The Industrial Tribunal's discretion to modify punishments must be exercised judiciously, considering the severity of the misconduct proven against the employee.

JUDGMENT

Ext.P3 award dated 28.10.2009 in I.D.No.49/2006 of the Industrial Tribunal, Idukki is under challenge in this Writ Petition.

2. Petitioner is engaged in cultivation and production of tea. The respondent is a trade union of plantation workers. One Mr.Shaji Mathew, hereinafter referred as workman was a field worker of the petitioner. On account of irregular payment of wages, bonus and other benefits, the members of the 1^st respondent union approached the management on several occasions and sought redressal of the grievances. It is alleged that the management assured the union that arrears of wages and other benefits would be disbursed before re-opening of the schools in 2002 June. Since payment was not made as promised, the workmen assembled at 4 pm on 3.6.2002 and protested. Mr.Shaji Mathew, workman concerned, is alleged to have entered the estate office at 4 pm on 3.6.2002 without prior permission, abused and threatened the Asst. Manager and other two office staff saying that they should not leave the office. Later, the workman forcefully entered the office of Asst. Manager, went inside the staff cabin and threatened the staff asking them not to contact anybody over telephone. When the Asst. Manager tried to contact somebody over phone, the workman threatened him that the Asst. Manager would not leave the place alive if he attempted to contact anybody. Workman then went out and disconnected the telephone line. He came back to the office and addressed the staff and the Asst. Manager in filthy language and retained them from 4 pm to 8 pm.

3. Petitioner management initiated domestic inquiry. The inquiry officer on conclusion of the inquiry found that the workman was guilty of the misconduct alleged against him. Report of the inquiry officer was sent to the workman and he was given an opportunity to submit his explanation. Workman did not respond. Management thereafter concurred with the conclusions of the Inquiry Officer and decided to impose punishment of dismissal from service. An order dismissing the workman from service was issued on 15.1.2003.

4. First respondent raised a dispute and on failure of conciliation, Government by order dated 28.8.2005 referred the following issue for adjudication by the Industrial Tribunal – 'whether the dismissal of Sri.Shaji by the management of M/s.Ratan Plantation Ltd., K. Chappath is justified? If not, what relief he is entitled to?'

5. The Tribunal on 28.4.2008 passed a preliminary order holding that the domestic inquiry was conducted in violation of the principles of natural justice. The domestic inquiry was set aside. Since the management had pleaded in their written statement that they may be given opportunity to adduce fresh evidence in case the inquiry was set aside, the Tribunal permitted the management to adduce fresh evidence. Three witnesses were examined on the side of the management before the Tribunal and the workman was also examined. Exts.M1 to M13 were marked on the side of the management. On conclusion of the proceedings, the Tribunal held that the misconduct alleged against the workman was proved. However, the Tribunal held that the extreme punishment of dismissal awarded to the workman was too harsh and disproportionate. Further the Tribunal held that loss of entire back wages during the period the workman was out of employment would be an adequate punishment. Management was directed to reinstate the workman without back wages or any other benefits but with continuity of service.

6. Though notice was served, there is no appearance for the 1^st respondent before this court.

7. The learned counsel for the petitioner submitted that the Industrial Tribunal went wrong in holding that the domestic inquiry was vitiated. He pointed out that the reason given by the Tribunal for holding so was that sufficient opportunity was not provided to the workman. He, with reference to the fac