- (1.) The workman is in appeal after obtaining leave under Art. 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. Appellant laid a complaint before the Industrial Tribunal under S. 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 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 evidence 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 (24-5-1977) within one month from the date of pronouncement of this award." The employer applied to the High Court under Art. 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 came to hold that withholding of 50 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 S. 11A are alternative; the first is to direct reinstatement of the workman on such terms and conditions is it thinks fit and the second is to give some other relief to the workman including the award of any lesser punishment in lieu of reinstatement as the circumstances of the 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 reinstatetrient on such terms and 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 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 Rupees 15,000/-. This modification by the High Court is assailed in appeal at the instance of the workman.
(2.) Section 11A of the Act provides. "Where an industrial dispute relating to the discharge or dismissal of a work man 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 award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require."
(3.) Wide discretion is vested in the Triburial 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 where an order of termination of service 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. 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.;