2011(3) ALL MR 706
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
P.B. MAJMUDAR AND A.V. MOHTA, JJ.
Air India Ltd.Vs.Ms. Shashikala Jatav & Anr.
Appeal No.635 of 2004,Writ Petition No.1991 of 2004
16th September, 2010
Petitioner Counsel: Mr. S. K. TALSANIA,Mr. S. K. CHARI,by M/s. M. V. Kini& Co.
Respondent Counsel: Mr. MOHAN BIR SINGH
Industrial Employment (Standing Orders) Rules (1946), R.14(6) - Disciplinary action against airhostess - Dismissal order passed by Deputy Director - Sustainability - Deputy Director nowhere figured as competent disciplinary authority in Model Standing Orders (M.S.O.), he although is competent authority under Service Regulations (S.R.) - Disciplinary action is governed by M.S.O. and not by S.R. - Since there is no provision for appeal against order of Deputy Director, aggrieved is deprived of her right - Aggrieved could also not approach any other higher authority as there can be no appellate authority of one's choice - Order of Deputy Director, is without authority and unsustainable. (Para 9)
Air India Vs. Union of India, 1991 Lab.I.C. 451 [Para 3]
Balbir Chand Vs. Food Corporation of India, AIR 1997 SC 2229 [Para 7]
Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, AIR 1995 SC 1053 [Para 7,8]
A. Sudhakar Vs. Postmaster General, Hyderabad, (2006)4 SCC 348 [Para 7]
Chairman, A.P. State Electricity Board Vs. M. Kurmi Naidu, 2007 ALL SCR 2101=(2006)8 SCC 62 [Para 7]
Government of Andhra Pradesh Vs. N. Ramanaiah, (2009)7 SCC 165 [Para 7]
Goa Shipyard Ltd. Vs. Babu Thomas, (2007)10 SCC 662 [Para 7]
Awdesh Kumar Bhatnagar Vs. The Gwalior Rayon Silk Mfg. (Weaving) Co. Ltd., AIR 1972 SC 1431 [Para 7]
Chairman-cum-Managing Director, Coal India Limited Vs. Mukul Kumar Choudhuri, 2009(6) ALL MR 451 (S.C.)=(2009)III CLR 645 [Para 12]
P. B. MAJMUDAR, J.:- The litigation between the appellant and respondent No.1 (hereinafter "the respondent") is going on since last two decades. The disciplinary proceedings were initiated against the respondent in the year 1990 by the appellant-Air India on the ground that respondent absented herself on the expiry of leave which was granted to her. She was pregnant at that time and delivered a child later on. By this time even the concerned child has become major, having completed twenty years of age. Still the legal matter is going on between the appellant and the respondent who was appointed as an Air Hostess in Air India.
2. The respondent at the relevant time was serving as a Air Hostess in the Air India. Respondent was employed as a Trainee Air Hostess with the Appellant on 17th February, 1983. Initially she had applied for earned leave w.e.f. 1st June, 1988 to 1st July, 1988. Subsequently she had applied for extension of leave on 2nd July, 1988 and such extension of leave was applied from time to time. It seems, in the meanwhile, the respondent became pregnant and she had applied for maternity leave. The maternity leave was sanctioned upto 10th May, 1990. It is pointed out by the learned counsel for the appellant that even during the pregnancy period till a child is delivered, as per the Rules maternity leave is sanctioned. The respondent was asked by the appellant thereafter to resume duty by 10th October, 1990. She had not resumed duty on the ground that she was required to look after the infant child and in the meanwhile she also conceived second pregnancy. This resulted into initiation of departmental enquiry against the respondent. During the course of hearing it is pointed out by the learned counsel for the parties that an Air Hostess is entitled to take maternity leave twice during her service period. Since the departmental enquiry was initiated against the respondent under the Model Standing Orders (Central) on the ground that she remained absent without leave for more than 10 days, it may amount to willful insubordination. The respondent had not participated in the enquiry and, therefore, ex-parte enquiry was conducted and ultimately she was dismissed from the services. The said dismissal order was passed on 11th December, 1992. The respondent raised an industrial dispute challenging the said order which was referred to the Central Government Industrial Tribunal by way of Reference No.CGIT-11 of 1998. The Tribunal by its order dated 18th August, 2003 set aside the dismissal order and granted reinstatement without back wages. The Tribunal set aside the dismissal order on the ground that the order of dismissal was passed by the Deputy Director, Inflight Services, who was not competent to pass an order of punishment. The Tribunal has relied upon the Model Standing Order in this connection and ultimately found that the Deputy Director was not competent to pass such an order. The aforesaid order of reinstatement was challenged by the appellant by way of Writ Petition being Writ Petition No.1991 of 2004. The learned single Judge dismissed the said writ petition against which the present appeal is filed. During the pendency of this Appeal, the appellant has complied with the provisions of Section 17-B of the Industrial Disputes Act, 1947 and is paying last drawn salary to the present respondent.
3. Mr. Talsania, learned senior counsel appearing for the appellant, has challenged the order of the Industrial Tribunal which is confirmed by the learned single Judge on the ground that the Deputy Director is a higher authority so far as appellant is concerned and, therefore, even if the Deputy Director cannot be said to be a disciplinary authority in service jurisprudence, an authority higher than the disciplinary authority, can always act either as a disciplinary authority and may pass appropriate punishment order. Mr. Talsania further submitted that at the relevant time Service Regulations were made applicable but subsequently in view of the judgment of the Delhi High Court in the case of Air India Vs. Union of India and others [1991 Lab.I.C. 451] wherein it is held that the provisions of the Industrial Employment (Standing Orders) Act, 1946 would be applicable to the employees of Air India, that the departmental enquiry was continued against the respondent as per the Model Standing Orders. It is submitted by Mr. Talsania that in fact the Deputy Director is two stages above the Manager, who is the disciplinary authority under the Model Standing Orders and according to him the higher authority or even the appellate authority can pass an order of punishment.
4. Mr. Talsania further submits that even otherwise it cannot be said that any prejudice can be said to have been caused to the respondent as, against the order of the Deputy Director, she could have preferred an appeal under the Model Standing Orders. It is submitted by Mr. Talsania that since the respondent has a right to appeal against the order of the Deputy Director and she having not availed the said right, it is not open to the respondent now to make any grievance that the Deputy Director was not competent to pass such an order. Mr. Talsania further submits that since the appellate authority as such is not specified in the Model Standing Orders, yet the respondent could have preferred an appeal to the highest authority and if she had preferred such appeal, the appropriate authority might have decided the appeal of the respondent. Learned counsel further submits that the Deputy Director was empowered to proceed against the respondent in connection with the departmental enquiry as he was competent authority under Service Regulations framed by the appellant and by virtue of that he was entitled to act as a disciplinary authority so far as the respondent is concerned even under the Model Standing Orders. Learned counsel further submits that just and fair departmental enquiry was initiated against the respondent in connection with the charges levelled against her. Since the respondent had not participated in the enquiry, an ex parte enquiry was conducted. It is submitted by him that it is a well settled proposition of law that higher authority or officer higher in rank than the disciplinary authority can always pass an order of punishment. It is further submitted that the charge-sheet was issued by the Deputy Director, Inflight Services, who was otherwise also competent to take disciplinary action under the Service Regulations framed by the Appellant. Mr. Talsania further submits that the respondent could have filed an appeal before the Chief Managing Director who could have later on notified to the appellate authority the case of the present respondent. It is submitted that the Deputy Managing Director was competent to decide the appeal against the order passed by the Deputy Director. It is submitted that the Tribunal should have also considered the aspect as to whether the action of the management was justified in imposing the penalty by considering the provisions of Section 11-A of the Industrial Disputes Act. The learned counsel for the appellant, in support of his submissions, has relied upon on certain judgments, reference of which will be made later on.
5. Mr. Mohan Bir Singh, learned counsel for the respondent, on the other hand supported the order passed by the Tribunal as well as of the learned single Judge. It is argued by Mr. Singh that even though under the Service Rule, the respondent was entitled to maternity leave upto two pregnancies, yet a harsh action was taken by the appellant by holding an enquiry against the respondent who could not remain present in view of the fact that she was having an infant child at the material time. Mr. Singh submitted that under the Model Standing Orders, the Deputy Director nowhere figures either as a disciplinary authority or as an appellate authority and simply because he may be holding a higher post in the appellant, it is presumed that he was empowered to hold enquiry against the respondent. Mr. Singh submitted that in any case it was not a case where such a maximum penalty of dismissal from the services could have been passed when the respondent was unable to join duties because of two infant children whose care was required to be taken by the respondent at the relevant time. In order to substantiate his submissions, Mr. Singh has placed reliance on certain judgments, reference of which would be made later on.
6. We have heard the learned counsel appearing for the parties. We have also gone through the order of the Tribunal as well as the order of the learned single Judge. We have also perused the documents which form part of this petition.
7. It is not in dispute that the Model Standing Orders are applicable in the present case. It is also equally not in dispute that the enquiry against the respondent was initiated under the Model Standing Orders and the same has not been held under the service regulations framed by the appellant. It is required to be noted that the Delhi High Court delivered the judgment on 27th August, 1990 and the charge-sheet was issued against the respondent on 12th October, 1990 as per the Industrial Employment (Standing Orders) Act, 1946. It is not in dispute that the enquiry was held under the Model Standing Orders, the question which requires consideration is as to whether the Deputy Director was competent to exercise disciplinary power as per the Model Standing Orders applicable to the parties. In this connection, reference is required to be made to the relevant provision of the Industrial Employment (S.O) Central Rules, 1946. Rule 14 deals with disciplinary action for misconduct. Sub-Rule 6(a) and (b) of the said Rules reads thus :
"(a) A workman aggrieved by an order imposing punishment may within twenty-one days from the date of receipt of the order, appeal to the appellate authority.
(b) the employer shall, for the purposes of clause (a) specify the appellate authority.
(c) the appellate authority, after giving an opportunity to the workman of being heard, shall pass such order as he thinks proper on the appeal within fifteen days of its receipt and communicate the same to the workman in writing."
It is not in dispute that in the present case as per the provisions of the Industrial Employment (Standing Orders) Act, 1946 and the Model Standing Orders framed thereunder, the Deputy Director nowhere figures either as a disciplinary authority or as an appellate authority. This aspect as such is not in dispute. Mr. Talsania has submitted that even otherwise Deputy Director is a higher officer in the hierarchy and as a higher officer he can initiate departmental enquiry or pass punishment order. In order to substantiate his say, he has relied upon judgments of the Supreme Court in the case of Balbir Chand Vs. Food Corporation of India and others [AIR 1997 SC 2229]. In the aforesaid case, a joint enquiry against various officials was held. The Supreme Court has held that the authority lower in rank than the appellate authority cannot take any decision in the matter of disciplinary action but there is no proposition that the authority higher than the disciplinary authority cannot take any decision in the matter of disciplinary action. The learned counsel has also tried to distinguish the judgment of the Supreme Court in the case of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank and others [AIR 1995 SC 1053] wherein the Supreme Court has held that in a given case exercise of power by the authority higher than the disciplinary authority may amount to discrimination. The learned counsel submitted that the Supreme Court in the case of Surjit Ghosh (supra) has been explained and distinguished in the subsequent judgments. Mr. Talsania has also relied upon the decision of the Supreme Court in the case of A. Sudhakar Vs. Postmaster General, Hyderabad and another [(2006)4 SCC 348] wherein it is held that the authority higher than the appointing authority may also act as a disciplinary authority for the purpose of Article 311 of the Constitution of India. The aforesaid judgment was in connection with Central Civil Services (Conduct) Rules, 1964. In the said case the Supreme Court has also considered the decision in Surjit Ghosh (supra) as well as Balbir Chand (supra). The learned counsel has also relied upon the judgment of the Supreme Court in the case of Chairman, A.P. State Electricity Board and another Vs. M. Kurmi Naidu [(2006)8 SCC 62 : (2007 ALL SCR 2101)] wherein a similar view has been taken that the authority higher than the disciplinary authority can pass an order of punishment. In paragraphs 7 and 8, after considering the Regulation applicable in the said case held as under.
"7. Regulation 7(e) of the A.P. State Electricity Board Employees Discipline Appeal Regulations, 1990 (in short "the Regulations") provides that powers vested in an authority may be exercised by a superior authority in its discretion. It reads :
"7(e) Power vested in an authority may be exercised by a superior authority in its discretion.
Note (1) Powers vested in an authority may be exercised by a superior authority in its discretion vide Regulation 7(e) of the A.P. State Electricity Board Employees' Discipline Appeal Regulations.
8. The question is as to whether the respondent was at all deprived of his right of appeal in the present case. In Surjit Ghosh this Court held at SCC p.477 para 6 as under.
"However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned"."
It was found in Surjit Ghosh's case (supra) that there was no further appeal provision provided against the order of the higher authority and since no appeal could be preferred, the appellant was deprived of the right of appeal provision. The learned counsel for the appellant has also relied upon the decision of the Supreme Court in the case of Government of Andhra Pradesh and another Vs. N. Ramanaiah [(2009)7 SCC 165] in order to substantiate his case by submitting that even if a higher authority has passed the order against which no appeal may be provided, yet such decision of the higher authority can be said to be valid. Mr. Talsania has further relied upon the judgment of the Supreme Court in the case of Goa Shipyard Ltd. Vs. Babu Thomas [(2007)10 SCC 662]. In the said case, the appellate authority passed the order and the appeal was preferred before the Chairman and Managing Director. The appeal was heard by the Board of Directors. It was held that there was no denial of right of appeal and, therefore, no prejudice can be said to have been caused to the delinquent even the order is passed by the appellate authority exercising disciplinary powers. The learned counsel further placed reliance in the case of Awdesh Kumar Bhatnagar Vs. The Gwalior Rayon Silk Mfg. (Weaving) Co. Ltd. and another [AIR 1972 SC 1431], wherein it has been held that where the Labour Court has committed any serious mistakes, the Industrial Court gets jurisdiction to interfere in revision. In the aforesaid case the order of the Labour Court was interfered with in revision by the Industrial Court wherein it has been held by the Supreme Court that if the Labour Court has committed any serious mistakes such order can be corrected. It is submitted by the learned counsel for the appellant that in the instant case since the Industrial Tribunal has committed an error of law and, therefore, the High Court under Article 226 is competent to correct such error by setting aside the said order.
"5. The respondent-Bank in its submission contended that although it is true that the Deputy General Manager had acted as the disciplinary authority when he was in fact named under the Regulations as an appellate authority, no prejudice is caused to the appellant because the Deputy General Manger is higher in rank than the disciplinary authority viz, the Divisional Manager/AGM (Personnel). According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. It was also contended that there is no right to appeal unless it is provided under the Rules or Regulations. Although the argument looks attractive at first sight, its weakness lies in the fact that it tries to place the Rules/Regulations which provide no appeal on par with the Rules/Regulations where appeal is provided. It is true that when an authority higher than the disciplinary itself imposes the punishment, the order of punishment suffers from no illegality, when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellant or the higher authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot savour of legality. Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted. The result, therefore, is that the present order of dismissal suffers from an inherent defect and has to be set aside."
9. So far as the factual aspect of the present case is concerned, it is required to be noted that admittedly the enquiry has been held against the Respondent under the Model Standing Orders. It is not in dispute that so far as Deputy Director is concerned, he nowhere figures in the Model Standing Order as a appellate authority or even as a reviewing authority. Considering the aforesaid aspect, it cannot be said that the Deputy Director was in any way authorised to hold any disciplinary proceedings against the respondent who was serving as a Air Hostess at the relevant time, as the disciplinary authority under the Model Standing Order is Manager, Inflight and the Deputy Director is two steps above the said authority. The charge-sheet was issued by the Deputy Director who can never be said to be a Competent Authority or Disciplinary Authority in any manner under the Model Standing Orders and he can be said to be a Competent Authority under the Service Regulations. It is also not in dispute that no appellate authority has been specified in the Model Standing Orders so far as the order passed by the Deputy Director is concerned. This factual aspect as such is not in dispute. It is not possible for us to accept the submission of Mr. Talsania that even if no appeal is specified under the Model Standing Orders, the respondent should have addressed her appeal to the higher authority or the Deputy Director and thereafter the higher authority could have found out the appellate authority and assigned the matter to such an authority, as and when such appeal was preferred before it. The argument of Mr. Talsania, on the face of it, is contrary to the provisions contained in the Model Standing Orders which clearly provided that the appellate authority has to be specified in advance. The appeal is a creation of statute and unless such appeal is provided under the Rules and Regulations or under the Model Standing Orders, there was no question on the part of the respondent to prefer an appeal to anyone she likes. Considering the facts of this case, we are satisfied that the Deputy Director was lacking any disciplinary power or even appellate power under the Model Standing order and, therefore, he was not competent to pass the order against the respondent. It cannot be disputed that since the Deputy Director exercised the disciplinary jurisdiction by passing the order of punishment, the respondent was deprived of her right of preferring an appeal, as no such appeal is provided for specified in the Model Standing Orders. Mr. Talsania, however, submitted that in view of the decision of the Delhi High Court, the enquiry was conducted by Deputy Director, who is a superior authority in the hierarchy in so far as the respondent is concerned. As pointed out earlier, the enquiry is not conducted as per the Service Regulations and the same is conducted under the Model Standing Orders. Simply because in the set up of the Air India he might be holding higher post itself is no ground by which it can be inferred that he can exercise such power. Learned counsel for the respondent, during the course of his argument, submitted that even a pilot is a higher officer in hierarchy as compared to appellate authority but the pilot cannot act as a disciplinary authority as even the pilots are considered as workmen. In any case since the present case is governed under the provisions of the Model Standing Orders, in our view, the order passed by the Tribunal and confirmed by the learned single Judge cannot be said to be contrary to law or cannot be said to be illegal in any manner. In this connection, it may be useful to quote the observations of the learned single Judge in paragraph 10 of the judgment.
"10. Model Standing Orders constitute statutorily a part of the terms and conditions of service of workmen. Model Standing Order 14(6) envisages a substantive right of appeal to a workman aggrieved by an order imposing punishment in the course of a disciplinary inquiry. The employer is under a mandate and an obligation to specify the appellate authority and it is then provided that the appellate authority shall decide upon an appeal that may be preferred by a workman after furnishing to the workman an opportunity of being heard. In pursuance of the mandate of Model Standing Order 14(6)(a) Air India has in its administrative circular dated 17th November, 1990 specified the names of authorities who are empowered to take disciplinary action and to hear appeals arising out of orders passed thereon. In so far as Air Hostesses are concerned, the authority empowered to take disciplinary action is the Manager Cabin Crew or Chief Air Hostess or the equivalent or the Station Manager or equivalent. An appeal has been provided to the Senior Station Manager or, as the case may be, the Senior Manager Cabin Crew or her equivalent."
The learned single Judge has also found that it is an admitted position that no appellate authority has been specified if the power of dismissal were to be exercised by the Deputy Director, Inflight Services. It is difficult for us to accept the argument of Mr. Talsania that even if the appellate authority is not specified or provided as and when any appeal is filed, the higher authority can search and find out appellate authority for the respondent. It is difficult for us to swallow such arguments canvassed by the learned counsel for the appellant.
10. The Tribunal as well as the learned single Judge has given cogent reasons for coming to the conclusion that the order passed by the Deputy Director is not sustainable as he was not authorised to pass any such order under the prevailing Model Standing Orders. It seems that before the learned single Judge the instrument of delegation has been produced on record which was not produced before the Tribunal. The learned single Judge found that no explanation has been given as to why such delegation was not produced before the Tribunal but even if the same is to be considered it cannot have any application to the dispute which is required to be considered by us in this matter. The said instrument is silent with regard to the disciplinary jurisdiction. The aforesaid aspect has been considered by the learned single Judge and the relevant observations in this behalf are as under :
"The only instrument that was relied upon by the management was that of 17th November, 1990 which has been already referred to earlier. There is absolutely no explanation as to why the delegation which is now sought to be relied upon was not produced or relied upon before the Industrial Tribunal. In fact, even the aforesaid instrument is in two parts, the first containing the delegation of financial powers and the second, a delegation of administrative powers. The latter refers to the creation of posts, appointments and promotions, officiating appointments, fixation of pay, revision of emoluments, grant of leave, transfers, free passages and legal matters. The instrument is conspicuously silent with regard to the disciplinary jurisdiction. The view which I have taken in regard to the non production of the instrument of delegation before the Tribunal finds support in a judgment of three learned Judges of the Supreme Court in Hindustan Brown Boveri Ltd. Vs. Their Workmen, (1967)1 LLJ 571 (S.C.). In that case a delegation of authority for the purpose of exercising the disciplinary jurisdiction was sought to be relied upon for the first time before the Supreme Court. The Labour Court was not informed about the existence of the power of attorney and even in its Special Leave Petition the management failed to urge that there existed such delegation of authority. The Supreme Court held that there was no manner of doubt that the management was negligent in not producing the document and, therefore, that was not a case where the company could not produce additional evidence or was prevented from doing so earlier. The Court held that in the absence of such evidence the company had failed to establish delegation of power."
11. Considering the reasoning given by the learned single Judge, in our view, this is not a fit case in which this Court would like to interfere with the said order especially when, as pointed out above, it cannot be said that any illegality or irregularity has been committed either by the Tribunal or by the learned single Judge in any manner.
12. Learned counsel for the respondent has further submitted that on merits also the order of penalty is not sustainable as, according to him, when the respondent was pregnant and when she had applied for leave, such drastic order of dismissal has been passed. In order to substantiate his say, he has relied upon the decision of the Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhuri and others [(2009)III CLR 645 : (2009(6) ALL MR 451 (S.C.))] wherein it has been held that punishment of removal is unduly harsh and demand of justice would be met if he is reinstated but denied back wages from the date of his removal until reinstatement by way of punishment for proved misconduct. In paragraph 26 of the said judgment it is held as under :
"26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances ? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the mater back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months."
13. The learned counsel for the respondent has also placed reliance on the judgment of the Supreme Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation [2010 (Sic) CLR 884]. The said judgment is in connection with the powers which normally the court should exercise in a matter where the order of the Labour Court or Industrial Court is under challenge. The Supreme Court has observed thus :
"16. In view of the above discussion, we hold that the learned single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by Labour Court with compensation of Rs.87,582/- by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 15 of the Constitution and the Regulations.
17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Article 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39 (a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare state". State of Mysore Vs. Workers of Gold Mines, AIR 1958 SC 923."
14. Since neither the Tribunal nor the learned single Judge has gone into merits of the case, in order to find out whether the dismissal order was justified or whether the penalty imposed was disproportionate or not, we cannot consider this aspect for the first time in this appeal. However, in view of the reasoning given by the Tribunal which is confirmed by the learned single Judge, in our view, no case is made out by the appellant for interference with the order of the Tribunal and confirmed by the learned single Judge. It cannot be said that any error apparent on the face of the record has been committed by the Tribunal in passing the impugned order which requires interference by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. The learned single Judge has rightly, therefore, not interfered with the said order of the Tribunal and we do not find any infirmity or illegality in the order passed by the learned single Judge. The appeal is accordingly without any substance.
15. The learned counsel for the respondent fairly submits that in case the appellant reinstates the respondent within a reasonable time, she will not be claiming back wages for the period between the order of reinstatement till her actual reinstatement in service. We must point out that during the pendency of the proceedings a settlement talk took place between the parties and the appellant was willing to settle the dispute by paying certain amount to the respondent, if she is willing not to insist for reinstatement. Since the said aspect could not materialise that ultimately matter is decided finally on its own merits.
"Until the disposal of the appeal, the operation of the award dated 28th August, 2003 passed by the Central Government Industrial Tribunal and the order of the learned single Judge dated 25th June, 2004 shall remain stayed subject to appellant making payment every month to the first respondent (workman) as per the wages last drawn by her at the time of termination of her service and further undertaking to be filed within four weeks from today by the appellant that in the event of the appeal being dismissed by this Court, the appellant shall pay the due amount to the workman as would have been payable to her on the reinstatement from the date of the award of the Central Government Industrial Tribunal and simple interest at the rate of 6% per annum thereon."
17. In view of the above, we direct that in case the appellant reinstates the respondent within a period of eight weeks from today, the respondent shall not claim any back wages from the date of the order of the Tribunal till she is reinstated in service. If no reinstatement is order passed within eight weeks from today, then the respondent will be entitled to back wages from the date of the award till reinstatement with interest at the rate of 6 per cent. It is further clarified that at the time of making such payment of back wages as indicated above, whatever amount has been paid to the respondent towards 17-B wages be adjusted. The Appeal is accordingly dismissed, subject to what is stated above.