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PETITIONER: JlTENTDRA SINGH RATHOR

       Vs.

RESPONDENT: SHRIBAIDYANATH AYURVED BHAWAN LTD. & ANR.

DATE OF JUDGMENT15/03/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DESAI, D.A.

CITATION:  1984 AIR  976            1984 SCR  (3) 223  1984 SCC  (3)   5        1984 SCALE  (1)506  CITATOR INFO :  D          1985 SC1128  (9)

ACT:      Labour Law  Services of  Employee-Termination of charge of  misconduct-Industrial   Tribunal   finding   charge   of misconduct proved  Reinstatement with  half  of  back  wages ordered-Employer approaching  High Court-High Court vacating order of  reinstatement and  quantifying compensation at Rs. 15000-Interference by High Court whether valid and legal.      Constitution of India 1950 Art 227      Jurisdiction of  High Court to interfere with the award of an Industrial Tribunal --When arises.      Industrial Disputes Act 1947 Section 11A.      Employee’  s   services  terminated   on   account   of misconduct-Jurisdiction  of  Industrial  Tribunal  to  grant relief-Explained.

HEADNOTE:      The appellant was employed as a Librarian under the Ist respondent. His  services were terminated for misconduct. He laid  a  complaint  before  the  Industrial  Tribunal  under section 33A  of  the  Industrial  Disputes  Act,  1947.  The Tribunal came  to the  conclusion that  though the charge of misconduct  against   the  appellant  was  established,  the punishment of  termination of  service  was  not  warranted, ordered reinstatement  with half of his back wages and other benefits from the date of termination.      The respondent-employer applied to the High Court under Article  227   to  quash   the  direction  of  reinstatement contending that  as the Tribunal had found misconduct on the pa-t of  the workman,  it was obligatory for the Tribunal to impose some  punishment which  it had  railed to  do. It was further contended  that as  there was  loss  of  confidence, reinstatement was  not appropriate. The High Court held that with-holding of  SO  per  cent  of  the  back  wages  was  a condition  of   reinstatement  and   was  not   by  way   of punishment,. held  that reinstatement  was not  called  for, vacated the  order of  reinstatement, directed  payment . Of compensation  to   the  respondent   workman  in   lieu   of reinstatement and quantified the compensation at Rs. 15,000.      Allowing the appeal. 224

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^      HELD: 1.  The order  of the High Court is set aside and the award  of the  Industrial Tribunal is restored. The High Court had  no justification  to interfere with the direction regarding reinstatement  to-service  and  in  proceeding  to substitute the  direction by quantifying compensation at Rs. 150000 it  acted without  any legitimate basis.’[228D, 227H, 228A]      2. Section  IIA of  the Industrial  Disputes Act,  1947 vests wide  discretion in  the Tribunal. and in a given case on the  facts established  the Tribunal can vacate the order of dismissal  or discharge  and give suitable directions. It is a  well-settled principle  of law  that when  an order of termination of  service is found to be bad and reinstatement is directed,  the wronged  workman is ordinarily entitled to full back  wages unless  for any particular reason the whole or a  part of it is asked to be withheld. The Tribunal while directing reinstatement  and keeping the delinquency in view could withhold  payment of  a part  or the whole of the back wages. [226G, ’227A]      3. The High Court under Article 227 of the Constitution does not  enjoy the  wide discretion  vested in the Tribunal under section  IIA, though as a superior court, it is vested with the  right of  superintendence. The  High Court  is in- disputably  entitled   to  scrutinise   the  orders  of  the subordinate tribunals  within the  well accepted limitations and it  could in  an appropriate case quash the award of the Tribunal aud  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 peace of the one made by the Tribunal  as in  the case  of an appeal where it lies to it. [227D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 108 of 1984.      From the  Judgment and  order dated 4.3.83 of the Patna High Court in C.W.J.C. No. 3490 of 1979.      M..K. Rangamurthi and A.Sharan for the Appellant      S.N. Singh for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  workman is  in  appeal  after obtaining leave  under Article  136 of the Constitution from this Court. The appellant was working as librarian under the respondent employer. His services were terminated on May 24, 1977, on  payment of  a month’s salary. The appellant laid a complaint before  the Industrial  Tribunal under section 33A of the  Industrial Disputes  Act, 1947 (hereinafter referred to as  ’the Act’)  and the  Tribunal Came to find on hearing parties that though the charge of misconduct 225 within the  meaning of  clause 16(iii)  (a) of  the Standing orders had   been  established, punishment of termination of service was  not warranted.  Accordingly, reinstatement  was ordered. The direction of the Tribunal ran thus:           "Considering the  facts and  circumstances of  the      case and  evidences on  record I  direct  the  opposite      party   (employer    to   reinstate   the   complainant      (appellant) with  half of  his  back  wages  and  other      benefits from  the date  of termination  of his service      (24. S.  l 977)  within one  month  from  the  date  of      pronouncement of this award."

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    The employer  applied to  the High  Court under Article 227  of   the  Constitution   to  quash   the  direction  of reinstatement and  in support  of the stand it was contended that as the Tribunal had found misconduct on the part of the workman, it  was obligatory  for the Tribunal to impose some punishment which it had failed to do. The employer also took the position  that  there  was  loss  of  confidence  ,  and reinstatement was  not appropriate. The appellant maintained that though under the law he was entitled to full back wages upon ,  reinstatement, the Tribunal had directed withholding a moiety  of it  in view  of its finding that misconduct had been  established.   The  High   Court  come  to  hold  that withholding of SO per cent of the back wages was a condition of reinstatement  and was not by way of punishment. The High Court observed:           "The two powers under section IIA are alternative;      the first  is to direct reinstatement of the workman on      such terms  r and  conditions as  it thinks fit and the      second is  to give  some other  relief to  the  workman      including the  award of  any lesser  . P  punishment in      lieu of reinstatement as the circumstances of this case      may  require.   Under  the   second  alternative,   the      Tribunal may  instead of  directing reinstatement  give      the relief  of compensation  to the  workman or award a      lesser  punishment..   It   was   for   the   Tribunal,      therefore, to  decide "  .  as  to  which  of  the  two      alternatives it  should adopt.  But the  . Tribunal  is      always bound  to exercise its discretion judicially and      decide to  adopt either  the  first  course  to  direct      reinstatement on  such  terms  rand  conditions  as  it      thinks fit  or the  . second  course to  award a lesser      punishment   in    lieu   of   reinstatement   as   the      circumstances of  the case  may require.  The order  of      reinstatement with  half back  wages is an order of the      first category and not of the second category. The 226      payment of  only half  of the back wages is a condition      of the  reinstatement and  not  a  punishment  for  the      misconduct of the workman."      The High  Court then  came to  the conclusion  that the order of  reinstatement was  not called for and proceeded to indicate:           "The question now is should the award be set aside      and the  case be  remitted back  to the  Tribunal for a      fresh determination  of the  matter in  accordance with      law or  should the  proceeding be concluded by making a      reasonable modification in the award of the Tribunal?"      The  High   Court  thereafter   vacated  the  order  of reinstatement holding  that ends  of justice would be served by directing  payment of  compensation  to  the  respondent- workman  in   lieu  of   reinstatement  and  quantified  the compensation at  Rs. 15,000.  This modification  by the High Court is assailed in appeal at the instance of the workman.      Section IIA of the Act provides:           "Where  an  industrial  dispute  relating  to  the      discharge or  dismissal of  a workman has been referred      to a  Labour Court,  Tribunal or  National Tribunal for      adjudication and,  in the  course of  the  adjudication      proceedings, the  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

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    award of  any lesser punishment in lieu of discharge or      dismissal  as   the  circumstances   of  the  case  may      require."      Wide discretion  is vested  in the  Tribunal under this provision and  in a  given case on the facts established the Tribunal can  vacate the order of dismissal or discharge and give suitable  directions. It is a well-settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled  to  full  back  wages  unless  for  any particular reason the whole or a part of it is asked to be 227 withheld. The  Tribunal while  directing  reinstatement  and keeping A  the delinquency in view could withhold payment of a part  or the  whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages  either in full or part is withheld it amounts to a penalty.  Withholding of  back wages to the extent of half in the  facts of  the case was, therefore, by way of penalty referable to  proved misconduct and that situation could not have been  answered by  the High  Court by  saying that  the relief of  reinstatement  was  being  granted  on  terms  of withholding of  half of  the back  wages and, therefore, did not constitute penalty.      Under Section IIA 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 ult 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.  In  this  case,  the  Tribunal  had  directed reinstatement, the  High  Court  vacated  the  direction  of reinstatement and  computed compensation  of Rs.  15,000  in lieu of  restoration of service. We are not impressed by the reasoning of  the High  Court  that  reinstatement  was  not justified  when   the  tribunal  in  exercise  of  its  wide discretion given  under the law found that such relief would meet the  ends of  justice. The  Tribunal had not recorded a finding that  there was  loss of confidence of the employer. The job  of a  librarian does  not involve  the necessity of enjoyment of  any special confidence of the employer. At any rate, the  High Court  too did  not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in  and how  many years of service were still left under the Standing  orders. The  salary and other service benefits which the  appellant was  receiving also  did not enter into the consideration  of the  High Court  while  computing  the compensation. We  are, therefore,  of the view that the High Court had  no justification  to interfere with the direction regarding reinstatement to service and in procee- 228 ding to substitute the direction by quantifying compensation of Rs. 15,000 it acted without any legitimate basis.      Mr.  Prasad  for  the  respondent  no.  1  invited  our attention to  the fact  that the High Court was cognizant of the necessity  of a remand but taking into consideration the

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delay involved and the fact that a remand was unnecessary in view of  the nature  of the  order it was going to make took upon itself  to give  a final  decision. We  reiterate  that ordinarily it  is not  for the High Court in exercise of the jurisdiction of  superintendence to  substitute one  finding for another and similarly one punishment for another. We may not be  understood to  have denied  that power  to the  High Court in  every type  of cases.  It is  sufficient  for  our present purpose  to hold  that on  the facts  made out,  the approach of  the High Court was totally uncalled for and the manner in  which the  compensation was  assessed by vacating the order of reinstatement is erroneous both on facts and in law.      The appeal], therefore, is allowed and the order of the High Court  is set  aside and  the award  of the  Industrial Tribunal is  restored.  The  appellant  became  entitled  to reinstatement within  a month  from November  24, 1979, when the award  was made.  He would,  there fore,  be entitled to full wages  and other  service benefits  from  December  24, 1979, taking  the month’s  allowance given in the award into account. He  would also  be entitled to the half of the back wages in  terms of the award from May 24, 1977 till December 23, 1979.  We direct  the Tribunal  to compute the amount so due as  back wages  and the appellant. is entitled to 12 per cent interest on the sum from January 1, 1980, till payment. The appeal  is allowed  with costs.  Hearing fee assessed at Rs. 2000. N.V.K.                                       Appeal allowed. 229