1. In this petition, the petitioner besides challenging the award, dated 28 September, 1983, of the learned Judge, Labour Court, Kota, Rajasthan (for short the Judge), his also challenged the vires of S. 11-A of the Industrial Disputes Act, 1947 (for short the Industrial Disputes Act). So far as the challenge to the vires of S. 11-A of the Industrial Disputes Act is concerned, it may be stated that the challenge does not survive because earlier also by the same petitioner, Delhi Cloth and General Mills Company, Ltd. v. Shriram Fertilizers Karamckari Union, Chhawani, Kota, had been challenged and the same was held to be valid. A Division Bench of this Court in the case of Delhi Cloth and General Mills Company, Ltd v. Shriram Fertilizers Karamchari Union [1989 — I L.L.N 992], said that sufficient guidelines are provided under S. 11-A of the Industrial Disputes Act to exclude arbitrariness and the aforesaid S. 11-A is not violative of Art. 14 of the Constitution. The challenge, therefore, to the aforesaid award is now confined to the limited extent as to whether there is error apparent on the face of the award of the learned Judge, Labour Court, Kota, or not?

2. Some facts are no longer disputed and they are these:

The workman, Sri Radha Kishan, who is represented by respondent 2, Shriram Rayons Karamchari Sangh, Kota, was an employee in the Pilot Plant of Shriram Rayons, a unit of Delhi Cloth and General Mills, Ltd., Kota. He was employed for more than 12 years and during the year 1979, he was posted as supervisor in the said unit. He was absent from duty on 19. 20, 21 and 26 January, 1979, 9, 12, 28 February, 1979, 2, 2, 5, 8, 15 16, 17, 18, 19, 23, 30 and 31 March, 1979 and on 1, 2, 3 April, 1979. There is no dispute between the parties that in accordance with the relevant standing orders to be absent without leave or overstaying after extension of leave is a misconduct. A charge-sheet, dated 7 May, 1979, was given to Radha Kishan Sharma wherein it was clearly stated that without any permission or without getting his leave sanctioned, he remained absent as a result of which the normal functioning of the plant is affected. Besides giving the aforesaid dates on which the workman was absent without sanctioning the leave, it was also stated in the chargesheet that on earlier occasions also he was absent without leave and chargesheets were given to him. The first of the chargesheet was given to him for absence for a period of 7 days from May 1972 to October 1973. After enquiry the charge was held proved and the punishment of suspension for a period of three days was inflicted upon him under order, dated 21 February, 1974. The second charge was for the absence of 3 days during the period from August 1974 to October 1974 and proceeded on leave without sanction. The workman accepted the charge and penalty of suspension for two days was inflicted on him on 27 February, 1974. The last of the aforesaid three charges was for the absence of 6 days in the month of November 19 77 and an enquiry was held against the workman which was held proved and the workman Radha Kishan Sharma was given a penalty of suspension for six days. It was also stated in the changesheet that despite the aforesaid three punishments on earlier occasions, the workman did not improve himself and be remained absent during the dates of which reference has already been made earlier. The workman filed reply to the aforesaid charges and the enquiry officer under a detailed report held that his absence without sanction of leave has been proved on all the dates of January, February, March and April 1979. The competent authority indicted a penalty of removal from service on the petitioner.

3. The workman, Radha Kishan Sharma, raised an industrial dispute through the sangh (respondent 2), the conciliation proceedings failed and the State Government made a reference of the dispute under S. 10 of the Industrial Disputes Act to the Judge, Labour Court, Kota. It appears that some matter was pending before the Tribunal or the Judge, Labour Court and, therefore, the management took a decision to file an application for approval under S. 33(2) of the Industrial Disputes Act. Later on both the parties agreed to make a reference to the Judge, Labour Court and the reference was made under 10 of the Industrial Disputes Act to the Judge, Labour Court.

4. The learned Judge examined the question as to whether a domestic enquiry for the alleged misconduct of the workman was in accordance with the standing orders and was fair or not and came to the conclusion that it was not fair and gave an opportunity to the employer to prove the misconduct. Both the parties led their evidence, the management was to prove the charges of misconduct and thereafter the workman to rebut it. The learned Judge, Labour Court, under its award, dated 27 September, 1983, held that the absence of the workman for three days, i.e, on 19, 20 and 21 January, 1979, was for sufficient cause, though initially he had proceeded on leave without sanction. The learned Judge also came to the conclusion that 23 March, 1979 was holiday and, therefore, the workman cannot be said to be absent on that day. For 30 March, 1979 to 3 April, 1979, the learned Judge held that the workman remained absent as a result of having fallen ill and it was sufficient cause but so far as absence of 26 January, 1979. 9, 14 and 20 February, 1979 and 2, 5 and 8 March, 1979 and 15 to 19 March, 1979 is concerned the workman remained absent without leave and he could not furnish any good or sufficient cause for his absence. The Judge, Labour Court, therefore, held that the charges are proved and instead of approving the action of the management imposing a penalty of removal from service for the alleged misconduct the learned Judge, ordered that a punishment of stoppage of two annual grade increments without cumulative effect shall meet the ends of justice. He also ordered that two annual grade increments shall be withhel after reinstatement of the workman and so far as back-wages are concerned, the learned Judge said that he would not be entitled for any back wages.

5. The learned counsel for the respondent workman tried to challenge the finding arrived at by the learned Judge, but he cannot be as a respondent allowed to challenge the finding and that apart the finding arrived at by the learned Judge cannot be said to be perverse. Therefore, the finding that the workman, Radha Kishan Sharma, had remained absent without sanction of leave for the aforesaid periods has to be taken as correct.

6. Taking the finding of misconduct as correct, the question is as to whether the learned Judge could in exercise of his powers substitute the punishment of removal from service to one of stoppage of two annual grade increments without cumulative effect and could order reinstatement without back-wages 7 Even before S. 11-A was brought on the statute book, by insertion of Act 45 in S. 3 with effect from 15 December, 1971, the Courts were taking a view that power and jurisdiction is vested in Judge, Labour Court or the Tribunal to substitute or alter the punishment inflicted on a delinquent workman by the employer. The Supreme Court in the case of East India Hotels v. Their workmen [1974 — I L.L.N 159], examined the question in respect of the powers of the Industrial Tribunal to interfere in the decision of the management in the matter of punishment. The Court said “once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. In my opinion even before S. 11-A of the Industrial Disputes Act the Tribunal could be said to have had the powers to examine as to whether the punishment inflicted by the employer is just or not. The present is the case when S. 11-A had been brought on the statute book in the year 1971 and the misconduct is alleged to have taken place in the year 1979. A look at S. 11-A of the Industrial Disputes Act will show that only in case of adjudication proceedings the Labour Court 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 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. Therefore, only if the Labour Court comes to the conclusion that the removal was not justified, it could have had a jurisdiction to interfere so far as punishment is concerned, bike all discretions, discretion and jurisdiction under S. 11-A of the Industrial Disputes Act has to be exercised reasonably and properly and cannot be exercised arbitrarily. In a case of present nature besides the absence without sanction of leave or without permission, during the months of January, February, March and April 1979, the workman had even remained absent on three occasions and had been punished thrice and on each occasion a punishment of suspension was inflicted on him for few days, he appears to be a habitual absentee and appears to have developed a habit to proceed on leave without sanction and of overstaying of leave without sanction of leave or even without sending his applications generally and ordinarily the Court should not have interfered. In all industries, workmen are employed in accordance with the need of the establishment and if a workman remains absent without sanction of leave or even without information, the work of the industry or at least machine or unit on which the workman is employed is likely to suffer and the chargesheet which was served on the petitioner will show that it is clearly mentioned in it that the petitioner was absenting without sanction of leave as a result of which there was obstruction in the efficient functioning of the industry. There may be cases where there is a single act of absence without sanction of leave or after proceeding on leave overstaying without extension of leave and in such a case lenient view may be called for, but in case where a workman is chronic defaulter a chronic absentee and in a habit of absenting himself without sanction of leave or overstaying without extension of leave, in my opinion, cannot be said that under S. 11-A of the Industrial Disputes Act it will be a sound, proper and reasonable exercise of discretion or jurisdiction for any interference in the punishment of removal from service of a workman. To me it appears that the learned Judge, Labour Court has not even taken into consideration as to whether the workman having been punished thrice on the identical charges and on one occasion he had remained absent as many as 46 days whether he deserves any leniency. Perhaps if he would have taken earlier conduct of the petitioner into consideration which was also subject to the chargesheet, the learned Judge might have come to a different conclusion and in my opinion though the punishment inflicted by the learned Judge, Labour Court, is not appropriate to the nature of misconduct found proved against the workman but it is not in every case where this Court interferes under Art. 226 of the Constitution. In the instant case it appears that his Court had vacated the stay order granted earlier and under its order, dated 21 March, 1986, the Court vacated the earlier stay order, rejecting the stay application and directed that the workman Radha Kishan Sharma shall be reinstated within one month and shall be paid back-wages from the date of the award to the date of reinstatement within three months. There is no dispute that the workman was reinstated and is continuing since 21 March, 1986 or immediately thereafter. There is no material that thereafter he has again remained absent and it will not be proper to deprive the workman of his service and, therefore, taking into consideration that the stay order was not given and he was reinstated and is continuing in service, 1 am of the opinion that the discretion was though not properly exercised by the learned Judge, under S. 11-A of the Industrial Disputes Act, I will not like to interfere in the award of the learned Judge, Labour Court.

7. I have said earlier about the powers of the Industrial Tribunal and so in future the Labour Court may take this into consideration, but for the reasons as aforesaid, still I will not like to interfere in the award.

8. Consequently, I would not like to interfere in the award, the writ petition is hereby dismissed with no orders as to costs.