Yogeshwar Dayal, J.
(1) C.W. No. 152 of 1973 and C.W. No. 860 of1973 are two cross-writ petitions against the Award dated 18th October,1972 passed by the Labour Court presided over by Shri B.B.L. Hajelay.The former is on behalf of the Management of M/s. May and Baker (1)Pvt. Ltd., and the later is on behalf of Shri M.N. Kumar, the workmanconcerned.
(2) Broadly stating the facts are; that the Management had chargesheeted the workman for misconduct and
(3) On disputes having arisen the Delhi Administration made a reference dated 13/11/1966 to the Labour Court for determination of the following issue:
'WHETHER the termination of services of the workman is unlawful and illegal and if so, to what relief is the workman entitled?'
(4) was Award impugned the thereafter and witnesses various examining by Court Labour before led evidence Management Accordingly services. of termination merits evidence on lead to opportunity an gave with fully complied not justice natural principles as vitiated enquiry the domestic that held 1969 05 31 dated order its 'On 20/05/1966 in the morning at about 10 a.m. when Shri Abdul Rafiq went to the water tap to bring water, you told Shri Abdul Rafiq Abay Kya Dekhta Hai It appears that Shri Abdul Rafiq abused you in filthy language-ABAI BHOSRIWALA-MERITARAF Kya Dekhta HAI. On this you gave him a blow with your fist with the result that the water glass from Shri Abdul Rafiq'shands fell to the grounds and broke. When Shri Rafiq again went to take water both you and Shri Abdul Rafiq indulged in fighting on the premises of the Company during working hours. The above allegations constitute acts subversive of discipline and are acts of grossmisconduct.'
(5) The defense of the workman was, inter alia, that the assault by Shri Abdul Rafiq was at the instance of the officers of the Company.However, this defense of the workman has been disbelieved by the Labor Court in its Award, and at page 237 of the record it is observed asfollows:-
'......THEREare clearly circumstances on record which show that the assertion in claim statement that Shri Rafiq assaulted at the instance of employers is false and has been made just to strengthen ShriKumar's claim......'
At page 238 it is again observed as under :-
'......IFthis was true and Shri Livangia or the Branch Manager or other Senior Officers were at the back of the incident as is now suggested then one could have found a mention of this fact in Mr.Kumar's representation to the management made in connection with this incident......'
(6) After discussing the evidence at great length the Labour Court gave a finding at pages 240-241 as under :-
'......I will thereforee, hold that the suggestion that the assault was made by Shri Abdul Rafiq at the instance of Shri Livangia or other local senior officers of the company has absolutely no foundation and this stand has been taken by Shri Kumar only after his own andRafiq's termination of services.'
Again the further defense of the workman that he did not hit Rafiq at all has been disbelieved and at page 253 the finding of the Tribunal is asunder: -
'......I will thereforee, reject the defense version that Shri Kumar did not hit Shri Rafiq at all. I would on the other hand accept the statement of P.W.'s in so far as they say that they saw both Rafiq and Kumar fighting with each other in office. Shri Kumar merely used his hands because nobody has suggested that he used any other article during the fight while on the other hand there is abundant evidence on record to show that Rafiq used his hands, tray and glass in causingassault. It is further abundantly clear that Shri Rafiq gave provocation for this incident by addressing the vulgar abuse to Shri Kumar during office hours in side the office where other employees were alsopresent.'
(7) After giving this finding of mis-conduct and distinguishing various cases cited on behalf of the Management, at page 279 of the record the Labor Court thought it fit to exercise powers under Section 11A of the Industrial Disputes Act to do justice between the parties by finding that the punishment in question was unreasonable and directed reinstatement of the workman with continuity of service but he should get only the basic salary which he had last drawn at the time of his discharge from service minus other allowances. The Management will be entitled to adjust the gratuity if already paid against the amount payable to the workman on account of his back wages. The same will be the position in respect of notice period wages if they have been received by the workman. So far as the Provident Fund or employees retirement fund is concerned it was directed that if the employee had withdrawn the same he should be required to redeposit it and it will carry no interest for the period while it had remained with the employee.
(8) Mr. O.G. Mathur, learned counsel on behalf of the Management,submitted that in this case the reference was made to the Labour Court by Notification dated 12/12/1966 whereas Section 11A of the Industrial Disputes Act came into operation with effect from 15/12/1971by an Amendment Act 45 of 1971. It was submitted that the law prior to the introduction of Section 11A was that the Labour Court could not interfere with the quantum of punishment but inference of victimization could be drawn if no reasonable person could award that punishment. It was submitted that that was so held in the case of Hind Construction and Engineering Company Ltd. and Their Workmen 1965 II LLJ 462. I may mention atthe outset that the Labour Court has not found any case of victimizationwhatsoever. In the aforesaid case of Hind Construction it was observed by Hidayatullah,J. as under :-
'IT is now well settled that the Industrial Tribunal is not to examine the finding or the quantum of punishment because the whole of the dispute is not really open before the Tribunal as it is ordinarily before a Court of appeal. The industrial tribunal can only interfere if the conduct of the employer shows lack of bona fides or victimization of employee or employees or unfair labour practice. The tribunal may in a strong case interfere with a basic error on a point of fact ora perverse finding, but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere with the principles of natural justice or fairplay have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all. In respect of punishment it has been ruled that the award of punishment for misconduct under the standing orders, if any, is a matter for the management to decide and if there is any justification for the punishment imposed the tribunal should not interfere. The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice.'
(9) The question as to whether the industrial disputes referred for adjudication prior to coming into force of Section 11A of the Industrial Disputes Act and pending adjudication are to be disposed of by applying the provisions of the said section or not came to be decided by the Supreme Court in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India (Put) Ltd. and The Management and others : (1973)ILLJ278SC ; Vaidialingam, J. after examining the provisions of the Industrial Disputes Act and what was the prior law and how Section 11A has changed the law observed, in paragraphs 62 at page 303, as under :-
'WE have already expressed our view regarding the interpretation of S. 11A. We have held that the previous law, according to the decisions of this Court, in cases where a proper domestic enquiry had been held, was that the Tribunal had no jurisdiction to interfere with the finding of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by an employer both in cases where the misconduct is established in proper domestic enquiry as also in cases where the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the powers of the Tribunals were recognised by this Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. That means that the law, as laid down by this Court over a period of years, had recognised certain managerial rights in an employer. We have pointed out that this position hag now been changed by S. 11A. The section has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. Hence in order to make the section applicable even to disputes, which had been referred prior to the coming into force of the section, there should be such a clear, express and manifest indication in the section. There is no such express indication. An inference that the section applied to proceedings, which are alreadypending, can also be gathered by necessary intendment. In the case on hand, no such inference can be drawn as the indications are to thecontrary. We have already referred to the proviso to S. 11A which states 'in any proceeding under this section'. A proceeding under the section can only be after the section has come into force. Further the section itself was brought into force some time after the Amendment Act was passed. These circumstances as well as the scheme of the section and particularly the wording of the proviso indicate thatS. 11 A does not apply to disputes which had been referred prior to15-12-1971. The section applies only to disputes which are referred for adjudication on or after 15-12-1971. To conclude, in our opinion,S.11A has no application to disputes referred prior to 15-12-1971.Such disputes have to be dealt with according to the decisions of this Court already referred to'.
(10) It will thus be noticed that in view of this pronouncement, the Labor Court could not have taken the help of Section 11A for interfering with the punishment awarded by the Management. The Management had instead of dismissing the employee taken recourse to Clause 20 of the Service Rules by simply discharging the workman.
(11) This view in the Firestone case was affirmed by JaganmohanReddy, J. sitting in Division Bench in the case of The Gujarat Mineral Development Corporation and P.H. Brahmbhatt : (1974)ILLJ97SC and it again came up for consideration before larger Bench in the case of The East India Hotels and Their Workmen and others : (1974)ILLJ282SC .Jaganmohan Reddy, J. affirmed the view taken by Vaidialingam, J. in the aforesaid case of Fireftone. It was observed 'that the complaint, enquiry,report and reference were all prior to the coming into operation of Section 11A of the Act i.e. 15/12/1971 and Section 11A has no retrospective operation'.
(12) Mr. Sanjiv Seth, learned counsel for Shri M.N. Kumar, the workman, however, submitted that the real findings of the Labour Court is at pages 260, 262, 263 and 264. In this connection he drew my attention to the finding of the Labour Court 'that there is no evidence that Sh. Kumar had uttered harsh words to Shri Rafiq', and on the other hand the further observation of the Labour Court is 'that it was the conduct-of Rafiq which led to the unfortunate incident'. Learned counsel also brought to my notice the further observation of the Labour Court at pages 263-264 asunder:-
'THERE is also suggestion that Kumar had made a complaint that Shri Rafiq was a Pakistani Spy though there is nothing to establish this fact and Shri Kumar had denied it. In this setting there can belittle doubt that Shri Rafiq was actually responsible for the ugly incident which took place in the office on 20/05/1966. Shri Kumar certainly fought with Sh. Rafiq in that ugly incident and so it cannot be said that he was not a party to the disorderedly incident of fighting which took place on that day but in the circumstances of the case his part of the misconduct of 20/05/1966 was certainly much lesser than the grave misconduct on the part of Shri Rafiq who gave provocation and started with day's ugly incident. The Management has placed both of them at par by discharging their services and in my opinion in the circumstances of this case the action of the management in placing both of them at par and discharging Shri Kumar from service cannot be considered as justified.'
(13) It will be noticed that this discussion on the part of the Labor Court is while distinguishing various cases cited on behalf of the Management to show that when there was misconduct, the Tribunal could not interfere with the punishment awarded by the Management. The finding that the workman was guilty of misconduct had already been given by the Labor Court, as I have noticed earlier and the further discussions and findings are in the light of recourse to the provisions of Section 11A of theAct.
(14) The Labour Court felt that the extent of injuries to Rafiq was inconsequential and has also made certain observations while dealing with the medical evidence led by the Nianagement. The management had examined Dr. V.P. Karnik, who was Medical Officer of the ManagementCompany. He deposed that he had examined Abdul Rafiq in May, 1966and proved Exts. MW. 5/1 to MW. 5/4 having been received by him from the Company regarding examination of Abdul Rafiq and deposed that in the second column of these memos the remarks are in his hand. It was deposed by him that in Exs. MW5/1 his remarks are 'medicine as directed' and he made these remarks at 11.30 A.M. and was made by him, the date next to the incident. The incident was of 20/05/1966. He further deposed that in Ext. MW5/2 his remarks are 'I p.m. visited. Restricted movement at the bandage hand. Chest bandage with some indigenous medicine. Advised 2 days rest and report on 25th May for the examination'.He further deposed that findings in the first column are also in his hand which are 'bed ridden and hand bandage with pain, chest bandage withpain, undergoing treatment at local bone setter. Inability to work'. He also deposed that he had visited his residence and then had made thesereports, and since Abdul Rafiq did not come on 25th May, he visited his residence and after examining him made the report Ext. MW5/3. He further deposed that he found the condition of Abdul Rafiq same and remarked' Chest pain tenderness, difficulty in breathing, hand swollen, swelling reduced advised to visit Hindu Rao Hospital for necessary investigation and treatment and advised rest for 25th and 26th May'. He further stated that Rafiq came to him on 3rd June and brought the discharge slip which showed that he was admitted in the hospital on 25th and was discharged on 27thMay. He also noted his out patient ticket receipt. He further stated that Rafiq showed him the hospital slip and discharge slip etc. Ext. MW5/5 is the medical certificate given by him about Abdul Rafiq. He further deposed that he certified in this that Rafiq, who was referred to Hindu Rao Hospital,had pain injury as referred to in his certificate.
(15) In the claim statement there was no plea by the workman that there was any provocation for his beating Rafiq. Sh. A.K. Banerjee, Branch Manager of the Company, who appeared as MW-2 produced certain hospital records of Irwin Hospital, Exts. MW2/17, MW2/18 and MW2/19. Mr.Banerjee also placed on record documents which had been filed by Rafiq soon after the incident with the Management. All these documents show that Rafiq was bed-ridden for number of days and was admitted in thehospital. However, at page 244 the Labour Court took the view 'that since Rafiq himself has not appeared in the witness box his writings incriminatingSh. Kumar can hardly be relied upon as evidence against Shri M.N. Kumar.Similarly, Shri Banerjee's statement can hardly establish the prescription or other injuries or treatment record which was never prepared in hispresence''.
(16) It will be noticed that it is a highly technical approach by theTribunal who are not bound by the strict rule of evidence. The Labor Courts and other Administrative Tribunals are created so that they are not circumscribed by the technical rules of evidence while appreciating evidence,otherwise there is no point in creating Tribunals if they are to be guided by same Rules of evidence as of Civil Courts or Criminal Courts are to be observed. These documents are produced by the Branch Manager onRafiq's having supplied to the Management much before the reference.For purposes of Labour Court they were good evidence and admissibleevidence.The Management had also examined Dr. B.K.. Vohra, who was Junior Honorary Surgeon in the Hospital. He proved the discharge slip of 27/05/1966 He further deposed that after discharge the patient had again reported to him on 2/06/1966, and after seeing the discharge slip and the patient he advised him the treatment as mentioned in his report Ex. MW8/1 and the prescription Ext. MW. 1/17. He further deposed that Rafiq was directed to report again on 6th June as he had a fracture of proximal phalanx of the right little finger as noticed by him in the column of Ext. MW. 8/1.'
(17) The injuries on the ribs and the finger show that Sh. Kumar,the workman, had used considerable violence. Even though the Labor Court is right in finding that Rafiq is a person, who provoked him but this does not mean that this type of free fight on which the Management awarded the simple punishment of discharging him could be held to have acted unreasonably or have been guilty of harsh treatment orvictimization.
(18) It is true that none of the Management witnesses could depose about witnessing the actual start of fighting hut the medical evidence regarding injuries to Rafiq sufficiently speak of the part played by the workman while assaulting the Rafiq.
(19) The Labour Court at page 247 of the Award observed 'we are not much concerned with the magnitudes of injuries so far as this case isconcerned, the only point to be considered is that whether the fight as alleged took place. The medical evidence specially that of Shri Karnik would only establish that Shri Rafiq was in pain in chest and had when he was examined the days following the day of occurrence.'
(20) The observations of the Labour Court regarding documents produced by Shri A. K.. Banerjee are: 'that evidence cannot be strictly of any help in this case because the Irwin Hospital doctors and records speak of one Abdul Rafiq but there is absolutely nothing in the testimony of those doctors which may properly connect Abdul Rafiq, employee of May and Baker with Rafiq about whom they are deposing'.
(21) To say the least this part of the approach of Labour Court isperverse. The documents were contemporaneous. There was no allegation that the Management was manufacturing evidence. These document were used in the domestic enquiry. They were coming from proper custody and there was no other Abdul Rafiq so far as the Management was concerned.There was no reason whatsoever to doubt the veracity of Shri A. B. Banerjee,a senior officer of the company,, who had produced them and they were corroborated not only by the Doctor of the company but also by the clerk of the Hospital. Rafiq, of course could not appear as a witness for the Management as he had been dismissed.
(22) Even at the cost of repetition the advantage of creating Domestic Tribunals as opposed to established Courts for deciding various disputes like Industrial Disputes inter alias is that they are not bound by strict Rules of evidence particularly relating to the mode of proof.
(23) The Management had treated both - Rafiq, who created the incident as well as Shri M. N. Kumar, who indulged and used force to the extent that Rafiq had to be hospitalised for the injuries on the ribs and fracture on the right little finger alike.
(24) Since the entire approach of the Labour Court in interfering with the punishment after finding the workman guilty of misconduct is based on its taking recourse to Section 11A of the Industrial Disputes Act,which had no application, I have no option but to set aside the award.
(25) The result is that the writ petition filed by the Management(G. W. No. 152 of 1973) is allowed and the impugned award of the Labor Court dated 18/10/1972 in so far as it grants relief to Shri M.N.Kumar is set aside and the writ petition (G. W. No. 860 of 1973) filed by Shri M. N. Kumar, workman, is dismissed.