JUDGMENT : V. Gopalaswamy, J. - The petitioner Agro-Industries Corporation (hereinafter referred to as 'the Corporation') has filed this writ application under Articles 226 and 227 of the Constitution of India for quashing the award dated November 11, 1987 passed by the Presiding Officer, Labour Court, Bhubaneswar, in I..D. Case No. 116 of 1987 directing the reinstatement of opposite party No. 1 with half of the back wages till the date of the award. 2. The facts giving rise to the writ application may be briefly stated as follows: During the relevant period opposite party No. 1 Bhimsen Maharana was serving as a storekeeper in the Central Agro-Store of the Corporation attached to the Office of the Regional Manager (Central) Industrial Estate, Cuttack. As such store-keeper, the opposite party No. 1 Bhimsen Maharana used to deal with the sale of various agro implements and spare parts. On January 6, 1976 the opposite party No. 1 sold from the said store to a customer two articles, namely, one power tiller "Release-complete" and one power tiller "Nozzle" for a total value of Rs. 250.96. The opposite party No. 1 issued to the customer a cash memo of Rs. 55.60 only, which was the price of the "Release-complete", though he had received the price for both the articles from the customer. The Security Watchman at the store gate, on detecting that the customer was taking away two articles though he had the cash memo for one article only, seized the cash memo and the two articles and reported about it to the authorities. Subsequently the opposite party No. 1 tried to regularise the sale transaction by preparing a challan for the power tiller "Nozzle" as well. On the basis of the report of the Security Watchman, the opposite party No. 1 was charge-sheeted on the allegation that he misappropriated the money of the Corporation. A domestic enquiry was held against the opposite Party No. 1 and in that enquiry he was found guilty of misappropriation of the Corporation's money. On the basis of that finding the opposite party No. 1 was discharged from service with effect from November 6, 1976. Thereafter the opposite party No. 1 raised an Industrial Dispute against the termination of his service by the petitioner. On the basis of that finding the opposite party No. 1 was discharged from service with effect from November 6, 1976. Thereafter the opposite party No. 1 raised an Industrial Dispute against the termination of his service by the petitioner. The said dispute was eventually referred by the State Government (opposite Party No. 3) for adjudication to the Presiding Officer, Labour Court, Bhubaneswar (opposite party No. 2) in the following terms; "Whether the termination of service of Shri Bhimsen Maharana, clerk, with effect from November 6, 1976 by the Orissa Agro Industries Corporation Ltd., Cuttack, is legal and/or justified? If not, to what relief Sri Maharana is entitled?" 3. The Labour Court registered the said reference on his file as Industrial Dispute Case No. 116 of 1979. On hearing both the parties on all the issues involved in the dispute, the Labour Court passed the award Annexure-1. By that award, the Labour Court, while agreeing with the findings of the Inquiry Officer that opposite party No. 1 was guilty of an act of misappropriation, found that the punishment of termination of service of opposite Party No. 1 was disproportionate and unjust and therefore directed the reinstatement of opposite party No. 1 with half of the back wages till the date of the award. Being aggrieved by the award of the Labour Court directing the reinstatement of opposite party No. 1 with half of the back wages the petitioner filed this writ application for quashing the same. 4. The learned Counsel for the petitioner contended that having agreed with the finding of the Inquiry Officer that the opposite party No. 1 was guilty of misappropriation, the Labour Court ought not to have interfered with the punishment imposed by the petitioner. He further submitted that in passing the impugned award the Labour Court had shown undue leniency to opposite party No. 1 when it directed his reinstatement ignoring his proved misconduct and taking into account considerations which are not relevant to the issue. So he pleaded that such award is not sustainable in law and the same ought to be quashed. 5. So he pleaded that such award is not sustainable in law and the same ought to be quashed. 5. The learned counsel for the opposite party No. 1 contended that it was only after taking all the relevant facts into consideration, the opposite party No. 2 passed the award Annexure 1 and directed the reinstatement of the opposite party No. 1 in due exercise of his power u/s 11A of the Industrial Disputes Act (hereinafter referred to as "the Act") and therefore as the writ application filed is without any merit the same is liable to be rejected. 6. From the contentions of the parties, the only issue which arises for consideration in this case is whether in passing the impugned award Annexure-1 directing reinstatement of opposite party No. 1 with half of the back wages, in spite of the finding that he is guilty of misappropriation, the Labour Court had acted in excess of the powers conferred on it u/s 11A of the Act. 7. Section 11A of the Act deals with the powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman. Section 11A of the Act came into force with effect from December 15, 1971. Section 11A of the Act provides - "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, 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 the 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." 8. Section 11A of the Act came into force with effect from December 15, 1971. The change brought about by Section 11A of the Act was indicated by the Supreme Court in paragraphs 12 and 38 of its judgment in Workmen of Firestone Tyre & Rubber Co. Section 11A of the Act came into force with effect from December 15, 1971. The change brought about by Section 11A of the Act was indicated by the Supreme Court in paragraphs 12 and 38 of its judgment in Workmen of Firestone Tyre & Rubber Co. of India P. Ltd. v. The Management, ( 1973 LLJ 278 ), by following observations (Paras 12 and 38) pp.287-297: ".....The punishment to be meted out was entirely within the powers and jurisdiction of an employer and it was no part of the jurisdiction of a Tribunal to decide whether the said punishment was justified except in very rare cases where the punishment imposed is so grossly out of proportion, so as to suggest victimisation or unfair labour practices. This was the position vis-a-vis the Management as on December 15, 1971. But u/s 11A, after the Tribunal holds that the enquiry has been conducted properly by an employer and that the finding about misconduct is correct, it has jurisdiction to consider whether the punishment requires modification. If it holds that the punishment has to be modified it has power to do so and award a lesser punishment. Section 11A comes into effect only at the time when the Tribunal considers about the punishment to be imposed. While previously the Tribunal had no power to interfere with the punishment, it is now clothed with such a power. This is the only modification regarding the power of the management that has been introduced by Section 11A...... XX XX XX Another change that has been effected by Section 11A 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 had to sustain the order of punishment unless it was harsh indicating victimisation. u/s 11A, 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. u/s 11A, 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 11A." 9. The learned counsel for the petitioner relied on J.K. Cotton Spinning and Weaving Company Ltd. v. Its Workmen, (1965 LLJ 153). In that case one Mahavir Prasad, an electrician, had been dismissed for attempt to steel company's property. The Industrial Tribunal and the Appellate Tribunal, while holding that the domestic enquiry was not vitiated, directed the reinstatement of the workman on collateral grounds. The Supreme Court, considering the circumstances of the case held that the interference by the Industrial Tribunal with the order of dismissal was in excess of its jurisdiction. As observed by the Supreme Court in the case of Workmen of Firestone Tyre and Rubber Co. of India Ltd (supra) before insertion of Section 11A, the Tribunal originally had no power to interfere with the punishment imposed by the management unless it amounted to victimisation or unfair labour practice. So the above decision of the Supreme Court prior to the coming into force of Section 11A is in no way helpful to the petitioner in the facts of the present case. 10. We are presently concerned with the scope of exercise of powers u/s 11A of the Act. After the insertion of Section 11A new powers are conferred on the adjudicator which are more in the nature of appellate powers and therefore the decision in New Victoria Mills Co. Ltd. Vs. Presiding Officer, Labour Court and Others, and ( 1960 LLJ 520 ) Delhi Cloth and General Mills Limited v. Kushal Bhan, relied on by the petitioner, which were given prior to the coming into force of Section 11A will not be helpful for coming to a proper decision in this matter. 11. Rustom and Hornaby (I) Limited v. T.B. Kadam ( 1975 LLJ 352 ), is another decision relied on by the learned counsel for the petitioner. 11. Rustom and Hornaby (I) Limited v. T.B. Kadam ( 1975 LLJ 352 ), is another decision relied on by the learned counsel for the petitioner. In that Supreme Court case, the Government of Maharashtra made the reference regarding the dismissal of the respondent on June 23, 1967. Section 11A of the Act was brought into operation on December 15, 1971 and it has no retrospective operation on the pending reference. So the said decision does not deal with the scope of Section 11A. 12. Wimco Sramik Union v. Seventh Industrial Tribunal, 1987 Lab IC (Cal) is another decision relied on by the petitioner. In that case the respondent Tribunal had adverted to the question of inflicting lesser punishment in the facts of that case and was of the view that lenient view should not be taken and that being the position, the learned trial Judge made no interference with such discretion as exercised by the respondent Tribunal. In the present case the learned Presiding Officer of the Labour Court after considering the relevant facts held that the termination of the service of the workman is not proportionate to the charge levelled against him and directed his reinstatement and the question is whether this Court should interfere with the discretion so exercised by him in favour of the workman. 13. In State of Punjab v. Surat Singh 1985 Lab IC 10, relied on by the petitioner the Punjab & Haryana High Court stated thus (at p. 12): The proposition is well settled that u/s 11A of the Industrial Disputes Act, the Labour Court has the power to alter the punishment but only in those cases where the punishment is so harsh as to suggest victimisation. (See in this connection Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. Management ( 1973 LLJ 278 )....." (The emphasis is mine) The above quoted proposition was laid down supposedly on the strength of the Supreme Court decision in ( 1973 LLJ 278 ) (supra). With due respect I may stale that on a reading of the decision of the supreme Court in Workmen of M/s. Firestone Tyre and Rubber Co. of India (supra), I find that there is nothing in the decision which lends support to the above quoted proposition of the Punjab & Haryana High Court. In Surat Singh's case (supra), a conductor was dismissed for having misappropriated Rs. of India (supra), I find that there is nothing in the decision which lends support to the above quoted proposition of the Punjab & Haryana High Court. In Surat Singh's case (supra), a conductor was dismissed for having misappropriated Rs. 7.45. The Labour Court holding the punishment to be harsh directed his reinstatement with 50 per cent back-wages. In that decision what appears to have weighed with the High Court in quashing the award was that the Labour Court having found the workman to have indulged in fraud taking advantage of his position as a conductor his reinstatement in the same job of a conductor was not proper. It is significant that in Surat Singh's case (supra) the following observations of the Gujarat High Court in Gujarat State Road Transport Corporation, Ahmedabad v. Jamnadas Becharbhai 1983 Lab IC 1349, were referred to with approval and as the same are relevant in the facts of the present case also, the same are extracted below: "Under the circumstances, the Labour Court was not justified in reinstating a conductor who had collected fare, pocketed the same and robbed the national exchequer in the same post where he could reindulge in the same weakness at public cost. The Labour Court can, depending upon facts and circumstances of the case and of the offence, direct that he should be absorbed in the workshop section or some other similar post which does not involve daily handling of money. That must be left to the Labour Court. And the Labour Court would have to decide the issue having regard to facts and circumstances of each case and the demands of the situation in the context of each matter." In the present case, the award of the Labour Court directing the reinstatement of the opposite party No. 1 Bhimsen Maharana does not present any problem as he was a Junior Assistant posted in the place of the Store Keeper and so he can be easily adjusted by the Corporation in a clerical job, which does not require the handling of money. 14. In District Manager, A.P.S.R.T.C., Jaggaihpet v. Labour Court, Guntur 1978 Lab IC 359 (Andhra Pradesh), relied on by the learned counsel for opposite party No. 1, the High Court of Andhra Pradesh relied on the following observations of the Supreme Court in Co-op. Central Bank v. Addl. 14. In District Manager, A.P.S.R.T.C., Jaggaihpet v. Labour Court, Guntur 1978 Lab IC 359 (Andhra Pradesh), relied on by the learned counsel for opposite party No. 1, the High Court of Andhra Pradesh relied on the following observations of the Supreme Court in Co-op. Central Bank v. Addl. Industrial Tribunal, Hyderabad ( 1969 LLJ 698 at 707): "The jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a Civil Court or a Registrar acting under the Co-operative Societies Act." Relying on the above quoted observations of the Supreme Court, the Andhra Pradesh High Court held that while dealing with a dispute referred to it under the Industrial Disputes Act the Tribunal has a very wide discretion in awarding punishment to the workman and it cannot be confined only to the penalties specified in the Regulations or Standing Orders of a particular management. 15. It was held by the Supreme Court in Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan Ltd. ( 1984 LLJ 10 ) that u/s 11A of the Act advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. 16. Scooter India Ltd., Lucknow v. Labour Court, Lucknow ( 1989 LLJ 71 ), is a case relied on by the learned counsel for the opposite party No. 1. This is a case u/s 6(2A) of the U.P. Industrial Disputes Act which was held to be analogous to Section 11A of the Industrial Disputes Act. In that case the respondent workman was issued charge memos on three occasions, viz. March 23, 1981, April 30, 1981 and July 21, 1981 and separate enquiries were held in respect of the charges contained in each of the charge memos. It appears that the charges framed against the respondent pertained to acts of major misconduct. All the charges were held proved in the respective enquiries and the Presiding Officer of the Labour Court had held that the enquiries confirmed to the statutory prescriptions and the principles of natural justice and were not vitiated in any manner. It appears that the charges framed against the respondent pertained to acts of major misconduct. All the charges were held proved in the respective enquiries and the Presiding Officer of the Labour Court had held that the enquiries confirmed to the statutory prescriptions and the principles of natural justice and were not vitiated in any manner. Considering the circumstances of the case, the Labour Court held that the order of termination of the service of the respondent was not justified and accordingly directed the respondent to be reinstated allowing him 76 per cent of the back-wages. The Allahabad High Court upheld the award so passed by the Labour Court. As against the dismissal of the writ petition by the High Court, Scooter India Ltd. filed the SLP before the Supreme Court. While dismissing the Special Leave Petition, the Supreme Court held as follows (Para 7) (p.73): "It cannot therefore be said that the Labour Court had exercised its powers u/s 6(2A) of the Act (U.P. Industrial Disputes Act) in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of its powers u/s 6(2A) of the Act." 17. The learned counsel for the petitioner contended that the Labour Court has exceeded its jurisdiction u/s 11A of the Act when it passed the impugned award directing reinstatement of the opposite party No. 1 without imposing any penalty, though he was found guilty of misappropriation. In Jitendra Singh's case (supra), the Supreme Court held that the Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or whole of the back-wages and that when payment of back-wages either in full or part is witheld it amounts to penalty. In Jitendra Singh's case (supra), the Supreme Court held that the Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or whole of the back-wages and that when payment of back-wages either in full or part is witheld it amounts to penalty. In A.P.S.R.T. Corporation's case, (supra) it was held by the Andhra Pradesh High Court that a direction withholding payment of back-wages either fully or partly is undoubtedly penal in nature because ordinarily reinstatement contemplates payment of back-wages to the employee directed to be reinstated for the relevant period during which he was out of employment. That apart, as held in that case, the power of the named authorities u/s 11A is alternative. The first is to direct reinstatement of the workman on such terms and conditions as it thinks fit; and the second is to give some other relief to the workman including award of any lesser punishment in lieu of the one awarded by the employer. Under the second alternative it may, instead of directing reinstatement, give the relief of compensation or award any lesser punishment in lieu of discharge or dismissal. In any view of the matter, in the present case the contention of the learned counsel for the petitioner that the Labour Court acted illegally in passing the impugned award without imposing any punishment although it found the opposite party No. 1 to be guilty of misconduct, is without any substance, as the opposite party No. 1 was sufficiently penalised by denial of 50 per cent of his back-wages. 18. In Sri Ganeshar Aluminium Factory v. Industrial Tribunal, Madras, ( 1982 LLJ 159 ), the Madras High Court held that even in a case where the Tribunal agrees with the management that the misconduct is proved, it may award a lesser punishment if it were of the opinion that the proved misconduct does not merit punishment by way of discharge or dismissal. The High Court further held that the principle of years of service put in by a workman may not alone be a relevant factor in awarding lesser punishment, but the Tribunal was not wrong in taking that as one of the factors in making its award. 19. The facts of the present case disclose that it is a case of misappropriation of Rs. 194.40. The said amount of Rs. 19. The facts of the present case disclose that it is a case of misappropriation of Rs. 194.40. The said amount of Rs. 194.40 was promptly recovered from the opposite party No. 1 and was deposited in the Corporation's account. What weighed with the Labour Court while directing the reinstatement of opposite party No. 1 am be better appreciated from the following observations of the Labour Court in paragraph 9 of its award: The second party joined the organisation of the first party in 1965 and apparently was possessed of an unblemished record of service as there was no evidence of any past act of misconduct hanging over his head. He was proceeded against with effect from January 6, 1976 and has suffered for about a decade. He was a low paid employee and was apparently entrusted with the job of a More Keeper while being paid as Junior Assistant, a salary of Rs. 235/- per month at the time his services were terminated. It is elicited in the evidence of the workman by the management that he comes from a family of marginal farmers having 2 acres of agricultural land with his father and 3 other brothers to share the yield. He has a family consisting of 2 children and the alleged misconduct stands in isolation. The action of the management terminating the services of the second party in this background appears to me to be harsh, oppressive and disproportionate...." 20. That justice must be tampered with mercy and that the erring workman should be given an opportunity to reform himself are principles which should be kept in mind while dealing with the punitive action taken against the workman. As observed by the Gujarat High Court in Gujarat State Road Transport Corporation's case (supra), in imposing punishment on an erring employee an enlightened approach informed with the demands of the situation and the philosophy and spirit of the times requires to be made. It cannot be said that the length of service of the delinquent workman, his past record and his socio- economic condition are not relevant factors which should weigh with the Labour Court while exercising its discretion u/s 11A of the Act. It cannot be said that the length of service of the delinquent workman, his past record and his socio- economic condition are not relevant factors which should weigh with the Labour Court while exercising its discretion u/s 11A of the Act. The very denial of 50 per cent of back-wages to the opposite party No. 1 was considered by the Labour Court to be sufficient punishment for the misconduct proved against the workman and this view adopted by the Labour Court in the facts of the case cannot be said to be either unreasonable or contrary to law. 21. The Labour Court which was exercising jurisdiction for reducing punishment u/s 11A of the Act had undoubtedly wide discretion in the matter of reduction of punishment. The High Court under Article 227 of the Constitution is vested with the right of superintendence and it is indisputably entitled to scrutinise the orders of subordinate Tribunals within the well accepted limitations. On a perusal of the impugned award we find that the Labour Court has taken into consideration all the relevant factors while passing the impugned award and therefore when it directed reinstatement with only 50 per cent backwages it committed no such illegality as to justify interference by this Court in exercise of its writ jurisdiction. 22. In the result, we find no merit in the writ application and the same is, therefore, dismissed, but in the circumstances of the case without costs. D.P. MOHAPATRA, J. 23. I agree. Final Result : Dismissed