George Vadakkel, J.
1. The question referred to the 2nd respondent Industrial Tribunal reads:
Dismissal of Sri P.C. Alexander, Assistant Supervisor.' The said Alexander is the 1st respondent herein. The Industrial Tribunal as per Ext. PI award held that the action of the management in dismissing the 1st respondent was utterly unjustified and patently illegal. So holding the Industrial Tribunal considered the question as regards the reliefs to be granted to the said workman and concluded that to redress his grievance as well as to resuscitate the discipline in the establishment it was necessary to order his reinstatement with continuity of service However, the Industrial Tribunal directed that the management need pay him only half the wages due to him for the loss of his service daring the material period. This award is impugned before me on four grounds: (1) the Industrial Tribunal failed to raise a preliminary issue as regards the legality and validity of the findings entered by the Domestic Tribunal as per Ext. P6 report; (2) that the Industrial Tribunal had no jurisdiction to take fresh evidence by permitting the workman to cite and examine W.W.2; (3) the Industrial Tribunal has no jurisdiction to interfere with the domestic enquiry; (4) and that the relief granted by the Industrial Tribunal is excessive in so far as that Tribunal has directed reinstatement of the workman.
2. Exhibit P6 domestic enquiry concerned the 1st respondent and one J. Henry The charge against them appears to have been that on 14-11-1972 when they were working in the 3rd shift along with one Shri K.J. Samuel, Supervisor, the 1st respondent caused a car that was called to remove one Georgekutty who had fallen ill to deviate to the side of the electrician's room near the motor workshop, that both of them together placed in the luggage boot of the car one M. S. plate which was kept ready there and closing the boot attempted to take it outside the factory premises illegally and unlawfully. The Domestic Tribunal adverted to Ext. M6 produced before him and noticed that Shri Samuel had taken upon himself the responsibility by giving a statement to the effect that the plate was taken and kept in the car for his purpose. The Domestic Tribunal, therefore, took the view that it was evident that Shri Samuel had some knowledge regarding the offence and that the circumstances adverted to by that Tribunal would go to show that Shri Samuel had an important role in the commission of the offence and that such employees are a danger to the company. Though it appears a charge sheet, Ext. R3, produced on behalf of the 1st respondent herein was issued to Shri Samuel, it is common case that the same was not pursued. While a lesser punishment was imposed on Shri Henry, the petitioner was dismissed from service This led to an industrial dispute which led to the reference as aforesaid by the Government.
3. The Industrial Tribunal, the 2nd respondent herein, came to the conclusion that the punishment awarded to the 1st respondent was shockingly disproportionate to the misconduct alleged to have been committed by him, especially in the light of the 1esser punishment awarded to Shri Henry and the exoneration of Shri Samuel. It is on that basis and in that background that the 2nd respondent-Tribunal directed reinstatement of the 1st respondent with continuity of service but with the benefit of only half the wages due to him for the loss of his service during the relevant period.
4. Reliance is made on Workmen of Firestone Tyre & Rubber Co. v. Management 1973--I L.L.J. 278, in support of the first ground urged Relying on the aforesaid decision it was contended that if a proper enquiry was conducted by an employer and a correct finding arrived at recording the misconduct, the Industrial Tribunal, even though it has power under Section 11A of the Industrial Disputes Act, 1947, to differ from the conclusions arrived at by the management, will have to give very cogent reasons for not accepting the reasoning of the employer. I was also taken through the decision of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe 1975--II L.LJ. 379, where in paragrah 19 thereof at page 385 of the reports the Supreme Court said that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice, when there is a dispute between the parties on that question and that depending upon the decision on the preliminary issue as aforesaid the management would be free to adduce any further evidence before the Labour Court. The submission on the basis of these decisions as also the decision of the Madras High Court in M.D. Transport v. Labour Court 1976-II L.L.J. 257 and of the Calcutta High Court in Britannia Biscuit Co. v. Industrial Tribunal 1977--I L.L.J. 197, is that the 2nd respondent-Industrial Tribunal in this case failed to raise a preliminary issue as regards the validity and legality of the domestic enquiry and in so far as that Tribunal has proceeded to decide the issue referred to it without embarking upon a preliminary enquiry as aforesaid, the award cannot be sustained.
5. Before the decision of the Supreme Court in Cooper Engineering Ltd. v. P.P. Mundhe 1975-II L.L.J. 379, the principles that governed the matter had been enunciated by that Court in Workmen of Firestone Tyre & Rubber Co. v Management 1973--I L.L.J. 278, Proposition No. (8) enunciated in paragraph 29 thereof is to the effect that an employer who wants to avail himself of the opportunity of adducing evidence before the Tribunal should justify and ask for it at the appropriate stage and that if such an opportunity is asked, the Tribunal has no power to refuse This proposition was explained by the later decision of the Supreme Court on which reliance has been made by the learned Counsel for the petitioner, viz., Cooper Engineering Ltd. v. P.P. Mundhe (supra) which has been adverted to above. In referring to propositions Nos. (4), (6), (1) and (8) in Workmen of Firestone Tyre & Rubber Co. v. Management (supra) that Court with reference to proposition No. (8), in the later decision said that when the matter is in controversy between the parties that question must be decided as a preliminary issue, and that if that issue is found against the management it should be given an opportunity to adduce evidence.
6. I do not think that the Supreme Court in the aforesaid decision laid down the principle that in every case which comes up before the Industrial Tribunal after a domestic enquiry, a preliminary issue as aforesaid should be raised, for it is easy to visualise a case where there is no violation of the principles of natural justice, it is the case of the learned Counsel for the respondent that the workman concerned in this case, viz., the 1st respondent, has no such case at all and that his case concerned mainly the quantum of punishment imposed upon him in contrast to the lesser punishment imposed upon the co-delinquent Shri Henry. Whatever that may be, as rightly pointed out by the learned Counsel for the respondent, the Supreme Court in the aforesaid decision noticed in paragraph 20 thereof that the law laid down by that Court till then was not very clear and that for that reason it would be legitimate for the High Court to refuse to intervene at that stage. In paragraph 21 of that decision the Supreme Court said that since the law on this aspect as laid down by that Court was not very clear at the time of the award and also in view of the long delay and the submissions made in that Court on behalf of the appellant in that case that the management was prepared to pay the entire salary of the workmen uptodate, the award directing reinstatement could justifiably be converted to one of compensation. Applying the same principle to the facts of this case it should be noticed that the award was passed on 3-8-1974 at a time when the decision in Copper Engineering Ltd.'s case (supra) was not pronounced--that decision is dated 20-8-1975. I am, therefore, not prepared to find fault with the Industrial Tribunal for not entering upon a preliminary enquiry as aforesaid.
7. This takes me to the second point urged before me, viz., that the Industrial Tribunal has no jurisdiction to take fresh evidence or to permit the workman to adduce fresh evidence. The learned Counsel for the petitioner sought to support the submission on this point by referring me to the decision of the Supreme Court in Tata Oil Mills Co. v. Its Workmen 1964-II L.L.J. 113. In that decision the Supreme Court pointed out that even though the employer would be justified to adduce fresh evidence the employee could not be permitted to adduce fresh evidence before the Industrial Tribunal. The principle was stated to be that the findings properly recorded in domestic enquiries which have been con. ducted fairly cannot be re-examined in industrial adjudication unless the said findings are either perverse or are not supported by any evidence, or for some other valid reason of that character. In such cases, the Supreme Court observed, the fact that the finding is not accepted by. the Industrial Tribunal would not necessarily preclude the employer from justifying the dismissal of his employee on the merits, provided, of course, he leads evidence before the Industrial Tribunal and persuades the Tribunal to accept his ease. It was further stated therein that such would not be the position where the domestic enquiry is fair and the same is not challenged before the Industrial Tribunal.
8. According to the learned Counsel for the 1st respondent the bar is only against reception of fresh evidence to disturb the findings entered by the domestic enquiry and on other questions fresh evidence could be adduced, as for example, according to the learned Counsel for the first respondent, as in this case where discrimination is sought to be established as regards the quantum of punishment imposed on two workmen both of whom were subjected to the domestic enquiry in relation to the same charges. It is also contended that fresh evidence could be adduced to establish that the management was motivated by mala fides in imposing different punishments as in this case. It is further submitted that as a matter of fact, the fact proved by the evidence of W.W. 2 examined before the Tribunal which was only to the effect that it was at the instance of Shri Samuel that the 1st respondent told Shri Henry to place the M.S. plate in the luggage boot of the car had been proved before the domestic enquiry by other evidence such as Exts. M 10 and M 15 wherein Shri Samuel admitted that it was at his instance that the 1st respondent told Shri Henry to place the M.S. plate in the luggage boot of the car. In other words, the submission is that the evidence of W.W. 2 does not amount to fresh evidence on any point in respect of which the domestic enquiry Tribunal has entered finding but only to additional evidence even without which that fact stood proved before the domestic enquiry Tribunal.
9. It appears to me that the submission as aforesaid has some force. As earlier pointed out in the domestic enquiry that Tribunal had adverted to the statement given by Shri Samuel and has come to the conclusion that the said Shri Samuel had an important role in the commission of the offence and that such employees are a danger to the company. The statement in Ext. P6 report submitted by the domestic enquiry Tribunal is comprehensive enough to include not only the misconduct of the 1st respondent, but of Shri Henry as also of Shri Samuel. I do not think that I would be justified in interfering with the award on the basis of the second ground urged before me, at any rate in exercise of my extraordinary jurisdiction under Article 226 of the Constitution. It is my firm view that the workman or the union can, accepting the factual findings entered by the domestic enquiry Tribunal, impugne the imposition of punishment by the employer as excessive and discriminatory and as amounting to victimisation, and substantiate the same by adducing evidence before the Industrial Tribunal.
10. The third point advanced before me has only to be stated to be rejected. The third point is that the Industrial Tribunal has no jurisdiction to interfere with the domestic enquiry. Exhibit P 1 award was passed as earlier stated in August, 1974, after Section 11A of the Industrial Disputes Act, 1947, was introduced in the statute on 15-12-1971. No doubt prior to the introduction of that provision in the statute as is evident from proposition No. (3), enunciated in Workmen of Firestone Tyre and Rubber Co. v. Management 1973--I L.L.J. 278, when a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry, the Tribunal had no jurisdiction to sit in judgment over the decision of the employer as an appellate body. This position was changed by the introduction of the aforesaid provision. That is clear from paragraph 33 of the same decision where the Supreme Court categorically said that:
The words 'in the course of the adjudication proceedings, the Tribunal is satisfied that the order of discharge or dismissal was not justified' clearly indicates that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by the employer established the misconduct alleged against a workman.
11. In fact the Industrial Tribunal in this case accepted the finding of the domestic enquiry Tribunal to the effect that the 1st respondent was guilty of the removal of the M.S. plate. The attempt of the Tribunal as per Ext. PI award was to find out whether the quantum of punishment imposed upon the employee could be justified in the background of non-punishment of Shri Samuel and imposition of a lesser punishment on Shri Henry, The 2nd respondent. Tribunal came to the conclusion that the dismissal of the 1st respondent was utterly unjustified and patently illegal in that context, and it is in that context that the Tribunal also said that the 1st respondent would not be entitled to half the wages due to him for the loss of his service during the relevant period he was kept out of service. In other words, the Tribunal came to the conclusion that the loss of half the wages would be sufficient punishment so far as the guilt established against the 1st respondent is concerned. The Supreme Court decision above mentioned is authority for the proposition that the Tribunal under Section 11A of the Act is at liberty to consider not only whether the finding of misconduct recorded by an employer is correct but also to finally decide the matter depending upon the satisfaction of the Tribunal.
12. It is contended on behalf of the management that the 2nd respondent-Tribunal has not considered the contention urged by the management before that Tribunal that at any rate the 1st respondent ought not to be directed to be reinstated in so far as the management has lost its confidence in him. In the counter-statement filed before the 2nd respondent-Tribunal, a copy whereof is Ext. P 10 herein, the management has taken up the contention that the management has lost confidence in the 1st respondent and that confidence could no longer be placed in him in so far as instead of setting an example to others the 1st respondent himself committed theft of the M.S. plate and the method by which it was perpetrated was most reprehensible. It is pointed out by the learned Counsel for the respondent, and I think rightly so, that the 2nd respondent Tribunal proceeded on the basis that the punishment imposed on the 1st respondent could not be justified taking into consideration the fact that his co-delinquent Shri Henry suffered only a lesser punishment and not dismissal. That is a relevant consideration in deciding the question as to what the punishment ought to be; the charges levelled against them were the same and no reason has been made out as to why a lesser punishment has been imposed on one and a drastic punishment of dismissal from service has been imposed on the other, especially when it has come out in evidence that the M.S. plate was removed as found by the domestic Tribunal and the Industrial Tribunal at the instance of Shri Samuel against whom no action was taken beyond issuing a charge memo. At any rate I do not think that in exercise of my writ jurisdiction I would be justified in interfering with the award directing the management to reinstate the 1st respondent as aforesaid. I am satisfied that no miscarriage of justice has been done in this case. The Supreme Court in Northern Dooars Tea Co. v. Workmen of Dent Dima Tea Estate 1964--I L.L.J. 436, upheld an award of the Industrial Tribunal directing reinstatement of the concerned workmen on the ground that imposition of penalty on six workmen out of a large number of strikers was irrational and unreasonable discrimination. It seems to me that the same could be stated so far as the case on hand is concerned.
13. No other point was railed in this case. The original petition fails and the same is dismissed with costs.