The Industrial Tribunal has the discretion to award lesser punishment under Section 11A if the dismissal is found to be unjustified and shockingly disproportionate to the misconduct.

JUDGMENT

Dr. B.R. Sarangi, J.

1. The Management-petitioner being the first party member before the Court below, has filed this writ application assailing the award dated 29.6.1998 passed by the Presiding Officer, Industrial Tribunal, Rourkela in I.D. Case No. 59/97-C on the ground that the same is contrary to the settled principles of industrial adjudication and the same has been passed in excess of the jurisdiction conferred under section 11A of the Industrial Disputes Act. The fact of the case in nutshell is that the opposite party Nos. 1 and 2 (opp. party No. 2 has died in the meantime) being the 2nd party workmen were working under the petitioner-management as Choukidars since 1982. In the month of December, 1992 each of them was issued with charge-sheet on the allegation that due to negligence in duty between 10 P.M. of 20.11.1992 and 6 A.M. of 1.12.1992, 4571 pieces of detonators, some copper strips and lightening arrestors were stolen away from the magazine which they were guarding. Subsequently, on enquiry being caused, it was found that on the night of occurrence at 11 P.M. some miscreants caught hold of them and forcibly made them to smell something for which they lost their senses and could not know about the incident. When they intimated this fact to the Manager, he asked them to put their signature/thumb impression on a document written in English, which has not been explained to them. Being asked by the workmen about the purpose for taking their signature/thumb impression on the document, the Manager told that the matter would be reported to the police to save them. So, on good faith, the opposite party No. 1 put his signature and the deceased-opposite party No. 2 had given his thumb impression on the said document. In course of enquiry; some of the documents had been prepared on which the signature/thumb impression of the workmen-opposite parties had been taken and the said documents were written in Oriya or Hindi, which had not been explained to them. However, on completion of the domestic enquiry, the petitioner-management gave 2nd show-cause notice basing upon which they submitted their explanation separately on 22.3.1993. Without considering the same in proper perspective, the petitioner-management dismissed both the workmen from service with effect from 2.4.1993. As a consequence of dismissal of the 2nd party members from service, industrial dispute was raised before the conciliation authorities and the same having failed, the Government of India in the Ministry of Labour in exercise of powers conferred by clause (d) of subsection (1) and sub-section (2-A) of section 10 of the Industrial Disputes Act, 1947, in short, "the Act", referred the following dispute for adjudication vide letter No. L-26012/5/94IR (Misc.) dated 12.1.1995:

Whether the action of the management of Sarkunda Manganese Mines of M/s. Essel Mining and Industries Ltd. In dismissing Shri Sonika Haro and Sri Barnbas Dang w.e.f. 2.4.1993 is justified?

2. The first party management-petitioner had stated that on the night of occurrence when the workmen were engaged in guarding the magazine of Surkunda Mines because of their negligence some detonators, copper strips and lightening arrestors were stolen away. The management issued charge-sheet against both the workmen separately and in their explanation, it is stated that in the night of occurrence they were awake up to 11 P.M. and thereafter both of them fell asleep. On the next date at about 6 A.M. when they woke up after being called by Kanhu Naik and T.J. Mohanto, they found the door of the magazine in broken state. They also found that some detonators, copper strips and lightening arrestors were missing therefrom. As the explanation submitted by them were not found satisfactory, the management conducted a domestic enquiry to enquire into the charges. On affording due opportunity and by complying the principles of natural justice, the Enquiry Officer submitted his report to the management holding t