JUDGMENT
M.Y. Eqbal, J.
1. The petitioner who is the Management of Moonidih Project of M/s Bharat Coking Coal Limited, has prayed for quashing the award dated 28.9.1992 passed by the Presiding Officer, Central Government Industrial Tribunal (in short the ‘Tribunal’) in Reference Case No. 307/87 whereby he has set aside the order of dismissal of the concerned workman from service and directed for reinstatement but without back wages.
2. In appears that the Government of India, Ministry of Labour, in exercise of powers conferred upon them under Section 10(1)(d) of the Industrial Disputes Act, 1947, referred the following dispute to the Tribunal for adjudication :
“Whether the action of the Management of Moonidih area, Moonidih of M/s Bharat Coking Coal Limited, Dhanbad in dismissing Shri Puttar Mahato, PRM T.No. 5815 from the service of the company with effect from 24.12.1986 is justified? If not, to what relief is the workman entitled.”
3. The concerned workman, Puttar Mahato was in the employment of the petitioner-company and he was dismissed with effect from 24.12.1986 on account of certain misconduct. The concerned workman was charge-sheeted on the allegation, inter alia, that he along with others assaulted Sri K.P. Singh, Senior Mining Engineer-in-Charge of Aralgaria stabilization works with axe and lathi causing fracture to his left hand index finger. It was alleged that the dragged Sri K.P. Singh to their village Dhobani mauza with Intention to kill but Sri Singh was subsequently rescued by the police. The concerned workman was also said to have hurled abuses and pelted stones upon the officers of Bhagaband colliery who all were helping Sri K.P. Singh in supervising the water drainage work at Dhobani Mauza. The concerned workman replied to the charges denying each and every allegation and the Management being not satisfied with the reply, ordered for departmental inquiry which ended in dismissal of the workman from service. Ultimately the dispute with regard to validity of dismissal from service was referred to the Tribunal for adjudication.
4. The Tribunal, after holding that the inquiry was not fair and proper, allowed the Management to prove the charges by adducing evidence before the Court. The point formulated by the Tribunal for consideration is as to whether the concerned workman indulged in the incident and he abused and caused injury to Sri K.P. Singh in the manner as alleged and if so, whether the dismissal was justified. Both the Management and the concerned workman led their evidence before the Tribunal and the Tribunal after considering the entire facts of the case and on appreciation of the entire evidence held as under :
“Now let us see whether the concerned workman had ever shown any riotous and fighting behaviour. He was stated to have assaulted Sri K.P. Singh but this aspect of the matter has been negatived by Sri B.S. Ram, MW 1 to own witness of the Management who stated before this Tribunal on oath that Puttar Mahato was simply abusing. He denied any assault on Sri K.P. Singh by the concerned workman. Ext. M-10 to M-10/3 are the injury reports and the medical certificates granted by one Dr. Pandit. Three X-ray plates are the material Exts. Which have been marked I, II and III showing that Sri Singh sustained fracture on left hand index finger. The learned counsel for the workman has challenged all these certificates on the ground that they were never produced either before the inquiry officer or before the investigating officer during the course of investigation. The learned counsel seems to be correct in his submission that in the event of medical report being challenged the Management should have examined the doctor concerned. Sri K.P. Singh himself stated that he was posted in civil hospital Dhanbad, also but no such paper has been filed. In the situation, noted above it is true that these injury reports and medical certificates loose much of its force and that being the position it is very difficult to prove that the concerned workman ever exhibited his riotous and fighting behaviour.”
5. The Tribunal after recording the above finding came to the following conclusion :
“I have held the concerned workman guilty of misconduct under Clause 17(1)(r) of the certified standing order which was an act of abusing and assaulting. I have explained that the Management failed to prove the actual assault on the person of Sri K.P. Singh but the charge of simple assault has been proved simply because he was dragged by the villagers including the concerned workman to village Dhobani Mauza. But the misconduct as proved against the concerned workman was not so serious as to inflict the punishment of dismissal against the concerned workman. I may say it was shockingly disproportionate to the misconduct committed by the concerned workman. In the circumstance I would set aside the order of dismissal and the ends of justice can be met by reinstating the concerned workman without any back wages and one permanent stoppage. As regards increment is concerned his increment due in future will be permanently held. The Management is thus directed to reinstate the concerned workman within one month from the date of publication of the award with continuity of his service and stoppage of increment as indicated above.”
6. Mr. A.K. Mehta, learned counsel appearing on behalf of the petitioner has assailed the award of reinstatement as being illegal and wholly without jurisdiction. Learned counsel submitted that when the charges against the concerned workman have been proved then the award of reinstatement passed by the Tribunal is wholly illegal and unwarranted in law. Learned counsel submitted that the Tribunal has exceeded in exercise of its power as contemplated under Section 11A of the I.D. Act.
7. On the other hand, Mr. S.K. Ughal, learned counsel appearing on behalf of the concerned workman submitted that the charges of assault having not been proved, the Tribunal rightly directed for reinstatement which is in accordance with law.
8. From perusal of the relevant portion of the award it appears that though in support of the charges of assault a series of medical certificates have been proved and marked exhibits but the Tribunal put on reliance on those certificates because of non-examination of the doctor and also for the reason that the said documents were not produced in the domestic inquiry. However the Tribunal has recorded a finding that the concerned workman was guilty of misconduct inasmuch as he abused the officer and dragged him into the village with the intention to kill but he was rescued by the police. The Tribunal has held that the order of dismissal of the workman from service is shockingly disproportionate to the misconduct committed by the concerned workman. On that ground alone the Tribunal substituted the punishment of dismissal by reinstatement without any back wages. In my opinion, the said finding of the Tribunal is erroneous in law inasmuch as when the charges of abusing and dragging the officer has been proved then the punishment of dismissal can not and shall not be said to be shockingly disproportionate to the misconduct. Such proved charges against the concerned workman itself is very serious charge of misconduct and, therefore, the Labour Court was not justified in interfering with the order of dismissal of the concerned workman from service.
9. In the case of U.P. State Road Transport Corporation v. Subash Chandra Sharma and Ors. reported in 2000 (3) SCC 324 a similar question arose for consideration before the Supreme Court. In that case an employee of the Road . Transport Corporation in a drunken state entered into the cash room of the Assistant Cashier and demanded money from him and on refusal abused and threatened to assault. Their Lordships, holding such charge as a serious charge of misconduct, held as under ;
“The Labour Court, while upholding the third charge against the respondent nevertheless interfered with the order of the appellant removing the respondent from the service. The charge against the respondent was that he, in a drunken state, along with the Conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way “shockingly disproportionate” to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in a miscarriage of justice.”
10. Similarly in the case of Janatha Bazar South Kanara Central Cooperative Wholesale Stores Ltd. and Ors. v. Secretary, Sahakari Noukarara Sangh and Ors., reported in 2000 (7) SCC 517 their Lordships of the Supreme Court held as under :
“As stated above, the learned Single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% back wages. Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. (Re : Municipal Committee, Bahardurgarh v. Krishna Behari). In UPSTRTC v. Basudeo Chaudhary, this Court set aside the judgment passed by the High Court in a case where a conductor serving with U.P. State Road Transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs. 65 to the Corporation by issuing tickets to 23 passengers for a sum Rs. 2.35 but recovering @ Rs. 5.35 per head and also by making entry in the way bill as having received the amount of Rs. 2.35 which figure was subsequently altered to Rs. 2.85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corporation Ltd. v. Kala Singh, this Court considered the case of a workman who was working as a Dairy Helper-cum-Cleaner for collecting milk from various centers and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centers and also inflated the quality of fat contents where there were less fact contents. The Court held (at SCC pp. 161-62 para 4) that in view of the proof of misconduct a necessary consequence will be that the Management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined ,to exercise the power under Section 11A of the I.D. Act to grant relief with minor penalty.”
11. In the light of the charges proved in the domestic inquiry as also before the Tribunal and having regard to the settled propositions of law decided by the Supreme Court, I am of the opinion that the award of the Tribunal setting aside the dismissal of the concerned workman from service and awarding reinstatement is absolutely erroneous in law.
12. For the reasons aforesaid this writ application is allowed and the impugned award passed by the Tribunal set aside and the order of dismissal passed in the domestic inquiry is restored.