JUDGMENT C.L. Chaudhry, J.
(1) Smt. Prem Kumari, the petitioner herein was working as a Ward Aya in R.B.T. B. Hospital, Kingsway Camp, Delhi under the Municipal Corporation of Delhi. She was served with a charge that while working as Aya in R.B.T.B. Hospital during the period 1974-75, she failed to maintain absolute devotion to duty as much as she indulged in trade/business of private medical practice without permission of the competent authority. In her reply she denied the charge. The Deputy Director of Enquiries was appointed as Enquiry Officer to go into the charge. The Enquiry Officer submitted his Enquiry Report to the Disciplinary Authority i.e. the Commissioner, Municipal Corporation of Delhi. In the penultimate para the Enquiry Officer observed that the prosecution could not prove whether the amount received by the respondent was in lieu of services rendered by her or was ex-gratia. The charge and the allegations stood proved in view of the admission of the respondent through her reply to the charge sheet and also in view of non-rebuttal of prosecution evidence by her. Under these circumstances he held that the charge was proved as framed against her.
(2) The petitioner received a notice from the Commissioner as to why the punishment of dismissal be not inflicted on her. She replied to the notice raising various contentions such as she never admitted in the reply to the charge sheet that she was doing private practice as Aya as trade/business, with profit motive. She also stated that she was not conversant with the Enquiry Proceedings and did not know that she should have cross-examined the witnesses and also produced her defense. No opportunity was given to her to understand the procedure neither was she allowed to engage her defense assistant. Even the list of prosecution witnesses and documents was not supplied to her. It was beyond her capacity to defend herself without some legal aid. If she could not cross-examine the witnesses, the learned Enquiry Officer was bound to cross-examine the witnesses on her behalf. She wanted to ask few questions from the complainant, Shri Khiya Ram but he posed himself before the Enquiry Officer as a dumb man and as such she could not expose him. His pre- recorded statement was produced before the Enquiry Officer which could not be read as a piece of evidence against her.
(3) The Commissioner, after considering the reply filed by the petitioner imposed the penalty of dismissal from service.
(4) By order No. F.24(223)/79-Lab. dated 29.11.1979 the Secretary (Labour), Delhi Administration, referred the industrial dispute existing between the management of Municipal Corporation of Delhi and the Workman Smt. Prem Kumari, the petitioner to the Labour Court for adjudication. The terms of the reference were as under:- "WHETHERthe termination of services of the workman Smt. Prem Kumari is wrongful and/or illegal and, if so, to what relief is she entitled?"
(5) The petitioner submitted the statement of claim before the Labour Court wherein she raised number of contentions such as that a reasonable opportunity of being heard was denied to the petitioner, so much so that she was not allowed to cross-examine the prosecution witnesses and was not allowed to adduce the evidence on her behalf. The disciplinary authority did not apply his mind in proposing the punishment as much as he did not go through the concerned record before asking the said proposal. The alleged charges were never proved during the course of enquiry proceedings. The Enquiry Officer himself mentioned in the Enquiry Report that the prosecution failed to prove whether the amount received by the respondent was in lieu of services rendered by her or was ex gratia. The findings of the Enquiry Officer were perverse. The enquiry proceedings were vitiated in as much as the Enquiry Officer was biased against the petitioner. The enquiry proceedings were not held in accordance with the principles of natural justice. The dismissal order was made without application of mind.
(6) These allegations were denied on behalf of the Corporation. It was Stated that full opportunity was given to the petitioner to cross examine the witnesses and to adduce her evidence.
(7) On the pleadings of the parties the following issue was framed by the Labour Court, as per terms of the reference: "WHETHERthe termination of services of the workman Smt. Prem Kumari is wrongful and/or illegal and, if so, to what relief is she entitled." The parties were given opportunity to lead evidence. (8) After hearing the parties the Labour Court gave an award on 2.12.1982 by which it was held that the petitioner was not entitled to any relief as claimed by her. In para Ii of the award the Labour Court observed as under: "IN this respect we have to see whether the Enquiry Officer has violated the principles of natural justice in holding the enquiry and at no stage he flouted the principles of natural justice. If the enquiry is in accordance with the principles of natural justice and full opportunity was afforded to the workman, then it is settled principle of law as has been laid down by Hon'ble Supreme Court in a case Delhi Cloth and General Mills Co.Ltd. Vs. Labour Court, Tis Hazari, reported in 1969 F.L.R. page 249, that the legislature has not conferred upon the Labour Court power to sit in appeal over the judgment of the management arrived at after consideration of the report of the Enquiry Officer. The findings of the Enquiry Officer can be discharged, if they are perverse. The test of perversity is that the findings may not be supported by any legal evidence. The Tribunal cannot interfere with the findings of fact recorded by the Enquiry Officer by making a fresh assessment of value to be attached to the evidence of the witness, which is not the function of the Tribunal, when deciding the case of dismissal passed on the basis of the domestic enquiry held by the management in accordance with the provisions of law."
THE submission of the learned counsel for the petitioner is that the Labour Court committed a legal error as it applied the law for deciding the case as it existed prior to the incorporation of Section 11A in the Industrial Disputes Act. The Industrial Disputes Act was amended and Section 11A was added. The amendment came into force w.e.f. 15.12.1971. The reference in this case was made by Delhi Administration in the year 1979 and the Labour Court was obliged to decide the Cmc in accordance with the amended Act. It was further submitted that by introducing Section 11A there was a substantial change in law. The Tribunal was clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by an employer establishes the misconduct alleged against a workman. The limitation imposed on the power of the Tribunal by the decision in the case of Indian Iron and Steel Co. Limited could no longer be invoked by an employer. The Tribunal was at liberty to consider not only whether the finding recorded by the employer was correct, but also to differ from the said finding, if a proper case was made out. According to the contention of the counsel for the petitionr the Labour Court failed to decide the case, keeping in view the amended law and it has resulted into miscarriage of justice. The error is apparent on the face of the award and the award is liable to be set aside. In support of his contention the learned counsel for the petitioner has relied upon a judgment of the Supreme Court delivered in the case of Workmen of M/s. Firestone Tyres and Rubber Company of India (Pvt.) Ltd. Vs. The Management and others, reported as . In this case the Supreme Court had the occasion deal with the jurisdiction, powers and functions of the Tribunal under the Industrial Disputes Act as it existed prior to the incorporation of Section 11A and also the position after insertion of Section 11A in the Industrial Disputes Act. So far as the position before introduction of Section 11A in the Industrial Disputes Act is concerned, the Supreme Court observed as under:- "(1)The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or malafide."
THE Supreme Court also made the following observations regarding the jurisdiction, functions and powers of the Tribunal with the change in law i.e. by introduction of para 11A in the Industrial Disputes Act:-
"WE will first consider cases where an employer has held a proper and valid domestic enquiry before passing the order of punishment. Previously the Tribunal had no power to interfere with the finding of misconduct recorded in the domestic enquiry unless one or other infirmities pointed out by this Court in Indian Iron & Steel Co. Ltd. case (supra), existed. The conduct of disciplinary proceedings and the punishment to be imposed were all considered to be a managerial function with which the Tribunal had no power to interfere unless the finding was perverse or the punishment was so harsh as to lead to an inference of victimisation or unfair labour practice. This position, in our view, has now been changed by Section 11-A. The words in the course of the adjudication proceedig, the Tribunal is satisfied that the order of discharge or dismissal was not justified clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Limited case (supra), can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the findings of misconduct recorded by an employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so; and now it is the satisfaction of the Tribunal that finally decides the matter."
"ANOTHER change the has been effected by Section 11-A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal bad to sustain the order of punishment unless it was harsh indicating victimisation. Under Section 11-A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead, the power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A."
(9) Similar view was taken by a Division Bench of this court in the case of Management of Dtc Vs. Shri Ram Kumar and another; 1982(1) Slj 255, wherein. it was observed as under: "WHATEVERlittle conceivable plausibility (though we have already rejected that there is any merit in this argument at all) may have been the said argument loses all its force because of the amendment made in the Act by Section 11-A which has now changed the whole scope of adjudication. By virtue of powers under Section 11-A the Industrial Tribunal has now full power to re-appraise the evidence and to satisfy itself whether the evidence justifies the finding of misconduct. The Tribunal is now under no limitation that if it finds that the enquiry is proper it cannot act as a Court of Appeal and substitute its own judgment for that of the management and that its interference is restricted to the limitation laid down in the Indian Iron and Steel Company case, on the ground only of want of good faith or where there is victimization or unfair labour practice or on the violation of the- principles of natural justice or the finding is completely baseless or perverse. The Tribunal is now even competent to give and impose lesser punishment even if it agrees with the finding of the management as to the guilt of the employee."
(10) The petitioner raised a number of contentions in the Statement of Claims before the Labour Court. The Labour Court relied upon the judgment of the Supreme Court in Delhi Cloth & General Mills Co. Ltd. Vs. Labour Court, Tis Hazari; reported in 1969 F.L.R. page 249, wherein it was observed that the "Legislature has not conferred upon the Labour Court power to sit in appeal over the judgment of the management arrived at after consideration of the report of the Enquiry Officer. The findings of the Enquiry Officer can be discharged if they are perverse, and did not deal with the contentions raised by the petitioner.
(11) In my opinion the approach of the Labour Court was not correct. The Labour Court decided the case by applying the law which existed prior to the incorporation of Section 11-A in the Industrial Disputes Act which has resulted in miscarriage of justice. With the incorporation of Section 11-A the position of law is changed. By virtue of Section 11-A the Tribunal is clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by an employer established misconduct alleged against the workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given a place to satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by employer is correct; but also to differ from the said finding if a proper case is made out. What was once largely in the realm of satisfaction of the employer has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter. The Labour Court should have decided the case according to the law which existed after insertion of Section 11-A in the Industrial Disputes Act.
(12) In the result I allow this petition, quash and set aside the award dated 2.12.1982 and remand the case to the Labour Court for a fresh decision in accordance with the principles laid down by the Supreme Court in the case of Firestone Tyre & Rubber Company (supra). However, there will be no order as to costs. Since the matter pertains to the year 1982 and the petitioner is also an old lady, I direct that the matter should be decided within 6 months.