JUDGMENT : K.M. Thaker, J. In the captioned petition, the petitioner, which is a cooperative society of employees working in a Company named Ahmedabad Electricity Company, has brought under challenge an award dated 17.1.2008 in Reference (L.C.A.) No.87/2003 whereby the Labour Court, Ahmedabad has directed the petitioner society to reinstate the respondent employee without benefit of back wages. Aggrieved by the said direction, the petitioner society is before this Court. 2. The facts involved in present case, as emerging from the record of the petition, are as follows: 3. It transpires that the respondent workman was working as clerk from 28.12.1996 with the petitioner society. It appears that the society undertakes the activities of employees' welfare and extending financial assistance to its members, and for the purpose of carrying out its activities, it also employs certain employees who are not the workmen in the said company. The respondent No.2 was one of such employees and he was employed as clerk by the petitioner society since December 1996. It also emerges from the record that due to certain reported acts of omission and commission which, in view of the petitioner's society, constituted misconduct on the part of the respondent workmen, a show-cause-notice dated 31.7.2000 levelling about 7 charges was issued and explanation with regard to the charges mentioned in the notice was called for from the respondent. Thereafter an Inquiry Officer was appointed who conducted a departmental inquiry. Upon conclusion of the proceedings of the departmental inquiry, the Inquiry Officer submitted his report holding, inter-alia, that the charges were proved. The disciplinary authority took into account the findings of the Inquiry Officer and agreed with the Inquiry Officer. Hence the disciplinary authority passed an order dated 16.12.2000 terminating the service of the petitioner. Aggrieved by the said termination order, the respondent claimed, by a notice, that he should be reinstated with all benefits. It appears that the said demand of the respondent was not accepted by the petitioner society and therefore the respondent approached the Conciliation Officer of the Act after period of about more than two and half year. Upon failure report by the Conciliation Officer, appropriate Government made an order of reference dated 22.1.2003. The order of reference culminating into Reference (L.C.A.) No.87 of 2003. 4. Upon failure report by the Conciliation Officer, appropriate Government made an order of reference dated 22.1.2003. The order of reference culminating into Reference (L.C.A.) No.87 of 2003. 4. During the proceedings of the said reference, the petitioner herein stipulated that it does not challenge the legality and propriety of the departmental inquiry. It was, however, clarified by the respondent that the findings of the Inquiry Officer were not acceptable and the same would remain under challenge. 5. Subsequently oral evidence of the respondent was recorded, he was subjected to cross-examination and thereafter the petitioner society only relied upon the documentary evidence produced on record, mainly the proceedings of the departmental inquiry, and did not examine any witness. Thereafter, upon hearing the submissions of the contesting parties, the Labour Court passed award dated 17.1.2008 directing the petitioner society to reinstate the respondent without benefit of back wages. 6. It is pertinent that the Labour Court, in the award, has recorded that the departmental inquiry conducted by the petitioner society was legal and proper. In view of the initial challenge against the findings of the Inquiry Officer, the Labour Court has, it is noticed from the award, examined the findings and held that the findings recorded by the Inquiry Officer were also legal and were not perverse as alleged by the respondent. Thus, even after arriving at the conclusion that inquiry was legal and the findings were not perverse, the Labour Court has directed the petitioner society to reinstate the respondent. The said direction has been passed in exercise of powers under Section 11-A of the Act on the ground that in view of the Labour Court the quantum of penalty was harsh. The petitioner is aggrieved by the said decision of the Labour Court. 7. Shri A.K.Clerk, learned advocate for the petitioner submitted that after the Labour Court arrived at the conclusion that there was no defect in the departmental inquiry and that even the findings of the Inquiry Officer were based on evidence available on record of the inquiry and were not perverse, there was no justification for the Labour Court to enter into and examine the quantum of penalty, which, essentially is a managerial function. He submitted that the respondent workman could not make out any case to persuade the Labour Court to take the quantum of penalty under judicial review and examine the propriety of penalty. Mr. He submitted that the respondent workman could not make out any case to persuade the Labour Court to take the quantum of penalty under judicial review and examine the propriety of penalty. Mr. Clerk also submitted that assuming that the Labour Court was justified in taking up the quantum of penalty for judicial review, then also there was no material on record or even any submission based on any cogent evidence which could persuade the Court to come to the conclusion that the penalty can be said to be harsh. Mr. Clerk submitted that no reasons in support of such conclusion are recorded except that in view of the Court the penalty was harsh. Mr. Clerk submitted that the exercise of power under Section 11-A was wholly unwarranted and has been carried out arbitrarily and the award deserves to be set aside. 8. Mr. Siddharth Dave, learned advocate for Mr. P.K.Jani, learned advocate for the respondent submitted that considering the nature of duties being performed by the respondent vis-a-vis the charges levelled against the respondent, the penalty imposed by the petitioner society is undisputedly harsh. He further submitted that the Labour court has not committed any error in arriving at the conclusion that the penalty imposed by the petitioner society can be said to be harsh and excessive. He submitted that the Labour Court has not committed any error in taking up the quantum of penalty and judicial review in setting aside the penalty on the ground that it is harsh and excessive. No other submissions are made on behalf of the respondent. 9. It comes out from the impugned award and the other documents available on record of present petition that the respondent had admitted the legality and propriety of the proceedings of the departmental inquiry, although the findings of the Inquiry Officer were challenged. It also comes out from the award that the Labour Court has, after examining the findings of the Inquiry Officer, come to the conclusion that the findings of the Inquiry Officer cannot be said to be perverse. Thus, on both counts the allegations of the respondent have not been accepted by the Court and the Labour Court has held in favour of the petitioner. It is also relevant to note that the Labour Court has accepted that the charges levelled against the respondent were proved. Thus, on both counts the allegations of the respondent have not been accepted by the Court and the Labour Court has held in favour of the petitioner. It is also relevant to note that the Labour Court has accepted that the charges levelled against the respondent were proved. Despite having arrived at such conclusion the Labour Court has interfered with the quantum of penalty only on the ground that in its view the penalty was excessive. At this stage reference can be made to the judgment of the Hon'ble Apex Court in the case between Union of India and Others v. Narain Singh reported in (2002) 5 SCC 11 wherein the Hon'ble Apex Court has held that: "This Court has, in the case of Union of India v. Sardar Bahadur, 1972 (4) SCC 618 , held that there are limits to the powers which can be exercised by a Single Judge under Article 226 of the Constitution and, similarly, there are limits to the powers of a Division Bench while sitting in appeal over the judgment of a Single Judge, This Court has held that where there are relevant materials which support the conclusion that the officer is guilty, it is not the function of the High Court to arrive at an independent finding. It has been held that if an inquiry has been properly held the question of adequacy or reliability of evidence cannot be canvassed before the High Court. In the case of Apparel Export Promotion Council v. A.K.Chopra, 1999 (1) SCC 759 it has been held by this Court that it is within the jurisdiction of the competent authority to decide what punishment is to be imposed and the question of punishment is outside the purview of the High Court's interference unless it is so disproportionate to the proved misconduct as to shock the conscience of the Court. It has been held that reduction of sentence by the High Court would have a demoralising effect and would be a retrograde step. It has been held that repentance/unqualified apology at the last appellate stage does not call for any sympathy or mercy. As seen above, the Division Bench notes that the charges against the respondent are proved and that the charges are of serious nature. It has been held that repentance/unqualified apology at the last appellate stage does not call for any sympathy or mercy. As seen above, the Division Bench notes that the charges against the respondent are proved and that the charges are of serious nature. Once the Court came to the conclusion that the charges were proved and that the charges were of a serious nature, it was not the function of the Court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz. (a) the person is coming from which place (b) his family background, and (c) his service record etc. were to be kept in mind. In our view, the Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct, then extreme penalty of dismissal is uncalled for. In our view a court must not lightly interfere with sentences passed after a properly conducted enquiry were the guilt is proved. Reduction of sentence, particularly in military, paramilitary or police services can have a demoralising effect and would be a retrograde step so far as discipline of these service is concerned. In this case the charges being of a serious nature the penalty was commensurate with the charges. Further the Division Bench has itself noted that this was the third time the respondent was punished." 10. In present case, the Labour Court has, without any justifiable reasons, over-looked that the respondent did not care to give reply to the show cause-notice and also did not diligently participate in the departmental inquiry and that in reply dated 15.12.2000 in response to the second show-cause-notice the respondent had requested that he may be pardoned and that he may be afforded opportunity to improve. The respondent had also admitted that in past also he had assured that he would not repeat such conduct. The Labour Court also lost sight of the fact that after admission by the respondent there was no need to conduct a full fledged departmental inquiry, yet the same was conducted and independent Inquiry Officer found that the charges were proved. Under such circumstances there was no justification, as held by the Hon'ble Apex Court, for the Labour Court to interfere with the management's decision regarding quantum of penalty. 11. Under such circumstances there was no justification, as held by the Hon'ble Apex Court, for the Labour Court to interfere with the management's decision regarding quantum of penalty. 11. It emerges from the perusal of the record of the petition that the petitioner society had placed before the Labour Court the respondent's past service record which was unsatisfactory and that in past also the petitioner society had to reprimand the respondent and there were complaints about his performance too. It emerges from the record that while considering the issue of quantum of penalty, the Labour Court has overlooked the submission of the petitioner society based on the premise of respondent's past service record and has not dealt with the said aspect in the award. The past service record of an employee is, undisputedly, a relevant factor to be taken into account while determining the quantum of penalty, however, while holding that the penalty can be said to be harsh, the Labour Court has, in present case, not taken the said factor into consideration. Hence the conclusion of the Labour Court that penalty can be said to be harsh, is without proper application of mind to the material available on record. The award, therefore, is not sustainable. 12. Hence, the petition succeeds. The award passed by the Labour Court directing the petitioner society to reinstate the respondent deserves to be set aside and is accordingly set aside. 13. Before concluding, it deserves to be mentioned that the captioned petition came to be admitted by an order dated 1.12.2008. By the very same order, the Court also granted interim relief staying the operation of the award on the condition that the petitioner shall comply with the requirements under Section 17-B of the Act. 14. On the ground that the petitioner was not complying with the direction given by the Court to pay last drawn wages in accordance with Section 17-B of the Act the respondent filed an application being Civil Application No.2900 of 2009 and prayed for direction against the petitioner to start making payment of last drawn wages in accordance with Section 17-B of the Act. The said civil application was opposed by the petitioner on the ground that the respondent was engaged in gainful activity of carrying on business of marketing plastic bags. The said civil application was opposed by the petitioner on the ground that the respondent was engaged in gainful activity of carrying on business of marketing plastic bags. The respondent-applicant contested the said affidavit claiming, in the first instance, the said activity cannot be said to be gainful employment, and in any case, he was not engaged in such activity but he was only helping his brother, in case of need, who actually owns and runs the said business. In light of such explanation, the applicant insisted that he is not gainfully employed and therefore he is entitled for last drawn wages in accordance with Section 17-B of the Act. It was in view of such controversy between the parties that with the consent of and at the request of the parties the petition has been taken up for final hearing. 15. So far as the respondent's claim for payment of last drawn wages under Section 17-B of the Act is concerned, it is to be noted that the award impugned in the present petition is of January 2008 which came to be challenged by way of the captioned petition which seems to have been filed in May 2008 and the court passed the order of interim relief on 1.12.2008. The petitioner appears to have engaged the services of security agency somewhere in December 2008 and received the report of security agency in January 2009, and on that basis, the petitioner opposed the application by filing an affidavit in March 2009. 16. The petitioner has opposed the claim of payment of last drawn wages on two grounds namely (a) that the respondent is engaged in gainful activity and has a source of income; and (b) assuming that the said activity cannot be considered as gainful employment then even on ground of respondent's conduct of not disclosing the factual aspect, he would not be entitled for the benefit under Section 17-B of the Act. In view of the peculiar facts of the case, this Court is not inclined, at this stage to enter into the issue as to whether the activity allegedly undertaken by the respondent can be said to be gainful activity or gainful employment or not. In view of the peculiar facts of the case, this Court is not inclined, at this stage to enter into the issue as to whether the activity allegedly undertaken by the respondent can be said to be gainful activity or gainful employment or not. This Court, taking into account the aforesaid judgment of this Court, is inclined to direct the petitioner society to pay last drawn wages to the respondent with effect from March 2009 in view of the fact that though, the Court passed the order granting interim relief on 1.12.2008, the respondent came out with an application declaring that he is not gainfully employed only on 9.3.2009. 17. With the aforesaid clarifications, the application stands disposed of. So far as petition is concerned, Rule is made absolute to the aforesaid extent. No order as to costs. Order accordingly.