WP/3835/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3835 OF 1999 Force Motors Limited ... Petitioner V/s. Shri E.P. Ramdas ... Respondent Mr.S.K. Talsania i/b Sanjay Udeshi & Co. for Petitioner Ms.Gayatri Singh for Respondent CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON : FEBRUARY 18, 2011 JUDGEMENT DELIVERED ON: MARCH 11, 2011 JUDGMENT: 1. The challenge in this petition is to the award in Reference (IDA) No.73 of 1986 passed by the Labour Court, Pune. The Labour Court has granted reinstatement with continuity of service and full backwages. 2. The facts in brief are as follows: The respondent was working as an Assistant Driller with the petitioner. He was chargesheeted for acts of misconduct on 13.4.1985. The charge against him was that he was not giving proper production. The production figures of the respondent and other operators were mentioned in the chargesheet. An enquiry was held against him. The enquiry officer found him guilty of the acts of misconduct alleged against him and submitted a report accordingly. Thereafter the respondent was WP/3835/1999 : 2 : dismissed from service on 14.8.1985. The respondent having been dismissed from service raised an industrial dispute for reinstatement with continuity of service and backwages which was referred for adjudication in Reference (IDA) No.73 of 1986. Pleadings were filed by both the parties. Essentially the respondent contended that he was being victimised because he was a member of the Engineering Labour Union and not the internal union Bajaj Tempo Kamgar Sanghatana. He has further contended that he was expected to achieve certain production levels although there were no norms fixed under any agreement or settlement or award. 3. The Labour Court found that the enquiry conducted against the respondent was vitiated as the enquiry officer had not afforded a reasonable opportunity to the respondent to defend himself. The Labour Court, therefore, permitted the petitioner to lead evidence in Court to prove the charges against the respondent. The petitioner examined the Assistant Manager and the Junior Officer from the Time Office in support of their contention that the respondent had committed acts of go- slow. The attempt of the petitioner was to demonstrate that the respondent was giving less than the normal production by placing reliance on the production levels achieved by other workmen. The respondent also examined himself, in rebuttal, before the Labour Court. 4. By award part II dated 21.4.1999, the Labour Court allowed the Reference and set aside the order of dismissal dated 14.8.1985. The Labour Court held that there were no norms for production fixed by the company nor were any norms agreed upon between the parties. No settlement indicating such norms had been produced on record. The Labour Court held that the comparison drawn between the production WP/3835/1999 : 3 : levels of the respondent and other employees was of no consequence when the norms of the production were not fixed. 5. The Labour Court, after considering evidence before it, has arrived at a proper conclusion. Both the witnesses examined before the Court were unable to state categorically that the norms of production were fixed in respect of the persons working on a Drilling machine. Both the witnesses had also stated that they were not aware whether a time study had been carried out in respect of production levels to be achieved by each workman. 6. In my opinion, the Labour Court has not committed any error by concluding that the misconduct against the respondent was not proved. It has therefore rightly awarded reinstatement with continuity of service. As regards backwages, Mr.Talsania has submitted that the respondent has not pleaded that he was unemployed in his statement of claim and, therefore, he would not be entitled to backwages. The workman has been cross-examined on this issue and he has denied the suggestion that he was running a rickshaw and was earning well. In the case of Taranjit Singh I. Bagga vs. Maharashtra State Transport Corporation, 2008 III LLJ 273, the Division Bench of this Court at Nagpur has considered the judgment of the Supreme Court in various decisions including U.P. State Brassware Corporation Ltd. vs. Uday Narayan Pandey, (2006) 1 SCC 479 and has relied on the judgment in the case of J.K. Synthetics Limited vs. K.P. Agarwal, (2007) 2 SCC 433. The Division Bench has observed “we would not be in a position to conclude that the moment a person is sacked he could find alternate means to his wherewithal. In this situation it would be unjust to insist upon the requirement of pleading and proof of absence of gainful WP/3835/1999 : 4 : employment by an employee who is wrongly dismissed”. 7. In my opinion, the Labour Court has not committed any error in granting the backwages. The respondent discharged his burden of deposing before the Court regarding his earnings after dismissal. The deposition was not controverted by the petitioner and therefore the Labour Court has rightly allowed the backwages. I have taken a similar view in Writ Petition No.3834 of 1999 which I have decided today. 8. Writ Petition is, therefore, dismissed. Rule discharged. No costs.