1 W.P. No.7319/2008 (S) Date: 26.9.2011 Shri G.S. Patwardhan, learned counsel for the petitioner. Heard on the question of admission. O R D E R 1/ By this writ petition the petitioner-employer has challenged the award dated 13.11.2007 passed by the Labour Court, Dhar in Case No.243/MPIR/98 and the order dated 12.8.2008 passed by the Industrial Court, M.P., Indore in Appeal No.361/MPIR/2007, whereby the relief of reinstatement without back-wages has been granted to the respondent-employee. 2/ The case of the respondent before the Labour Court was that he was working in the petitioner's establishment as permanent labour since 2.8.1990 and his services were terminated on 30.8.1997 without complying with the provisions of the Act. The respondent had filed an application under Section 31(3) read with Section 61-62 of the MPIR Act, 1960 before the Labour Court challenging the termination and seeking reinstatement with full back-wages. 3/ The claim of the respondent was opposed by the petitioner taking the plea that the services of the respondent were terminated by way of punishment, therefore, the provisions relating to the retrenchment were not required to be followed. 4/ The Labour Court by order dated 13.11.2007 found 2 that the services of the petitioner were terminated by way of punishment and also found that the punishment imposed was disproportionate to the misconduct proved, therefore, directed reinstatement without back-wages. The appeal against the award of the Labour Court at the instance of the employer has been dismissed by the Industrial Court by order dated 12.8.2008. 5/ Learned counsel appearing for the petitioner submitted that the courts below have committed an error in interfering in the quantum of punishment and that no error was committed by the petitioner in terminating the service of the respondent, once the alleged misconduct was proved against him. 6/ We have heard the learned counsel for the petitioner and perused the record. 7/ It is undisputed that the respondent was working in the petitioner's establishment and his services were terminated by order dated 30.8.1997. The respondent was charged with the misconduct of participating in the illegal strike. Mahaveer Singh Sudda (DW-1), who was one of the witness during the domestic enquiry, was examined by the petitioner before the Labour Court but his statement is found to be unreliable by the Labour Court, since he did not support his own statement, which was allegedly recorded during the domestic enquiry. No material was produced by the petitioner in respect of the allegations such as stopping the vehicles of the senior by obstructing them with cement pipe or deflating the tires of their vehicles or misbehaving with the officers or employees. Thus, misconduct was held to be partly proved in 3 respect of participation in the strike with other employees. It is also noted by the Labour Court that the employees were on strike and the respondent had also participated in the strike but the action of terminating the services was taken against the respondent only, which was improper. The petitioner also failed to produce before the Labour Court any material showing past bad record of the respondent. Considering these relevant aspects of the matter the Labour Court has found that the punishment of termination from service is disproportionate to the proved misconduct, therefore, Labour Court interfered in the quantum of punishment and directed reinstatement without any back-wages. The Industrial Court in appeal has also appreciated the evidence and taken note of the fact that the petitioner's witness specially the statement of Mahaveer Singh Sudda (DW-1) and has affirmed the findings recorded by the Labour Court and upheld the award of the Labour Court. 8/ We have minutely perused the record of the case and the orders passed by the Labour and Industrial Court. We do not find any error in award of the Labour Court interfering in the quantum of punishment since the Labour Court considering the nature of the misconduct proved against the respondent, has rightly found that the punishment of termination from service is disproportionate to the alleged misconduct. The respondent was only one of the participant in the strike along with the other employees. Nothing further has been proved against him. Nothing has been pointed out that any action was taken against 4 the other employees, who had also participated in the strike. 9/ Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Mahindra and Mahindra Ltds. V. N.B. Naravade reported in AIR 2005 SC 1993 but the said judgment is distinguishable on its own fact since in that case the punishment was reduced only by way of sympathy in the absence of the factors like punishment being disproportionate or any other mitigating circumstances of past conduct of the workman. That was a case of use of abusive language by the workman against the superior officer in presence of his subordinate. 10/ Thus we do not find any error in the orders of the courts below. No ground for interference is made out. The writ petition is accordingly dismissed. (SHANTANU KEMKAR) (PRAKASH SHRIVASTAVA) JUDGE JUDGE Trilok/-