Point of Law: Misconducts - Award Modified - Workman was earning by plying rickshaw since his dismissal i.e. from 1990, appropriate relief may be moulded in favour of workman by tilting balance -Workman be paid retiral benefits by treating period of his dismissal till his superannuation as notional service without any backwages.

JUDGMENT :

1. By way of this petition, the petitioner has challenged award dated 12.4.1990 passed by Labour Court, Vadodara, by which order of dismissal passed against the respondent herein is set aside and the petitioner is directed to pay 25% back wages till the age of superannuation and also the retiral benefits including pension to the respondent herein.

2. As per the facts of the case, the petitioner is a Trust incorporated under the Bombay Public Trusts Act and it has established and is managing school known as Baroda High School (Junior Primary Section) at ONGC Colony, Vadodara.

3. The respondent herein was working as Watchman-cum-peon in the school. On 18.2.1988, the respondent was issued charge sheet for dereliction in duty. Respondent filed his reply to the said charge sheet on 23.2.1988. However, such reply was not found satisfactory, therefore, it was decided to held departmental inquiry. On 19.10.1989, the inquiry officer submitted his report in which all the five misconducts alleged against the respondent were held to be proved. Therefore, on 27.3.1990, show cause notice was issued for proposed penalty of dismissal. On 5.4.1990, the respondent submitted his explanation. As it was not found satisfactory, vide order dated 12.4.1990, the respondent was dismissed from service. On 23.7.1990, the respondent herein raised dispute against such dismissal. The same was referred to Labour Court, Vadodara, which was numbered as Reference (LCV) No.524 of 1990.

4. Before the Labour Court, the respondent herein filed Statement of Claim alleging that he was working sincerely and faithfully with the petitioner school from 24.7.1976 as Watchman-cum-Peon and that his services have been terminated illegally from 11.4.1990 pursuant to the inquiry held in breach of principles of natural justice and the charges levelled against him were concocted. On that basis, the respondent herein prayed for reinstatement with full backwages. The petitioner herein filed written statement denying all the allegations made against him. It was specifically averred that if the Labour Court finds that the domestic inquiry was vitiated then the petitioner may be given an opportunity to lead evidence and prove misconduct of the respondent before Labour Court. Record of inquiry was also produced before Labour Court. By its order dated 13.4.2005, while deciding preliminary issue, Labour Court held that domestic inquiry held against the respondent was just, legal and proper. Thereafter, the matter was heard and the respondent gave further evidence at Exh.53. By award dated 14.8.2006, Labour Court, Vadodara, set aside the order of dismissal dated 12.4.1990 passed against the respondent and directed the petitioner to pay 25% backwages to the respondent till the age of superannuation and also directed to pay him all retiral benefits including pension. Being aggrieved by said award, the petitioner has preferred present petition.

5. Mr.R.R.Patel, learned advocate for the petitioner-employer has submitted that the respondent-workman was working as a Watchman cum Peon in a school. He has submitted that as the workman was absent from duty on several occasions, chargesheet was given to him. He has also submitted that the departmental inquiry was held against him and several opportunities were given to him. While referring to the report of the inquiry officer, and the ultimate punishment of dismissal from service, he has submitted that in the said departmental inquiry, the workman has not raised any dispute regarding victimization as well as of directing him to work at the house of the Principal. He has submitted that since the workman was dismissed after departmental inquiry, he raised reference before the Labour Court, wherein the Labour Court has granted prayer of pension as well as ancillary benefits with 25% backwages to him. He has also submitted that since during the pendency of the reference before the Labour Court the workman has superannuated, no order for reinstat