JUDGMENT Mukesh R. Shah, J. 1. By way of this petition under Art. 227 of the Constitution of India, Gujarat State Road Transport Corporation has prayed for an appropriate writ, direction and order to quash and set aside the impugned judgment and award dated 13-2-2006 passed by the learned Presiding Officer, Labour Court, Nadiad passed in Reference (L.C.N.) No. 50 of 2001, by which, the learned Labour Court has partly allowed the said reference and has quashed and set aside order of dismissal dated 21-9-1995 and has directed the petitioner-Corporation to reinstate the respondent in service without back wages but with continuity of service. That the respondent was serving as a Driver with the petitioner and at the relevant time in Nadiad Division. A departmental inquiry was initiated against him for misconduct of misbehaving with the Rapar Depot Manager Shri Jadav on 21-7-1994 and giving threats of killing him. That in the departmental inquiry the respondent-workman did not participate and departmental inquiry proceeded further ex-parte. That in the departmental inquiry Rapar Depot Manager Shri Jadav came to be examined who specifically narrated the incident and giving threats of killing by the respondent to him. That after conclusion of the departmental inquiry, Inquiry Officer held charge and misconduct by the respondent of misbehaving with the higher officer and giving threats of killing to higher officer held to be proved. That the disciplinary authority by order dated 21-9-1995 passed order of dismissal dismissing the respondent from service. That being aggrieved and dissatisfied with the order of dismissal, the respondent-workman raised an industrial dispute which was referred to Labour Court, Nadiad which was numbered Reference (L.C.N.) 50 of 2001. That by impugned judgment and award, the learned Presiding Officer, Labour Court has partly allowed the said Reference and has quashed and set aside the order of dismissal observing that the finding given by the Inquiry Officer holding respondent-workman guilty for the charge and misconduct of giving threats of killing to the higher officer is perverse on the ground that no independent witness, more particularly, two witnesses namely Abbaskhan A. Chauhan and Rohitbhai Ghelabhai Barot were examined in the departmental inquiry and on the ground that subsequently in the criminal case the respondent has been acquitted for the charge/offence of giving threats to the higher officer. However, in exercise of powers under Sec. 11A of the Industrial Disputes Act, 1947, the learned Labour Court has while ordering reinstatement has denied back wages by observing that in the facts and circumstances of the case, the charge of misbehavior with higher officer has been established, the order of dismissal is disproportionate to the misconduct committed. 1.1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Labour Court directing the petitioner to reinstate the respondent in service without back wages but with continuity of service, the petitioner State Road Transport Corporation has preferred the present Special Civil Application under Art. 227 of the Constitution of India. 2. Shri Munshaw, learned Advocate for the petitioner has vehemently submitted that learned Labour Court has materially erred in allowing the Reference and quashing and setting aside the order of dismissal passed by the petitioner. 2.1. It is further submitted by Shri Munshaw, learned Advocate for the petitioner that as such the respondent-workman did not participate in the departmental proceedings/departmental inquiry and the department proceeded further ex-parte and even did not cross-examine the concerned Depot Manager/higher officer who was administered the threat by the respondent-workman of killing and who was misbehaved by the respondent-workman and when thereafter the Inquiry Officer held the respondent-workman guilty for the charge/misconduct of giving threats to the higher officer and misbehaving with the higher officer, the learned Labour Court has materially erred in interfering with the said finding and holding that the finding arrived at by the Inquiry Officer is perverse. 2.2. It is further submitted that as such the learned Labour Court has materially erred in holding that the finding arrived at by the Inquiry Officer was perverse, solely on the ground that two independent witnesses Abbaskhan A. Chauhan and Rohitbhai Ghelabhai Barot were not examined in the departmental inquiry. It is submitted that even according to the respondent-workman those two witnesses were supporting his case, in that case, the respondent-workman ought to have participated in the departmental inquiry and ought to have cited/brought those persons as his witnesses. It is submitted that even otherwise the learned Labour Court has materially erred in considering and relying upon the statements of the aforesaid two persons which were produced first time before the Labour Court and which were never examined before the disciplinary authority. It is submitted that even otherwise the learned Labour Court has materially erred in considering and relying upon the statements of the aforesaid two persons which were produced first time before the Labour Court and which were never examined before the disciplinary authority. It is submitted that as such the learned Labour Court ought not to have relied upon the statement of aforesaid two persons produced at Exhs. 19 and 20 which were produced for the first time before the Labour Court. 2.3. It is further submitted that even while passing the impugned judgment and award the learned Labour Court has given two contradictory findings. It is submitted that on one hand the learned Labour Court has observed and held that the findings recorded by the Inquiry Officer are perverse and on the other hand it is specifically observed by Labour Court that the respondent-workman has not challenged the departmental inquiry and that he has not participated in the departmental inquiry, it appears that the respondent-workman has misbehaved with the higher officer. It is submitted, that thereafter, after holding that the respondent-workman has misbehaved with the higher officer, learned Labour Court has quashed and set aside the order of dismissal by exercising the powers under Sec. 11A of the Industrial Disputes Act, 1947 observing that the punishment of dismissal is disproportionate to the misconduct committed by the respondent-workman. It is submitted that when the respondent-workman has misbehaved with the higher officer/superior officer and gave threats of killing him and when thereafter the respondent has been dismissed from service, the same cannot be said to be disproportionate to the charge/misconduct committed. It is submitted that as such in the facts and circumstances of the case learned Labour Court has materially erred in interfering with the order of punishment imposed by the disciplinary authority of dismissal in exercise of powers under Sec. 11A of the Industrial Disputes Act, 1947. 2.4. Now, so far as contention on behalf of the learned Advocate for the respondent that before the Criminal Court respondent-workman has been acquitted, and therefore, the present petition is required to be dismissed is concerned, it is submitted that as such the respondent-workman has been acquitted by giving benefit of doubt. It is submitted that as such in the departmental inquiry the charge and misconduct of misbehaving with the superior officer and giving threats has been established and proved. It is submitted that as such in the departmental inquiry the charge and misconduct of misbehaving with the superior officer and giving threats has been established and proved. It is submitted, that therefore, merely because in the Criminal Court the respondent-workman has been acquitted for want of evidence and/or by giving benefit of doubt respondent cannot be excluded in the departmental. 2.5. Making above submissions, it is requested to allow the present Special Civil Application. 3. Shri Mukesh Rathod, learned Advocate for the respondent has appeared on behalf of respondent-workman. He has tried to support the impugned judgment and award passed by the learned Labour Court. He has submitted that in the facts and circumstances of the case the learned Labour Court has not committed any error in quashing and setting aside the order of dismissal. It is submitted that as such by denying the back wages the respondent has been sufficiently punished. 3.1. It is further submitted by Shri Rathod, learned Advocate for the respondent-workman that considering the fact that in the departmental inquiry two witnesses/persons namely Abbaskhan A. Chauhan and Rohitbhai Ghelabhai Barot were not examined by the disciplinary authority, as such learned Labour Court has rightly held that in absence of examining those two persons/ witnesses the finding given by the Inquiry Officer is perverse. 3.2. It is submitted that in any case when the respondent-workman came to be acquitted by the competent Criminal Court for the very charge/allegation of giving threats to the superior officer and misbehaving with the higher officer the finding recorded by the Inquiry Officer holding the respondent-workman guilty cannot be sustained. It is submitted that in any case when the learned Labour Court exercised the powers under Sec. 11A of the Industrial Disputes Act and has interfered with order of dismissal and has denied the back wages to the respondent-workman, the same is not required to be interfered with by this Court in exercise of power under Art. 227 of the Constitution of India. 3.3. Making above submissions, it is requested to dismiss the present petition. 4. Heard the learned Advocates for the respective parties at length. At the outset, it is required to be noted that in the departmental inquiry initiated against the respondent, the charge and misconduct of administering/giving threats by the respondent-workman to the Depot Manager/higher officer was held to be proved. Making above submissions, it is requested to dismiss the present petition. 4. Heard the learned Advocates for the respective parties at length. At the outset, it is required to be noted that in the departmental inquiry initiated against the respondent, the charge and misconduct of administering/giving threats by the respondent-workman to the Depot Manager/higher officer was held to be proved. It is required to be noted that in the departmental inquiry, disciplinary authority examined the concerned Depot Manager/higher officer. However, respondent did not participate in the departmental inquiry and even did not cross-examine the concerned officers to whom threats of killing were administered by the respondent-workman. It is to be noted that even the respondent-workman did not challenge the legality and validity of the departmental inquiry. Despite the above, by impugned judgment and award the Labour Court relying upon the statement of two witnesses Abbaskhan A. Chauhan and Rohitbhai Ghelabhai Barot who were admittedly not examined in departmental inquiry and whose statements/affidavits were produced by the respondent-workman for the first time before the learned Labour Court, the Labour Court has held that in absence of examining two aforesaid witnesses, the findings given by the Inquiry Officer are perverse and has consequently quashed and set aside the order of dismissal passed by the disciplinary authority. The aforesaid cannot be sustained. The affidavits/statements of aforesaid two persons produced at Exhs. 19 and 20 were as such produced by the respondent-workman for the first time before the Labour Court. Admittedly, aforesaid two persons were not examined during the departmental inquiry. If according to the respondent-workman those two witnesses were required to be examined as they supported him, in that case, it was for me respondent-workman to examine those persons as his witnesses in the departmental inquiry, which respondent-workman failed. Under the circumstance, as such the learned Judge has materially erred in considering and relying upon the statement of the aforesaid two persons which were produced for the first time before the Labour Court. 5. It is also required to be noted that as such there are contradictory findings given by the learned Judge while passing the impugned judgment and award. 5. It is also required to be noted that as such there are contradictory findings given by the learned Judge while passing the impugned judgment and award. It is required to be noted that on one hand while deciding the issue No. 2, the learned Presiding Officer has held that the findings given by the Inquiry Officer are baseless and perverse and on the other hand while deciding the issue No. 4 it is observed and held that as the workman has not challenged the department inquiry and has not participated in the departmental inquiry, and therefore, it appears that respondent-workman has misbehaved with the higher officer. That thereafter, in exercise of powers under Sec. 11A of the Industrial Disputes Act, 1947 learned Presiding Officer, Labour Court has interfered with the order of punishment/order of dismissal passed by the disciplinary authority by observing that looking to the misconduct committed the punishment of dismissal is disproportionate, and thereby, has interfered with the order of punishment and has quashed and set aside order of dismissal and has directed the petitioner to reinstate the respondent-workman without back wages, however, with continuity of service. Considering the fact that the respondent-workman has misbehaved with the higher officer and as such given threats of killing which has been established and proved in the departmental inquiry, and consequently, when an order of dismissal has been passed by the disciplinary authority, it cannot be said that the punishment of dismissal is disproportionate to the misconduct committed. When a workman has misbehaved with the higher officer and as such the charge of giving threats of killing to the higher officer/Depot Manager has been proved in the departmental inquiry, except dismissal no other punishment can be imposed. If such a misconduct is permitted in that case, no superior officer/higher officer would be safe. To maintain the discipline in the organisation when the charge and misconduct of giving threats to the higher officer/superior officer is held to be proved and when order of dismissal is passed, the same cannot be said to be disproportionate to such misconduct. Under the circumstances, as such the learned Labour Court has materially erred in exercising the powers under Sec. 11A of the Industrial Disputes Act and has materially erred in interfering with the order of dismissal passed by the disciplinary authority. Under the circumstances, as such the learned Labour Court has materially erred in exercising the powers under Sec. 11A of the Industrial Disputes Act and has materially erred in interfering with the order of dismissal passed by the disciplinary authority. In view of the above and for the reasons stated above, impugned judgment and award dated 13-2-2006 passed by the learned Presiding Officer, Labour Court, Nadiad passed in Reference (L.C.N.) No. 50 of 2001 cannot be sustained and same deserves to be quashed and set aside and is accordingly quashed and set aside and the order passed by the disciplinary authority dismissing the respondent-workman from service is hereby restored. Rule is made absolute to the aforesaid extent.