JUDGMENT
Jain, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been fifed against the order of learned Single Judge of this Court dated January 17, 1992 whereby the writ petition filed by the appellant was dismissed and the order dated September 26, 1989 passed by the Labour Court (Tribunal), Udaipur has been upheld.
2. Briefly stated the facts of this case which are necessary for the disposal of this appeal are that the respondent No. 1 was working as a driver with the Rajasthan State Road Transport Corporation (hereinafter referred as the Corporation). The respondent No. 1 while on duty on April 25, 1984, as driver of Bus No. 6024 demanded Rs. 10/- from the conductor Nathu Singh and on refusal he abused and gave beating to him due to which Nathu Singh sustained simple and grievous injuries. The respondent No.l was medically examined and found in an intoxicated condition. Thereafter he was charge-sheeted and after due enquiry the Enquiry Officer found him guilty of the charges levelled against him. The Corporation after considering the matter agreed with the finding of the Enquiry Officer and terminated the services of the respondent No. 1 on November 6, 1984. The respondent No. 1 preferred an appeal before the Appellate Authority of the Corporation but the same was dismissed vide order dated January 10, 1985. The Conciliation proceedings were initiated but when those proceedings failed, a reference was made to the Industrial Tribunal, Udaipur for adjudication on November 9, 1987 by the State Government. A claim petition was filed on April 20, 1988 by the respondent No. 1 in pursuance to the notice issued by the learned Tribunal. The appellant Corporation also filed reply along with the relevant documents on May 11, 1988. The learned Tribunal found that there was no illegality in the enquiry conducted by the E.O. and ordered to reinstate the respondent without back wages vide order dated September 26, 1989. The appellant Corporation preferred a writ petition, but the same was dismissed on January 17, 1992. Hence, this special appeal filed by the appellant Corporation.
3. Mr. Bhati, learned counsel for the appellant, has submitted that the learned Single Judge has erred in dismissing the writ petition filed against the order of the learned Tribunal. When the Tribunal has held that the charge of misconduct levelled against the respondent No. 1 has been proved then the punishment meted out to him could not have been interfered. He has also submitted that looking to the gravity of misconduct committed by the respondent No. 1 the punishment awarded to him does not suggest any victimisation. When the learned Tribunal itself has found the misconduct of the petitioner grave then the order of reinstatement passed by the learned Tribunal is against the settled principles of law. In this respect he has placed reliance on a decision of Their Lordships of the Supreme Court in Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management and Ors. reported in 1973-I-LLJ-278, Aditya Mills Ltd. v. Ram Dayal and Ors. reported in 1973-1-LLJ-538 and Municipal Corporation of City of Ahmedabad v. Hussainmiya Chandmiya reported in 1987 LLN 152.
Mr. Rajvanshy, learned counsel for the respondent, has submitted that the award of lesser punishment is within the competence of the learned Tribunal and the High Court should not interfere. He has also submitted that the learned Single Judge has rightly exercised his discretion after placing reliance on the decision ‘rendered in Jitendrasingh Rathore v. Shri Baidyanath Ayurved Bhawan Ltd. reported in 1984-II-LLJ-10.
4. We have heard learned counsel for the parties and perused the record.
In Indian Iron & Steel Co. Ltd v. Their Workmen reported in 1958-I-LLJ-260 Their Lordships of the Supreme Court, while considering the Tribunal’s power to interfere with the management’s decision to dismiss, discharge or terminate the services of a workman, have observed that in a case of dismissal on account of misconduct, the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice etc. on the part of the management. But in view of the insertion of Section 11A in the Industrial Disputes Act on December 15, 1971 the Labour Courts and Tribunals are empowered to substitute the sentence of discharge or dismissal by a lesser punishment, if it is satisfied that the order of discharge or dismissal was not justified.
In the Workmen of Firestone Tyre & Rubber Co. of India P. Ltd v. The Management and Ors. (supra) it has been held that Section 11A deals only with procedural matter, therefore, it operates retrospectively. It has been further held in sub-para (3) and (9) of para 29 of the judgment as under:- (pp.293,294)
” (3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(9) Once the misconduct is proved either in the inquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to sugest victimisation.”
In Municipal Corporation of City of Ahmedabad v. Hussainmiya (supra) it has been observed that under Section 11A of the Industrial Disputes Act, 1947 the Labour Court can exercise jurisdiction only if the termination of service is found to be “not justified” but the order of termination cannot be substituted by a lesser punishment only on the basis of misplaced sympathy.
In Jaswant Singh v. Pepsu Roadways Transport Corporation, the facts of the case were that a driver while on duty consumed liquor. The learned Labour Court held that the driver was drunk, instead of dismissing him he was reinstated being his first offence. However, he was denied back wages. The High Court confirmed the punishment of dismissal. Their Lordships of the Supreme Court held that in view of the gravity of the misconduct, a further punishment of withholding three increments for the next three years in the time scale in which the driver would be reinstated would be proper.
5. In Aditya Mills Ltd. v. Ram Dayal (supra) a Division Bench of this Court while placing reliance on certain observations made in the decision rendered in National Tobacco Co. India Ltd. v. Fourth Industrial Tribunal repotted in 1960-II-LLJ-175 has observed as under (1973-I-LLJ-538 at 542):
“Victimisation means one of two things; the first is where the workman concerned is innocent and yet he is being punished because he has in some way displeased the employer, for example by being an active member of an Union of workman who were acting prejudicially to the employer’s interest. The second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question of victimization because it merits dismissal by itself.”
The Division Bench after considering the said judgment has held that in our opinion victimisation consists in punishing an employee for any object other than the one of inflicting just and appropriate punishment for a proven lapse.
6. In Jitendra Singh Rathore v. Baidhyanath Ayurved Bhawan Ltd. (supra) the appellant was working as librarian with the respondent and his services were terminated on the charge of loss of confidence. The Tribunal while directing the reinstatement withheld payment of half of the backwages keeping in view the proved misconduct of the employer. The High Court vacated the order of reinstatement and directed payment of compensation in lieu of reinstatement and quantified the damages at Rs. 15,000/- Their Lordships of the Supreme Court have observed that High Court’s order vacating reinstatement in service was not justified and erroneous.
7. Undisputedly, the findings arrived at in the enquiry have not been challenged before the Tribunal. Rather, the respondent No. 1 admitted his misconduct and the only question which required to be determined was that looking to the gravity of proved misconduct whether the Tribunal was right in reinstating the respondent No. 1 when there was no allegation of any victimisation. As stated above the charge against the respondent No, 1 was that while on duty as driver of Bus No. 6024 he demanded Rs. 10/-from his colleague conductor Nathu Singh and on his refusal to oblige he inflicted grievous injuries to him at Bijolia. Both the facts that he was in a drunken state and that the injured received grievous injuries have been proved by medical evidence. Earlier to this incident, the Corporation visited him with the punishment of witholding of three annual grade increments with cumulative effect after holding due enquiry. That punishment was meted out to him for abusing and misbehaving with the Time-keeper of the Corporation. Under these circumstances, the Tribunal while observing that there was no illegality in the enquiry conducted by the Corporation and the misconduct committed by the workman is not excusable, learned Tribunal at the same time passed an order of reinstatement on the ground that these days there is a lot of unemployment and with a view to give him one more chance to improve has modified the order of punishment inflicted upon him by the Management. This act of modification of punishment by the Tribunal was totally uncalled for in the facts and circumstances of this case and actually the Tribunal has trans-gersed its authority in doing so as the findings arrived at by the Enquiry Officer are neither perverse nor the punishment awarded appears to be disproportionate with the gravity of misconduct nor it smacks of victimisation nor it appears to be harsh. The learned Single Judge has erred in relying on Jitendra Singh Rathore v. Shri Baidyanath Ayruved Bhawan Ltd. (supra) wherein services of a librarian were terminated on the charge of loss of confidence and the Supreme Court while observing that the job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer and set aside the orders of the High Court. The ratio of that decision cannot apply to the facts of this case. It is indeed true that ordinarily we should be slow in interfering with an order of reinstatement passed under Section 11A of the Industrial Disputes Act and to substitute it by an order of dismissal or discharge, that too in a special appeal, but there are cases of this Court as well as of the Hon’ble Supreme Court where such an arbitrary exercise of discretion has not been countenanced because it tanta-mounts not only to an abuse of the discretionary jurisdiction conferred on the court by Section 11A of the Act but it results in spread of indiscipline in the organisation. A person who illegally demands a sum of Rs. 10/- from his colleague and on his refusal abuses him and causes grievous injuries to him deserves no sympathy and, therefore, the leniency shown to him by the Tribunal as also by the learned Single Judge is totally misplaced and cannot be sustained specially when there is no suggestion or ever a whisper of victimisation, harassment or lack of bona fides against the appellants.
8. In the result, this special appeal is allowed. The award passed by the learned Tribunal dated September 26, 1989 as also the order passed by the learned Single Judge dated January 17, 1992 are set aside and punishment meted out to the respondent by the disciplinary authority is restored. However, for the period the petitioner has been allowed to join the Corporation on account of Section 17B of the Industrial Disputes Act, no recoveries will be effected from the respondent.