JUDGMENT
B.J. Shethna, J.
1. Against the award dt. 27.7.87 passed by the Industrial Tribunal, Jodhpur in industrial dispute case No. 3/82. The petitioner workman Shanker Lal filed S.B.C.W.Pet. No. 2739/87 and the petitioner State of Rajasthan and Ors. have filed S.B.Civil Writ Petition No, 2699/87.
2. The workman was a union leader, his services were terminated by an order dt. 30.4.1981 Annex. 7 on the ground that as many as 19 charges levelled against the workman were found to be proved during the enquiry by the Enquiry officer. Though the charge sheet was filed against the workman, he did not reply to it. After the receipt of the enquiry report dt. 3.11.1980, a show cause notice dt. 4.4.1981 was issued, the same also remained unreplied. Thereafter, the petitioner’s services were terminated by the impugned order dt. 30.4.1981. The industrial dispute was raised and referred to the Industrial Tribunal for its adjudication. The learned Tribunal found that out of 19 charges levelled and proved against the workman only charges at No. 13 to 16 and 19 were proved and rest of the charges were not found proved by the Tribunal. Accordingly, the Tribunal held that the termination order was not justified and legal and, therefore, set aside the same and directed the respondents to take him back in service. By passing an order of reinstatement of the workman forthwith, the Tribunal ordered that the petitioner will not be entitled for any arrears by way of salary and allowances till his reinstatement and the said period to be treated as leave without pay. This part of the award, has been challenged by way of S.B.C.W. Pet. No. 2379/87 through his counsel Shri D.K. Parihar, However, when the matter was called out, Shri Parihar appreared and stated that the workman has taken away the file from him and he is not appearing in the matter and the Court may pass appropriate order after hearing the learned counsel for the State.
3. The State of Rajasthan and others have challenged the award passed by the learned Tribunal of “reinstating the workman in service on the ground that once the Tribunal has held that the Charges No. 13 to 16 and 19 are proved then he should not have been reinstated in service because the charges are grave and of serious nature.
4. It is to be stated that the workman was a union leader, against him as many as 19 charges were levelled and all of them were found to be proved by the Enquiry officer in his absence. Relying upon the report of the Enquiry Officer the Disciplinary Authority passed impugned order of termination on 30.4.1981 (Annex.7). The Tribunal, however, found that the charges except No. 13 to 16 and 19 are not proved. Now, the charges No. 13 to 16 is almost of same nature of remaining absent from duty. It was alleged against the workman that he remained absent from duty from 29.9.1979 to 18.10.1979 without any leave and presented himself on duty only on 5.11.79. By way of charge No. 19 it was alleged against the workman that being a union leader he was indulging in blackmailing and threatening staffs, officers and also the directors. The Tribunal half heartedly found this charge to be proved. This finding of the Tribunal is wholly unsustainable. The Tribunal has held that there is nothing wrong about the language used by the workman except that it was not in dignified manner. However, the learned Tribunal has completely over looked the fact that after all he is a workman and union leader. He is a not highly placed dignified man. He is merely a workman. According to the Tribunal also the language used by the workman was neither filthy or bad. If it so, then the charge of using bad language cannot be said to be proved. Therefore, the learned Tribunal was wholly unjustified and in error in coming to the conclusion that the charge No. 19 is proved against the workman. The Tribunal has passed an order or reinstatement of the workman but denied the back-wages and order to treat the period from the date of termination till reinstatement leave without pay as it has held that the charges No. 13 to 16 and 19 were proved against the workman. Once, the charge No. 19 is said to be not proved then only charge remained against the workman was for remaining absent from duty without leave and that too for a small period of 29.9.79 to 18.10.79 i.e. hardly for 20 days. On such charges no one can be dismissed from service and Tribunal has rightly passed an order of reinstatement by setting aside the termination order. But, at the same time, the Tribunal has committed a grave error in not awarding back-wages by way of punishment to the workman for remaining absent from duty for 20 days. This punishment is highly disproportionate to the charges found to be proved against the workman. A minor punishment of stoppage of one increment with future effect would be just and proper for the charge of remaining absent from duty from 29.9.1979 to 18.10.79. But denying the back-wages for the period from termination i.e. from 30.4.1981 till the reinstatement i.e. 1987 for six years will be a very harsh penalty. Ordinarily this Court does not interfere with the order of penalty, imposed by the Disciplinary Authority or the Tribunal, in its power under Article 227 of the Constitution but when this Court is fully satisfied that the order of penalty is highly disproportionate to the charges proved against the workman then certainly this Court will interfere with the order passed by the Disciplinary Authority as well as of the Tribunal. The Division Bench of this Court in case of Rajasthan State Road Transport Coloration and Ors. v. Shri Ram Yadav reported in 1995(3) WLC(Raj) 16 has held as under;
The penalty imposed by the Disciplinary Authority of removal from service and forfeiture of wages for the period of suspension is quashed and set aside. Instead, the penalty of withholding of three increments with future effect is imposed and the workman is ordered to be reinstated in service immediately, latest by May 31,1995. If the workman is not actually reinstated in service by the aforesaid date he shall be entitled to claim full wages from June 1, 1995. The workman shall be paid 50% of the back wages by calculating the same as if he was throughout in service during the interregnum and was entitled to all the benefits which he would have earned had he been in service. The calculation of the 50% of the amount of wages and other monetary benefits payable to the workman as indicated hereinabove shall be made by the respondent Corporation immediately and the amount shall be paid to the workman latest by July 31, 1995. If the amount is not paid by the aforesaid date, it shall carry interest @15% per annum from the date of this judgment till the amount is paid.
5. Learned Government Advocate, Shri U.C.S. Singhvi has heavily relied upon the judgment of the Supreme Court reported in 1994(1) SVLR 53 and submitted that this Court should not interfere with the discretion exercise by the Disciplinary Authority and the Tribunal because it is not open to the High Court to interfere with the penalty order. As stated earlier, this is the case in which if this Court will not interfere with the order of penalty then it will be failing to discharge its duties. Accordingly, S.B.C.W.Pet. No. 2739/87 Shanker Lal Sharma v. State and Ors. is partly allowed. The order passed by the Tribunal of reinstating the workman is service is confirmed. However, the operative part of the order of denying back-wages to the petitioner from April 30, 1981 till the reinstatement and to treat the service of the workman as leave without pay is set aside. It is ordered that the workman be paid all the arrears of salary, allowances etc. from the date of his termination i.e. April 30, 1981 till the date of reinstatement. It is also ordered that the penalty of stoppage of one increment without future effect be imposed on the workman for the charges No. 13 to 16 proved against him for remaining absent from duty from September 30, 1979 to October 18, 1979 for above 20 days. Accordingly, writ petition No. 2739/87 filed by the petitioner workman Shir Shan ker Lal Sharma is partly allowed to the aforesaid extent. With no order as to costs. Once the petition of the workman is allowed the petition filed by the State of Rajasthan against the award passed by the Tribunal reinstating the workman service has to be dismissed and accordingly it is dismissed with no older as to costs.
6. It is made clear that if the workman is not reinstated in service so far as per award then he shall be reinstated in service forthwith, not in any case later than May 31, 1996. He shall be paid the arrears of salary from the date of termination till the reinstatement within three months from the receipt of this order. The copy of this order be supplied to the Government Advocate, Shri U.C.S. Singhvi and the same be sent to the petitioner workman Shanker Lal by Registered Post and to his former counsel Shri D.K. Parihar.
