1 wp6614.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6614 OF 2010 Ganpat Madhavrao Jaygude, Age: 60 years, Occ: Retired, R/o. Newasa, Taluka Newasa, District Ahmednagar. ...PETITIONER VERSUS Shri Dnyaneshwar Sahakari Sakhar Karkhana Limited, Dnyaneshwar Nagar, Taluka Newasa Dist. Ahmednagar Through its Managing Director. ...RESPONDENT ... Mr. P.V. Barde, Advocate for petitioner. Mr. H.D. Deshmukh, Advocate for respondent sole. ... CORAM: SMT. NISHITA MHATRE,J. DATE : 1ST APRIL, 2011 JUDGMENT : Rule. Rule made returnable forth. By consent, heard finally. 2. The challenge in this petition is to an order passed by the Industrial Court, Ahmednagar 2 wp6614.10 in the Appeal (BIR/IC) No. 08 of 2003 by which it has granted compensation of Rs.20,000/- to the petitioner. 3. The petitioner was employed as a Clerk Grade-III in the Accounts Section of the respondent - Sakhar Karkhana. (Hereinafter referred to as "the Karkhana"). A show cause notice was issued to the petitioner on 07-03-1985 for certain acts of misconduct including negligence, misbehaviour and for using filthy language. A charge sheet was issued to the petitioner on 06-04-1985. An inquiry was held against him and he found guilty of the charges of misconduct levelled against him. As a result, the petitioner's services were terminated on 22-06-1985. 4. An approach notice was served on the Karkhana under Section 42(4) of the Bombay Industrial Relations Act, 1946 (Hereinafter referred as "the B.I.R.Act") on 11-08-1985. Since 3 wp6614.10 there was no response from the Karkhana, the petitioner filed an application under Section 78 (1) A & D and 79 of the B.I.R. Act before the Labour Court, Ahmednagar. The petitioner contended inter-alia that his services had been illegally terminated; that the finding of the Enquiry Officer was perverse; that his services were terminated by way of victimization as he had refused to oblige one of his superior Officers by denying his private work and that the punishment of dismissal was excessive and not proportionate to the allegations against him. 5. The Karkhana filed its Written Statement contending that the services of the petitioner had been terminated after following the principles of natural justice. An inquiry had been held against the petitioner and a fair opportunity was afforded to the petitioner to defend himself at the inquiry. It was only after the Enquiry Officer had found the petitioner guilty of acts of misconduct, that his services were terminated, 4 wp6614.10 according to the Karkhana. 6. Parties led the evidence before the Labour Court. On the basis of the evidence before the Enquiry Officer and the evidence led before the Labour Court, the Labour Court held that the charges levelled against the petitioner in the charge sheet dated 06-04-1985 were established. The Labour Court further came to the conclusion that the petitioner was guilty of gross acts of misconduct and therefore, was not entitled to any relief. The application of the petitioner was dismissed. 7. Aggrieved by the decision of the Labour Court, the petitioner preferred Appeal (BIR/IC) No.08 of 2003. The Industrial Court held that the charges levelled against the petitioner were partly proved. The Industrial Court held that the petitioner was not permitted to avail of Casual Leave for a day to attend the last rites of a close relative. It is, in these circumstances that 5 wp6614.10 there was an altercation between the petitioner and his superior Officer. The Industrial Court found that the petitioner had been deliberately provoked which had resulted in him uttering some unwarranted words. The Industrial Court, therefore, found that there were mitigating circumstances which ought to have been considered by the Labour Court while deciding the propriety of the punishment imposed on the petitioner. The Industrial Court also found that the evidence did not disclose that the petitioner had flouted any orders of his superiors. All that was proved was that he uttered words to the effect that he would break somebody's legs as he was being harassed and he would submit his resignation. After considering various judgments of this Court and the Supreme Court, the Industrial Court concluded that the petitioner was entitled to Rs.20,000/- as compensation in lieu of reinstatement and back wages. 8. Mr. P.V. Barde, the learned Counsel 6 wp6614.10 appearing for the petitioner submits that the amount of compensation is far to little considering the tenure of service of the petitioner. He points out that the petitioner had been in service for ten years when he was charge sheeted. According to the learned Counsel, the petitioner had been victimised because he had not executed some personal work of one of his superior Officers. The Industrial Court has taken this fact into consideration while awarding the compensation. Furthermore, submits the learned Counsel, the misconduct proved against the workmen was not so serious as to deny him reinstatement and back wages. Mr. P.V. Barde, the learned Counsel for the petitioner also relied on the judgment in the case of Jagatpal Dhuria vs. Shri Madhav Corporation and Ors. reported in 2001(1) ALL MR 393. 9. On the other hand, Mr. H.D. Deshmukh, the learned Counsel for the Karkhana submits that the Industrial Court has taken a lenient view of 7 wp6614.10 the matter and awarded Rs.20,000/- as compensation despite the acts of misconduct committed by the petitioner. He points out that the petitioner has already been paid this amount by the Karkhana immediately after the order was passed by the Industrial Court. The learned Counsel further urges that indiscipline and insubordination by a workman cannot be tolerated at the work place as that would have a cascading effect on other workman. 10. The Labour Court has denied relief to the workman mainly on the ground that punishment of dismissal was not disproportionate considering the acts of misconduct alleged against the workman. The Labour Court found that these acts of misconduct had been proved and established against the petitioner and therefore, he was not entitled to any relief. The Industrial Court, in my opinion, has taken an appropriate view of the matter after considering all the relevant documents and the evidence on record. It is true 8 wp6614.10 that indiscipline and insubordination should not be tolerated at the work place. However, the Industrial Court has rightly considered the fact that the utterance of some inappropriate words by the petitioner which caused the Karkhana to issue a charge sheet against him was not a misconduct which would warrant the punishment of dismissal. The Industrial Court having held that the workman was deliberately provoked into uttering these words, concluded that there were mitigating circumstances because of which the petitioner could be awarded a lesser punishment. It has therefore granted compensation in lieu of reinstatement and back wages. 11. However, in my view, the compensation granted is extremely inadequate. The workman has worked for ten years prior to the dismissal. He has been out of services for the past 23 years and taking a conservative estimate of the wages that he would have earned had he been in service, the petitioner would certainly have been entitled to a 9 wp6614.10 higher compensation. The judgment relied on by Mr. P.V. Barde, the learned Counsel for the petitioner, is in respect of a workman who had been dismissed from services on the ground that the employer had lost faith in him. The learned Single Judge while granting relief to the workman in that case, has directed that besides awarding compensation in lieu of reinstatement, it must also be computed for the loss of back wages in such a case. According to Mr. Barde, the learned Counsel for the petitioner, in the present case, the Industrial Court has not considered the two components while granting compensation. 12. As I have already mentioned, a conservative estimate of the back wages for 23 years, without considering any wage raise or wages payable in accordance with the rate fixed by the Wage Board for the sugar industry, is Rs.2,76,000/-. The petitioner had been in service for ten years prior to his dismissal from service. Considering the fact that the petitioner has 10 wp6614.10 already attained the age of superannuation, in my view, Rs.50,000/- would be appropriate compensation. As the Industrial Court has found that the petitioner has committed an act of misconduct, back wages payable to him are denied. 13. Accordingly, the petition is disposed of by directing the respondent Karkhana to pay the petitioner Rs.50,000/- (Rs. Fifty thousand only) less the amount of Rs.20,000/- (Rs. Twenty thousand only) which has already been paid to him. This amount shall be paid to the petitioner within four weeks from today. 14. Rule made absolute accordingly. [SMT. NISHITA MHATRE, J.] sut/Apr11