Judgment :- P. Sathasivam, J. Aggrieved by the award of the Second Additional Labour Court, Madras, dated 5.10.1993 in I.D. No. 212 of 1987, the petitioner has filed the above writ petition to quash the said award in so far as it denies the relief of reinstatement and for consequential direction to the second respondent to reinstate him in service with back-wages, continuity of service and all other attendant benefits. According to the petitioner, he joined the services of the second respondent company in 1981. In order to safeguard the interests of the workmen, the petitioner and other workmen formed a Union affiliated to AITUC in June, 1985 and he was elected as its Secretary. There was a scuffle between a workman belonging to the INTUC on the one hand and three members belonging to his Union on the other. On 21.3.1986, the Personnel Officer wanted to hand over 3 members of his Union to the Police and he prepared out-pass for this purpose. He also directed the three workmen to go to the police station. As the three members belonged to his union, he was immediately informed about the direction of the Personnel Officer to go to the police station during working hours. As the Secretary of the Union, he immediately met the Personnel Officer and protested against his action in sending the members of his union to the police station. Further, on 24.3.1986 he took leave for half a day, which was unjustly refused. Thereafter, he was issued with a charge sheet dated 25.3.1986 alleging that he had used abusive and threatening words against the Personnel Officer. It was also alleged that on 24.3.1986, when the Personnel Officer issued a warning letter, he threatened him at the top of his voice. He submitted his explanation dated 26.3.1986 stating that the charge memo was a camouflage to victimize him for his legitimate trade union activities. An enquiry was conducted. The Enquiry Officer found him guilty of all the charges. Based on the finding of the Enquiry Officer, he was dismissed by order dated 25.3.1986 by the second respondent. He raised an industrial dispute against his termination, which finally resulted in a reference being made to the first respondent, who took up the dispute on his files as I.D. No. 212 of 1987. Based on the finding of the Enquiry Officer, he was dismissed by order dated 25.3.1986 by the second respondent. He raised an industrial dispute against his termination, which finally resulted in a reference being made to the first respondent, who took up the dispute on his files as I.D. No. 212 of 1987. Before the Labour Court, he did not question the validity of the domestic enquiry and confined his argument based on Sec. 11-A of the Industrial Disputes Act. The first respondent, by the impugned award, after holding that the non-employment was justified, denied the relief of reinstatement, however awarded Rs. 10, 000 as compensation. Against the said award, the petitioner has preferred the above writ petition.Heard the learned counsel for the petitioner-workman as well as the second respondent-management. As narrated above, before the Labour Court, the workman did not question the validity of the domestic enquiry and confined his arguments based on Sec. 11-A of Industrial Disputes Act (hereinafter referred to as "the Act"). In such a circumstance, it is unnecessary for this Court to consider the enquiry proceedings. Even otherwise the materials show that he was given adequate opportunity to put forth his case by examining witnesses on his side and he was allowed to cross-examine the Management witnesses; accordingly I hold that the domestic enquiry conducted was fair and proper. The only question to be considered is whether the punishment of dismissal imposed on the petitioner is justified or any lesser punishment is warranted as claimed by the learned counsel for the petitioner ? Before considering the quantum of punishment, the alleged abused words as in the charge memo are as follows : "What Personnel Officer you are, are you not ashamed to tell that you have received a phone call from the police station and asked the workers to go to the police station by giving pass out. Why are you wearing pant and shirt, you should wear saree". You also threatened him by gesture. Further you also added that there are four persons in the Company and if all the four persons are removed then only the company will be all right. You also said, "mind you all have wife and children". You also behaved with him rudely on earlier occasion and at that time he cautioned you to behave properly. Further you also added that there are four persons in the Company and if all the four persons are removed then only the company will be all right. You also said, "mind you all have wife and children". You also behaved with him rudely on earlier occasion and at that time he cautioned you to behave properly. We received another complaint also dated 24.3.1986 from our Personnel Officer staling that on 24.3.1986 at about 3.45 p.m. he issued a warning letter dated 24.3.1986 to you in the presence of Mr. S. Viswanath, Production Manager, at his room. At that time you threatened him at the top voice, "What Personnel Officer you are, for each and everything you type out letters and issue to me, you all have wife and children". With reference to the above charges, four persons including the petitioner were examined. The Management has also examined four persons before the Enquiry Officer. Apart from the petitioner, all the three persons, who were asked to go to the police station and in whose presence the incident took place, deposed. It is the definite case of the petitioner that there was a scuffle between a workman belonging to the INTUC and 3 members belonging to his Union affiliated to AITUC. While so, on 21.3.1986, the Personnel Officer wanted to hand over three members of his Union to the Police and he also prepared out pass for this purpose. After directing the 3 workmen to go to the police station, the Personnel Officer told them that he had received a phone call from the Ambattur Industrial Estate police station, asking the 3 workmen to appear before the police officers. The 3 workmen informed him about the direction of the Personnel Officer to go to the police station during working hours. As the Secretary of the Union, the petitioner met the Personnel Officer and conveyed his protest against his action in sending the 3 members of his Union to the police station. In this context, we have to weigh the abusive words used by him. In the matter of punishment, while exercising the power of judicial review, this Court normally cannot substitute its own conclusion on penalty and impose some other penalty unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of this Court. In this context, we have to weigh the abusive words used by him. In the matter of punishment, while exercising the power of judicial review, this Court normally cannot substitute its own conclusion on penalty and impose some other penalty unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of this Court. In this regard, it is relevant to refer to the judgment of the Supreme Court in B. C. Chaturvedi v. Union of India, 1995 (6) SCC 750; "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof". Same view has been reiterated in the subsequent decision of the Supreme Court in U.P. State Road Transport Corporation v. Mahesh Kumar Mishra, 2000 II CLR 10 SC. Whether the use of abusive language can permit the extreme penalty of dismissal was considered by the Supreme Court in Rama Kant Misra v. State of U.P., and the conclusion arrived at is as follows : "8. The appellant was employed since 1957. The alleged misconduct consisting of use of indiscreet or abusive or threatening language occurred on November 18, 1971, meaning thereby that he had put in 14 years of service. Appellant was Secretary of the Workmen's Union. The respondent-management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years' service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture. Appellant was Secretary of the Workmen's Union. The respondent-management has not shown that there was any blameworthy conduct of the appellant during the period of 14 years' service he rendered prior to the date of misconduct and the misconduct consists of language indiscreet, improper or disclosing a threatening posture. When it is said that language discloses a threatening posture it is the subjective conclusion of the person who hears the language because voice modulation of each person in the society differs and indiscreet, improper, abusive language may show lack of culture but merely the use of such language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct cannot permit an extreme penalty of dismissal from service." In Ved Prakash Gupta v. Delton Cable India (P) Ltd., the Supreme Court again considered the use of abusive language by a workman and whether it would lead to loss of confidence and whether dismissal is justified for the same. In para 11 their Lordships have held thus : "11. .... There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused filthy language Durg Singh and S. K. Bagga. We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal to the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory." In Vridhachalam Co-operative Urban Bank Ltd. etc. v. The Presiding Officer, Labour Court, Cuddalore and Anr., 1994, Writ L.R. 627, Raju, J., (as he then was) had an occasion to consider the use of abusive or indecorous language by the worker and the proper punishment for the same and the following is the conclusion arrived at by His Lordship : (para 6) "6. v. The Presiding Officer, Labour Court, Cuddalore and Anr., 1994, Writ L.R. 627, Raju, J., (as he then was) had an occasion to consider the use of abusive or indecorous language by the worker and the proper punishment for the same and the following is the conclusion arrived at by His Lordship : (para 6) "6. The Apex Court, after analyzing the issue from all perspectives held that mere use of indiscreet, improper and abusive language which may only show the lack of culture by itself is no justification to impose a punishment of dismissal. On the facts and circumstances of the case on hand are concerned in the light of the decision above, I am of the view that no exception could be taken to the award of the Labour Court in interfering with the quantum of punishment. I have gone through the explanations of the second respondent worker which according to the management contains language subversive of decorum and said to use unparliamentary words. The gravity of the charge of using indecorous language has to be viewed in the light of the surrounding circumstances also, keeping also in view the action of the management which has driven the worker to resort to such method. Though Courts ought not to encourage the use of indecorous language exhibiting thereby indiscipline, yet the indiscreet use of language per se cannot be the basis of an order of dismissal. ...." While approving the conclusion arrived in the earlier decision, namely, Vridhachalam Co-operative Urban Bank Ltd. etc. v. The Presiding Officer, Labour Court, Cuddalore, 1994 Writ L.R. 627, a Division Bench of this Court in the case of S. K. Mohiuddin v. The Chairman, T.N.P.S.C., and Anr., has held that mere use of abusive or indecorous language by a worker per se cannot be the basis of an order of removal and that the punishment imposed should always depend upon the gravity of the charges levelled against the worker and also in the light of the surrounding circumstances. I have already referred to the charges levelled against the petitioner. Further, the petitioner and three of his colleagues deposed before the Enquiry Officer and explained what had happened before the Personnel Officer. There is no dispute that petitioner was the Secretary of the Union affiliated to AITUC. I have already referred to the charges levelled against the petitioner. Further, the petitioner and three of his colleagues deposed before the Enquiry Officer and explained what had happened before the Personnel Officer. There is no dispute that petitioner was the Secretary of the Union affiliated to AITUC. It is also clear that there was a scuffle between a workman belonging to another Union, namely, INTUC, and three members of his Union affiliated to AITUC. In such a circumstance, the direction of the Personnel Officer to the members of his Union to go to the police station provoked the petitioner being the Secretary of the Union to intervene in the matter, which led to using of such a harsh language against the Personnel Officer. If we consider the entire circumstance, as observed in the above referred decisions, I am of the view that the capital punishment of dismissal is not warranted, particularly for an isolated incident, since admittedly his past service records are clean. I have already referred to the judgments of the Supreme Court in B. C. Chaturvedi v. Union of India, 1995 (6) SCC 750 and U.P. State Road Transport Corporation v. Mahesh Kumar Misra. If the ultimate punishment shocks the conscience of this Court and in order to shorten the litigation, this Court itself can mould appropriate relief by modifying the punishment.Now I shall consider the decisions relied on by the learned counsel for the second respondent. The first decision is in the case of Mahendra Nissan Allwyns Ltd. v. M. P. Siddappa 2000 (4) LLN 562. The first respondent in that case was found to have led out workmen from the factory premises regardless of the challenge by the security guard. Along with these workmen the first respondent entered the administrative building of the company and the room of the Deputy General Manager. The Deputy General Manager and the Manager (Personnel) were abused in filthy language and threatened. Misbehaviour was also proved against the workman in his conduct with five executives of the appellant company. After referring to the conduct of the first respondent using filthy language against the five executives, the Supreme Court has observed as follows : "4. .... If these are not serious charges against workman worthy of his dismissal from service, we do not know what can be. After referring to the conduct of the first respondent using filthy language against the five executives, the Supreme Court has observed as follows : "4. .... If these are not serious charges against workman worthy of his dismissal from service, we do not know what can be. ..." After saying so, the Supreme Court reversed the conclusion arrived at by the High Court and confirmed the punishment of dismissal imposed on the respondent. In this case the filthy language and threatening statement made by the workman were not mentioned in the order. I have already referred to the statement made by the petitioner and the circumstances in which he was forced to make such statement. In the light of the factual position in our case and in the absence of filthy language used by the respondent in the case before the Supreme Court, I am of the view that the said decision is distinguishable and not helpful to the case of the 2nd respondent herein. The other decision referred to by the learned counsel for the second respondent in the case of D.D.C. Sugar Mills v. P.O. Labour Court and Anr., wherein a Division Bench of this Court, after referring to S. 11-A of the Industrial Disputes Act has held that where the charges are grave in nature the Labour Court cannot in the exercise of its power under Sec. 11-A embarrass on a management a workman whose presence is likely to affect the morale and discipline of the entire factory. The Division Bench has also held that the Section was not intended to embarrass the management to such an extent. The Bench further held that unless the Labour Court finds the punishment to be highly disproportionate to the charges, it (Labour Court) should not interfere.In the Management of K.P.V. Shaik Mohd. Rowether and Co. (P) Ltd. v. P. Govindarajulu and Anr., a learned single Judge of this Court has held that the workmen's past conduct has no relevance in deciding whether the order of discharge is in accordance with law. In V. Vanamamalai v. Management, Sundaram Textiles Ltd., 1999 (4) LLN 1115, N. V. Balasubramanian, J. has upheld the order of dismissal passed by the management and confirmed by the Labour Court. In that case, the workman was charged for beating a co-worker with a chappal. The following conclusion of the learned Judge is pressed into service : "10. In V. Vanamamalai v. Management, Sundaram Textiles Ltd., 1999 (4) LLN 1115, N. V. Balasubramanian, J. has upheld the order of dismissal passed by the management and confirmed by the Labour Court. In that case, the workman was charged for beating a co-worker with a chappal. The following conclusion of the learned Judge is pressed into service : "10. ..... I hold that the Labour Court has discussed the evidence and taken into consideration all aspects of the matter and exercised discretion under Sec. 11-A of the Industrial Disputes Act and held that the order of dismissal was quite justified. I am also of the view that the Act of beating a worker with chappal on his head is a grave misconduct and if such act is condoned, and the employee is ordered to be reinstated, it would lead to industrial unrest and labour discontent in the factory. .... 11. ..... I hold that the Labour Court has exercised its discretion properly and I do not find any reason to interfere with the discretion exercised by the Labour Court. ...." The charge against the workman in the above referred case was that he beat his co-worker with chappal on his head outside the factory premises and that the same has been proved in the enquiry proceedings. As the act of the workman was found to be a grave misconduct, the learned Judge was right in confirming the order of dismissal imposed on the workman. In our case, there is no dispute that the petitioner was the Secretary of a Labour Union affiliated to AITUC and I have also referred to the fact that there was a scuffle between the workmen belonging to the INTUC on the one hand and three members belonging to his Union which is affiliated to AITUC on the other. In such a circumstance, as soon as he was informed about the fact of attack on the members of his Union and also the direction on them to go and meet the police officer, that too, during working hours, he being the Secretary of the Union and the representative of the workers, entered the room of the Personnel Officer and uttered certain words due to anger. In the earlier part of my order, I have referred to the alleged abusive words as found in the charge memo. In the earlier part of my order, I have referred to the alleged abusive words as found in the charge memo. The facts in our case are similar to that in Rama Kant Misra's case. In that case, the person involved was a Secretary of the Union of Workmen and the charge against him was misconduct consisting of use of indiscreet or abusive or threatening language. In the absence of any information regarding any blameworthy conduct during the period of 14 years of service rendered by him prior to the date of misconduct, the Honourable Supreme Court has expressed the view that the same could not permit an extreme penalty of dismissal from service. The same reasoning and the ultimate conclusion of their Lordship is directly applicable to our case. Further, the gravity of the charge of using indecorous language has to be viewed in the light of the surrounding circumstances also. The petitioner in our case being a Secretary of the Workers' Union is expected to safeguard the interests of the workers, more particularly when his union members were asked to go over to the police station, that too, during the working hours, as the Secretary of the Union he had to intervene in the matter and questioned the Personnel Officer as to his direction to them (members of his Union) to go to the police station. Only in this context, he had uttered the language as stated in the charge memo. It is made clear that this Court has no intention to encourage the use of indecorous language exhibiting indiscipline, as observed in the decision reported in Vridhachalam Co-Operative Urban Bank Ltd. etc. v. The Presiding Officer, Labour Court, Cuddalore, 1994 Writ L.R. 627 as well as in S. K. Mohiuddin v. The Chairman, T.N.P.S.C., yet the indiscreet use of language per se cannot be the basis of an order of dismissal.In the light of what is stated above, I am satisfied that the punishment imposed by the disciplinary authority shocks the conscience of the Court and the same is disproportionate to the proved charges levelled against the petitioner. Inasmuch as the occurrence had taken place in 1986 i.e., after 15 years, and at this juncture, I do not propose to remit the matter to the disciplinary authority to reconsider the penalty imposed or to the Labour Court to consider the punishment in terms of S. 11-A of the Act and in order to shorten the litigation, as observed in Chaturvedi's case, 1995 (6) SCC 750, I am of the view that the appropriate punishment would be reinstatement with continuity of service and the petitioner-workman has to forgo his entire back-wages. Accordingly the impugned award of the Labour Court is modified and the second respondent-management is directed to reinstate the petitioner with continuity of service and without back-wages. Writ petition is allowed to the extent mentioned above. No costs. Consequently, the connected W.M.P. is closed.