JUDGMENT : N.J. PANDYA, J. 1. Both these matters are taken up for hearing and disposed of together by a common order. The incident took place in the Colaba Depot of the Petitioner Undertaking on the night of June 13 and 14, 1993 (hereinafter it shall be referred to as the 'Undertaking' or 'the petitioner' as the case may be). Respondent No. 1 in both the matters along with six others had gone to the said Depot of the petitioner and entered the Depot premises with a specific purpose of seeing that the buses could not move from the Colaba Depot and thereby bus services of Colaba Depot are disrupted. 2. The Security Staff and the Traffic Superintendent etc. had some inclination of the brewing trouble. On getting information, the staff was alerted. Mr. Semiyulla, who was, A.S.O. of the Colaba Depot, specifically visited the place of the Colaba Depot at about 1.30 a.m. One Hawaldar Mr. Narayan Singh conveyed to him the aforesaid information. The said A.S.O. already had this information and, therefore, the information that was received from the said Hawaldar was nothing but the confirmation. 3. At about 3.00 a.m. eight persons entered the Colaba Depot and sat in the; enclosure outside the Starter's Office. They arrived by workmen special bus. According to the Petitioner, their entry was totally unauthorised as they were not performing any official duty as a part of their employment at; the Colaba Depot. 4. It is an admitted position that Respondent No. 1 workman of Writ Petition No. 2490 of 1994 was working at Wadala Depot and Respondent No. 1 of Writ Petition No. 2491 of 1994 was working at Tardeo Depot. They were led by one Mr. Patil, who was ex-employee. 5. Finding these persons sitting in the enclosure, the said A.S.O. Mr. Semiyulla questioned them and asked them to leave but Mr. Patil became aggressive and demanded written order and also questioned the A.S.O. Semiyulla that, who was he to ask them to leave. 6. Mr. Semiyulla contacted Colaba Police Station and the Police Inspector Mr. Borade came on the scene. The Police Inspector started negotiating with the said group of eight and when he realised that they are not going to listen to him, he decided to go back to the police station. He, thereafter, made proper arrangement for removal of these persons. 7. Mr. Semiyulla contacted Colaba Police Station and the Police Inspector Mr. Borade came on the scene. The Police Inspector started negotiating with the said group of eight and when he realised that they are not going to listen to him, he decided to go back to the police station. He, thereafter, made proper arrangement for removal of these persons. 7. By that time, according to the schedule, buses were to start leaving Colaba depot. The first bus was supposed to turn out at 3.40 a.m. The activities as such were continued right upto 8.10 a.m. No buses from the Colaba area could have left though the workmen were willing to discharge their duties. According to the Undertaking, these activities of the said group of eight had led the loyal workers, on account of threatening situation, not to perform their duties. They were so much terrorised and afraid and thereby refrained from doing any work. In the process, as per the details given, out of 82 buses which could have left the Depot from 8.00 a.m. only 16 buses had left the Depot. 8. Finally the police van came to take away the members of the said group. However, by the time the said group could be taken in the van, out of eight members, three of them made good their escape. So only five could be taken to the police station, Colaba. Respondent No. 1 in both the Petitions were thus taken away by the Police. 9. The aforesaid action of the workmen led to the holding of inquiry by the management of the said Undertaking and, at the end of it, the workmen having been found guilty, punishment of dismissal was imposed on them. This punishment was questioned by way of proceedings under the Bombay Industrial Relations Act, 1946 (B.I.R. for short) where the trial Court has dealt with the Application (BIR) No. 441 of 1986 of Respondent No. 1 of Writ Petition No. 2490 of 1994 and the Application (BIR) No. 120 of 1986 of Respondent No. 1 of Writ Petition No. 2491 of 1994 and came to the conclusion that the inquiry held was proper. The finding was not perverse and that the punishment in respect of both was shockingly disproportionate. 10. The finding was not perverse and that the punishment in respect of both was shockingly disproportionate. 10. In both the cases, as noted in the judgment of the trial Court, paragraph 13, there was a finding given of an agreement recorded as to the fairness of inquiry. For the purpose of common matter, the page numbers and records will be made as it stands in the Writ Petition No. 2490 of 1994. With regard to the recording of the said agreement as to the fairness of the inquiry, a reference is made in para 13 of the judgment of the trial Court, which is to be found in Writ Petition No. 2490 of 1994. In the said para 13, the fact of the order of dismissal having been dealt with by the Appellate Court, the service records of the workmen have been considered. As noted above, and in his background, the first issue of fairness and propriety of inquiry was answered in favour of the Undertaking. The second issue is that the findings of the Inquiry Officer are perverse and the alleged perversity was also held in favour of the Undertaking by the trial Court. While doing so, the Learned Judge has gone through the entire record of the inquiry and made a detailed discussion on the material placed before the Inquiry Officer, who is referred to as the 'Trying Officer'. This discussion is to be found in the said paragraph 13 page 57 onwards going upto page 69 paragraph 17. Thereafter, from para 18 onwards, it takes issue Nos. 3 and 4 relating to the quantum of punishment and whether it is disproportionate. It has also given the findings as to the reliefs. 11. Having gone through the entire record, the Learned trial Judge was well equipped to deal with the matter on the point of quantum of punishment and has recorded the finding to the effect that, as to the evidence, when the workman was shown to be present inside the Depot only, but not having taken active part and the situation was created more by aggressive approach of the said Mr. Patil, the dismissal of the workman would be shockingly disproportionate. 12. He, therefore, while taking into consideration the past record, passed the order of reinstatement without back wages but with continuity of service with effect from March 25, 1985. Patil, the dismissal of the workman would be shockingly disproportionate. 12. He, therefore, while taking into consideration the past record, passed the order of reinstatement without back wages but with continuity of service with effect from March 25, 1985. Same is the position with regard to the other workmen. 13. This matter was carried in Appeal before the Industrial Court, Mumbai under the provisions of the said B.I.R. Act. The Appeal (IC) No. 92 of 1993 has been filed by the workman and the Undertaking had also filed an Appeal (IC) No. 79 of 1993. The workman was seeking full back wages while the Undertaking was seeking the setting aside of the order of reinstatement. Correspondingly, Respondent No. 1 of the other matter i.e. Writ Petition No. 2491 of 1994 had filed Appeal (IC) No. 87 of 1993 and the management of the undertaking had also filed (IC) No. 78 of 1993. 14. The Appellate Court has raised the points at page 79. The first point being whether the judgment and order of the Labour Court is contrary to law and good conscience. He has held Point No. 1 in favour of the trial Court. The second point which he has raised is about the interference in the order of the Trying Officer. The Labour Court presumably was on the point of punishment. He held this point in favour of the workman. The third point is on the findings of the Inquiry Officer, whether they are perverse and deserve to be interfered with. Then the fourth point is as to the modification on the point of benefits of back wages. 15. The Learned Appellate Judge came to the conclusion that the Labour Court's findings as to the propriety of the inquiry may be correct but, so far as the merits of the case are concerned, the findings of the Inquiry Officer are totally perverse and deserve to be set aside. For this purpose, he sets out reasons. The charges levelled by the Inquiry Officer were vague and that the evidence relied upon by the Undertaking of the witnesses is of no consequence because they are not the eye witnesses. He, therefore, sets aside the order of the trial Court reinstating the workmen with 50% back wages. 16. It is this order which is sought to be challenged in both the petitions by the management of the Undertaking. He, therefore, sets aside the order of the trial Court reinstating the workmen with 50% back wages. 16. It is this order which is sought to be challenged in both the petitions by the management of the Undertaking. They are also challenging the order of the trial Court with regard to the reinstatement. It is categorically the case of the Undertaking that, looking to the provoked, unauthorised action of a group of eight and Mr. Patil, ex-employee, the bus services were disrupted and untold hardship was caused to the public at large as the buses could not run. There is no question of showing any sympathy towards the workmen and more so when their past record has also fortified the case of the management of the Undertaking. 17. Coming to the Appellate Court's Judgment, I agree with the submission of the learned Advocate for the Petitioner that the view taken by the Learned Appellate Judge is not at all warranted. So far as the vagueness of charges is concerned, nowhere was it raised uptill now. In the statement of claim also, before the trial Court, no mention thereof was made nor was it submitted before the trial Court. There was an incident which was very simple. The details have already been reported. The parties have gone to the trial fully knowing what factual aspect is in controversy, It is nobody's case that because of the so-called vagueness of charges, the charges cannot be said to be proved. 18. The Learned Appellate Judge has observed, with regard to the wilful disobedience or insubordination of the order, that the same cannot be held against the workmen. The factual background and the details of an incident mentioned above, in my opinion, if held to be established, would clearly lead to a finding in favour of the Undertaking with regard to the wilful disobedience or insubordination. The same would be the position with regard to the slowing down of the work. 19. The Learned Appellate Judge was impressed by the fact that the statements of the other workmen, who were present at the time of incident, have not been recorded nor have they been examined. He has also observed that in the absence of any inaction of the employees, why the action against the employees was not taken, though present on duty but did not discharge their duties. He has also observed that in the absence of any inaction of the employees, why the action against the employees was not taken, though present on duty but did not discharge their duties. The submission made on behalf of the workman that he has been singled out as escape goat is to be accepted. 20. Clearly this was not the position. The position is that the group of eight persons had entered in the enclosure which is outside the Starter's Office along with one more person, who was ex-employee. Therefore, there could not be any question of the Undertaking proceeding against them under its disciplinary jurisdiction. Out of eight persons, three could succeed in making good of their escape and remaining five were arrested by the police. There is, therefore, no question of the Petitioner being singled out. 21. The Learned Appellate Judge has in para 12 at page 82 observed that basically the inquiry is fair and proper. If this was the position as already discussed, there is material on record to warrant the conclusion drawn by the Inquiry Officer. It is difficult to understand how the findings of Trying Officer could be branded as perverse. 22. Otherwise also it is rightly submitted on behalf of the Petitioner that the learned Appellate Judge very perfunctorily discussed the material on the point. In contrast, if one goes to the order of the learned trial Judge, he has done proper job by referring to the inquiry report extensively and giving a correct conclusion on that basis. The aforesaid finding of the learned Appellate Judge is, therefore, set aside. 23. Now coming to the question of punishment, in this aspect, the Learned Appellate Judge has considered the submission that the Petitioner has been seeking the setting aside of the order of reinstatement passed by the trial Court in toto while the Respondent-workman wants that he be reinstated with full back wages. As noted above, the trial Court only granted reinstatement and no back wages. The Appellate Court on the other hand, while granting reinstatement has awarded 50% back wages. 24. If, on the factual background, one looks at the incident itself, it is quite clear that it was done by a group of eight persons. It was done in the background of disciplinary action having been taken against the two employees who were belonging to the Union of Dr. Datta Samant. 24. If, on the factual background, one looks at the incident itself, it is quite clear that it was done by a group of eight persons. It was done in the background of disciplinary action having been taken against the two employees who were belonging to the Union of Dr. Datta Samant. A group of eight persons had taken the aforesaid action in support of their demands relating to those two employees belonging to the said Union. In other words, it was a part of the concerted action related to the Union activities prompted by the action taken against the two of its members. 25. No doubt, it is rightly submitted on behalf of the Petitioner that the approach, as disclosed by the aforesaid action, was exceeding the requirement of the situation. There was definitely another and better way of agitating the issue. Essential services like public transport system which is commonly used by man on the street and that too in: metropolis like Bombay if disrupted would certainly cause repercussion on the very life of its citizens. In utter disregard of the consequence, when the aforesaid action is taken, the impact of it should be reflected in punishment that is being warranted. 26. The management of the Undertaking has felt that the employee should be dismissed from the service. That is what the management has done. As against that, the trial Court has granted reinstatement with no back wages. So far as the judicial pronouncements are concerned, the final order as to the punishment is ultimately raised on the facts and circumstances of each case. However, in the instant case they are one and unanimous with regard to the bad act and the punishment should relate to and should be scaled according to the act of the delinquency. If it is done by the employee for his personal gain entirely in utter disregard of the requirement of the establishment, naturally as a consequence of his action, there could be an extreme view possible. As against this, even if the minor offence is decided with the severe punishment, promptly it has to be replaced by appropriate punishment. The incident disclosed the present matter would fall in between. 27. No doubt, there is known consequence so far as the public life is concerned as from 3.30 a.m. till 8.10 a.m. buses could not leave Colaba Depot. The incident disclosed the present matter would fall in between. 27. No doubt, there is known consequence so far as the public life is concerned as from 3.30 a.m. till 8.10 a.m. buses could not leave Colaba Depot. However, this was not done by the persons only for their personal gains. They were pursuing the call of the Union. In this background, if the punishment as awarded by the trial Court viz. only reinstatement without back wages is upheld, the same would certainly fit in the case. 28. At the bar several authorities have been cited in the case of Punjab National Bank Limited vs. Their Workmen, 1959 (2) L.L.J. 666 is on the point of dismissal of an employee without any inquiry. It relates more on the point of scope of an inquiry before the Industrial Tribunal. It was found in the same report that the dismissal of the workman was in contravention of the provisions of Section 33 of the Industrial Disputes Act. As it was void and inoperative per se, the reinstatement was bound to (sic). This being not the case in the present matter, this decision would not help. 29. In the decision reported in the case of Workmen vs. Bharat Fritz Werner (P) Ltd. and Another, AIR 1990 SC 1054 : (1990) 60 FLR 482 : (1990) 1 JT 305 : (1990) 2 LLJ 226 : (1990) 3 SCC 565 : (1990) 1 UJ 344 , done by the staff members resulted into punishment. It was observed therein that, while setting aside the order of the High Court, it is not desirable or expedient to direct reinstatement and that the reinstatement cannot be sustained and in lieu of reinstatement for loss of future employment, the workmen were paid in lump sum. 30. In State of Mysore vs. K. Manche Gowda, AIR 1964 SC 506 : (1964) 4 SCR 540 , dealing with Article 311(2) of the Constitution of India, the matter has been dealt with. That is on the point of past conduct of the employee. In the instant case, the Undertaking is insisting upon the past conduct of the employee. The record has also been produced before this Court. That is on the point of past conduct of the employee. In the instant case, the Undertaking is insisting upon the past conduct of the employee. The record has also been produced before this Court. Each of the matters as recorded in the service sheet of the Respondent leads to his personal activities and, in accordance with the lapses found, he has been either singled out, suspended or even withdrawn from employment. However, in my opinion, it could not be said to be a further extensive act of propensity disclosed by the workmen in the said service sheet. As noted above, the present incident is the action in support of the Union activities. So far as the aforesaid judgment is concerned, it could not have application as the workmen's past record was very much placed in the inquiry as also Standing Order 21(3) of the B.E.S.T. Undertaking. There is a provision of taking into consideration the past record while awarding punishment. The action of the management of the Undertaking in this regard cannot be faulted with. A decision in the case of Gujarat Steel Tubes Ltd. and Others vs. Gujarat Steel Tubes Mazdoor Sabha and Others, AIR 1980 SC 1896 : (1980) 1 LLJ 137 : (1980) 2 SCC 593 : (1980) 2 SCR 146 was cited. In the case of discharge simplicities though the background was that the management came to be eminent against the strike of the workmen. It was held that the order of discharge of the workmen could not be regarded as orders of their dismissal and were, on the other hand, orders of discharge simpliciter passed under the Standing Order. It naturally therefore would amount to an action against the Standing Orders and, therefore, illegal discharge orders were obviously set aside. This being the position, the decision would not help for the purpose. 31. The net result of the discussion is, therefore, that both petitions partly succeed. The order of the Appellate Court is set aside and the order of the trial Court is restored. Rule is made absolute accordingly. The reinstatement to be carried out within four weeks from the date of this order.