1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR W.P.NO.1754/2010 The Yavatmal District Cooperative Supervision Society ..vs.. The Industrial Court, Yavatmal and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JUNE 16, 2010. Heard Mrs.R.D.Raskar, learned counsel for the petitioner and Mr.N.R.Saboo, learned counsel for respondents no.s.3(i) to 3(v). Advocate Mrs.Raskar has pointed out that the enquiry has been found to be vitiated erroneously but thereafter the petitioner/employer led evidence before the labour court and proved the charges. She has invited attention to the evidence of Auditor and the independent witness to urge that the irregularities and wrong conduct on the part of deceased complainant is established on record. She further argues that the Labour Court has awarded full back wages mechanically though there is no evidence of absence of gainful employment. Advocate Shri Saboo, on the other hand, argues that the evidence of audit or evidence of employee of Central Cooperative Bank does not implicate deceased employee in any way. According to him, as original complainant died 2 during pendency of complaint, his legal heirs were brought on record. He further argues that as the dismissal dated 25/6/1997 was challenged immediately in 1997, the inference of absence of gainful employment must be drawn. With the assistance of both the learned counsel, I have perused Judgment dated 31/7/2008 delivered by Labour court Yavatmal and also judgment dated 9/10/2009 delivered in revision by Industrial Court, Yavatmal. It is apparent that order on pre-point holding departmental enquiry to be vitiated came to be passed on 17/4/2006 and that order was not challenged in revision Application No.42 of 2008. After enquiry was found to be vitiated, the petitioner examined only two witnesses to prove the misconduct. Witness No.1 was retired employee of petitioner while witness no.2 was an employee of Central Cooperative Bank. Consideration of their evidence by the Labour Court in paragraph nos.15,16 and 17 respectively does not appear to be either erroneous or perverse. The Industrial Court has also maintained the findings of the Labour Court in this respect. I am, therefore, not in position to accept the contention of Advocate Smt.Raskar that misconduct was proved before the Labour Court. The Labour court, however, has granted full back wages mechanically without even discussing whether there was any evidence on record to show availability of gainful employment. Advocate Raskar has contended that if this court is going to take lenient view in the matter because original complainant has already expired, not more than 30% can be sanctioned as back wages. Advocate Saboo has 3 contended that the grant cannot be interfered with and in any case the back wages have to be 75%. The facts show that the dismissal has taken place on 25/8/1997 and original complainant expired on 27/1/2003. It appears that when he filed complaint he was already 52 years old. His legal heirs have not entered witnesses box and hence there is no evidence of availability of any gainful employment or absence thereof. The basic burden in this respect in such situation was upon the original complainant and his legal heirs. The same has not been discharged. Considering the fact that original complainant is no more, I am inclined to reduce the grant of back wages to 60%. Accordingly, impugned judgment of labour court dated 31/7/2008 is modified and it is held that deceased complainant is entitled to reinstatement with continuity and back wages of 60% till his death. Rest of the order of labour court is maintained as it is. The petition is partly allowed. No costs. JUDGE chute