JUDGMENT
Dharmadhikari, J.
1. This writ petition is filed by the petitioner-employee against the order passed by the Industrial Tribunal, Thane on 23rd December, 1983, answering the reference in the negative and holding that the dismissal of the petitioner-employee is perfectly legal, valid and justified. It appears to be an admitted position that the petitioner was employed on 10th of September 1976 as a production operator and was getting Rs. 275 per month as wages. It is also an admitted position that the petitioner was a member of the factory committed of the Union. It then appears that some time in the month of June 1978 the employees started taking recourse to go-stow to press their demands. On 14th June 1978 the petitioner threatened the foreman in a rough tone and also participated in go-slow activity. As a result of this he came to be chargesheeted for his wilful insubordination or disobedience, whether or not in combination with another of any lawful and reasonable orders of the superior, willfully slowing down in the performance of the work or abetment or instigation thereof, disorderly or indecent behaviour on the premises of the establishment, commission of any act subversive of discipline or good behaviour on the premises of the establishment. A chargesheet on the basis of these charges was issued on 13th June 1978. Then came a supplementary chargesheet on the same day, whereby it was alleged that the petitioner refused to accept the chargesheet, order or other communication served in accordance with the standing orders. It also appears to be an admitted position that no reply was filed by the petitioner-employee to this chargesheet, since it was his case that after negotiations a settlement was arrived at between the parties. The respondent-employer chose not to proceed against any other employee, though they had also participated in the go-slow activity. He has given to understand that no action would be taken against him and the inquiry instituted will be dropped. In view of this representation he did not file any reply to the chargesheet, nor he participated in the inquiry. The Inquiry Officer ultimately on the basis of the evidence adduced before him came to the conclusion that the charges levelled against the petitioner are proved, and therefore, the petitioner came to be dismissed from service with effect from 7th of August 1978.
2. Being aggrieved by this dismissal order the union, representing the petitioner sought for a reference under Section 10(2) of the Industrial Disputes Act. The Industrial Tribunal initially came to the conclusion that though enough opportunity was given, the petitioner-employee did not participate in the inquiry. It also came to the conclusion that the inquiry held was perfectly legal and valid. Then on the basis of the inquiry papers, it also came to the conclusion that the punishment imposed is neither shocking nor disproportionate and could have been imposed under standing orders. As a result of this reference made came to be dismissed. As already observed it is this order of the Industrial Tribunal, which is challenged in the present petition.
3. Shri Kulkarni, learned Counsel appearing for the petitioner contended before us that from the bare reading of the chargesheet it is quite clear that no charge was ever levelled against the employee for instigating go-slow. Similarly situated employees were treated differently and there is an apparent discrimination between the persons similarly circumstanced. Inquiry proceeded against the petitioner only and the reason is obvious, that he was an active member of the union. Therefore, it is a case of victimisation and unfair labour practice. It is also contended by him that in any case this is not a fit case, wherein the order of dismissal could have been issued in view of the previous good service record of the petitioner. As a matter of fact while confirming the petitioner an additional increment was given to him in view of his efficient performance. The learned Member of the Tribunal has not applied the provisions of Section 11A of the Industrial Disputes Act to the facts of the present case and thereby misdirected itself and hence the whole order is vitiated. It is also contended by him that the inquiry held was illegal and was also against the principles of natural justice. In support of his contention Shri Kulkarni has placed reliance upon the following decision, (1) R.M. Parmar v. Gujarat Electricity Board, 1983 (1) L.L.J. 261.
4. On the other hand it is contended by Shri Puri, learned Counsel appearing for the respondent-employer that the powers conferred on the Industrial Court under Section 11A are discretionary in nature and if the learned Member has found that the punishment awarded is neither severe nor disproportionate, then while exercising the jurisdiction under Article 227 of the Constitution of India, this Court should not interfere with the said discretion. Length of service and the past record have a direct co-relation with the gravity of misconduct. In the present case, the petitioner-employee has only served for two years and therefore it cannot be said that he was in service for considerable length of time. Misconduct alleged was grave one, since he had prevented his superior from carrying on his duties and in a sense had indulged in illegal activities affecting entire workforce. Misconduct proved in the inquiry had an element of instigation of wilful go-slow and, therefore, finding recorded by the Tribunal is perfectly legal and valid. He also contended that the workman has not approached this Court with clean hands as he has not disclosed the fact that he is gainfully employed elsewhere after his dismissal. According to Shri Puri after his termination he was earning much more than what he was earning with the respondent Company. In any case according to Shri Puri as a necessary corollary of the provisions of Section 17B of the Industrial Disputes Act, if the Industrial Tribunal has found that the punishment awarded is justified, then the petitioner will not be entitled to get any wages for the period, for the matter is pending in High Court. In support of his contention Shri Puri has placed strong reliance upon a decision reported in Hindustan Machine Tools Ltd., Bangalore v. Mohd. Usman and Ors. 1983 L.I.C. 1739.
5. With the assistance of the learned Counsel appearing for both sides, we have g6ne through the relevant material placed on record. From the finding recorded by the Industrial Tribunal it is quite clear that an inquiry was held into the charges levelled against the petitioner-employee. He was attending the inquiry proceedings on some days. He has admitted that on 11th July, 1978, he was present at the time of the inquiry but did not participate. He also admitted that on 5th July and on llth July 1978 he received copies of the proceedings and after receipt of the said copies he left. He also admits that he was informed that the inquiry was postponed to 17th July 1978. On that day also he remained present, received copies and then left the proceedings. Thus, in substance he admits his presence at the time of the inquiry and also admits that he did not participate. The reason given by him that the Union was assured that the proceedings will be dropped was rightly not accepted by the Industrial Tribunal because he knew that the inquiry was proceeding. In these circumstances the inquiry rightly came to be held in his absence and the Industrial Tribunal recorded the finding that the inquiry held was legal and valid. So far as the finding regarding the merits of the controversy, viz. misconduct is concerned, on the basis of the inquiry papers the Tribunal held that the charges are proved. However, in our view the Tribunal misread the charge-sheet. In the allegations made in the charge-sheet it is nowhere alleged that the petitioner instigated other employees to indulge in the acts of go-slow. Go-slow had already started. In these circumstances the finding could not have been recorded that the petitioner instigated other employees to indulge in the act of go-slow, though on the basis of the evidence it could have been held that he threatened his superior and himself also indulged in the act of go-slow. The other employees who had also indulged in the go-slow were not punished by the employer. Obviously the petitioner came to be proceeded against because he threatened his superior. On the basis of the evidence adduced, and particularly that of Mojashi, a finding in that behalf could be recorded. Therefore we do not find any reason to interfere with the finding recorded by the Tribunal, so far as the said misconduct is concerned. However, it is quite clear from the bare reading of the award of the Industrial Tribunal that it had not applied its mind to Section 11A of the Industrial Disputes Act qua the facts of the case. Section 11A confers power upon the Tribunal to give appropriate relief in the case of discharge or dismissal of the workman. The standing order provides that before passing an order of dismissal the past conduct, service record of the employee and extenuating and aggravating circumstances should be the consideration. We do not find any such consideration either in the order of dismissal as passed by the employer or the order passed by the Tribunal. Further, once it is held that there was no charge of instigating other employees to indulge in the go-slow and in the absence of the charge, neither an inquiry could have been held nor a finding could have been arrived at in that behalf. To that extent it will have to be held that the order passed by the Tribunal is vitiated.
6. However, it was contended by Shri Puri that for this purpose and for finding out as to whether the employee was otherwise gainfully employed, the matter should be remitted back. Normally, we would have done so. But before us both sides have filed affidavits showing as to how much he was earning in the meanwhile. In this context it is also pertinent to note that before the Tribunal it was the case of the petitioner-employee that instead of granting him full back wages, a part of it be withheld, so that it will amount to sufficient punishment. From the affidavit filed before us there is some dispute about the earning of the petitioner-employee. However, it is clear that he was earning something during this period. Therefore, considering the case of the petitioner under Section 11A and considering his good past record, in our view this was a fit case, where it should have been held by the Tribunal that the order of dismissal as passed by the respondent was not called for. In view of the aforesaid discussion it could safely be held that the Tribunal has refused to exercise the power vested in it under Section 11A of the Act. The Tribunal has upheld the punishment of dismissal on the ground that under the standing order the employer could have legally imposed the said punishment. To say the least this approach of the Tribunal runs counter to the spirit of Section 11A of the Act itself. Section 11A confers independent power upon the Tribunal to consider the question of punishment. Admittedly the petitioner-employee was an active worker of the union and had served the industry for two years with unblemished and clean record. He was given an advance increment for his good work. This was the only incident in which he was involved. For go-slow activity no action was taken against other employees. In these circumstances, in our view this was pre-eminently a case where powers could have been exercised by the Tribunal under Section 11A of the Act. More so, when there was no charge for instigating go-slow. Therefore taking any view of the matter, this was not a case, where the order of dismissal could have been passed. Hence the order of dismissal deserved to be set aside.
7. There is nothing on record to show that normal relief of reinstatement should be refused in this case after the order of dismissal is set aside. Hence the petitioner-employee is directed to be reinstated with continuity of service and other consequential reliefs. So far as the payment of back wages is concerned, from the material placed on record, it appears that the petitioner-employee was employed elsewhere and was earning. Even before the Tribunal it was the case of the Union that this is a case where relief of granting full back wages may not be granted and part of it could be withheld, which could be termed as sufficient punishment. The contention raised by Shri Pud that as a necessary corollary to Section 17B of the Act no back wages can be paid cannot be accepted. After taking into consideration the rival claims made in the affidavits and the totality of the circumstances, in our view the ends of justice will be met, if the respondent-employer is directed to pay to the petitioner-employee half the back wages from the date of his dismissal till the date of his reinstatement.
8. Hence the rule is made partly absolute with no order as to costs.