of the view that in view of the nature of misconduct the Tribunal should not have interfered with the punishment of dismissal passed by the employer. The Tribunal while interfering with the order of dismissal in exercise of power under Section 11-A of the said Act did not act judiciously in view of the Supreme Court decision in Govinda Menon's case (supra) and Municipal Committee case (supra). Therefore, the said decision in T. Muthuswami case (supra) does not help the workman.

36. The learned advocate for the workman referred to and relied upon the Orissa Agro Industries Corporation v. Bhim Sen Maharaja and Ors., 1992-I-LLJ-23 (Ori-DB). The learned advocate referred to paragraphs 19, 20 and 21 of the reported decision. In view of the discussions made hereinabove I am of the view that decision in Orissa Agro Industries Corporation case (supra) also does not help the workman.

37. The learned advocate for the workman submitted that in the Orissa Agro Industries Corporation, the workman was found guilty of misappropriation but still the Tribunal interfered with the order of dismissal under Section 11-A of the said Act. But I am unable to agree with the finding of the Division Bench of Orissa High Court in Orissa Agro industries Corporation case (supra), in view of the Supreme Court decision in Govinda Menon's case (supra) and Municipal Committee case (supra).

38. The learned advocate for the workman referred to Sujit Kumar Banerjee v. Indian Explosives Ltd. and Ors., 1993 (1) CHN 240. In that decision, the Division Bench of this High Court laid down that unless it is established that the findings of the Tribunal are perverse, or there are errors of law apparent on the face of record the High Court shall not interfere with the award of the Tribunal in exercising power under Article 226 of the Constitution of India.

I cannot dispute that proposition of law but I have already indicated hereinabove that the facts and circumstances involved in the present case call for dismissal of the workman from the service of the employer and therefore, the decision of Sujit Banerjee's case (supra) does not help the workman.

39. In view of the discussion made hereinabove, I am of the view that the Tribunal arbitrarily, injudiciously interfered with the order of dismissal passed by the employer in exercise of power under Section 11-A of the said Act. Therefore, the said award is liable to be set aside and quashed. I do hereby set aside and quash the award dated April 13, 1999 passed by the 5th Industrial Tribunal, West Bengal in case No. VIII-93/97. The writ petition is allowed, however, there shall not be any order as to costs.