JUDGMENT This writ petition has been filed with the prayer that the action of the petitioner in awarding punishment of dismissal to the respondent-workmen be declared illegal and unjustified on the basis of material on record as they were found guilty of serious misconduct and their past record was also bad. By award dated 16.7.1996, the penalty of dismissal was held to be disproportionate to the gravity of charge and the same was substituted by withholding of grade increments from the date of dismissal of the workmen till the year 1995. This Court vide order dated 8.7.1997 stayed the operation of the said award, which order continues to be in force. Facts of the case are that petitioner is a private limited company situated at Tonk Road, Jaipur. It is engaged in manufacturing of water meters. Respondent Nos. 2, 3 and 4 were served with a charge sheet on 18.5.1985 on the allegation that they entered the office of the Works Manager and abused and misbehaved with him and asked him to go out of the factory. In fact, they tried to physically throw him out of the factory and threatened him of murder. The Works Manager under compulsion went out of the factory. In the charge sheet, reference was also made to their past bad records. Reply to the charge sheet was filed by respondent no.2 in the capacity of General Secretary of union denying the charges. The reply was not accepted as satisfactory and a domestic inquiry was conducted against the respondents. It is contended that respondent nos. 2 to 4 participated in the domestic inquiry. The inquiry officer submitted his report on 7.4.1986 and found the respondents guilty of the charges. Management agreeing with the finding of the inquiry officer and considering the past record of the respondents decided to impose penalty of dismissal by order dated 15.4.1986. The respondent-union approached the Conciliation Officer. Upon failure of the conciliation efforts, the appropriate government referred the industrial dispute to the Labour Court, Jaipur. The respondents filed statement of claim contending that they were old workmen of the petitioner-management and their service record has been throughout satisfactory. Workman-Ganga Sahai Sharma was the President of the Union and workman-Sohan Lal was General Secretary upto the date of raising of the dispute and have been regularly participating in the activities. The respondents filed statement of claim contending that they were old workmen of the petitioner-management and their service record has been throughout satisfactory. Workman-Ganga Sahai Sharma was the President of the Union and workman-Sohan Lal was General Secretary upto the date of raising of the dispute and have been regularly participating in the activities. It was averred that the management has been making efforts to divide the union and for that purpose they sponsored INTUC union. The management did not regularly paying full wages to the workmen forcing the workmen to approach the Payment of Wages Authority for illegal deduction of their wages. In order to teach a lesson, the union served upon the management a demand letter dated 5.4.1985 asking for payment of 20% bonus under the signatures of Sohan Lal as General Secretary. The union then gave another letter dated 28.5.1985 to the management. The management being annoyed of these facts and in order to teach a lesson to the respondents, dismissed them from their services. The management contested the claim by filing reply to the aforesaid claims. It sought to justify their action on the basis of facts stated above. The Labour Court after hearing the parties held the domestic inquiry as unfair, but subsequently this Court held domestic inquiry to be fair and proper by quashing the order of Labour Court and remanded the matter. The learned Labour Court on 28.2.1994 held inquiry to be fair and proper and on the basis of evidence, found the charges proved against the workmen. However, the Labour Court in exercise of its powers under Section 11A of the Industrial Disputes Act ultimately substituted the penalty of dismissal from service by that of stoppage of grade increments from the date of dismissal dated 15.4.1986 till 1995. It is contended in the writ petition that once the Labour Court has found the charges against respondent nos. 2 to 4 proved and held them guilty of serious misconduct, it wrongly granted them relief of reinstatement substituting the penalty of dismissal by that of stoppage of grade increments for the period from 15.4.1986 to the year 1995. In fact, the inquiry conducted by the petitioner was found to be fair and proper by this Court. 2 to 4 proved and held them guilty of serious misconduct, it wrongly granted them relief of reinstatement substituting the penalty of dismissal by that of stoppage of grade increments for the period from 15.4.1986 to the year 1995. In fact, the inquiry conducted by the petitioner was found to be fair and proper by this Court. Once the domestic inquiry was found to be fair and proper, the learned Labour Court was bound to consider the material on record, which was considered in the domestic inquiry, to hold the respondent-workmen guilty. The Labour Court has erred in law in coming to the conclusion that the petitioner-management could have awarded other penalties instead of dismissal. Inasmuch as disagreeing with the action of the management, the Labour Court should give cogent reasons for such deviation from the findings arrived at by the inquiry officer. No such reason has been given. The direction for reinstatement of the respondent no. 2 to 5 thus is vitiated and was by non-application of mind. It is contended that Labour Court has erred in law in wrongly exercising the jurisdiction. The charges against the workmen were so grave as would justify only dismissal of service and directing the reinstatement is case of sympathy. They did not deserve any sympathy because they physically assaulted the Works Manager of the factory of the petitioner. The Labour Court has not even considered that the workmen had past bad record inasmuch they were number of times visited with penalties. The punishment of dismissal was just and proper in the facts of the case. Shri Suresh Kashyap, learned counsel for the respondents opposed the writ petition and submitted that the Labour Court was perfectly justified in interfering with the penalty of dismissal. The Labour Court has fully applied its mind not only to the evidence adduced on behalf of the management but also the past record of the respondents. The Labour Court has thoroughly examined the report of the inquiry officer and the statement recorded during the domestic inquiry. The Labour Court found that all that was happened was that respondent-workmen had gone to the chamber of Shri S.A. Khan for negotiations. This cannot be said to be misconduct. The Labour Court has thoroughly examined the report of the inquiry officer and the statement recorded during the domestic inquiry. The Labour Court found that all that was happened was that respondent-workmen had gone to the chamber of Shri S.A. Khan for negotiations. This cannot be said to be misconduct. The Labour Court on perusal of the past record of the respondents has observed that in some earlier cases they have been visited with penalties for their absence and most of the penalties are in the nature of warnings. The Labour Court thereafter has examined the issue from the perspective of post dated penalties viz-a-viz gravity of charges. The Labour Court has rightly held that for such kind of dispute penalty of dismissal would not be justified. Learned counsel has relied on the judgment of the Supreme Court in Rama Kant Misra vs. State of U.P. & other, AIR 1982 SC 1552 , Jitendra Singh Rathor vs. Shri Baidyanath Ayurved Bhawan Ltd. & another, 1984 LAB I.C. 554 and Ved Prakash Gupta vs. Delton Cable India Pvt. Ltd. AIR 1984 SC 914 . I have given my anxious consideration to the rival submissions and perused the material on record. The finding recorded by the Labour Court in the impugned award upholding the conclusion of disciplinary authority and the inquiry officer holding the respondent-workmen guilty of charges, the controversy now narrows down to the proportionality of punishment as to whether on the kind of charges that have been proved, the penalty of dismissal would be excessive or otherwise stoppage of grade increments on the date of dismissal on 15.4.1986 till 1995 would not meet the ends of justice. The Supreme Court in Rama Kant Misra, supra dealt with the case wherein in similar circumstances, discretion was exercised by the Labour Court under Section 11A of the Industrial Disputes Act invoking its power to substitute the punishment of dismissal. That was a case in which the workman was engaged in the management for 14 years and had unblemished record. The misconduct that was alleged was that he used abusive and threatening language towards another workmen. The management served charge sheet upon him alleging that he was guilty of his disorderly behaviour punishable under the relevant Standing Orders. Simultaneously, he was placed under suspension pending departmental inquiry. The inquiry officer proved the charges against him. The misconduct that was alleged was that he used abusive and threatening language towards another workmen. The management served charge sheet upon him alleging that he was guilty of his disorderly behaviour punishable under the relevant Standing Orders. Simultaneously, he was placed under suspension pending departmental inquiry. The inquiry officer proved the charges against him. Specific allegation against him was that he was complaining about the deduction that was being made from his wages for his absence from the place of his work and late attendance with another Mahendra Singh. When that another person Mahendra Singh replied that he had no separate rules for him, the appellant lost his balance and used abusing language. In those facts, the Supreme Court has held thus: “The charge of which appellant is found guilty is already extracted hereinbefore. It amounts to a riotous or disorderly behaviour during working hours at the establishment. At least this could not be said to be an act subversive of discipline. The misconduct attributed to the appellant is that he used some language unbecoming of a disciplined workman and may have thereby exposed a threatening posture which is alleged to be subversive of discipline. Shorn of all embellishments, enraged by deduction from his wages appellant, a Joint Secretary of Union of Workmen used some language which can be said to be indiscreet. In order not to minimise the gravity of the charge we have extracted the charge by its free translation and it must be confessed that both the learned counsel who appeared on either side were fully conversant with the Hindi language and, therefore, clearly understood the import of the language used by the appellant. In the ultimate analysis the misconduct is use of language indiscreet or may be said to be indecent or may be disclosing a threatening posture. We will proceed on the assumption that use of such language is punishable under the relevant Standing Orders. So what. The punishment must be for misconduct. To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences. In this case it has resulted in dismissal from service. In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged. So what. The punishment must be for misconduct. To some extent misconduct is a civil crime which is visited with civil and pecuniary consequences. In this case it has resulted in dismissal from service. In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged. In the development of industrial relation norms we have moved far from the days when quantum of punishment was considered a managerial function with the courts having no power to substitute their own decision in place of that of the management. More often the courts found that while the misconduct is proved the punishment was disproportionately heavy. As the situation then stood, courts remained powerless and had to be passive sufferers incapable to curing the injustice. Parliament stepped in and enacted S.11A of the Industrial Disputes Act which reads as under: "11A. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National or Tribunal for adjudication and, in the course of the adjudication proceeding, 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." It is now crystal clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. And this Court is at present exercising jurisdiction under Article 136 over the decision of the Labour Court. Therefore this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under S.11A. Before we can exercise the discretion conferred by S.11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. Therefore this Court can examine whether the Labour Court has properly approached the matter for exercising or refusing to exercise its power under S.11A. Before we can exercise the discretion conferred by S.11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. These words indicate that even though misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. As stated earlier, it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged. What has happened here. 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. 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. Therefore, we are satisfied that the order of dismissal was not justified in the facts and circumstances of the case and the Court must interfere. Unfortunately, the Labour Court has completely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order. Therefore, we are required to interfere. What ought to be the proper punishment in this case? Unfortunately, the Labour Court has completely misdirected itself by looking at the dates contrary to record and has landed itself in an unsustainable order. Therefore, we are required to interfere. What ought to be the proper punishment in this case? In our opinion, in such a situation withholding of two increments with future effect will be more than adequate punishment for such a low paid employee.” In Ved Prakash Gupta, supra again the allegation against the workmen was using filthy abuse against another workman or officer in premise of the factory. In the disciplinary inquiry, he was awarded penatly of dismissal. Such a penalty was held to be shockingly disproportionate by the Supreme Court and it was held that victimization or unfair labour practice can be inferred against employer and the workman was held entitled to reinstatement with back wages. In Jitendra Singh Rathore, supra it was held by the Supreme court that when Tribunal withheld the payment of half of the back wages, keeping in view the proved misconduct of the workman, withholding of half of the back wages in the nature of penalty, it could not be said that relief of reinstatement was being granted on terms of withholding of half of the back wages and therefore did not constitute penalty. The Supreme Court in that case held that under Section 11A of the Industrial Disputes Act advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. In the present case, the Labour Court has rightly found that the respondents were deeply involved in the activities of the union. The finding of the Labour Court on the basis of evidence adduced before it has rightly been recorded that the respondent-workmen were actively involved in the activities of the union and were office bearers at one or another point of time and, therefore, their meeting with Works Manager on certain demands is quite possible and in that process, if the negotiations were getting flared up and certain misbehavior had been taken place, that would not be so serious a misconduct as would justify their dismissal from services. Besides, the past conduct of the workmen is also not so grave as no other penalty except warning was ever awarded to them. In the present case, the charges against the workman-respondents are of misconduct and have been proved both in the domestic inquiry and also before the Labour Court and there is no challenge to such finding of the Labour Court, therefore, the award on that aspect has attained finality. However, the Tribunal has directed reinstatement of the respondent-workmen instead of their dismissal from service. The order of their dismissal was passed on 15.4.1986. The Tribunal therefore substituted the penalty of dismissal by that of stoppage of grade increments payable to the respondent-workman from that date till the year 1995, thus for as long as 9 years. This would have been appropriate remedy at the time when it was awarded to the respondent-workmen. However in the present case when the award was challenged by the management before this Court, this Court while admitting the writ petition on 8.7.1997 stayed the operation of the award till further order and that order was confirmed. The respondent-workman had applied before this Court for payment of last drawn wages by filing application under Section 17B of the Industrial Disputes Act. This Court was informed on 17.1.2000 that payment was made to him. This Court therefore proceed on the assumption that the respondents were paid the amount of last drawn wages under Section 17B of the Act during the pendency of the writ petition till they attained the age of superannuation. As would be evident from the affidavit filed by the respondent-Ram Swaroop Srimal in the year 1998, he was aged 48 years on that date. The affidavit filed by respondent-Ganga Sahay Sharma indicates that his age on that date was 46 years. Affidavit filed by respondent-Sohan Lal indicates that he was 51 years of age on that date. It can therefore safely be concluded that all of them have attained the age of 60 years, which is the normal age of superannuation in public employment. At this distance of time, therefore, now possibly the order directing their reinstatement by substitution of penalty in the scope of Section 11A of the Industrial Disputes Act, cannot be brought in force because it has remained stayed throughout during the pendency of the writ petition for last 17 years. At this distance of time, therefore, now possibly the order directing their reinstatement by substitution of penalty in the scope of Section 11A of the Industrial Disputes Act, cannot be brought in force because it has remained stayed throughout during the pendency of the writ petition for last 17 years. This Court while therefore not interfering with the award of the Labour Court holding the penalty to be excessive and shockingly disproportionate to the gravity of charges proved against them, deem it appropriate to direct payment of lumpsum compensation to the respondents in lieu of reinstatement or deemed reinstatement so as to entitle them for payment of consequential benefits. Considering that each of the respondent-workmen had served with the management of the petitioner for a fairly long span of time and considering that they have received the last drawn wages under Section 17B during the pendency of the writ petition, ends of justice shall be meet if each of them is paid a sum of Rs. 2,00,000/- in lieu of reinstatement for settlement of all their dues and claims. The writ petition is accordingly disposed of. Compliance of the judgment be made within a period of three months from the date copy of this judgment is produced before the management, failing which the respondent-workmen shall be entitled to interest @ 9% per annum for the period of delay.