i. Labour Law - Departmental Proceedings - Tribunal is empowered to appreciate the evidence on record as well as the evidence led in the departmental enquiry against the delinquent and can give its own findings.
ii. Labour Law - Back Wages - If Labour Court can mould the punishment, finding it to be disproportionate, it can also mould the relief with regard to back wages.

Arvind Kumar, J.

1. These two sets of cases are cross petitions filed by Punjab Agro Industries Corporation Limited, Chandigarh (hereinafter referred as the Management) and its workman Chander Shekhar (hereinafter referred as the Workman), against the Award dated 18.5.1984 passed by the Labour Court. Since both the writ petitions are filed against a common award, I propose to dispose of the same by this common judgment.

2. The broad facts of the case as emerged out from the petitions as also narrated by learned Counsel for the parties are that, the Workman was appointed as Assistant Account in the Management on 1.5.1970 (though, as per Workman the date of appointment is 26.2.1970). The problem started when the Workman was transferred to Gurdaspur, but refused to join on the seat when asked by A.E. and questioned the identity of A.E. Gurdaspur. He left the office on 28.6.1974 without the prior permission of A.E. Gurdaspur. Resultantly the workman was placed under suspension on 18.7.1974 and accordingly he was served with a charge sheet containing allegations of insubordination, in discipline as the workman do not comply with the orders of competent authority and left the station without prior permission of the competent authority and remained willful absent from duties. On 25.2.1976, the Workman was dismissed from service which gave rise to an industrial dispute and the appropriate government, who initially refused to make reference to the dispute on 24.3.1977, vide order dated 16.8.1977 referred the industrial dispute for adjudication to the Labour Court, under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for brevity, the Act). The reference was contested by the management. Both the parties led their respective evidence and the Labour Court.

3. The Labour Court vide the impugned award held the workman guilty of insubordination and at the same time it observed that the same was not malicious and willful and the workman had done so under mistaken notion of his relationship with Union of employees as he was its General Secretary at that time.

4. The Labour Court with regard to the charges against the workman of leaving the station without prior permission of the competent authority and remaining willful absent without leave, has given findings in favour of the workman and held that the Management has failed to substantiate the same.

5. Having arrived to the aforesaid conclusion, the Labour Court has further held that the punishment of dismissal from service, awarded to the workman, in respect of the lapses for which it was been found guilty is disproportionate and accordingly set aside the same and directed his reinstatement in service with all benefits of its continuity, but withheld half of his wages. Hence, the present writ petitions.

6. The management has assailed the impugned award dated 18.5.1984 on the premises that a proper and legal departmental enquiry was held against the workman on the allegations of mis-conduct, insubordination and remaining willful absent from duty, which were proved and ultimately his dismissal order was rightly passed; the Labour Court has no jurisdiction to proceed with the matter until and unless the question with regard to illegality or invalidity of the enquiry proceedings is decided, the burden of which was on the workman himself; the workman is not entitled to any back wages because admittedly he was gainfully employed during the period he remained dismissed from service and that the income of the workman from 22.10.1981 to 18.5.1984 has not been considered while calculating the income of Rs. 9333/- of the workman.

7. On the other hand, the stand of the workman while laying challenge to the impugned award is that once his dismissal from service is found unjustified, he is entitled to full back wages, but he has been only granted half of the back wages without any sufficient cause; the management has failed to prove that the workman was gainfully employed during the period h