1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Special Appeal (Writ) No.1276/2008 In S.B. Civil Writ Petition No.1247/2003 with D.B. Civil Misc. Stay Appl. No.1549/2008 Divisional Railway Manager, North Western Railway, Ajmer vs. Shri Rajendra Kumar & Anr. Date of order :: 20.11.2010. HON'BLE THE ACTING CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. P.C. Sharma for appellant. *** (PER HON'BLE MOHAMMAD RAFIQ, J.) Delay in filing the appeal is condoned. The application u/s.5 of the Limitation Act is allowed. The matter is heard on merits. This appeal has been filed by the North Western Railway, Ajmer against the judgement learned Single Judge dated 10.3.2008. The learned Single Judge by the aforesaid judgement has dismissed writ petition of the appellant assailing award of the Labour Court-cum- Industrial Tribunal, Ajmer dated 28.11.2002. Question that was referred to the Labour Court for adjudication was whether retrenchment of respondent-workman by management of appellant by order dated 5.2.1993 was legal and valid and if not, what relief he is entitled to. 2 Though on the question of fairness of enquiry, the Labour Court decided in favour of the appellant and also approved findings with regard of guilt of respondent-workman, but in exercise of power conferred upon it under Section 11A of the Industrial Disputes Act, learned Labour Court substituted the penalty of removal awarded to workman by that of stoppage of two grade increments without cumulative effect. Mr. P.C. Sharma, learned counsel for the appellant has argued that the Labour Court has erred in law in interfering with the quantum of punishment and learned Single Judge was not justified in dismissing the writ petition merely because it was a writ of certiorari. Ratio of judgement of Supreme Court in Sadhana Lodh vs. National Insurance Co. Ltd.-2003 (3) SC 524 has wrongly been applied. Learned counsel cited judgement of this Court in RSRTC vs. Habib Khan & Ors.-1993(2) WLC 202 to argue that this Court in the aforesaid case held that when a proper enquiry has been held by an employer and finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgement over the decision of employer as an appellate body. Learned counsel therefore argued 3 that the Tribunal was wholly unjustified in interfering with the quantum of punishment, particularly when it had held the enquiry to be fair and proper and the respondent-workman guilty of the charge of willful absence. On that note, we examined the material to find out as to what was the period for which the respondent-workman has been held guilty of willful absence. Perusal of the impugned award reveals that the charge against the petitioner was that of willful absence on 12.2.91, 13.4.91, 7.5.91, 27.5.91 to 29.5.91, 22.8.91, 1.9.91 to 3.9.91, 6.9.91 to 10.9.91, 19.9.91 to 21.9.91, 6.10.91 to 9.10.91, 15.10.91, 17.10.91 and 7.1.92 to 10.1.91, total of which comes to only 28. days. We further discovered from scrutiny of record that respondent-workman rendered service of 15 years prior to his removal. In our view, the learned Labour Court was perfectly justified in coming to the conclusion that the gravity of the charge proved against the respondent-workman was not such as would justify extreme penalty of removal. Penalty of removal was indeed shockingly disproportionate to the gravity of charge proved and the learned Labour Court in the facts of the present case was fully justified in invoking power conferred upon it u/s.11A, supra. 4 We therefore do not find any infirmity in the impugned order dated 10.3.08 as also in the award passed by the learned Labour Court dated 29.11.02. The appeal being devoid of any merits is therefore dismissed. Since the appeal is dismissed, the stay application also stands dismissed. (MOHAMMAD RAFIQ), J. (ARUN MISHRA),ACTING CJ. RS/-