Misconduct must be substantiated to deny the Tribunal's discretion under Section 11-A of the Industrial Disputes Act; without proof, discharge is not justifiable.

JUDGMENT :

ARINDAM SINHA, J.

1. Mr. Mohanty, learned advocate appears on behalf of petitioner-management and submits, impugned is award dated 30^th June, 2023 made by the Central Government Industrial Tribunal-cum-Labour Court. In answering the reference the Tribunal purported to exercise power under section 11-A in Industrial Disputes Act, 1947. The section is reproduced below.

“11-A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. - 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:”

(emphasis supplied)

2. On query made he points out from impugned award there was reference order dated 30^th April, 2013. The Tribunal was to answer on the termination from service, whether justified or legal and if not, to what relief the workman is entitled to.

3. There was made termination order dated 4^th February, 2012 on charge of absence from work without prior intimation amounting to misconduct within meaning of the Certified Standing Orders (CSO). He demonstrates from the order, there is entry therein of ‘absence without permission and without satisfactory cause’ under misconduct and punishment for misconduct, to include ‘discharge’. As such, the termination was duly issued. He seeks interference.

4. Mr. Kanungo, learned advocate appearing on behalf of opposite party cites judgment of the Supreme Court in Mavji C. Lakum v. Central Bank of India , reported in (2008) 12 SCC 726, paragraphs 3, 4 and 22. He submits, the Supreme Court declared the law in confirming power of the Tribunal to exercise discretion under section 11-A. Mr. Mohanty in reply draws attention to paragraph 5 in the judgment to point out, the Supreme Court noticed that the Tribunal had come to conclusion that there was no evidence supporting major charges though there was some misconduct on the part of the appellant. In the circumstances, the discretion exercised by the Tribunal in that case was sustained by the Supreme Court. In this case, the Tribunal found the misconduct to be admitted. The CSO provides for the punishment imposed, of discharge. On the misconduct proved there was no scope for the Tribunal to exercise discretion.

5. He further cites judgment dated 24^th September, 2013 made by the Supreme Court in Civil Appeal no.8487 of 2013 ( (Davalsab Husainsab Mulla v. North West Karnataka Road Transport Corporation) ), reported in (2013) 10 SCC 185. He relies on paragraphs 8 to 11 in the judgment print to submit, said Court interpreted section 11-A to say, before exercising the discretion, the Labour Court has to necessarily reach finding that the order of discharge or dismissal was not justified. In this case there is no finding but simply exercise of discretion in favour of the workman.

6. He then relies on another judgment of the Supreme Court in Delhi Transport Corporation v. Sardar Singh , reported in (2004) 7 SCC 574 , paragraph 7 to 14. Mr. Kanungo also relies on this judgment as the Supreme Court discussed ‘absence’ as in respect of paragraph 19 (h) of the Standing Orders in that case, to be of habitu