DIVISIONAL CONNTROLLER Vs. VIRJI D BAROT

JUDGEMENT

(1.) Learned Advocate Mr. K.V. Gadhia is appearing on behalf of the petitioner Corporation and learned advocate Mr. J.S. Brahmbhatt is appearing on behalf of the respondent workman. In the present petition, the notice has been issued by this court returnable on 7th March, 2000. When the matter was taken up for hearing, both the learned advocates requested this court to dispose of the said petition finally. With a consent to that, Rule has been issued today and Mr. Brahmbhatt is waiving the service of Rule on behalf of the respondent.

(2.) In the present petition, the petitioner Corporation has challenged the order passed by the Industrial Tribunal, Ahmedabad in Approval Application No.132 of 1996 dated 10th June, 1999. Both the learned advocates submitted that in the present petition, this court can examine the validity of the punishment imposed by the petitioner Corporation against the respondent workman and decide on merits, the question of penalty as if powers has been exercised under Section 11A of the ID Act. Therefore, both the learned advocates have given consent to this court to exercise the powers under Section 11A of the ID Act relying upon the decision of the Apex Court in the case of Workmen of Bharat Fritz Werner (P) Limited & anr. reported in 1990 (1) JT Page 305. According to both the learned advocates, considering the observations made by the Apex court under Section 11A in case of punishment for misconduct, it was requested by the parties that High Court may decide the matter without remitting it to the Tribunal and therefore it was open for the High Court to consider as to what would be the adequate punishment for misconduct. In the case cited above, the learned judges were of the view that the said acts of misconduct was not such as to deserve extreme penalty of dismissal and directed that these workmen should be taken back on duty but with one half of the backwages.

(3.) The learned judges considered the denial of one half of the backwages to the workmen as a sufficient punishment for the acts of misconduct committed by them. The aforesaid direction has been given by the High Court while exercising the powers which are exercised by the Industrial Tribunal in view of the Joint Memorandum dated 22nd June, 1984 submitted by both the parties whereby it was requested that the Court may decide the entire matter without remitting it to the Tribunal and grant appropriate relief finally in accordance with law. Moreover, in view of the provisions contained in Section 11A of the Act which empowers the Industrial Tribunal to go into the question whether the order of discharge or dismissal passed against a workman is justified or not and permits the Tribunal to set aside the order of discharge or dismissal, as the circumstances of the case may require, it was open for the High Court to consider what would be the adequate punishment for the misconduct found to have been committed by these workmen and take the view that the act of misconduct proved against these 5 workmen was not such as to warrant dismissal and denial of one half of the backwages for the period of about 6 years was adequate punishment for the misconduct found to have been committed. In view of the above observations made by the Apex Court before this court, both the advocates have submitted an oral request that this case can be considered by this Court under powers contained in Section 11A of the ID Act. Therefore, the request made by both the learned advocates has been considered and this court is now examining the merits of the matter without remitting back the said matter to the Industrial Tribunal, Ahmedabad.