N.K. Jain, J.
1. By this writ petition, the petitioner-management challenged the order of the Industrial Tribunal, Madras dated 1.11.1988, whereby the first respondent was ordered to be reinstated in service with half back wages from 20.8.1986 with other attendant benefits within one month from the date of publication of the award.
2. It is alleged that the first respondent was appointed as a conductor on 18.9.1975 with the petitioner and he was placed under suspension on 7.9.1976 for four days and then removed from service on 11.3.1977 and thereafter reinstated. Again the first respondent was terminated from the service of the petitioner on 28.6.1984 and he filed an approval petition in No. 233 of 1984 before the second respondent, since I.D.No. 62 of 1982 has been pending.
3. The main grievance of the learned Counsel for the petitioner is that merely considering the fact that the employee had sufficiently suffered since 1984, and without coming to the specific finding and even upholding the finding arrived at, the discretion exercised by the tribunal, is arbitrary and liable to be set aside. Learned Counsel further submits that though in compliance with the orders of this Court Rs. 30,000 has been paid as half wages without prejudice to the contentions raised in this writ petition, subsequently also the employee committed the same misconduct and therefore, he was terminated from service by a fresh order, dated 8.8.1992, which was not challenged, according to learned Counsel. The learned Counsel for the petitioner relied on the decision in G.S.RT.C. v. Bhikabhai Majibhai (1997) 2 L.LJ. 425, wherein the Labour Court found the workman guilty of the charges, but by exercising the power under Section 11-A of the Industrial Disputes Act directed the management to re-employ the workman without considering the fact that in the past the workman was found guilty in other cases and despite opportunity give to him, he had again indulged in the same activity. Under the circumstance it was held that the order passed by the Labour Court could not be sustainable. Learned Counsel further submits that the tribunal had given its finding only on humanitarian ground, stating that the employee suffered since 1984, which cannot be said to be a reasonable one, and the discretion so exercised cannot be said to be on the merits of the case.
4. The first respondent employee filed a counter-affidavit and submitted that the order of the tribunal calls for no interference.
5. I have heard the learned Counsel appearing on either side the perused the material on record.
6. Normally, this Court will not interfere with the discretion exercised by the tribunal, unless some legal principle was involved. It is no doubt true that the tribunal can invoke the jurisdiction under Section 11-A of the Industrial Disputes Act and set aside an order of discharge or dismissal or direct the reinstatement and can also give any other relief only after holding that the order terminating the services of the workman was not justified and disproportionate to the charges levelled against him. The discretionary power so exercised interfering with the punishment awarded, should not be exercised in an arbitrary manner and it should be exercised in a judicial and judicious manner and while considering the entire matter, if it appeared that the punishment imposed is very harsh and wholly disproportionate to the misconduct proved. It is also to be seen that a lessor punishment awarded by the tribunal should not amount to absolving the employee’s misconduct or make the misconduct merely illusory and allow the employee to go scot free, particularly, when the charges are found to be grave in nature and proved.
7. Applying the legal aspect to the facts of the given case, the tribunal, after scrutinising each charge individually, came to the conclusion that the findings of the enquiry officer are not perverse. It had also noted the fact that on a perusal of the records, it could be seen that on earlier occasion, the employee was suspended and eight incidents like that of the present one, had occurred. Under the circumstances, the discretion exercised by the tribunal, in the given facts of the case cannot be a judicious one. Rather, the tribunal came to the conclusion only on humanitarian grounds, which according to me, the discretion exercised by the tribunal is arbitrary and not sustainable.
8. Though this Court can pass orders, under the circumstances and in the interests of Justice, I deem it proper to remand the matter and to direct the tribunal to decide only regarding reinstatement. No fresh notice is necessary, and both the parties are directed to appear before the tribunal on 9.10.1998. The tribunal shall decide the issue as mentioned above, within two months thereafter, according to law. With this observation, the writ petition is disposed of. Consequently, W.M.P.No. 17324 of 1989 is dismissed.