1. We are distressed to find that the Labour Court has by its award dated 23rd August 1984 ordered the reinstatement of the workman in exercise of power conferred upon it under Section 11-A of the Industrial Disputes Act, 1947. In the name of social justice and fairplay, the Labour Court has, shown misplaced sympathy for a workman who duped several innocent and poor persons in the name of procuring for them residential accommodation. The power under Section 11-A of the Act can be exercised in a case where it is found on facts that the dismissal or discharge of a workman is not justified. But in a case where no other order than the order of dismissal can be made on the proved facts, the arbitrary exercise of power under Section 11-A of the Act cannot be overlooked.

2. The facts necessary to be stated are that at the relevant point of time the workman Hussainmiya Chandmiya was working as a watchman in the Rabari Vasahat, Odhav, of the Ahmedabad Municipal Corporation when his services came to be terminated. While he was so working, he succeeded in creating an impression that he was in a position to secure residential accommodation constructed by the Municipal Corporation for being let at subsidised rent to the poor and homeless citizens. Some such unfortunate citizens met the workman and his associates and the workman promised to procure for them residential accommodation provided he was paid Rs. 1,5007- to Rs. 2,000/- per accommodation. Accordingly he collected a substantial amount of Rs. 25,000/- from these poor and innocent persons, took them to the Estate Department and made them to stand at some distance while he entered the office of the Estate Department and pretended to talk or discuss this matter with some officer of that Department and came and reported to his victims that he had discussed the matter with the officer and thus collected the amount from them. Employing this modus he succeeded in collecting a substantial amount of Rs. 25,000/- from his victims. As he was not able to procure residential accommodation for those from whom he had collected the amount, he was pressed for the same from time to time. He went on making promises but ultimately the victims realised the truths and one of them lodged a complaint against the workman and his associates which was registered as Criminal Case No. 3014 of 1975. The workman was charged for the commission of offences punishable under Sections. 419 and 420 of the Indian Penal Code. The learned Metropolitan Magistrate (Court VII), Ahmedabad, on an appreciation of evidence, tendered before him by the victims and others came to the conclusion that the workman had committed an offence punishable under Section 420 of the Indian Penal Code, He was convicted under the said provision and was ordered to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,500/-, in default, to suffer rigorous imprisonment for a further period of six months. It is not in dispute that this conviction has not been overturned.

3. After the conviction of the workman, the Ahmedabad Municipal Corporation initiated departmental proceedings against him and terminated his services with effect from 21st December, 1981. Thereupon the workman sought a reference under Section 10(1) of the Act which was granted. The Reference came to be disposed of by the impugned award of 23rd August, 1984. The finding of the management that the workman was guilty of misconduct was upheld. So far as the question of punishment is concerned, the Labour Court observed as under:

"The concerned workman was charged for the offence under Section 420 read with Section 419 of the Indian Penal Code. It is undoubted that the offence for which he was convicted is serious in nature but at the same time the concerned workman has expressed his deep regret before the Court as discussed above and as such, therefore, there is every possibility for me to believe that the future of the concerned workman is required to be improved. The concerned workman has surrendered his claim for continuity of service and it was pointed out on his behalf that his previous service should be considered only for the purpose of gratuity and other benefits. He has also further declared that he should be reinstated as a fresh workman. In view of this well settled position, therefore, it is clearly seen that the order of dismissal dated 14.12.1981 passed by the first party is one of the punishment shockingly improportionate while considering the averments made by the concerned workman and the first party in the purshis aforesaid"

, On this line of reasoning, the learned Presiding Officer of the of the Labour Court directed the employer to reinstate the concerned workman on his original post of a watchman, without continuity of service and without payment of any compensation, within one month from the date of publication of the award. It was made clear that the concerned workman was to be employed as a fresh employee. The employer was further directed to take into consideration his past service for the purpose of computing gratuity and other benefits. It is against this award made by the Labour Court that the employer, the Ahmedabad Municipal Corporation, has filed this petition under Article 227 of the Constitution.

4. Mr. Mishra, the learned advocate for the workman, relying on the decision of the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 S.C. 38, contended that it was not open to this Court in exercise of jurisdiction under Article 227 of the Constitution to interfere with the decision of the Labour Court as this Court's jurisdiction is limited and does not extend to correction of errors, however, gross, even if they relate to law. It is indeed true that in the case relied upon the Supreme Court took the view that the supervisory jurisdiction conferred by Article 227 was limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record, much less an error of law. There can, therefore, be no doubt that if we come to the conclusion that the Labour Court had transgressed its authority or jurisdiction conferred by Section 11-A of the Act, we would be justified in interfering with and setting at naught the award of the Tribunal.

5. The newly inserted Section 11-A of the Act confers power on the Labour Court and Tribunals to substitute the sentence of discharge of dismissal by a lesser punishment if it is satisfied that the order of discharge or dismissal was not justified. In the instant case the order of termination of service was passed against the workman after he was found guilty by a competent Court of having swindled away a substantial amount of Rs. 25,000/- from poor and innocent citizens whom he could dupe on the pretext that he was in a position, by virtue of his employment in the Corporation, to secure for them residential accommodation at subsidised rent belonging to the Corporation. Taking advantage of his employment in the Corporation, he extracted money from these poor and ignorant persons by making a show that he had spoken about the same to an officer of the Estate Department of the Corporation. He came to be convicted under Section 420 of the Indian Penal Code for duping these persons and his appeal against conviction failed. In the background of these facts the employer initiated departmental proceedings against him and terminated his employment with effect from 21st December, 1981. Can the order of termination under such circumstances be said to be 'not justified' or can it be described as 'shockingly improportionate' as observed by the Labour Court ? It is difficult to understand how the Labour Court can describe an order of termination of service in the backdrop of the established facts as shockingly disproportionate to the proved guilt. In fact it seems to us somewhat shocking that the learned Presiding Officer of the Labour Court readily swallowed belated expression of regret by a person who had duped several less fortunate citizens. Merely because the workman orally stated that he regretted his conduct, there was no reason to believe that he would not indulge in similar activity in future, given the opportunity to so behave by re- employment. His offer to surrender continuity in service and to accept reinstatement as fresh employment does not improve the situation. Not only has the Labour Court directed reinstatement of the workman but it has gone to the extent of protecting his gratuity and other benefits by directing that the previous service shall be reckoned for calculating those benefits. Under Section 11-A, the Labour Court can exercise jurisdiction only if the termination of service is found to be 'not justified' but the order of termination cannot be substituted by a lesser punishment only on the basis of misplaced sympathy. A workman of the type before us has forfeited his right for sympathy because he has duped less fortunate persons of their hard-earned money. Lip sympathy or expression of regret is no substitute for what he pocketed by practising fraud on innocent victims. The Labour Court had clearly transgressed the discretionary jurisdiction vested in it by Section 11-A of the Act by ordering reinstatement of the workman. We are, therefore, of the opinion that the order passed by the Labour Court is clearly arbitrary and whimsical and cannot be sustained.

6. Ordinarily we would be slow in interfering with an order of reinstatement passed under Section 11-A of the Act by way of a substitute for an order of dismissal or discharge, but there are cases where such an arbitrary order cannot be counteranced because it tantamount^ to an abuse of the discretionary jurisdiction conferred by Section 11-A of the Act. In cases of gross misconduct such as the present one, the most appropriate punishment would be the termination of service and it would be mockery of justice to brand such an order as 'not justified' and substitute it by another order of the type made by the Labour Court. We are, therefore, of the view that this petition must be allowed and the order passed by the Labour Court must be set aside.

7. In the result, the impugned order passed by the Labour Court is quashed and set aside. The rule is made absolute accordingly with no order as to costs.