ORDER
S.K. Dubey, J.
1. This order shall dispose of the two petitions namely M.P. 2191/1989 filed by the Managing Director, Steel Authority of India Ltd., Bhilai Steel Plant v. The Industrial Court and Anr. and M.P. 3878/1988 – Shri Sitaram Soni v. Bhilai Steel Plant and Anr.. In M.P. No. 2191/1989 the employer is aggrieved of the order dated October 21, 1988 of the Industrial Court in Appeal No. 677/MPIR/I987 (Annexure A-XI) whereby the order dated, June 18, 1987 of Labour Court, Raipur passed in case No. 230/80/MPRI (Annexure A-X) setting aside the order of employee’s services directing reinstatement with full back wages was set aside, and the employee was ordered to be reinstated with fifty per cent of back wages from the date of termination i.e. Augustas, 1974 till the date of the order of Labour Court holding that the punishment of dismissal from
service for disobeying the order of his superior
was harsh and excessive as on facts the Industrial
Court recorded a finding that in the charge-sheet
(Annexure-AI) there is no charge of wilful
disobedience of the lawful and reasonable order
on November 4, 1973 of Assistant Foreman to
cut stickers in beat No. D-82653, Train No. 15
and the fact that the employee Sitaram refused to
obey the said order on the ground that cutting of
stickers is not the part of his duties.
2. The employee also aggrieved of the forfeiture of fifty per cent of back wages as measure of punishment has filed Miscellaneous Petition No. 3878 of 1988.
3. Shri H.N. Vyas and Shri A.K. Khaskalan, counsel for the petitioner/employer and Shri Rajendra Menon, counsel for the employee heard.
4. Learned counsel for the employer contended that industrial discipline is as vital and important in a factory as production is because both are linked. When the charge levelled under Clause 29(i) of the Certified Standing Orders determined in accordance with the provisions of Section 7 of the Industrial Employment (Standing Orders) Act, 1946 (for short the ‘Standing Orders’), the Industrial Court having held the domestic enquiry as legal and proper exceeded in its jurisdiction in interfering with the punishment which is the domain of the Disciplinary Authority. Section 107-A was inserted in M.P. Industrial Relations Act, 1960 (for short the ‘Act’) by M.P. Act No. 43 of 1981 published in M.P. Rajyapatra dated December 30, 1981 was not retrospective in operation which gives power to Labour Court and Industrial Court to give appropriate relief in case of discharge or dismissal of employee, if the Labour Court or Industrial Court, is satisfied that on the charges proved in the domestic enquiry dismissal or discharge is not justified, it may set aside the order of discharge or dismissal and direct reinstatement of the employee on such terms and conditions, if any as it thinks fit or give such other relief to the employee including the award of lesser punishment in lieu of discharge or dismissal as the circumstances may require. Reliance was placed on a decision of the Supreme Court in case of The Workmen of Firestone Tyre and Rubber Co. v. The Management and Ors. (1973-I-LLJ-278).
5. As regards the contention that the provisions of Section 107-A are prospective and not retrospective in operation and were not applicable in pending cases before the Labour Court prior to January 26, 1982 consider that it would be appropriate to extract Section 107-A of the Act which reads thus :
“107-A.–Power of Labour Court and Industrial Court to give an appropriate relief in case of discharge or dismissal of employee -Where the industrial dispute relating to the discharge or dismissal of an employee has been referred to a Labour Court or the Industrial Court for decision under any of the provisions of this Act and the course of the proceeding
the Labour Court or the Industrial Court, as the case may be, is satisfied that the order of discharge or dismissal is not justified, it may, set aside the order of discharge or dismissal and direct reinstatement of the employee on such terms and conditions, if any, as it thinks fit or given such other relief to the employee including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :
Provided that in any proceeding under this Section the Labour Court or the Industrial Court, as the case may be, shall, rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”
The provisions of Section 107-A are in pari materia with Section 11A of the Industrial Disputes Act, 1947. The Supreme Court in the case of the Workmen of Firestone Tyre and Rubber Co, (supra) has considered the applicability of Section 11A and while interpreting the words referred to “in any proceedings under this Section” has observed that a proceedings under Section 11A can only be on or after December 15, 1971 when Section 11A was inserted, which gives an indication that Section 11A applies only to disputes which are referred for adjudication after the Section has come into force, see also (1986-II-LLJ-217) Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and Ors..
6. A bare reading of Section 107-A shows that the words used in the Section “where the industrial dispute relating to the discharge or dismissal of an employee has been referred to a Labour Court or the Industrial Disputes Court for decision under any of the provisions of this Act”, clearly indicates that the power under Section 107-A can be exercised Only after an industrial dispute relating to discharge or dismissal of an employee is referred after the insertion of Section 107-A”. Therefore, Learned Counsel for the petitioner/ employer is right in saying that power under Section 107-A of the Act is not retrospective in operation and could not have been exercised in pending cases before its enforcement.
7. The contention on that the Labour Court or the Industrial Court are not competent to act as appellate Judge over the Management decision of punishment of a charge of misconduct is proved
in the domestic enquiry. The submission in the circumstances of the case cannot be accepted, though the Industrial Court found the enquiry as legal and proper, but, held that under Clause 29(j) word wilful is of significance. Clause 20 defines sets of misconduct, relevant for the purpose of this case is 29(i) which reads as under :
“29(i) : Wilful insubordination or disobedience, whether alone or in combination with others to any lawful end reasonable order of a superior.”
The Industrial Court on perusal of the charge-sheet found that there was no charge of wilful disobedience of lawful and reasonable order of his superior. The Industrial Court, further found that the employee did not disobey the lawful and reasonable order of his superior on the ground that cutting of stickers was not his work, the word wilful postulates purposefulness and clear intention to flout. Therefore, as there was no charge of wilful disobedience nor the dismissal order says so, the Industrial Court was right in interfering with the punishment. Besides, the order of the Industrial Court is also supportable for the reason that the Appointing Authority while awarding the punishment did not take into the account the gravity
of the misconduct, the previous record of the workman and am other aggravating circumstances that may exist which are to be considered before awarding the punishment as laid down in Clause 31(iv)(f) of the Standing Orders as is also evident from the order of termination dated August 28, 1974 (Annexure-A/2).
8. Coming to the petition of the employee in relation to the forfeiture of 50% backwagcs from the date of termination till date of the order of Labour Court the discretion exercised by the Industrial Court can also not be interfered on two counts, first it was the conduct of the employee which gave rise to the issuance of the charge-sheet, and secondly the action of the employer was found to be bona fide, which was interfered only because there was no charge or wilful disobedience of law ful and reasonable order of the superior.
9. As a result of the aforesaid discussion, I am of the opinion that the circumstances of the case do not warrant interference in the order passed by the Industrial Court. In the result the two petitions are dismissed with no order as to costs. The security amount, if any, be refunded to the petitioner of respective petitions.