MADAN, J. - (1.) THE undisputed facts are that on 13. 9. 1965 the petitioner was appointed as `karya Karta' in the services of Rajasthan Khadi Vikas Mandal, Govind Garh, Distt. , Jaipur, respondent No. 2. He was working in the services of the said organisation till 8. 5. 1978 when he was served with a charge sheet by the management on account of irregularities committed by him while performing his duties with the said organisation. He submitted reply to the charge sheet. THE petitioner denied all the charges being false, baseless and being of no consequence. It has been alleged that since the management was bent upon to victimise the petitioner, a domestic enquiry was held in the matter by Shri D. N. Sharma, a permanent advocate of respondent No. 2. THE contention of the petitioner is that he was not supplied with the enquiry report recommending his dismissal from the services of respondent No. 2 therefore, he could not file representation against his dismissal order dt. 6. 9. 1978. THEreafter, respondent No. 2 filed an application for approval of the said dismissal order under Section 33 of the Industrial Disputes Act, 1947 (for short ``the ID Act'') before the competent authority in respect of action taken by the employer which was granted. THEreafter, the petitioner raised an industrial dispute which was referred for adjudication to the State Govt. THE petitioner filed his statement of claim before the Industrial Tribunal while respondent No. 2 filed its reply. THE learned Judge, Industrial Tribunal passed its award on 5. 12. 1990 justifying the action of respondent No. 2. It was published on 15. 4. 1991. It is under the aforesaid circumstances that the petitioner has moved to this Court by way of this writ petition which is now disposed of finally by this order.
(2.) DURING the course of hearing, learned counsel for the petitioner assailed the impugned award on the following grounds:- `` (a) that the award of the learned Tribunal is contrary to law and facts apparent on the face of the record; (b) the learned Tribunal has also failed to exercise jurisdiction vested in him under Sec. 11a of the ID Act; (c) that the learned Tribunal has not cared to appreciate that the Enquiry Officer was the permanent counsel of respondent No. 2. He himself has represented respondent No. 2 before the Tribunal against the petitioner. Therefore, he could not be said to be an impartial Judge. His attitude has been amply proved by his conduct during the enquiry proceedings as well as by giving his findings. His findings about some charges were not having been proved but a show of impartiality while he has found the other charges proved, so as to give pretext to respondent No. 2 to victimise the petitioner; (d) that the learned Tribunal has also not appreciated that copies of the enquiry proceedings as well as the enquiry report was not supplied to him and he was not given any opportunity before passing dismissal order. It has been finally settled by the Hon'ble Supreme Court that an employee must be heard before passing any punishment against him on the basis of the enquiry held against him. This opportunity is a part of natural justice and in its absence the punishment imposed on the employee is invalid. Needless to point out that this opportunity can only be availed by the employee when he is supplied with a copy of enquiry report and other enquiry record; (e) that the learned Tribunal has not adopted a correct approach while considering the evidence of enquiry record. After insertion of Section 11-A of the I. D. Act, the powers of the Industrial Tribunal in such matter of reference is that of an appellate Court and, therefore, he should have reappreciated the evidence and should have come to his own conclusions he has only considered the evidence to see the evidence that whether the findings of the enquiry officer are not completely unjustified. This approach is not in accordance to law; (f) that even the findings of the enquiry officer were based on extraneous consideration a charge of pilfering the material belonging to the Bhandar could only be proved by the records and discrepancies therein, but admittedly there is no such discrepancy in the records and stock of the cloth. Simply by statement of Tailor that he was given less clothes for making dresses is no evidence at all particularly when no dress was produced during the enquiry. Thus, the findings of the Enquiry Officer which have been approved by the respondent No. 1 is based only on conjectures and surmises. The same can be said about the two other charges, which in fact are no charge at all; and (g) that even the charges are of trivial in nature on the face of them. Punishment of dismissal from services of a person with about 13 years of service is shockingly disproportionate. The learned Tribunal has not exercised his powers under Sec. 11a of the ID Act properly. '' On the quantum of punishment i. e. dismissal from service looking to the charges, learned counsel for the petitioner contended that a lesser punishment should have been imposed on him as it was not justified keeping in view the requirement of the provisions of Sec. 11a of the ID Act. In this regard, the learned counsel for the petitioner contended that where punishment imposed on an employee is disproportionately excessive, the Labour Court/tribunal in exercise of its discretion under Sec. 11a of the Act can reduce the punishment and thereafter it is for this Court to review the order of the learned Tribunal as regards quantum of punishment imposed on the petitioner. Section 11a of the Act, reads, as under:- ``11-A. Powers of Labour Courts. Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen-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 and 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: Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. '' In reply to show cause notice, respondent No. 2 has contended in the reply that since the award was passed by the learned Tribunal on the basis of due appreciation of material available on record, looking to the seriousness of the charges and the responsible position which the petitioner was holding at the time of his dismissal, after he was found guilty of committing of serious misconduct, theft, dishonesty in working of answering respondent which was proved on the basis of evidence on the record, his guilt having been established, he was rightly dismissed by the answering respondents. Moreso, the learned Tribunal held the action of respondent No. 2 fully justified dismissing the services of the petitioner, hence, it was not open for the petitioner to assail the action of respondent No. 2 on the question of quantum of punishment imposed on him and since the Reference had already been answered in favour of respondent No. 2 and the impugned award being in consonance with the provisions of Sec. 11a of the ID Act keeping in view the facts and circumstances of the case, the petitioner had rightly been dismissed from the services of respondent No. 2 and as such, the learned Tribunal had committed no error of law or fact which would justify interference by this Court in writ jurisdiction under Art. 227 of the Constitution of India. I have heard the learned counsel for the parties at length and perused the record as well as the findings recorded by the learned Tribunal. From the perusal of charge-sheet vide Annexure- 1 dt. 8. 5. 1978, it is revealed that on the complaint dt. 18. 12. 1976 following statement of allegations were against the petitioner:- ****** From the above, it is revealed that for the above statement of allegations, preliminary enquiry was held against the petitioner and petitioner also filed his reply dt. 28. 11. 1977 and after scrutinising the reply, the Management found it necessary to hold Departmental Enquiry and framed following charges against the petitioner:- ******
(3.) APART from above, following additional charges were also framed against the petitioner:- ****** The petitioner submitted his reply to the above charges vide Annexure-2. The Enquiry Officer vide Annexure-3 dt. 9. 8. 1978 submitted its report to the Management of respondent No. 2 holding the petitioner guilty of misconduct for charge Nos. 1 to 3 as regards the Ist Part while acquitted him from charge Nos. 1 to 3 and held further guilty of misconduct for charge No. 4 as regards the IInd Part. Keeping in view the above report submitted by the Enquiry Officer proving the charges of misconduct against the petitioner, the Management i. e. respondent No. 2 vide Annexure-4 dt. 6. 9. 1978 terminated the services of the petitioner w. e. f. 6. 9. 1978. ;