IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1191 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ GUJARAT RESEARCH & MEDICAL INSTITUTE Versus BATUK LAXMANBHAI SOLANKI -------------------------------------------------------------- Appearance: MR SUDHIR M MEHTA for Petitioner MRS SANGEETA N PAHWA for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 28/08/2001 ORAL JUDGEMENT #. The petitioner has challenged the award passed by the Labour Court, Ahmedabad dated 4.10.1999 in Reference (LCA) No.2646/88. The respondent-workman was serving as Ward-Boy in the petitioner-hospital. He was removed from service by order dated 11.10.1988 and he has challenged the said removal by raising industrial dispute which was referred to the Labour Court, Ahmedabad and was numbered as Reference (LCA) No.2646/88. #. It is the case of the respondent-workman that without holding proper departmental inquiry, he was removed from service. The petitioner - institution defended the said reference by filing reply. It is their case that the hospital is having ICCU Unit wherein the Ward-Boy is supposed to look after for all the 24 hours. That the respondent-workman was found negligent and that he was found sleeping at mid-night at about 1.30 a.m. in the Ward in question. It is also further stated by the petitioner that the respondent indulged in an act of indiscipline. It is stated in reply that after the charges were proved, the aforesaid punishment was inflicted on the said workman. The Labour Court came to the conclusion that the order of removal was very harsh. The Labour Court also came to the conclusion that, it cannot be said that the misconduct of the workman was so serious which will justify the action of the management in removing him from service. The Labour Court also found that this was the first misconduct on the part of the respondent-workman and that considering the facts and circumstances of the case, it would be just and proper to reinstate him with 25 % back-wages with the punishment of withholding of one increment without future effect. The aforesaid order of the Labour Court is challenged in this petition at the instance of the petitioner-employer. #. At the time of hearing of this petition, Mr.Sudhir Mehta, learned advocate for the petitioner, strenuously argued that, in the facts and circumstances of the case, no reinstatement award should have been passed. He submitted that the concerned ward-boy was in charge of ICCU Unit which is an emergency service and that therefore, it was a serious misconduct on his part to sleep while on duty. However, in my view, the Labour Court has given very cogent reasons in coming to the conclusion that this was the solitary incident in the entire service career of the workman and that it is too harsh to remove him from service. The Labour Court is entitled to exercise the powers in the appropriate case to substitute the penalty by resorting to section 11-A of the I.D.Act and if such powers are exercised, it cannot be said in the facts of the case that such powers were illegally exercised by the Labour Court. In any case, it cannot be said that the Labour Court has committed any error of law or of jurisdiction in substituting the penalty of removal by withholding one increment. The Labour Court has also restricted the benefit of back-wages only upto 25 % However, Mr.Mehta argued that, in any case, no back-wages should be given because the petitioner - institution is a charitable trust and that in case, the award of reinstatement is confirmed, no back-wages should be given to the workman. #. In the facts and circumstances of the case and considering the fact that the petitioner-institution is a charitable trust, I direct that the respondent-workman will not be entitled to any back-wages for the intervening period, but his services should be continued for all other purposes. The award of the Labour Court is modified accordingly to the aforesaid extent. The petitioner is directed to reinstate the respondent-workman on or before 15.9.2001 on his original post and from that date, he will be entitled to his regular salary. The petition is accordingly partly allowed. Rule is made absolute to the aforesaid extent with no order as to costs. (P.B.Majmudar,J) (pathan)