1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 118 OF 1999 1. The Board of Trustees of the Port of Mormugao, a body corporate constituted under the Major Port Trusts Act, 1963 having their Office at Mormugao Port Trust, Mormugao Harbour, Goa. 2. The Chairman, Mormugao Port Trust, Mormugao Harbour, Goa. .. Petitioners. Versus. 1. Shri Yamunappa C.Gaudar (since deceased) through his legal representatives. (i) Smt. Shavakka Y. Gaudar, widow; (ii) Kumari DyamawwaY. Gaudar, daughter, (iii) Kumari Savitri Y. Gaudar, daughter, throughher guardian Smt. Shavakka Y. Gaudar. (iv) Master Hanumanta Y. Gaudar, son; through his guardian Smt. Shavakka Y. Gaudar. All resident of c/o S.B. Hagari, M.P.T. Colony “A”, Building No.230/1/1, Head Land Sada, Vasco-da-Gama, Goa-403 804 2. Hon'ble Presiding Officer, Industrial Tribunal, Government of Goa, Panaji. .. Respondents 2 Mr.Y.V.Nadkarni, Advocate for the petitioners. Mr.V. A. Lawande, Advocate for the L.R's Of Respondent No.1. Coram :- R. C. CHAVAN, J. Date of reserving the judgment : 26 th August,2008. Date of pronouncing the judgment : 29 th August, 2008. ORAL JUDGMENT : 1. The petitioner Port Trust takes exception to the award passed by the Industrial Tribunal, Goa on 17.9.1998, whereby the Tribunal directed reinstatement of original respondent Yamunappa with full back wages and other consequential benefits. 2. During pendency of the petition, Yamunappa died and his widow and other legal representatives, who have been brought on record, are contesting the petition. 3. Facts which cannot be disputed for the purpose of deciding this petition are as under : 4. Yamunappa was employed by the petitioner as a seaman, khalasi with effect from 14.1.1987. He was in the habit of remaining absent without obtaining prior permission. He had been warned from time to time but his conduct did not improve. Various periods of 3 absence of Yamunappa, were regularised by granting him leave at his credit. He again remained absent from 28.7.1992 to 19.6.1992 without getting leave sanctioned. Hence, on 28.7.1992, a chargesheet along articles of charge and statements of imputations was served upon said Yamunappa. The proceedings before the Enquiry Officer commenced on 15.10.1992. The charge was explained to Yamunappa, who admitted the charges framed against him and apologised. He assured that in future he would regularly report for duty and prayed for being pardoned. Since the delinquent employee had admitted the charges the Enquiry Officer held that the enquiry was concluded and held the charges as proved. The disciplinary authority proposed to remove Yamunappa from the service of the petitioner Port Trust and, therefore, issued a notice to said Yamunappa for making representation against the proposed penalty. No representation was, however, made and on 7.1.1993, the disciplinary authority passed an order removing Yamunappa from service. 5. Yamunappa preferred an appeal on 2.3.1993, where to he did not dispute that he had been absent without obtaining prior leave. He stated he had not defended himself and admitted everything in enquiry and had also tendered an apology. He, therefore, requested that his case should be considered on humanitarian grounds and sought any other punishment than removing him from service assuring that he 4 would not repeat his delinquency in future. The Appellate authority, however, rejected this appeal by order dated 30.6.1993. 6. Conciliation proceeding were initiated in January 1994 and both the parties filed their respective claim statements. In this statement dated 12.1.1994, the delinquent employee Yamunappa stated that he was not allowed to represented by a next friend at the enquiry. he was assured that no serious action would be taken and he tendered apology and, therefore, he signed the proceedings, which were prepared by the Enquiry Officer. The conciliation officer referred the dispute for adjudication before the Industrial Tribunal, Goa by his order dated 10.2.1995. 7. The Industrial Tribunal framed a preliminary issue as to whether the enquiry was fair, proper and impartial. By his judgment dated 21.2.1997, he held that the domestic enquiry was not fair, proper and impartial and hence, set it aside. On 10.6.1997, the petitioner employer sought permission to adduce evidence in respect of charges levelled against the workman. The employer had filed written statement before the Industrial Tribunal and had also sought amendment to the written statement by application dated 18.8.1995. By this application the employer had sought to plead in amended para 14A of the written statement as under : 5 "Even assuming without conceding that the grounds or submissions pleaded by Workman/party I have some substance, it is open to this Hon'ble Tribunal in its powers vested in it under section 11(A) of the Industrial Disputes Act, 1947 to reconsider the case afresh in the light the pleading and the evidence that may be led by the parties in support of their respective case in the present Reference proceeding and to decide the reference on merits of the case." 8. The learned Member of the Industrial Tribunal rejected the application dated 10.6.1997 filed by the employer holding that such a request was not made in the written statement and, therefore, there was no question of affording opportunity to employer to tender evidence before the Tribunal. Eventually on 17.9.98, the learned Member made impugned award. 9. I have heard Advocate Shri Y. V. Nadkarni for the petitioner employer and Advocate V. A. Lawande for the respondent's legal representatives of deceased employee. The learned Counsel for the petitioner submitted that the learned Presiding Officer, Industrial Court erred in insisting that request to prove the charges in the Court, must be pleaded in the written statement. In any case such a request was, according to the learned Counsel, inserted in the written statement by 6 amendment, which would relate back to the date of filing written statement, in view of settled position of law. There can be no dispute that an amendment would relate back to the date of filing of written statement. But the amendment in para 14A quoted above, does not contain any such prayer. Rather it merely reminds the Court of its powers to take evidence. 10. The learned Counsel next relied on judgment in Karnataka State Road Transport Corpon. Versus Laxmideviamma reported at 2001 AIR SCW 1981 and followed in Divyash Pandit Versus Management N.C.C. B.M. reported at 2005 AIR SCW 5525, where the Court held as under :- “ We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/Tribunal in the written statement itself to led additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.” 7 11. It may be seen that even this judgment does not lay down an inflexible rule that whether a prayer is made or not, the Court must on its own take evidence. Otherwise the requirement to make prayer will itself become redundant. 12. Be that as it may, even if it is taken that the learned Presiding Officer, Industrial Court, erred in not taking evidence about delinquency, with respondent's death, this cannot be remedied. In any case, as far as delinquency itself is concerned, it was never the workman's case that he was not absent. At the enquiry, he could have at best given justification for his absence, but for an inducement held out to him of lenient treatment to plead guilty. This inducement is established by evidence tendered by petitioner's own witness Kishore Chari, who stated before the Industrial Court as under :- “ The I.O., had told the Party I that the charges levelled against him were not serious and that if he apologise, the management would not take action against him. Accordingly, the Party I tendered his apology. ” 13. If an inducement was held out by anyone in authority, it would be improper to take an admission of a gullible workman and throw him out of employment. It may be recalled that while preferring an appeal, all that he had sought was a lesser punishment. 8 14. In these peculiar facts, while delinquency of the workman need not go unpunished, that punishment should also not be disproportionate to the delinquency particularly in the context of his having been induced to plead guilty before the Inquiry Officer. In view of this, interest of justice would be served if the impugned Order is modified and the deceased respondent no.1 is held entitled to 75% of back wages instead of full back wages. 15. In view of this, the petition is partly allowed. The impugned Order is modified and the respondent No.1 workman is held entitled to 75% of the back wages and other consequential benefits instead of full back wages. Rule made absolute in above terms. R. C. CHAVAN, J SMA