WP/1012/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1012 OF 1998 The Regional Development Officer, Government Milk Supply Scheme, Pune ... Petitioner V/s. Madhukar Ishwar Waghmare ... Respondent Mr.P.G. Sawant, `B’ - Panel for Petitioner Mr.Sangramsingh Yadav for Respondent Nos.1a & 1e. CORAM: SMT.NISHITA MHATRE, J. DATE: JANUARY 31, 2011 P.C.: 1. The petition has been preferred against the awards of the Labour Court in Reference (IDA) No.134 of 1990. 2. The petitioner had employed the respondent workman as an Ironsmith. It appears that he met with an accident while on duty because of which he was unable to attend to his duties as required. An enquiry was held against him pursuant to a chargesheet issued to him. The enquiry officer found him guilty of the acts of misconduct alleged against him of habitual absence and negligence. The respondent was therefore dismissed from service. 3. Aggrieved by the decision of the petitioner, the workman concerned obtained WP/1012/1998 : 2 : a reference under the Industrial Disputes Act for adjudicating his dispute regarding reinstatement with continuity of service and backwages. The dispute was referred to the Labour Court and registered as Reference (IDA) No.134 of 1990. The parties filed their pleadings before the Labour Court. By Award Part I, the Labour Court held that the enquiry conducted against the petitioner pursuant to the chargesheet dated 26.10.2003 was not fair and proper. The enquiry was set aside as it was vitiated. 4. The petitioner was thus given an opportunity by the Labour Court to lead evidence before it to prove the misconduct committed by the Respondent workman. On the basis of the evidence led by the parties the Labour Court concluded that the workman had committed the acts of misconduct alleged against him. However, the Labour Court held that the punishment of dismissal was not commensurate with the misconduct allegedly committed by the workman. In these circumstances, the Labour Court directed the petitioner to pay Rs.50,000/- by way of compensation in lieu of reinstatement besides the legal dues which were unpaid. 5. The leaned AGP has submitted before me that the Labour Court decided the Reference incorrectly. According to him there was ample evidence on record to establish the fact that the workman was guilty of negligence as well as habitual absence. He submits that once the misconduct was held to have been proved the Labour Court ought not to have interfered with the punishment imposed by the petitioner. He submits that the Labour Court does not sit as a Court of appeal and has merely to ascertain whether the punishment imposed on a delinquent workman was commensurate with the misconduct. The learned AGP urged that the record indicated that the workman was not regular in service and had been found to be WP/1012/1998 : 3 : absent without any rhyme or reason. 6. I have perused a copy of the award part I which was not seriously challenged by the learned AGP. In my opinion, the Labour Court has not committed any error by passing Award Part I. The Labour Court has observed that the enquiry proceedings which were placed before it indicated that no witness had been examined on behalf of the petitioner to establish the charges against the workman. Instead, the enquiry officer had adopted a novel method of questioning the delinquent thoroughly for arriving at a conclusion as to whether he was guilty. It is in these circumstances, the Labour Court passed award Part I declaring that the enquiry instituted against the workman was not fair nor proper. In my opinion the Labour Court has not committed any error by concluding that the enquiry was vitiated. The employer is expected to lead evidence at the enquiry to establish the charge against the workman. It is not the duty of the enquiry officer to question the delinquent in order to ensure that the workman is found guilty. 7. By Award Part II, the Labour Court concluded that the misconduct alleged against the workman had been proved by the petitioner by leading cogent evidence. However, it was of the view that the punishment imposed on the workman was far in excess considering the misconduct committed by him. It, therefore, awarded `50,000/- compensation. According to the learned AGP, award Part II suffers from serious lapses on the part of the Tribunal. He submits that the nature of the misconduct alleged against the workman was that he had been negligent in performing his duties because of his prolonged absence from the Dairy. He submits that a voluminous record was placed before the Labour Court for it to ascertain WP/1012/1998 : 4 : whether the charges levelled against the workman had been proved. The learned AGP points out that considering the poor record of the workman the Labour Court ought not to have granted compensation to the workman. Although the Labour Court has observed that compensation should be paid to the workman there was no basis for granting the amount of `50,000/-, urges the learned AGP. 8. The Labour Court has for cogent reasons held that the workman had committed the misconduct alleged against him. However, it has held further that the absence of the workman at his workplace was due to his physical incapacity to attend work on account of the injuries suffered by him, as a result of an accident for which he was hospitalised. All these factors have been borne in mind by the Labour Court while concluding that the misconduct though proved had not been willful or deliberate. The Labour Court has therefore found that the punishment of dismissal was not commensurate with the misconduct committed by the workman and has granted `50,000/- as compensation to the workman. 9. In my opinion, the Labour Court has committed no error while awarding this compensation. It has exercised the powers vested in it u/s 11A of the Industrial Disputes Act and, therefore, in my opinion, there is no need to interefere with both the Awards. 10. The petition is therefore dismissed. Rule discharged. No costs. 11. The petitioner shall pay the amount of `50,000/- to the heirs of the workman who have been brought on record within four weeks from today.