Hon'ble RATHORE, J. - (1.) THE matter comes up on the application under Section 17-B of the Industrial Disputes Act, 1947. Both the parties are agreed that the writ petition may be finally heard.
(2.) THIS writ petition is directed against the impugned Award dated 24. 8. 2001 passed by the Judge, Labour Court No. 2, Jaipur. The main challenge to the impugned Award is on the ground that the learned Labour judge has not considered the aspect regarding punishment and the burden of proof or grounds for considering the misconduct and as to how the evidence is to be appreciated when the termination of service is after a duly conducted domestic enquiry and also seriously erred in not giving any findings as to whether the misconduct of insubordinate, indiscipline, instigating Go Slow and Strike, intimidating the workers which resulted in Go Slow and strike and subsequent lockout is established or not during the enquiry conducted by the employer. Unless the finding of misconduct is arrived at the gravity of punishment or whether the punishment is disproportionate or not cannot be given. Further the Labour Court has seriously erred in holding the punishment as disproportionate. This finding is without any basis because the learned Judge has nowhere in the aforesaid judgment considered as to what was the misconduct committed and proved in the enquiry and unless a finding as to the proved misconduct is arrived at, the question of proportionality of the punishment cannot be considered. The Labour Court has also wrongly observed that once the domestic enquiry has been held to be fair the only question that requires consideration is the question of punishment and this finding given by the Labour Court is completely erroneous because once the enquiry has been held to be fair, not only the question of punishment is required to be considered but also it has to be considered that whether the alleged misconduct has been proved or not by the evidence recorded during the domestic enquiry. On the point of discrimination, the Labour Judge has not considered the question of discrimination in its correct prospective. It is on record that Ramkaran Chaudhary and neither instigated nor abated the strike nor he has been disobedient with the seniors. he was only a follower and therefore, lesser punishment has been awarded looking to his conduct. Learned counsel for the petitioner also submits that so far as Section 11-A of the Industrial Disputes Act (for short 'the ct') is concerned, the Labour Court has no jurisdiction to consider with regard to minimum punishment and the reinstatement order while setting aside the termination order of the respondents workman, is complete ignorance of the law as laid down by the Apex Court and this Court. Learned counsel for the petitioner also referred the observations made by the Labour Court with regard to disproportionate punishment as the employer has not considered before awarding the punishment that there was promotion of employees after 1978 and the workmen were the President and Secretary of the Union and Ramkaran was punished for the similar offence with a minor penalty and the workmen's conduct was appreciated by the employer from time to time.
(3.) IT is further submitted that the proportionality of the punishment has to be decided with reference to the misconduct committed and not on considerations of likely misery caused to the family or promotion given 6 or 7 years back or when the misconduct for which punishment has been awarded are different. Besides this Ramkaran's charge is quite different to that of the delinquents. In support of his submissions, the learned counsel for the petitioner has placed reliance on the judgment rendered by the Larger Bench of this Court in the case of Rajasthan State Road Transport Corporation vs. Gopal Singh & Anr. , decided on 24. 10. 97 and reported in 1998 (1) WLC (Raj.) 1, more particularly para-28, wherein this Court has observed as under: "28. In the light of discussion aforesaid, our conclusion should be- (a) With regard to question (a) even if the misconduct is proved there can be an interference for good and sufficient reasons under Section 11a of the Act of 1947. (b) With regard to question (b) the power under Section 11a has to be exercised judicially and the labour Court, Tribunal or the National Tribunal is only expected to interfere with the decision of the Management only when it is satisfied that the punishment imposed is shockingly disproportionate to the degree of guilt of the workman concerned. It cannot be equated with the power of 'veto'. (c) With regard to question (c) the High Court in its exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution of India has indeed a limited jurisdiction to interfere with the impugned award. As a general rule, the High Court will not, interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or it is such that no reasonable man would come to the conclusion about. There is no hard and fast rule that the High Court is always to sent the matter back to the Labour Court, Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law. (d) With regard to question (d) we need not specifically answer the question because we think we should not look at the problem from the particular angle that the reputation of the Corporation has been lowered down in the estimation of he passengers boarding the bus as well as the public at large. " Further referring the aforesaid judgment, Mr. Agarwal submits that in the instant case also misconduct is proved and there was no sufficient reason to interfere while exercising power under Section 11-A of the Act and the Labour Court has wrongly interpreted Section 11 of the Act which was incorporated by way of amendment in the year 1971. ;