THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.4817 OF 2003 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 31.12.2002 passed by the Industrial Tribunal-II, Hyderabad in I.D.No.82/2002, in setting aside the punishment of removal from service and thereby directing the management to reinstate the workman into service with fifty per cent of back wages and with continuity of service, the Management – Tata Coffee Limited, represented by its Vice President (Operations), filed the present writ petition. 3. The 2nd respondent – workman was appointed on 17.1.1979 in the writ petitioner –company. His case is that he made various representations to the Management complaining that his co-workers are harassing him and sought for change of his services to another department and it is alleged that the co-workers of the workman viz, B.D.Mohan, T.Ramesh, G.Mallesh and S.Mallesh also assaulted him with deadly weapons and caused injuries and that he filed a complaint at Police Station, Sanathnagar. Though he sought for change in Department, there was no response from the Special Officer, therefore, he filed a representation to the Managing Director on 13.7.1999 complaining against his co-workers, and while the said representation was pending, he was issued a charge sheet on 15.7.1999 alleging that he was negligent towards his duties. The further case of the workman was that on 5.8.1999, the Special Officer Mr. S.A.Hafeez called all the employees at about 11-00 a.m. for discussion with regard to enhancement of wages of workmen and as there was no space in the room, many workmen, including himself, stood out side the cabin and pleaded for enhancement of wages and as there was amicable settlement, all the workmen including himself, joined the duties as usual. But a false case was fabricated against him, alleging that he used unparliamentary language against the Special Officer and he was issued 2nd charge sheet 13.8.1999. Workman submitted his explanation and not being satisfied with the same, domestic enquiry was conducted and the enquiry officer submitted report on 12.2.2000 holding him guilty. He was issued show cause notice and he submitted his explanation and not being satisfied with the same, he was removed from service through order dated 28.3.2000. 4. Aggrieved by the same, workman raised I.D.No.82/2002 and by the impugned award, the Tribunal on re-appreciation of the material on record, found that the Management has not taken any action on the representation of the workman alleging harassment from the co-workers and thus prejudiced against him and that it is an unfair labour practice. The Tribunal further held that the finding of the enquiry officer holding the workman guilty of charge no.1, without consideirng the complaint filed by him, was not proper and accordingly, it set aside the finding of the enquiry officer on the first charge. With regard to second charge of abusing the Special Officer in unparliamentary langue is concerned, the Tribunal based on the evidence of M.W.2, who deposed in the cross-examination that the workman was not present when the special officer - M.W.1 was discussing with Union Leaders about the demands of the workman; set aside the second charge, as the same is not proved, as there is contradiction between the evidence of M.W.1 and M.W.2 with regard to the presence of the workman at the cabin of M.W.1 – Special Officer. Considering the facts and circumstances, the Tribunal by setting the punishment of dismissal from service, imposed by the Management, granted reinstatement with fifty percent back wages and continuity of service. Challenging the same, the management filed the present writ petition is filed. 5. The learned counsel appearing for the petitioner – Management vehemently contended that the Tribunal is not justified in interfering with the findings arrived at by the enquiry officer based on the evidence in the domestic enquiry. He submitted that the workman was negligent continuously towards his duties and was not carrying out the instructions of his superior officers and that his past record is bad and, therefore, a charge was framed and in the domestic enquiry, the enquiry officer, based on evidence, has categorically found the workman guilty of the said charge. He stated that the case of the workman is that the co-workers are inimical towards him and that they are harassing him. But there was no suggestion on behalf of the workman to the witnesses examined by the management to prove the charge and hence, the enquiry officer, based on evidence, has recorded finding of fact that the workman was negligent towards his duties. He further contended that the Tribunal held that the Management is prejudiced towards the workman, as it did not take any action on the representation of the workman and the it amounts to ‘unfair labour practice’. He stated that in the domestic enquiry, the charge against the workman is proved and that when the charge is proved, the Tribunal is not justified in interfering with the finding of the enquiry officer and holding that it amounts to unfair labour practice. He contended that though the Tribunal has power to differ with the conclusions arrived at by the enquiry officer, it has to give cogent reasons for not accepting the view of the enquiry officer. He stated that in the impugned award, the Tribunal has not given any cogent reasons for differing with the conclusions arrived at by the enquiry officer in the domestic enquiry. He vehemently contended that in the present case, there is no violation of the principles of natural justice or any perversity in the findings in the domestic enquiry or any victimization of the employee by indulging in unfair labour practice and hence interference by the Tribunal without any cogent reasons is not justified. With regard to second charge, the learned counsel for the petitioner contended that the Enquiry Officer, based on evidence, found the workman guilty of misconduct of abusing the Special Officer in un-parliamentary language and the Tribunal based on a stray sentence in the evidence of M.W.2, is not justified in holding that the charge is not proved and the whole evidence has to be assessed and then only conclusion has to be arrived, which the enquiry officer did and hence the approach of the Tribunal is perverse and the same needs to be set aside. He stated that as the charges are proved, the Management considering the facts and circumstances, imposed the punishment of dismissal from service, which is proportionate to the charges proved against the workman and the same cannot be interfered with by the Tribunbal and even assuming for the sake of argument, the punishment imposed is grossly disproportionate, the Tribunal ought to have directed the management to reconsider the case of the workman and it cannot substitute its view. With regard to granting back wages, the learned counsel submitted that granting back wages is not automatic and the workman has to assert that he was not gainfully employed and then the burden shifts on the employer to prove the contrary and in the present case, there is no pleading and hence granting of back wages by the Tribunal, cannot be sustained. 6. In support of the above contentions, the leaned counsel for the petitioner relied on the following judgments viz., WORKMEN vs. FIRESTONE TYRE AND RUBBER CO. OF INDIA (PVT) LTD[1], THE EAST INDIA HOTELS vs. N.B.NARAVADE ETC.[2], M/S BHARAT IRON WORKS vs. BHAGUBHAI BALUBHAI PATEL AND ORS.[3], NEW SHORROCK MILLS vs. MAHESHBHAI T. RAO[4], PANDU A.N. vs. MANAGEMENT OF BHEL AND ORS.[5], VYSYA BANK LTD vs. CHAIRMAN, INDUSTRIAL TRIBUNAL-I[6], BHARAT HEAVY ELECTRICALS LTD. vs. M.CHANDRASEKHAR REDDY[7], V.RAMANA vs. A.P.S.R.T.C. AND OTHERS[8], L.K.VERMA vs. HMT LTD &ANOTHER[9], KERALA SOLVENT EXTRACTIONS LTD. vs. A.UNNIKRISHNAN AND OTHERS[10], U.P.STATE ROAD TRANSPORT CORPORATION vs. NANHE LAL KUSHWAHA[11], BIECCO LAWRIE LTD. AND ANR. Vs. STATE OF WEST BENGAL AND ANR.[12], SHANKAR CHAKRAVARTI vs. BRITANIA BISCUIT CO. LTD. ANR[13], J.K.SYNTHETICS LTD vs. K.P.AGARWAL AND ANOTHER[14] and TALWARA COOPERATIVE CREDIT AND SERVICES SOCIETY LIMITD vs. SUSHIL KUMAR[15]. 7. On the other hand, the learned counsel for the respondent – workman supporting the impugned award, sought for dismissal of the writ petition. 8. Before appreciating the respective contentions and the facts and circumstances of the case, it is necessary to note the legal principles enunciated by the Apex Court in the decision reported in WORKMEN v. FIRESTONE TYRE AND RUBBER CO. (1 supra) with regard to jurisdiction of the Tribunal while adjudicating the disputes relating to dismissal or discharge, as under: “31. We have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge. 32. From those decisions, the following principles broadly emerge: (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable and principles of natural justice. The enquiry should not be an empty formality. (3) 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 has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognize that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen {(1971)1 SCC 742} within the judicial decision of a Labour Court or Tribunal 9. In another decision reported in BHARAT IRON WORKS v. BHAGUBHAI BALUBHAI PATEL (3 supra), the Apex Court held as under: 3. There is two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the tribunal can interfere with an order of dismissal on one or other of the following conditions: (1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge leveled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding. (2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis what the evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No.1 above. A prima facie case is not, as in a criminal case, as case proved to the hilt. 10. From the above guidelines as enunciated by the Apex Court it is clear that though the right to take disciplinary action and the decision with regard to quantum of punishment are within the domain of managerial functions, the Tribunal has power to see whether the action of the employer is justified or not and further in the domestic enquiry, if the findings of misconduct are based on evidence, the Tribunal has no jurisdiction to interfere with the same and on the other hand, if such findings are perverse, or based on no evidence, or that no prudent man would arrive at based on such evidence or material on record or the management is found to be guilty of victimization, unfair labour practice or mala fide, the Tribunal will have jurisdiction to interfere with the findings of the enquiry officer in the domestic enquiry. 11. In the present case, the charges against the petitioner are that he has been deliberately refusing to carry out the instructions and perform his duties since 12.6.1999 a n d that on 5.8.1999 at about 11-00 a.m. the workman entered into the room of Mr. S.A.Hafeez, Special Officer and abused him in filthy and un-parliamentary language in Telugu. 12. The case of the workman is that since one year prior to his termination from service, some of the workmen namely B.D.Mohan, T.Ramesh, G.Mallesh and S.Mallesh who were working along with him, were harassing him and hence he gave a report to the Special Officer requesting him to take action against them or to shift him to other department under the management. The further case of the workman is that there was no action on his representation and on 11.8.1988, the above said workmen assaulted him with deadly weapons and injured him grievously and that he also lodged a complaint at Sanathnagar Police Station. The Management admitted during the course of enquiry, that the workman made several representations against the co-workers named above and also sought for change in his working position. There is no doubt that there is legal evidence supporting this charge in the domestic enquiry. But the Management has not addressed the grievance of the workman in proper perspective, redressing his grievance, but continued him in the same position. As found by the Tribunal below, the Management ought to have verified the correctness of the allegations of the workman and initiated appropriate action. But without doing so, allowing the workman, who is having about twenty years of service, to work at the same place, would definitely lead to unrest and for not responding in a proper manner, would lead to an adverse inference against the Management and as rightly observed by the Tribunal below, based on these facts and circumstances, it also indicates that the management is prejudiced against the workman, which amounts to unfair labour practice against the workman. The enquiry officer has not considered the complaint of the workman against his co-workers alleging harassment, while holding the workman guilty of this charge. Therefore, the Tribunal, based on the facts and circumstances, rightly set side the finding of the enquiry officer on this charge and I do not find any reason to interfere with the same. 13. The second charge is that workman on 5.8.1999 at about 11-00 a.m. entered into the room of Mr. S.A.Hafeez, Special Officer and abused him in filthy and un-parliamentary language in Telugu. The special Officer who was examined as M.W.1 deposed as per the averments made in the charge. The case of the workman is that on 5.8.1999 the Special Officer, Mr. S.A.Hafeez called all the employees at about 11-00 a.m. for discussion with regard to enhancement of wages to the workmen. As there was no room in the cabin of the Special Officer, many workmen including himself, stood outside the cabin and pleaded for enhancement of wages. As there was amicable settlement, all the employees including the petitioner joined the duties as usual and that he neither raised any points in the discussion nor participated in the discussion. In other words, the case of the workman is that he neither entered into the cabin of special officer, nor abused his filthy language. The Management apart from examining the special officer as M.W.1, also examined M.W.2, who was present, when M.W.1 was discussing with Union Leaders about the demands of the workman. In his cross- examination, he categorically deposed that the workman was not present when M.W.1 was discussing with Union Leaders about the demands of the workman. So this evidence of M.W.2, who examined on behalf of the management, supported the case of the workman that he did not enter into the cabin of special officer. Taking this crucial evidence, the Tribunal rightly set side the 2nd charge against the petitioner and I do not find any reason to interfere with the finding of the Tribunal on this charge. 14. As already noticed above, the jurisdiction of the Tribunal to interfere with the findings of the management can be invoked only when the said findings are based on no evidence or vitiated by perversity. In the present case, in the facts and circumstances noticed above, as the findings of the enquiry officer were recorded without considering the material evidence on record, the Tribunal in exercise of its jurisdiction, rightly set aside the findings of the enquiry officer. Therefore, in the light of the law laid down by the Apex Court in the decisions cited 1 and 3 and in view of the facts and circumstances, the other judgments relied on by the counsel for the petitioner, in this regard, are not applicable to the present case. 15. With regard to granting of reinstatement and back wages is concerned, as the charges against the workman are set aside by the Tribunal, it granted reinstatement and awarded fifty per cent of back wages. 16. When the charges against the workman are held to be not proved, he is entitled for back wages. In similar circumstances in, B.RAMULU v. PRESIDING OFFICER, LABOUR COURT II, HYDERABAD [16] , when a driver of the Corporation was terminated from service for causing accident, he challenged the same before the Labour Court. On appreciation of material evidence on record, the Tribunal fully exonerated the charges framed against him, but denied back wages by invoking the doctrine of proportionality. In these circumstances, this court held that denial of back wages by invoking doctrine of proportionality, is not proper and accordingly held that the petitioner therein is entitled to back wages from the date of termination till the date of reinstatement. The relevant portion of the judgment is extracted as under better appreciation: “9. Having given categorical find that capsizing of bus was not on account of the fault of the petitioner, respondent No.1 very strongly invoked the doctrine of proportionality in the immediately following paragraph of the award. In my considered view the question of application of the doctrine of proportionality does not arise in a case where an employee is fully exonerated of the charges. It is only in cases where the employee is found guilty of one or more of the charges and the Court/Tribunal find that the penalty imposed on the employee is shockingly disproportionate to the gravity of misconduct proved that the doctrine of proportionality could be invoked. Therefore, the whole approach of the Labour Court in invoking the doctrine of proportionality and disallowing back-wages of the petitioner cannot be sustained at all. When once an employee is held not guilty of the charges framed against him and he is directed to be reinstated, ordinarily it should follow that he is entitled to all the attendant benefits including back-wages. It should be deemed that the punishment which is set aside on the finding of his not being found guilty was never suffered by him. On this premise, denial of back-wages in the instance is wholly unjust.” 17. With regard to per cent of back wages, the Apex Court in J.K.SYNTHETICS LTD. V. K.P. AGRAWAL AND ANOTHER,[17] held as under: “Coming back to back wages, even if the Court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in G.M., HARYANA ROADWAYS v. RIDHAN SINGH {(2005)5 SCC 591: AIR 2005 SC 3966} and U.P. Brassware Corpn. Ltd. v. Uday Narain Pandey {(2006)1 SCC 479: (AIR 2006 SC 586)}. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment.” 18. The contention of the counsel for the petitioner relying on the judgment of the Apex Court 17 supra is that the workman has not taken any specific plea that he was not gainfully employed in the claim statement and hence granting back wages cannot be sustained. 19. From a perusal of the claim statement, it is clear that at paragraph no.1 he stated that “It is submitted that the petitioner is senior most employee of organization, due to the illegal termination of the senior employee, it has become difficult to eke out his livelihood.” Though he has not stated in unequivocal terms that he is not gainfully employed from the date of his termination, he pleaded that it has become difficult for him to eke out his livelihood, which can normally be understood that he had no income. The Apex Court in the above judgment (17 supra) also held that at least the employee shall assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Therefore, in my considered view, the pleading of