THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.147 OF 1998 O R D E R Heard both the counsel. 2. The petitioner is the management of Zyfix Tools Pvt. Ltd., Jeedimetla, Hyderabad and it is represented by its Director (Personnel). On the charges of absenting from duty unauthorizedly, instigating other workers to leave the work spot and standing near the gate and obstructing the loyal workers and going to the residences of the other employees and threatening them from attending the duties, the petitioner has removed the seven workmen of the 2nd respondent – union, after conducting regular enquiry, in which the charges against the workmen were held proved. Challenging the orders of removal, the workmen raised I.D.No.1/1995 on the file of Industrial Tribunal, II Hyderabad. By order dated 17.9.1996, the Tribunal held that the domestic enquiry was valid. Eventually, by award dated 3.2.1997, while upholding the findings of the enquiry officer in the domestic enquiry, ordered reinstatement with 1/3rd back wages. Aggrieved by the same, the management filed the present writ petition. 3. In the writ affidavit filed in support of the writ petition and as per the elaborate contentions of the counsel for the petitioner, the case of the management is that the charges against the workmen are serious in nature and in the domestic enquiry, the said charges were proved and the same were upheld by the Tribunal. Therefore, when the charges are proved, the vehement contention of the counsel for the petitioner is that the Tribunal ought not have interfered with the punishment imposed by the management. She contended that the Tribunal can award lesser punishment, provide if it reaches a conclusion that the punishment imposed is grossly disproportionate to the charges proved. In the present case, the Tribunal has not recorded any such finding and without any reasons, the punishment was interfered with. She stated that it is within the domain of the management to impose punishment based on the facts and circumstances and the gravity of misconduct found proved and in the present case, because of the illegal strike and the acts of the workmen, the production was stalled and the establishment itself came to be closed. She contended that the workmen were gainfully employed elsewhere. She contended that the burden is on them to prove that they are not gainfully employed, but they failed to lead any evidence. She further contended that the Tribunal awarded 1/3rd back wages without any reasons and when the workmen have not worked and when they were gainfully employed elsewhere, they are not entitled for back wages. Therefore, as the Tribunal by the impugned award, without any justifiable reasons, interfered with the punishment imposed by the management, more particularly when the charges, which are serious in nature, were held proved against the workmen, the impugned award to the extent of granting reinstatement to the workmen and also the 1/3rd back wages, are liable to be set aside. In support of the above contentions, the learned counsel relied on the judgments reported in DISTRICT RED CROSS SOCIETY v. BABITA ARORA[1], ORIENTAL TEXTILE v. LABOUR COURT[2], ROHTAS INDUSTIES LTD. v. ROHTAS INDUSTRIS STAFF UNION[3], INDIAN RAILWAY CONSTRUCTION CO. LTD. v. AJAY KUMAR[4], DHARMAPURI DISTRICT CO-OPERATIVE SUGAR MILLS v. THE PRESIDING OFFICE, LABOUR COURT, VELLORE[5], SRI GANESHAR ALUMINIUM FACTORY v. I.T. MADRAS[6], WORKMEN OF B.F. WERNER(P) LTD v. B.F.WERNER (P) LTD[7], ALL INDIA PUNJAB NATIONAL BANK EMPLOYEES’ FEDERATION v. PUNJAB NATIONAL BANK LTD.,[8] ISHA STEEL TREATMENT v. ASSN. OF ENGG. WORKERS[9], BINNY LIMITED v. THEIR WORKMEN[10], LAXMI RATTAN COTTON MILLS LTD. v. STATE OF UP[11] and TALWARA COOP. CREDIT & SERVICES SOCIETY LTD. v. SUSHIL KUMAR[12]. With these averments, the impugned award to the extent of granting reinstatement and 1/3rd back wages was sought to be set aside by allowing the writ petition. 4. On the other hand, the learned counsel for the 2nd respondent union, supporting the impugned award sought for dismissal of the writ petition. 5. The charges against the workmen are as under: 1. Absented from duty unauthorizedly since 29.4.1994 2.00 p.m. onwards. 2. Instigated other workers forcibly to leave their work spot and struck work to paralyse the production work. 3. Standing near the rear gate obstructing loyal workers from entering factory by threatening them with dire consequences. 4. You along with others approached the residences threatening them and also family members if they attend to duties. 6. The management conducted domestic enquiry and all the charges were held to be proved and the Tribunal by order dated 17.9.1996 held that the domestic enquiry is valid and the also charges were found to be proved against the workmen. 7. The next issue is only with regard to the quantum of punishment. At this juncture it is necessary to note Section 11-A of the Industrial Disputes Act, 1947 as under: 11-A Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen:- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified it may, by its award, set aside the order of discharge or dismissal and as 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: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the material on record and shall not take any fresh evidence in relation to the matter. 8. From the above provision it is the clear that if the Tribunal is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and give such other relief, including the awarding of lesser punishment in lieu of discharge or dismissal, as the circumstances of the case may require. 9. In the present case, the facts on record show that the workmen started their employment during the period from 1985 to 1987 and the misconduct alleged was during the year 1994. The Tribunal also found that the other employees who participated in the strike, were given chance and they were taken into services. The present workmen are General Secretary, Joint Secretary etc., of the union. Therefore, considering all these circumstances, and as they were out of service, in exercise of its discretionary jurisdiction under Section 11-A of the Act, granted reinstatement with 1/3rd back wages. 10. In view of the above facts and circumstances, I do not find any justification to interfere with the discretionary jurisdiction exercise by the Tribunal and the writ petition needs to be dismissed. 11. For the foregoing reasons, the writ petition is dismissed. No costs. AVS ------------------------------------ 05—08—2010 [1] (2007)7 SCC 366 [2] 1971(3) Supreme Court Cases 646 [3] AIR 1976 SC 425 [4] (2003)4 SCC 579 [5] 1997-II-LLJ833 (Madras) [6] 1982-I-LLN-513 (Madras) [7] 1990-II-LLJ-226 (Supreme Court) [8] AIR 1960 SC 160 [9] (1987) 2 SCC 203 [10] (1974) SCC 152 [11] (2009)1 SCC 695 [12] (2008)9 SCC 486