IMPORTANT POINT
The Labour Court ordinarily should not interfere with discretion exercised by the employer unless the same is found to be inconsistent with provisions of a statute or otherwise perverse or unjust.
Burden of proof to show that the workman was not gainfully employed is not on the employer.

Headnote:Bombay Industrial Relations Act, 1946 – Section 78 – Respondent a peon in sugar factory run by appellant cooperative society dismissed from services – Application thereagainst for reinstatement – Labour Court passed an award of reinstatement with continuity of service with 50% backwages – Appeal – Dismissed by appellate Court – Writ Petition – Dismissed by High Court – Appeal – Plea of appellant that High Court committed a serious error in granting reinstatement with half back wages in favour of respondent by wrongly placing onus of proof on appellant – Held burden of proof to show that workman was not gainfully employed is not on the employer – Instantly burden of proof had been wrongly placed upon appellant – Apart from remaining unauthorized absent without leave, respondent had been charged with indiscipline at work place – Forfeiture of 50% backwages was not an adequate punishment – Respondent ought to have been awarded some punishment in lieu of order of dismissal – Again, question as to whether respondent was entitled to full back wages or not ought to have been considered on basis of materials brought on record by parties – In this case, no backwages ought to have been awarded in favour of respondent – However amount any if paid to respondent was directed not to be recorded – Appeal allowed in part. (Paras 12 to 18)
       Facts of the case :
       1.Respondent a peon in sugar factory run by appellant cooperative society was dismissed from service herein in the instant case. Labour Court however passed an award of reinstatement with continuity of service with 50% backwages.
       2.Present appeal has been filed against order of High Court dismissing writ petition filed by appellant.
       Findings of the Court :
       Instantly burden of proof had been wrongly placed upon appellant. Apart from remaining unauthorizedly absent without leave, respondent had been charged with indiscipline at work place. Hence held that forfeiture of 50% backwages was not an adequate punishment and that respondent ought to have been awarded some punishment in lieu of order of dismissal. Instantly no backwages ought to have been awarded to respondent.
       Result : Appeal allowed in part.

JUDGMENT

S.B. Sinha, J. —

1.Leave granted.

2.Appellant herein is a Cooperative Society. It runs a sugar factory. Respondent was appointed as a peon in July 1974. On or about 1.12.1983, a show cause notice was issued seeking an explanation from him as regards some alleged misconduct on his part. He was placed under suspension. A charge sheet dated 29.12.1983 was issued against him, inter alia, in respect of the following charges:

“(i)Late attendance between 2.7.1983 to 20.12.1983 on 16 occasions.

(ii)Absence without leave between 6.10.1983 to 22.12.1983 for 20 days.

(iii)Leaving the place of work without permission and without seeking leave and attempt to obtain wages between 23rd to 30th November, 1983.

(iv)Leaving premises without permission and leave between 2.12.1983 to 20.12.1983 on 6 occasions.

(v)Signing the muster without remaining present and attempting to seek wages between 16.9.1983 to 16.11.1983 for 9 days.

(vi)Signing the muster for showing presence on 1.12.1983 on next day.

(vii)Disobeying order of Shri Mahadik regarding storage of water on 12.12.1983, refusing to deliver letter as directed by Shri Chavan clerk on 19.12.1983 not attending the office on 14.12.1983 though asked to attend for the purpose of audit.”

3.A departmental proceeding was held in which he was found guilty of the said charges. He was dismissed from services by the appellant by an order dated 5.7.1984.

Respondent filed an Application under Sections 78 of the Bombay Industrial Relations Act, 1946 before the Labour Court, Sangli praying for his reinstatement with continuity of service and full back wages, which was registered as B.I.R. No. 16 of 1984.

4.A preliminary issue as regards validity or otherwise of the said disciplinary proceeding, which appears to have been decided against the respondent, had been framed.

Apart from the said preliminary issue, the Labour Court framed the following issues:

“1.Whether the applicant proves that the opponent terminated him from service illegally and wrongfully?

2.Whether the enquiry conducted by the opponent against the applicant is legal proper and valid?

3.Whether the termination of the employment is a grossly disproportionate punishment?

4.Whether the applicant is entitled to reinstatement, continuity of service and full back wages?

5.Appellant examined some witnesses to establish that the respondent had been running a footwear shop under the name and style of Amol Footwear. The Labour Court did not place any reliance thereupon holding that the appellant had not produced any licence on record to show that the respondent was running the said shop.

The Labour Court, while holding that the respondent had been found guilty of committing the misconduct, passed an award of reinstatement with continuity of service with 50% back-wages on the premise that the punishment of termination from service was disproportionate to the charges of misconduct leveled against him.

6.An appeal preferred thereagainst by the appellant was dismissed. On the question as to whether the respondent was gainfully employed or not, the Appellate Authority while holding that the provisions of Shops and Establishments Act were not applicable at Patan where the said footwear shop was being run, opined that the Labour Court was correct in denying 50% of back wages on the premise that the respondent had been carrying on the said business to meet his both ends. It was held:

“Moreover, the Respondent has produced reasonable evidence to show special circumstances which may justify denial of 50% of back wages. In these circumstances, I find no reason to allow full back wages to original petitioner in his appeal. Consequently, I hold that the labour court was correct in awarding 50% back wages.”

7.A writ petition filed by the appellant was dismissed by a learned single judge of the Bombay High Court stating:

“.....The Labour Court, in exercise of its jurisdiction under this Section, has concluded that the punishment imposed was disproportionate. Both, the Labour Court

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2008 Supreme(SC) 1830

2009(1) Supreme 140SUPREME COURT OF INDIAS.B. Sinha and Cyriac Joseph, JJ.M.D. Balasaheb Desai Sahakari S.K. Ltd. — AppellantversusKashinath Ganapati Kambale — RespondentCivil Appeal No. 7249 of 2008Decided on : 12-12-2008

Cases Referred (2)

2009(1) Supreme 140
SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
M.D. Balasaheb Desai Sahakari S.K. Ltd. — Appellant
versus
Kashinath Ganapati Kambale — Respondent
Civil Appeal No. 7249 of 2008
Decided on : 12-12-2008