Judgment Case ID: 4776

Judgment:
Civil Appeal No. 108 of 1984. From the Judgment and order dated 4.3.83 of the Patna High Court in C.W.J.C. No. 3490 of 1979. M. K. Rangamurthi and A.Sharan for the Appellant S.N. Singh for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA	 J. The workman is in appeal after obtaining leave under Article 136 of the Constitution from this Court. The appellant was working as librarian under the respondent employer. His services were terminated on May 24	 1977	 on payment of a month 's salary. The appellant laid a complaint before the Industrial Tribunal under section 33A of the (hereinafter referred to as 'the Act ') and the Tribunal Came to find on hearing parties that though the charge of misconduct 225 within the meaning of clause 16(iii) (a) of the Standing orders had been established	 punishment of termination of service was not warranted. Accordingly	 reinstatement was ordered. The direction of the Tribunal ran thus: "Considering the facts and circumstances of the case and evidences on record I direct the opposite party (employer to reinstate the complainant (appellant) with half of his back wages and other benefits from the date of termination of his service (24. section l 977) within one month from the date of pronouncement of this award. " The employer applied to the High Court under Article 227 of the Constitution to quash the direction of reinstatement and in support of the stand it was contended that as the Tribunal had found misconduct on the part of the workman	 it was obligatory for the Tribunal to impose some punishment which it had failed to do. The employer also took the position that there was loss of confidence 	 and reinstatement was not appropriate. The appellant maintained that though under the law he was entitled to full back wages upon 	 reinstatement	 the Tribunal had directed withholding a moiety of it in view of its finding that misconduct had been established. The High Court come to hold that withholding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment. The High Court observed: "The two powers under section IIA are alternative; the first is to direct reinstatement of the workman on such terms r and conditions as it thinks fit and the second is to give some other relief to the workman including the award of any lesser . P punishment in lieu of reinstatement as the circumstances of this case may require. Under the second alternative	 the Tribunal may instead of directing reinstatement give the relief of compensation to the workman or award a lesser punishment. It was for the Tribunal	 therefore	 to decide " . as to which of the two alternatives it should adopt. But the . Tribunal is always bound to exercise its discretion judicially and decide to adopt either the first course to direct reinstatement on such terms rand conditions as it thinks fit or the . second course to award a lesser punishment in lieu of reinstatement as the circumstances of the case may require. The order of reinstatement with half back wages is an order of the first category and not of the second category. The 226 payment of only half of the back wages is a condition of the reinstatement and not a punishment for the misconduct of the workman. " The High Court then came to the conclusion that the order of reinstatement was not called for and proceeded to indicate: "The question now is should the award be set aside and the case be remitted back to the Tribunal for a fresh determination of the matter in accordance with law or should the proceeding be concluded by making a reasonable modification in the award of the Tribunal?" The High Court thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15	000. This modification by the High Court is assailed in appeal at the instance of the workman. Section IIA of the Act provides: "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 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 any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require." Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed	 the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be 227 withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion	 the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was	 therefore	 by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and	 therefore	 did not constitute penalty. Under Section IIA of the Act	 advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court	 it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and	 therefore	 it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions	 if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case	 the Tribunal had directed reinstatement	 the High Court vacated the direction of reinstatement and computed compensation of Rs. 15	000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate	 the High Court too did not record a finding to that effect. Again	 there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other service benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are	 therefore	 of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in procee 228 ding to substitute the direction by quantifying compensation of Rs. 15	000 it acted without any legitimate basis. Mr. Prasad for the respondent No. 1 invited our attention to the fact that the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power to the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out	 the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law. The appeal]	 therefore	 is allowed and the order of the High Court is set aside and the award of the Industrial Tribunal is restored. The appellant became entitled to reinstatement within a month from November 24	 1979	 when the award was made. He would	 there fore	 be entitled to full wages and other service benefits from December 24	 1979	 taking the month 's allowance given in the award into account. He would also be entitled to the half of the back wages in terms of the award from May 24	 1977 till December 23	 1979. We direct the Tribunal to compute the amount so due as back wages and the appellant. is entitled to 12 per cent interest on the sum from January 1	 1980	 till payment. The appeal is allowed with costs. Hearing fee assessed at Rs. 2000. N.V.K. Appeal allowed.

Summary:
The appellant was employed as a Librarian under the Ist respondent. His services were terminated for misconduct. He laid a complaint before the Industrial Tribunal under section 33A of the . The Tribunal came to the conclusion that though the charge of misconduct against the appellant was established	 the punishment of termination of service was not warranted	 ordered reinstatement with half of his back wages and other benefits from the date of termination. The respondent employer applied to the High Court under Article 227 to quash the direction of reinstatement contending that as the Tribunal had found misconduct on the pa t of the workman	 it was obligatory for the Tribunal to impose some punishment which it had railed to do. It was further contended that as there was loss of confidence	 reinstatement was not appropriate. The High Court held that with holding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment	. held that reinstatement was not called for	 vacated the order of reinstatement	 directed payment . Of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15	000. Allowing the appeal. 224 ^ HELD: 1. The order of the High Court is set aside and the award of the Industrial Tribunal is restored. The High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation at Rs. 150000 it acted without any legitimate basis. '[228D	 227H	 228A] 2. Section IIA of the vests wide discretion in the Tribunal. and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed	 the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. [226G	 '227A] 3. The High Court under Article 227 of the Constitution does not enjoy the wide discretion vested in the Tribunal under section IIA	 though as a superior court	 it is vested with the right of superintendence. The High Court is in disputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and it could in an appropriate case quash the award of the Tribunal aud thereupon remit the matter to it for fresh disposal in accordance with law and directions if any. The High Court is not entitled to exercise . the powers of the Tribunal and substitute an award in peace of the one made by the Tribunal as in the case of an appeal where it lies to it. [227D]