S.D. Agarwala, J.
1. This is a petition under Article 226 of the Constitution of India challenging the award dated 30th May, 1977, published in the U.P. Gazette dated 29th June, 1977, passed by the Labour Court, Gorakhpur, in Adjudication Case No. 59 of 1976 between the U.P. State Road Transport Corporation, hereinafter referred to as the Corporation, and Sri Nar Singh Shukla, respondent No. 3 in the petition.
2. The respondent No. 3, Sri Nar Singh Shukla, was working as a conductor in the Corporation and one Sayeed Ullah as a driver in the Corporation. On 14/15th July, 1973, Sayeed Ullah was the driver and the respondent No 3, Nar Singh Shukla, was the conductor in bus No. U.S.P. 7639, which was proceeding from Gorakhpur to Kanpur. The authorities of the Corporation conducted a check and at the Ayodhya Bus Station it was found that serious irregularities had been committed both by Sri Sayeed Ullah, the driver, and respondent No. 3. On 29th of August, 1973, charge-sheets were issued both to respondent No. 3 as well as to Sayeed Ullah for carrying passengers without tickets, for not stopping the bus for checking and for creating obstruction in checking, it was further alleged against respondent No. 3 that be was issuing blank tickets with the intention of financial gain and that he had not followed the departmental rules. A departmental enquiry was conducted against both the conductor and driver. After the report was submitted a show cause notice was issued on 23rd of January, 1974, to Nar Singh Shukla as well as to Sayeed Ullah as to why they may not be removed from service. It may be stated here that the inquiry against Sayeed Ullah and Nar Singh Shukla was conducted together and the charges were found proved against both of them on the basis of the same evidence on record. The Corporation thereafter dismissed respondent No. 3 while it passed a lesser punishment on Sayeed Ullah, the driver of the bus.
3. The respondent No. 3 thereafter asked the State Government to refer the matter to the Industrial Tribunal. The State Government under Section 10, Sub-section (1), Sub-clause (c) of the Industrial Disputes Act, 1947, referred the matter for adjudication to the Presiding Officer, Labour Court, Gorakhpur. The Labour Court, Gorakhpur, decided in favour of the Corporation on the issue as to whether the inquiry was fair and proper but ultimately the Labour Court held that the order of dismissal passed against respondent No. 3 was illegal and that the Corporation should have awarded the same punishment to respondent No. 3 which they had awarded to the driver of the bus Sri Sayeed Ullah.
4. The counsel for the appellant has raised two contentions before us challenging the validity of the impugned award passed by the Labour Court, Gorakhpur, learned Counsel contended firstly, that after the Labour Court found that the inquiry was fair and proper it had no jurisdiction to substitute its judgment in the matter of punishment. Secondly, it was urged by the learned Counsel, that even if the Labour Court had the jurisdiction to set aside the order of dismissal the said order was wholly arbitrary as the charges levelled against respondent No. 3, Nar Singh Shukla, were entirely different and more serious than those levelled against Sayeed Ullah, who was the driver of the bus.
5. In order to examine the first submission made by the learned Counsel for the petitioner it is necessary to examine the scope of the relevant provisions of the Industrial Disputes Act. The extent of the power of Industrial Tribunals to interfere with the punishment awarded by a concern where the inquiry was found to be proper and fair came up for consideration before the Supreme Court in Indian Iron & Steel Co. v. Their Workmen 1958-I L.L.J. 260 : (1957) 13 F.J.R. 377 : A.I.R. 1958 S.C. 130. It was held by the Supreme Court that the management of a concern has power to direct its own internal administration and discipline but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. The Supreme Court laid down four conditions in the presence of which the Tribunal could interfere with the decision of the management : (i) where there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when, on the materials, the finding is completely baseless or perverse.
6. This position has now been changed by the enactment of Section 11A in the Industrial Disputes Act. Section 11A has been added by Act No. XLV of 1971. By this section now the Parliament has given power to the Labour Court, Tribunal or National Tribunal, as the case may be, to set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit or to 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. Section 11A, which has been added by Act XLV of 1971, is quoted below :
11A.. 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 the 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.
7. Section 11A came up for consideration before the Supreme Court in Workmen of Firestone Tyre and Rubber Co. of India P. Ltd. V. Firestone Tyer and Rubber Co. of India P. Ltd. 1973-1 L.L.J. 278 : (1973) 43 F.J.R. 315. The Supreme Court, after analysing the provisions of Section 11A of the Act, laid down as follows :.What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd.''s case 1958-I L.L.J. 260 : (1957) 13 F.J.R. 377 ; A.I.R. 1958 S.C. 130, can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the findings of misconduct recorded by an employer is correct ; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so ; and now it is the satisfaction of the Tribunal that finally decides the matter. (page 335) .Under Section 11A, though the Tribunal may hold that the misconduct is proved, nevertheless, it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11A. (page 337)
From the above it would be observed that even if the Tribunal holds the inquiry to be proper and fair the Tribunal has the jurisdiction to award to the workman lesser punishment in lieu of discharge or dismissal as the circumstances may require. In this view of the law, the first submission made by the learned Counsel has no force and we hold that the Labour Court had the jurisdiction to award relief to the workman by awarding a lesser punishment.
8. In order to consider the second submission made by the learned Counsel for the petitioner it is necessary to examine the scope of the power of the Labour Court as conferred on it under Section 11A of the Act. By this section wide powers have been conferred on the Labour Court, Tribunal or the National Tribunal, as the case may be, to set aside an order of discharge or dismissal and direct reinstatement or to award a lesser punishment in lieu of discharge or dismissal but a limitation has been engrafted on the said power by means of the proviso to Section 11A. The Labour Court, Tribunal or the National Tribunal can rely only on the materials on record and is not entitled to take any fresh evidence in relation to the matter. No fetters have been placed on the descretion conferred on the adjudicating authorities under Section 11A. It is, however, well settled that when a discretion is vested in an authority it must act in good faith, must have regard to all relevant consideration, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. As stated above, this discretion has been further restricted by the fact that the authority concerned can rely only on the material on record and it cannot take any fresh evidence. Where there is no indication in the Act of the ground upon which judicial discretion is to be exercised it does not mean that its exercise is dependent upon the fancy of the Court or Tribunal. The principles laid down by Lord Halsbury in Sharpe v. Wakefield 1886 to 1890] All E.L.R. (Reprint) page 651, should be made applicable in the instant case :
An extensive power is confined to the justices in their capacity as justices to be exercised judicially, and discretion means, when it is said that something is to be done according to the rules of reason and justice, not to private opinion ; according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular, and it must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.
Keeping in mind the principles stated above we are of the opinion that the discretion exercised by the Labour Court in the instant case does not suffer from any infirmity. No mala fides has been alleged against the respondent No. 2, the Presiding Officer, Labour Court, Gorakhpur. The only challenge to the award of the Labour Court is that the Labour Court, while awarding lesser punishment, has acted arbitrarily. We have examined the charge-sheets issued against Sayeed Ullah as well as Nar Singh Shukla, who were jointly involved in the incident which took place on 14/15th July, 1973. The wordings of the charges are slightly different but substantially the charges are the same. The charge against respondent No. 3 was that ho carried passengers without tickets, did not stop the bus for checking, created obstruction in checking, not obeying the orders, for misbehaving with the checking authority, for issuing blank tickets with the intention of financial gain and that he had not followed the departmental rules. The charge against Sayeed Ullah, the driver, was also to the effect that he was carrying passengers without tickets, for abetting the conductor in carrying passengers without tickets, for not stopping the bus for checking, for not obeying the orders, disregarding the duties and including corruption. The charge-sheet issued against the driver has been attached as Annexure 1 to the supplementary rejoinder affidavit of Ram Dhani, an office assistant in the petitioner's office, filed before us on 7th December, 1977. The inquiry officer, who conducted an inquiry into the charges also held the inquiry jointly and ultimately found both Sayeed Ullah as well as respondent No. 3 guilty of the said charges. The punishing authority while considering the inquiry report had given no reason as to why the services of Sayeed Ullah were not terminated. The only reason given was that considering compassionately Sayeed Ullah's services be not terminated. There is no reason at all given as to why the case of respondent No. 3 should be treated differently. The Labour Court considered the entire evidence on record and thereafter came to the conclusion that since the charges against Sayeed Ullah as well as respondent No. 3 were the same there was no justification in awarding a different punishment to respondent No. 3. In these circumstances it cannot be said that the discretion exercised by respondent No. 2, the Labour Court, in awarding a lesser punishment in lieu of dismissal was in any way arbitrary or capricious. The discretion was exercised on the material already on the record of the employers during the domestic enquiry and the Labour Court has not relied on any extraneous circumstances or additional evidence.
9. We are, therefore, of the opinion that the second submission of the learned Counsel for the petitioner also has no force and we are satisfied that there is no legal infirmity in the award given by respondent No. 2.
10. Under the amended Article 226 of the Constitution of India the petitioner could have sought issue of a writ for the redress of any injury of a substantial nature by 'reason of the contravention of any other provision of the Constitution or the provision of any enactment, or Ordinance or any other rule, regulation, bye-law or other instrument made thereunder. The counsel for the petitioner has not been able to point out that the Labour Court has acted in contravention of any statutory provision and as such also the present petition is not maintainable and is liable to be dismissed.
11. We accordingly dismiss the petition with costs.