1 W.P. 3729/1991 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3729 OF 1991 The Works Manager Central Workshop, Maharashtra State Road Transport Corporation, Chikalthana, Aurangabad. .... PETITIONER V E R S U S Subhash Baburao Parkar Died - through L.Rs. : 1-a. Smt. Prabhawati Suresh Perkar Age : 53 Yrs., Occ. Household, R/o : Chatrapati Shivaji Colony, Kanti Chowk Police Station, Aurangabad. 1-b. Rajashri D/o Suresh Perkar Age : 33 Yrs., Occ. Household, R/o : Chatrapati Shivaji Colony, Kanti Chowk Police Station, Aurangabad. 1-c. Pallavi D/o Suresh Perkar Age : 31 Yrs., Occ. Household, R/o : Chatrapati Shivaji Colony, Kanti Chowk Police Station, Aurangabad. 1-d. Soniya D/o Suresh Perkar 2 W.P. 3729/1991 - ( J ) Age : 23 Yrs., Occ. Household, R/o : Chatrapati Shivaji Colony, Kanti Chowk Police Station, Aurangabad. .... RESPONDENTS Smt. R.D.Reddy, Advocate for Petitioner. Mr. M.B.Sandanshiv, Advocate for Respondents. CORAM : S.V. GANGAPURWALA, J. JUDGMENT RESERVED ON : 25/06/2010 JUDGMENT PRONOUNCED ON : 23/07/2010 ORAL JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner - an employee takes exception to the Judgment and Award passed by the Labour Judge, Aurangabad, by virtue of which the Presiding Officer, Labour Court, Aurangabad has directed the present petitioner to reinstate the respondent in service with continuity in service and back wages w.e.f. 17/4/1982. This Court on 29/11/1991 has admitted the present petition and the Judgment and Award of the Labour Court was stayed only to the extent of back wages . Pursuant to the said orders of the Labour Court, the respondent was reinstated and continued in service and subsequently expired on 15/12/2008. 3 W.P. 3729/1991 - ( J ) 2. The present respondent no. 1 had joined service with the petitioner – Corporation as Helper in the year 1969. In the year 1974, the respondent was promoted as Electrician. Respondent no. 1 was dismissed from service on 17/4/1982 after finding him guilty in the departmental proceedings. 3. It is the contention of the petitioner that the respondent committed theft of the scrap pistons from the yard of the central work shop of M.S.R.T.C., Aurangabad and the same were sold away to one Mr. Jain at Aurangabad. Police complaint was made and the police had lodged criminal case bearing No. 69 of 1981 against the respondent and other persons before the J.M.F.C., Aurangabad for the offence of theft of pistons. In the said case, the present respondent was acquitted, but according to the petitioners in departmental enquiry, he was found guilty and as such was removed from service. 4. According to the petitioner, in the departmental proceedings the proper procedure has been followed. One Haribhau Parwatrao Mane was the Security Officer. He was examined, so also one Mr. Raut was also examined. The present respondent did not participate n the departmental proceedings and as the charges were proved against him, he was rightly removed from service. 5. The respondent had contended that the said departmental 4 W.P. 3729/1991 - ( J ) enquiry was exparte. There was no proof of allegations against him. He was acquitted from the criminal case filed against him. No independent witnesses were examined by the petitioner in the departmental proceedings. As such, the findings of the Enquiry Officer were erroneous. 6. The Labour Court had framed a preliminary issue, which reads as - “ Whether the domestic enquiry against the second party was fair and proper ? ”. The Labour Court vide its order dated 13/1/1989 had passed an order and held that the domestic enquiry conducted against the present respondent was not fair and proper. The said finding on the preliminary issue, it seems was not challenged by the petitioner. Thereafter the Reference was proceeded further and eventually the Labour Court after examining the record, set aside the order of dismissal and directed the petitioner to reinstate the respondent in service with continuity and back wages. 7. Mrs. Reddy, the learned counsel for the petitioner contended that - (i) The Labour Court was in error in holding that the departmental enquiry was not properly held and as such committed an error in setting 5 W.P. 3729/1991 - ( J ) aside the order of dismissal. (ii) Even if the respondent is acquitted in criminal case, still if he is found guilty in departmental enquiry, the employer can terminate the services of an employee. (iii) The employee has not proved that he was not gainfully employed elsewhere and is not entitled for any back wages. The burden is on the employee to prove that he is not gainfully employed at relevant period. For the said purpose, relied on following Judgments - (1) 2006 (1) SCC – 265 (2) 2006 DGLS (Soft.) 324 (3) AIR 2008 Supreme Court – 1162 (4) 2009 (2) Bom.C.R. - 102 (5) 1996 DGLS ( Soft. ) - 1879 (6) M/s Manikchand G.Lulla through its Proprietor V/s The Presiding Officer, Labour Court, Amravati & others . 8. Mr. Patil, the learned counsel for the respondent contended that this Court in its supervisory jurisdiction under Article 227 of the 6 W.P. 3729/1991 - ( J ) Constitution of India would not again scrutinize the evidence and re- appreciate the facts. The finding of the Labour Court is not perverse and is based on evidence. As the removal is found to be illegal, in such cases the respondent shall be entitled for full back wages. Mr. Patil relied on following Judgments - For the said purpose, relied on - (1) 2008 (4) Bom. C.R. - 330 (2) APSRTC V/s Jayaram Reddy ( 18/12/2008) – Supreme Court. 9. The legal proposition as laid down in the Judgments cited supra by the respective counsels are not debatable. It is the fact that the respondent has died and that he was reinstated in service as this Court while admitting the petition, had not stayed the order of reinstatement. The Labour Court has also come to the conclusion that the departmental enquiry was not validly conducted. No evidence of independent witness was examined. It is pertinent to note that even said Mr. Jain was not examined when it was alleged that the respondent has sold the said pistons to him. The J.M.F.C. has acquitted the petitioner of the charges of theft. The same evidence was in the departmental enquiry. This Court would not re-appreciate the findings of facts arrived by the Labour Court and also taking into account the fact that the respondent 7 W.P. 3729/1991 - ( J ) since 1991 had rejoined the duties pursuant to the order of the Labour Court and worked till his death, I am not inclined to interfere as far as order of reinstatement and continuity in service is concerned. 10. So far as back wages are concerned, the burden is cast upon the employee to plead and prove that he was not gainfully employed during the relevant period. 11. The said legal position can not be disputed. In the present case, the respondent has led evidence before the Labour Court, wherein he had categorically stated that he had tried for job by making applications to 4 or 5 factories, but could not get any and has stated as under - “ I had tried for job by making applications to four or five factories but I could not get any. My statement of claim filed in this matter is true and correct. I am earning by vegetable business, so also my wife earns by labour, at present. I earn only Rs. 10/- or Rs. 15/- per day from vegetable business. I am doing this business since last four or five years ”. The said statement of the respondent in Exam-in-Chief has not been controverted by the petitioner. I have gone through the cross examination. In the cross examination, the petitioner has not even 8 W.P. 3729/1991 - ( J ) given a suggestion that what is stated by the respondent in the Exam-in- Chief is false. The said statement has gone unchallenged. In light of above, the only inference that can be drawn is that the respondent could not get job in any factory and he was earning his livelihood by selling vegetable. He has stated that he was earning Rs. 10/- or Rs. 15/- per day. His salary at the relevant time was Rs. 600/- and odd. As such, awarding him full back wages also would not be in keeping with the legal position. Taking into account the evidence that by selling vegetable, he was earning about Rs. 10/ or Rs. 15/- per day, I feel that awarding 100% back wages by the Labour Court was erroneous. In light of what has come in evidence that he was earning Rs. 10/- or Rs. 15/- per day i.e. almost 50% of his salary, I am of the opinion that awarding 50% of the back wages would be just and reasonable. As such, I pass the following order. 12. The Writ Petition is partly allowed. The impugned Judgment of the Presiding Officer, Labour Court, Aurangabad to the extent of reinstatement of the respondent and continuity in service is upheld and is set aside to the extent of awarding full back wages, instead the respondent shall be entitled to 50 % back wages. w.e.f. 17/4/1982 till he was reinstated. 13. The petitioner shall pay the said amount to the legal representatives of the respondent within the period of 4 months from 9 W.P. 3729/1991 - ( J ) today. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/WP 3729.91