R.A. Mehta, J.
1. The petitioner who is a workman of the respondent S.T. Corporation was dismissed from service on the ground of misconduct of absenting from duty for two days and negligence. The Labour Court in reference (LCR) Application No. 382 of 1981 held that the punishment was unreasonable and excessive therefore required interference under Section 11A of the Industrial Disputes Act. The Labour Court held that the workman should be reinstated in continuity of service with 50% back wages. The Labour Court also held that in view of the fact that he has been awarded 50% back wages is sufficient punishment looking to the circumstances of the case. It is against this order that the workman has preferred this petition, and submitted that the punishment of refusal of 50% back wages is excessive for the small misconduct alleged against him. On behalf of the respondent Corporation it has been submitted that the Labour Court has, in exercise of its discretion, refused to award full back wages and granted only 50% back wages on the ground that it would be sufficient punishment for the proved misconduct, and hence no interference is called for under Article 227.
2. The Learned Counsel for the respondent Corporation has relied upon the judgment of the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaquim and Ors. : 1SCR211 . In para 7 of the said judgment the Supreme Court observed as under:
The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited 'to seeing that an inferior Court or Tribunal functions within the limits of its authority', and not to correct an error apparent on the face of the record, much less an error of law.
Another decision relied upon by the learned advocate for the respondent Corporation is in the case of Jitendra Singh Rathod v. Shri Baidyanath Ayurved Bhawan Ltd. and Anr. : (1984)IILLJ10SC , and referred more particularly to the following observations made in paras 3 and 4 of that judgment:
Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages to the extent of half in the facts of the cases was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.
Under Section 11A of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordintae Tribunals within the well accepted limitations....
It was also submitted that having regard to the decision of the Supreme Court, the High Court in exercise of the jurisdiction of superintendence should remand the matter for quick disposal. In para 5 of the very judgment the Supreme Court has clarified that it was not to be understood to have denied the power of the High Court in every type of cases. In the present case the dismissal is of the year 1980. After six years, remanding the matter for such a question would neither be just nor proper.
3. In the facts of the present case the misconduct alleged is that the workman who was a Traffic Inspector in the Gondal Depot of the S.T. Corporation had remained absent from duty for two days (31st March and 1st April. 1980) in spite of leave having been refused. The leave was sought on medical ground. The workman had not been informed about the refusal of the leave. However, the fact remains that his leave was not granted and he had remained absent for two days without leave. An enquiry was held against him, and it appears that he had requested for adjournment through his co-worker. But his request was not granted and ex-parte enquiry was held against him. Ultimately the charge was held to have been proved. The Labour Court came to the conclusion that the enquiry against the workman was held in accordance with the principles of natural justice and he had absented himself during the enquiry. The Labour Court also came to the conclusion that the finding report is not properly written though the findings are correct. While coming to the conclusion that the charges against the workman are proved, on the question of punishment the Labour Court observed as follows:
So far as the punishment is concerned, I must say that it is not proportionate to the act of misconduct committed by the workman. The past record of the workman is not bad. It appears that he is frustrated and he has gone to the extent of resigning from service. He had remained absent for two days without leave. First time he had applied for leave which was refused. He had produced medical certificate also. As regards distribution of work it is not the sole responsibility of the workman. Considering all the circumstances the acts of misconduct committed by the workman are not of very serious nature. The Corporation has not considered as to why lesser punishment than that of dismissal should not be passed against the workman. The workman is an old servant of the Corporation. He should not be deprived of his bread for such type of acts of misconduct.' I therefore hold that the punishment awarded is unreasonable and excessive and it requires interference under Section 11A of the Industrial Disputes Act.
After coming to the correct conclusion that the punishment was unrea-sonable and excessive and after directing reinstatement, the Labour Court substituted the punishment in one sentence 'the fact that he has been awarded 50% back wages is sufficient punishment looking to the circumstances of the case'.
4. Even though the Labour Court had come to the conclusion that dismissal from service is deprivation of bread and for such type of trivial misconduct, it was unreasonable and excessive, it imposed another excessive and unreasonable punishment. The Labour Court has rightly observed that the Corporation has not considered as to why lesser punishment should not be passed against the workman. However, the Labour Court itself fell into an error in not considering the alternative lesser punishment. There is a total non-application of mind on the part of the Labour Court in directing the respondent Corporation that refusal of 50% back wages is sufficient punishment, without considering as to what that 50% would amount to. The monthly wages of the workman is about Rs. 1600/- including dearness allowance and other allowances. He was dismissed from service on 15th November 1980 and was actually reinstated on 15-4-1984. Thus he was out of service for more than VA years. The total wages for this period would be running into a very large amount and 'even denial of 50% of the back wages would run into several thousands of rupees. The Labour Court has not at all applied its mind while observation that refusal of 50% back wages is sufficient punishment. The Labour Court does not appear to have realised as to what the substituted punishment would really amount to. For such a trivial misconduct of absence of two days the punishment should not have resulted into such a severe amount of fine of several thousands of rupees. The Labour Court has rightly observed that the Corporation has not considered as to what lesser punishment than dismissal should be given. The Labour Court also observed that the workman is an old servant of the Corporation and he should not be deprived of his bread for such an act of misconduct. However, the Labour Court has itself deprived the workman of his bread for a very long period and a very large amount disproportionate to the misconduct of the workman.
5. In the case of Sardarsingh Devisingh v. The District Superintendent of Police, Sabarkantha District and Ors. XXVI (2) GLR 1368 this Court had considered the question of reasonableness and rationality of punishment in proportion to the misconduct. In para 6 of that judgment the learned Judge (Ahmadi, J.) has observed as under:
When an authority is conferred with the power to inflict one of the several penalties such as caution or censure, reprimand, extra drill or duty, fine, stoppage of increments, reduction in rank, removal or dismissal, it is obvious that the authority must give a serious thought to the question of choice of penalty. The choice cannot be arbitrary but must depend on the nature of misconduct established in a given case. Just as a road roller cannot be brought to crush a fly, so also the extreme penalty of dismissal cannot be inflicted for misconduct which is not equally grave. The consequences of removal or dismissal from service are severe, sometimes the entire family is ruined because another job or work may not be easy to find and, therefore, it is all the more necessary that the punishment of removal/dismissal should be invoked sparingly and in cases which can be described as gross, such as, receiving illegal gratification, misappropriation or defalcation of public funds, behaviour which is morally reprehensible, gross abuse or misuse of authority, etc. However, if a policeman remains absent without leave, it certainly has an adverse effect on disciplined force which can be remedied by imposing a lighter penalty such as withholding of increments or the like.
In the present case we find that the punishment of refusal of 50% back wages which actually runs into several thousands of rupees is disproportionate to the misconducts of the workman, which is very minor and which could not have attracted any major penalty. No reasonable person could have imposed a penalty or fine of several thousands of rupees or dismissal for remaining absent for two days and negligence. In the case of Jitendrasinh Rathod (supra) the Tribunal had directed reinstatement of the workman with half back wages and the employer had approached the High Court under Article 227. The High Court vacated the order of reinstatement holding that the ends of justice would be served by directing payment of compensation quantified at Rs. 15,000/-. This modification of the High Court was assailed before the Supreme Court at the instance of the workman. In that case the Supreme Court observed that the workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. In the present case there is no particular reason shown to withhold 50% of the backwagcs which run into several thousands of rupees as punishment for a very minor misconduct. Such a minor misconduct could be punished only with a minor penalty like withholding of one or two increments without cumulative effect. The cumulative effect is also many a time not given proper consideration. Cumulative effect has the effect over the entire service career of the workman and there is permanent loss, and at the end of the service the cumulative loss would run into a very large figure and it would also affect the pensionary benefits. The punishment of stoppage of increments with cumulative effect is to be imposed after careful consideration and application of mind to the resultant total consequence.
6. In view of the misconduct here of absence from duty for two days, the maximum penalty that could have been imposed by any reasonable employer could not have been more than stoppage of two increments without cumulative effect, especially in view of the fact that the past record of the workman was not bad and he had good service record of 9 years and also a long service to go.
7. In view of the aforesaid discussion we quash and set aside the award of the Labour Court in so far as the Labour Court has awared 50% backwages refused 50% back wages as sufficient punishment. We, therefore, hold that the workman is entitled to reinstatement with continuity of service with full back wages, but he is required to be punished by imposing on him, penalty of stoppage of two increments without cumulative effect.
In the result the petition is allowed, by directing that the workman shall be entited to reinstatement with full back wages, but he shall be punished by withholding two increments without cumulative effect. Rule is accordingly made absolute with no order as to costs.