V. Ramaswami, J.
1. This is an appeal against the order of Koshal, J., dismissing the writ petition filed by the appellant even at the admission stage. The Writ petition was dismissed on the ground that under S. 11A of the Industrial Disputes Act, the Tribunal had full jurisdiction to set aside the punishment of dismissal and award a lesser punishment.
2. The writ petition was filed praying for the issue of a writ of certiorari to quash that part of the award dated 7-2-1977 in respect of one K. Gopal, whose termination of services by the management was set aside and ordered to be reinstated without back wages. The appellant is a company carrying on business in the manufacture of aluminum articles Purporting to exercise its power under the standing orders and the existing settlement to recruit necessary casual and temporary workmen as and when required the appellant re-employed two of its superannuated employees. This was objected to by the second respondent-worker's union. Actually when the re-employed workers reported for work on 10-3-1975, Gopal and two others were reported to have created a serious situation by behaving in a disorderly and riotous manner. Arising out of this incident, the management framed charges against the concerned three workmen including Gopal and in the domestic enquiry, they were held guilty of charges of riotous and disorderly behavior and accordingly they were dismissed from service. The question of justifiability of these dismissals was referred for adjudication before the Industrial tribunal, Madras. In the award dated 16-3-1977, the Tribunal held that incident as reported by the management was true, that all the three workmen were guilty of misconduct as per S. 19(1) of the standing Orders of the company and that the plea of victimisation had not been proved. All the same the Tribunal went into the question of the justifiability of dismissal and whether any lesser punishment is to be awarded and ordered reinstatement of Gopal in service without backwages but with continuity of service in lieu of the order of dismissal. The relevant portion of the Award may be extracted here.
'Learned counsel for the union argued that even if the misconduct is held to have been proved, the punishment meted out to these persons is severe and that they did not do anything more than protest against the re-employment of the retired persons. According to the learned counsel, this is not 'grave misconduct' and the tribunal should, therefore, interfere and reduce the punishment. Having regard to the nature of the dispute and the background in which the incident took place. I am inclined to agree that this is a fit case for the interference of this tribunal in the matter of punishment. There is no evidence on record that W.W. 1 had any bad antecedents or any punishment previously. He is an young man aged about 31 years and he had been put in 13 years of service in this company on the date of the incident. There is nothing adverse against him and therefore, the order of termination of service imposed on him requires revision under S. 11A of the Industrial Disputes Act.
13. Reverting to the case of W.W. 1 Thiru K Gopal, I have already found that the termination of service is very severe. He was placed under suspension on 11th March, 1975 and he is out of employment for the last two years. This itself is sufficient punishment for his misconduct on 10th March, 1975 and, therefore, taking an overall picture of the case and the background, I direct that he should be reinstated in service forthwith. In other words, the order of termination of service so far as W.W. 1 is concerned is set aside and he will be reinstated in service forthwith. There will not be any break in his service on account of this termination and the period from the date of his termination and the period from the date of his termination to the date of reinstatement will be treated as leave on loss of pay. In the result, I hold that the order of termination of service of Thiru K. Gopal, W.W. 1 is set aside and he will be reinstated in service forthwith backwages, but with continuity of service.'
3. The learned counsel for the appellant contended that actually there is no finding in the award that the dismissal was not justified and a finding on justification of the dismissal is jurisdictional finding which alone would enable the Tribunal to go into the question of awarding lesser punishment and in the absence of any such finding, the award itself is vitiated. Alternatively, the learned counsel contended that when considering the question of punishment, the Tribunal will have jurisdiction only to award that punishment which could be have been given by the domestics Tribunal, viz., the management and since the management could not have deprived an employee of the salary for a period of two years but at the same time could make him to work in the factory, the Tribunal also will have no jurisdiction to order reinstatement without backwages. The learned judge dismissed the writ petition as stated already, on the ground that the Tribunal has full jurisdiction to set aside punishment of dismissal and award a lesser punishment and that is exactly what it has done.
4. The Supreme Court in the decision reported in Workmen of Firestone Tyre & Rubber Co. v. Management, : (1973)ILLJ278SC , considered the scope of S. 11-A, the Tribunal had the liberty to consider not only whether the finding of misconduct as recorded by the management is correct but also differ from such a finding if proper case is made out. If ultimately the Tribunal comes to the conclusion that the misconduct is proved, all the same it could interfere with the punishment if the punishment was considered to be not justified even on the finding of misconduct. In the words of Supreme Court.
'We are not inclined to accept the contention advanced on behalf of the employers that the stage for interference under S. 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. I can, under such circumstances awards to the workman any lesser punishment instead.'
There could, therefore, be no doubt that even in a case where the Tribunal agrees with the management that the misconduct is proved, it may awards a lesser punishment if it were of opinion that the proved misconduct does not merit punishment by way of discharge or dismissal.
5. The learned counsel is also not well founded in his contention that there is no specific finding that the dismissal is not justified. Paragraph 11 of the award which we have extracted above shows that the Tribunal accepted the contention of the learned counsel of for the workmen that the misconduct is not so grave as to warrant a punishment of dismissal. That could only mean that the dismissal itself was considered by the Tribunal considered by the Tribunal as not justified. In fact the entire reasonings in paragraphs 11 to 13 of the award show that it is because the Tribunal considered that the management was not justified in dismissing even on the finding of misconduct, it went into the other question of awarding lesser punishment. In this connection, he had taken into account some factors including the age of the workmen, the number of years of service, his antecedents and his unblemished prior service. Those are all relevant factors which could be have been taken note of by the Tribunal in considering the question of giving a lesser punishment and we do not think that there is anything wrong in such appraisal of these factors. The learned counsel for the appellant may be right when he contended that number of years of services alone may not be relevant. But the Tribunal had not considered that as the only relevant factor nor the lesser punishment was awarded only on that ground. The Tribunal was not wrong in taking that as one of the factors and having regard to the cumulative effect of all the factors mentioned in paragraphs 11 to 13 of the award, the Tribunal had ordered the reinstatement of service without backwages but with continuity of service and we do not find any justification for interfering with this award.
6. We are also unable to agree with the alternative argument of the learned counsel for the appellant. Section 11A specifically authorised the Tribunal when it is satisfied that the dismissal was not justified, to 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 lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. The reinstatement without backwages but with continuity of a service is in terms of S. 11A itself and there is nothing wrong in making such an award. When the dismissal is found to be not justified, the order of dismissal is liable to be set aside. But since the Tribunal agrees with the finding of misconduct, the Tribunal has to award a punishment. Therefore, whatever punishment that could be awarded under the latter part of S. 11A could be made by the Tribunal. The reinstatement on such terms and conditions, if any, as it thinks fit is one of the punishments which are specifically referred to in S. 11A could be made by the Tribunal. The reinstatement on such terms and conditions, if any, as it thinks fit is one of the punishments which are specifically referred to in S. 11A and therefore the Tribunal was within its jurisdiction in ordering the reinstatement without backwages but with continuity of service. The writ appeal accordingly fails and is dismissed. But there will be no order as to costs.