JITENDRA SINGH RATHOR Vs. BAIDYANATH AYURVED BHAWAN LIMITED

JUDGEMENT

(1.) The workman is in appeal after obtaining leave under Art. 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. Appellant laid a complaint before the Industrial Tribunal under S. 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and the Tribunal came to find on hearing parties that though the charge of misconduct 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 :

(2.) Section 11A of the Act provides.

(3.) Wide discretion is vested in the Triburial 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 where an order of termination of service 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. 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.