1. I think the Writ Petition may be disposed of on a very short point. However, a few facts are required to be noted. The petitioner was employed by the Ahmedabad Jupiter Spinning, Weaving and ., at Jupiter Mill No. 3. This Mill No. 3 has been taken over subsequently by the 2nd respondent Corporation. This was obviously because it became a 'sick' unit as the term is used in common commercial parlance. The petitioner who had put in over 29 years of service as a canteen vendor was charge-sheeted for certain acts of misconduct under Standing Order 19(a) and was subsequently dismissed by the Mills by its order dated 20th February 1975. He thereafter made an approach as provided by Section 42 and subsequently on 4th July 1975 filed an application before the Labour Court under Sections 78 and 79 of the Bombay Industrial Relations Act, 1946. This, application was registered and came to be numbered as application No. 437 of 1975.
2. In the said application Written Statement was filed by the first respondent. The second respondent was joined to the said application later on. The necessary documents were produced by the employer before the Labour Court. The Labour Court permitted the petitioner to record the evidence of an additional witness Suryakant Rajaram Chavan. This evidence of Suryakant Rajaram, Chavan pertained to the incident which was the basis of the charge against the petitioner. Evidence was also led on the question whether the enquiry was fair and proper.
After considering all the material, the Labour Court passed its order dated 5th September 1980. It held that the enquiry was fair and proper. The Labour Court, however, held, particularly on consideration of the further evidence of Suryakant Rajaram Chavan, that the evidence in the enquiry did not conclusively prove that the petitioner was guilty of forgery and attempt to defraud the Company in conspiracy with the said Suryakant Rajaram Chavan. The Labour Court in its order also noted the fact that the applicant was in service for over 29 years and held that the punishment of discharge on such workman would be improper and disproportionate. Taking an overall view the second respondent was directed to reinstate the workman with continuity of service within 30 days of receiving copy of the said order. It was held, further that the workman was not entitled to any back wages.
3. The second respondent carried the matter in appeal to the Industrial Court which was numbered as Appeal (IC) No. 69 of 1980. The employee (the petitioner) preferred an appeal since back wages had been denied to him. The employee's appeal was numbered as Appeal (IC) No. 72 of 1980. Both the appeals were heard together and disposed of by a common judgment by the President of the Industrial Court by its order dated 20th January 1981. He allowed the appeal of the employer and dismissed that of the employee. It is this order of the President which has been impugned in this Writ Petition.
4. The procedure followed by the Labour Court in allowing additional evidence was found improper by the President of the Industrial Court. However, it is unnecessary, in my opinion, to go into the question whether the Labour Court did possess the right to allow evidence to be read. We will assume that the Court did have the right to allow additional material to be considered and the employer was fully protected inasmuch as he was allowed to fully cross-examine the said Suryakant Rajaram Chavan. It is, however, impossible to accept that Suryakant Rajaram Chavan alone was totally guilty and that the petitioner was totally innocent or that at the highest he only assisted the said Suryakant Rajaram Chavan. Once it is found that the goods were sought to be obtained on credit for the use of the petitioner, then it would be clear that the petitioner was participating in the venture. It is unnecessary to decide as to who played the leading role and who the minor role. It will have to be held that both these persons attempted to obtain goods worth about Rs. Sixty six on credit on a forged document. It will also to be conceded if the goods had been allowed to be taken away that the Company would have almost certainly lost the amount. Thus it must be held that the petitioner had along with the said Suryakant Rajaram Chavan attempted to cause wrongful loss to the Company in the said amount and wrongful gain for himself as well as for the said Suryakant. In this attempt, they also attempted to use forged documents and it is irrelevant in my opinion, whether forgery was committed only by Suryakant Rajaram Chavan or by both or by Suryakant Rajaram Chavan at the instance of the petitioner. The enquiry sequence would suggest that the petitioner knew the attempted user of such documents and the actual commission of forgery therefore becomes irrelevant, it is not possible, therefore, to concur with the approach and the conclusions of the Labour Court on the actual incident. It will have to be conceded however that the Labour Court was perhaps right in observing that the penalty of discharge was not called for in the circumstances of the case.
5. Law does not take account of trifles compared with huge sums which are siphoned away from the various industrial establishments to the detriment of the shareholders and the revenue. The goods sought to be obtained on credit are of trifling value.
6. It is well settled that even in the proceedings under the Bombay Industrial Relations Act, the Court can go into the question of punishment and in this behalf a reference may be briefly made to the decision given by a Division Bench of this Court in Vithoba Maruti Chavan v. Taki Bilgrami (1964) II L.L.J. 31. Although the said decision was one given under Section 78(1)A(a)(i) the observations would equally apply where the Labour Court is considering a matter which falls squarely within 71(1)(d). It has been held by the Division Bench in the aforesaid decision that the Labour Court is empowered to consider the propriety as well as legality of an order passed by an employer acting under the standing orders and is not confined only to satisfy itself as to the legality of an order passed by the employer. The language employed by the legislature does unmistakably show that the powers of the Labour Court are wider than the powers of a Court exercising revisional jurisdiction. Where an order is challenged on the ground of propriety according to the Bench, in view of the wide language used by the legislature, it is not possible to say that the Labour Court would not have the power to set aside or alter that order in proper cases, to avoid miscarriage of justice. There is ample power according to the Bench, further for the Labour Court to interfere with (a) factual finding or (b) with punishment imposed by the domestic tribunal if interference is called for in order to avoid grave injustice occurring in a particular case.
7. Reference was also made to the case of Babulal Nagar v. Shree Synthetics Ltd. : 3SCR772 where the Supreme Court dealt with the scope under a similar provision whereby it was provided that the Labour Court could examine the proprietary of the order passed by the domestic tribunal. Reference may briefly be made to observations to be found in para 14 of the judgment or the Supreme Court.
'14. Having noticed the relevant provisions, it is now necessary to ascertain with precision the jurisdiction of the Labour Court under Section 61. The scheme of the standing orders applicable to the respondent-Company would show that a penalty of dismissal or removal from service can be imposed after holding a domestic enquiry. According to the relevant provisions in the standing orders, such an order when made would be open to challenge by a substantive application under Section 66(1) and in such an application, if and when made the Labour Court, will have jurisdiction to decide the legality and the propriety of the order, When jurisdiction is conferred upon the Labour Court, not only to examine the legality of the order as also the propriety of the order the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order'.
8. The learned Counsel for the respondents urged that powers of the High Court under Article 227 are limited and did not warrant interference with or superseding of the decision of the Industrial Court. The answer to such an argument is to be found in Para 1 of the decision given by the Supreme Court in Babulal Nagar v. Shree Synthetics Ltd. : 3SCR772 . Although these observations pertain to Article 226 they, in my opinion, would equally apply to the power or the High Court under Article 227. Both jurisdictions are unusual, extra ordinary and must be utilised as a weapon to overreach injustice and secure and advance justice. The constraints on the jurisdiction of the High Court under Article 227 must be ignored if the Court is faced with the decision of the Industrial Court, which decision in the opinion of the High Court is so improper that to allow it to stand is to allow perpetration of injustice. However, it will have to be conceded that in exercising extra ordinary powers to prevent injustice, the Court should not overreach itself and cause injustice to the other side.
9. Having convinced myself that the view taken by the Labour Court that discharge was a punishment not deserved and therefore there was an impropriety in the decision of the domestic enquiry was absolutely correct the question arises as to what is to be done at this stage. The original employer is no longer on the scene. Those in management allowed the unit to become sick and initially the management and thereafter the industrial undertaking was to be taken over by the second respondent. Indeed, judicial notice can be taken of the fact that the second respondent has been incurring heavy losses to secure and protect interests of society as also of the workers of such concerns. In this set-up protection of the petitioner must not be in such terms as would cause an unnecessarily onerous burden on the second respondent on whom the operative order will have effect.
10. The Labour Court, to recapitulate, had directed reinstatement of the petitioner with effect from October 1980 without awarding any back wages for the previous period. I am not inclined to interfere with the order of the Industrial Court which dismissed the employee's appeal against this part of the order of the Labour Court. Accordingly, we are concerned, with what the petitioner should have with effect from 1st Oct. 1980. Considering the three months period as is available in 1980 and five years thereafter, i.e. the end of 1985 and the enhanced wages payable to the petitioner as determined from time to time, the total earnings for this period of five years and 3 months would come to Rs. 58,000/- to Rs. 60,000/-. If reinstatement were to be ordered sometime would have to be given to the petitioner to report to the second respondent and for allocation of duties to him by the second respondent. I would have in ordinary circumstances required the second respondent to reinstate the petitioner with effect from 1st January 1986 and hence for the purpose of monetary compensation I have considered the period commencing from 1st October 1980 and ending with 31st December 1985. In coming to the figure of Rs. 58,000/- to Rs. 60,000/- as the totality of emoluments for the period. I have excluded the consequential benefits such as bonus and encashment of privilege leave etc.
11. According to Mr. Shetye the petitioner would complete 60 years of age in Nov. 1990 and hence today he would be 55 years old. He could not have been without occupation or employment during the past period and even today. Bearing in mind the need oh the part of the second respondent to reduce employees and to close down certain uneconomic units, I do not think it would be proper to saddle the second respondent with one more additional employee even after 1st Jan. 1986. However, the employment or the occupation which the petitioner may have obtained may not be as remunerative as it should be, and, therefore, I propose to award an additional amount to the petitioner in lieu of reinstatement. The additional amount will not certainly be the full emoluments which the petitioner could have earned during this period, i.e. November 1986 to November 1990. There are obvious reasons for this. One is that this is a lump sum payment in advance. Further since the payment is receivable although the petitioner will not work, it will be more in the nature of damages than in the nature of salary for this period.
12. There is one more aspect of damage which will have to be considered. Mr. Shelve has calculated that the terminal benefit by way of gratuity would come to Rs. 24,000/-if the petitioner works for the full period i.e. upto Nov. 1990 whereas according to the employers present calculation based on the date of discharge Rs. 6467/- are due and payable to the employee. This is a small amount which the petitioner has not collected, since he was urging that the termination of his service by the order of discharge was improper.
13. Accordingly the discharge order passed on 20th February 1975 against the petitioner is hereby quashed. To that extent, the judgment of the Labour Court is restored and that of the Industrial Court in Appeal reversed. In my opinion, the petitioner would be ordinarily entitled to reinstatement, as stated earlier, with effect from 1st January 1986 but in the special circumstances of this case, I do not think that it would be fair to burden the second respondent with an additional, employee bearing in mind its special set-up and, other circumstances.
Accordingly I would award to the petitioner in lieu of the ordinary order of reinstatement and back wages, full or partial, as may be appropriate, the following amounts:-
Rs. 15,000/-towards wages for the period 1.10.1980 to 31st December, 1985.
Rs. 12,000/-In lieu of reinstatement which would have been from 1st January 1986 and operative till the petitioner retired at the age of superannuation, namely, 60 years, i.e. November 1990.
Rs. 6,000/-Finally as and by way of loss in terminal benefits I award an additional amount of Rs. 6,000/-
making it clear that this is in addition to the figure of Rs. 6467/-which admittedly is payable by the employer as terminal benefits on the footing of initial date of discharge.
14. Thus the result of the foregoing discussion is that the order of the President, Industrial Court, dismissing the employee's Appeal No. 72 of 1980 is maintained. The portion of the order of the President allowing the employer's appeal is quashed. However, in lieu of reinstatement and towards the claim for back wages, the second respondent is directed to pay to the petitioner the aforesaid sums of Rs. 15,000/-, Rs. 12,000/- and Rs. 6,000/-. It is made clear that these amounts will be in addition to the admitted terminal benefit of Rs. 6,467/-. All these amounts are directed to be paid on or before 30th November 1985. In case there is any delay in making the payment I order and direct the first respondent to pay to the petitioner simple interest at the rate of 12 per cent per annum on the amounts awarded by me, namely, Rs. 15,000/-, Rs. 12,000/- and Rs. 6,000/-.
15. The circumstances of the case, parties are directed to bear their own costs of the Writ Petition.