JUDGMENT
M.Y. Eqbal, J.
1. In this writ petition, the petitioner, namely Management or West Bokaro Colliery of M/s. Tata Iron and Steel Co. Ltd., challenged the Award of the Presiding Officer, Central Government, Industrial Tribunal, Dhanbad, in Reference Case No. 191 of 1990. By the aforesaid Award the Tribunal directed the Management to reinstate the workman retrospectively with effect from the date of his dismissal and also for payment of 50% of his back wages including allied benefits from the date of his dismissal till the date he is reinstated in accordance with the Award.
2. The facts of the case which gave rise to the instant case are as follows:
In the month of February, 1986, respondent No. 2, workman under the petitioner was charge-sheeted by levelling the following allegations:
“On December 20, 1985 at about 2.45 p.m. you along with about 50 Villagers of Duni armed with Tangi, Farsa, Arrows, Bows and other lethal weapons , attacked Sri Rameshwar Prasad Singh, Havildar with the above lethal weapons, who was in second shift duty from 8.00 p.m. to 10.00 p.m. at Washery No. II gate and as a result of the murderous attack he was killed at the above spot. On getting information about the at-tack, the Security Personnel immediately rushed to save the life of Sri Rameshwar Prasad Singh but on seeing them you shouted “MARO” and chased them along with other villagers due to which they got panicky and left the spot.”
According to the petitioner the above allegation was a serious act of misconduct under the provisions of Clause 25(5) of the Standing Orders and therefore, the workman was called upon to submit his explanation.
3. In response to the above charge the workman submitted his explanation denying the charges and stating that he was not present at the time of occurrence as he was working as driver in Washery No. 1 for which second shift was from 3.p.m. to 11 a.m. The workman further explained that on that date he reported to duty at 3 p.m. and stated that at about 4 p.m. he came to know that his cousin Fuleshwar Mahto was killed by Security Guard. In the explanation, the workman further submitted that he was made an accused for the murder of Havildar (Rameshwar Prasad Singh) in which he obtained bail from the Court. The workman further claimed that since the case was pending on the similar charge, it would not be proper to hold domestic enquiry till the pendency of the case as the departmental enquiry would put hurdle in the case pending in the Court. A prayer was made to postpone the domestic enquiry till the disposal of the case in the Court of Sessions.
4. It appears that the Management decided to initiate Departmental proceedings and an Enquiry Officer was appointed. In the departmental proceeding the workman was found guilty of the charges levelled against him and on the basis of the enquiry report the Management issued an order on February 5, 1987 dismissing the workman from service with effect from February 12, 1987.
After the aforesaid dismissal a dispute was raised by the workman which was referred to the Tribunal for adjudication. It appears that the following dispute was referred by the Central Government in exercise of power conferred by Clause (d) of Sub- section (1) and Sub-section (2-A) of Section 10 of the Industrial Disputes Act, 1947 (hereinafter to be referred to as ‘the Act’ for short):
“Whether the action of the Management of West Bokaro Colliery of M/s TISCO Ltd. P.O. Ghatotand Dist., Hazaribagh by non-reinstating the services of Sri Mahabir Ma-hato. Ex. M.V. Driver, West Bokaro Colliery of TISCO Ltd. w.e.f. February 13, 1987 and not making payment of allied benefits payable to him from time to time is legal and justified? If not to what relief the workman concerned is entitled?”
5. Before discussing the validity of finding arrived at by the Tribunal, it is worth to mention here that the Tribunal by order dated March 25, 1992 held that the domestic enquiry was fair and proper.
After the dispute was referred to the Tribunal, the Management and the workman filed their respective written statements. According to the written statement of the Management the workman was dismissed from service with effect from February 12, 1987 on account of misconduct, inasmuch as the workman had led violent mob of about 50 persons of Duni village armed with lethal weapons at about 2.45p.m. and attacked Rameshwar Prasad Singh, Security Havildar who was on duty at Washery No. II gate. It has been further stated by the Management that the Security Havildar and the cousin brother of the workman, namely, Fuleshar Mahto had died on account of rioting at Washery Gate No. II between 2.30 p.m. to 2.50. p.m and it was further alleged that the concerned workman then ran away and got his attendance marked at about 3p.m.
On the other hand, the workman in his written statement reiterated the same facts which were stated in the explanation submitted by him on receipt of the charge-sheet. It has further been stated that when he reached at Gate No. II, he saw the dead body of the cousin and number of co-villagers present there. The workman has further claimed that he was falsely involved because he happened to be the relative and co-villager of the deceased (Fuleshwar Mahto) who was shot dead by the Security Guard.
6. The Tribunal after scrutinising the evidence adduced by the Management as also by the concerned workman came to a finding that the charges levelled against the concerned workman were not proved and the evidence adduced by the management was not reliable. The Tribunal accordingly held on the basis of the materials on record that the management failed to prove that the concerned workman was guilty of misconduct as alleged in the charge-sheet. The Tribunal accordingly by the impugned Award held that the action of the Management in not reinstating the workman with effect from February 13, 1987 was not justified. The Management was, therefore, directed to reinstate the workman with effect from the date of his dismissal and also to pay 50% of his back wages including the allied benefits from the date of his dismissal.
7. Mr. K.B. Sinha, learned Counsel For the Management, assailed the impugned Award of the Tribunal as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the Tribunal has travelled beyond jurisdiction by interfering with the finding of the Enquiry Officer particularly when the Tribunal held that the enquiry was fair and proper. Learned Counsel submitted that in the absence of any specific finding by the Tribunal that the dismissal was illegal, there should not have been the Award for reinstatement and for payment of back wages. Lastly, learned Counsel submitted that admittedly no demand was submitted to the Management before raising the industrial dispute and it was only after about two years the dispute was raised and during that period the workman concerned was sitting idle. In that view of the matter, according to the learned counsel, the Tribunal was not justified in awarding 50% backwages. In support of his contention, the learned counsel relied upon the decision of the Apex Court in the case of Steel Authority of India Ltd. v. Presiding Officer and Anr. (1996-II-LLJ-720).
On the other hand Mr. Bajaj, learned Counsel for the Workman, submitted that there is no error on the face of the Award which is based on appreciation of evidence and, therefore, this Court should not interfere in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. Learned Counsel submitted that it is not correct to say that the Tribunal has not given any finding as to whether the finding in the enquiry was illegal, inasmuch as the Tribunal has specifically gone into the two questions, i.e., as to whether the finding of the Enquiry Officer that the charges against the workman were proved by evidence and it can be up held, and secondly if the enquiry is found to be correct then the punishment of dismissal awarded to the workman could be said to be just and proper. Learned Counsel further submitted that the Tribunal after considering the evidence adduced by the Management as also by the workman concerned has come to a definite finding that the Management failed to prove the charges and, therefore, the order of dismissal was not justified. Lastly, Mr. Bajaj submitted that the Award of the Tribunal is perfectly valid and cannot be interfered with.
8. Before appreciating the rival contentions advanced by the learned Counsel for the parties, it would be usefull to refer to the relevant provision of Section 11-A of the Act which reads as under:
“11-A Powers of Labour Courts, Tribunal and National Tribunals to give appropriate relief in case of discharge or dismissal of workman.
Where an industrial dispute relating to the discharge or dismissal of a workman had been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, . in the course of the adjudication proceedings, Labour Court , Tribunal or National Tribunal, as the case may be, is satisfied
that the order of discharge or dismissal was
not justified, it may by its award, set aside
the order of discharge or dismissal and direct
reinstatement of the workman on such terms
and conditions, if any, as it thinks fit, or give
such other relief to the workman including
the award of any lesser punishment in lieu
of discharge or dismissal as the circum
stances of the case may require :
Provided that in any proceedings under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on the materials on record and shall not take any fresh evidence in relation to the matter.”
From the bare reading of the aforesaid provision it is mainfest that when an industrial dispute relating to the discharge or dismissal of a workman is referred to a Labour Court, Tribunal or National Tribunal for adjudication, then the Labour Court, Tribunal or National Tribunal may set aside the order of dismissal or discharge when it is satisfied that the same was not justified. However, such power of Labour Court, Tribunal and National Tribunal is limited to the extent that it shall not take any fresh evidence and shall rely on the materials already on record. The question with regard to power and jurisdiction of the Tribunal under Section 11-A of the Act came up for consideration before a Full Bench of this Court in the case of Indian Aluminium Co. Ltd. v. Presiding Officer 1990 (2) PLJR 797 wherein it was held that Section 11-A was inserted in the Act not to limit the jurisdiction of the Tribunal which it possessed by virtue of the law laid down by the Supreme Court, but it was inserted to confer power on the Tribunal to reappraise evidence adduced in the domestic enquiry and to grant appropriate relief to the workman.
9. Going through the rinding arrived at by the Tribunal and the impugned Award, I find that the Tribunal very meticulously has gone into the evidence of the parties and came to a definite finding that the witnesses said to be the eye witnesses of the occurrence did not reach the place at the time of occurrence. It further came to the finding that the identification of the assailant who was then surrounded by a mob, by the witnesses who had stayed in their Jeep at some distance away only for a few minutes is doubtful. The Tribunal further found that the charges leveled against the concerned workman was not proved and the finding of the Enquiry Officer was based on conjectures and surmises and on weak evidence.
10. I do not find any perversity in the finding arrived at by the Tribunal, rather I find that the Tribunal has taken pains by going into the evidence of the witnesses in detail.lt is well settled that when the finding of the enquiry officer is based on misappreciation of evidence or conjectures and surmises then it stands vitiated. It is equally well settled that in such circumstances, the Labour Court, Tribunal or National Tribunal can reject not only such findings, but also the conclusion based on no legal evidence.
As noticed above, the Tribunal after reappraisal of the evidence came to a definite finding that the charges were not proved and the order of dismissal was bad in law. I have also found that there is no infirmity in the findings arrived at by the Tribunal. In that view of the matter, I do not find any justification to interfere with such findings of the Tribunal in exercise of my power under Article 227 of the Constitution of India, which is a power of superintendence. The scope of Article 227 of the Constitution in the matter of an Award given under Section 11-A of the Act has been dealt with by the Apex Court in the case of Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. (1984-II-LLJ-10) wherein Their Lordships have held as under atp 11:-
“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…”
11. The only question remains for consideration, therefore, is as to whether the Tribunal was justified in awarding 50% back wages and other benefits from the date of his dismissal till the date of his reinstatement. Admittedly the workman was dismissed from his service on March 5, 1987 and the workman concerned raised the industrial dispute after about two years, i.e. January 9, 1989 and the Central Government referred the dispute after about three years, i.e. on August 20, 1990. The submission of Mr. Sinha was that no demand was submitted to the Management for raising the dispute and, therefore, it shall be treated as no demand. Learned Counsel further submitted that had the workman concerned made a demand before raising the industrial dispute, the Management would have taken appropriate decision and in that case there would not have been payment of back wages as awarded by the Tribunal.
I find considerable force in the submission of the Iearne4 counsel. From the facts stated here-inabove, I do not find any laches or negligence on the part of the Management in the reference of the dispute after about three years. There was no justification for the workman concerned for not submitting the demand with the Management and sitting idle for about at least two years in between February 5, 1987 and January 9, 1989. In that view of the matter, the Award for payment of 50% back wages cannot be said to be justified. A similar question arose in the case of Steel Authority of India Ltd. (supra) and the Apex Court has held as under atp 720-721 :-
“As stated above the grievance of the appellant is that it was the employee who was to blame for not initiating proceedings till February 5, 1991 against the order of termination dated August 23, 1980 and, therefore, the Labour Court was wrong in awarding full back wages. It is further stated that at best he could have been awarded wages from February 5, 1991 when he initiated the conciliation proceedings. On the other hand Counsel for the employee contends that the services of the employee were terminated without giving him any opportunity whatsoever and, therefore, the termination was ab-initio void. We need not go into this aspect of the matter for the simple reason that we have not interfered with the order of reinstatement in service. But the fact remains that even if the order of termination was ab initio void there was no justification for waiting for over a decade to challenge that order. The employer cannot be asked to pay for the default of the employee in not taking action for over a decade. May be the employer was harsh in awarding the maximum punishment. We, therefore, set aside the order directing payment of full back wages and substitute it by ordering 25 per cent back wages The 25 per cent back wages to be paid within three months from today. The appeal will stand disposed of accordingly with no order as to costs.”
12. Having regard to the facts and circumstances of the case and the discussions made above, this writ petition is allowed in part and the impugned award so far as it relates to the direction for payment of 50 per cent back wages is substituted by ordering payment of 25 percent back wages from the date of dismissal of the workman concerned.There shall be no order as to costs.