( 1 ) wp3161.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3161 OF 2009 The Divisional Controller, .. Petitioner MSRTC, Nanded Division, Nanded. Versus Mr. Madhav Gangaram Sarpe .. Respondent Age. 67 years, Occ. Nil, R/o. Jaibhimnagar, Nanded, Dist. Nanded. Mr. M.K. Goyanka, Advocate for the petitioner. Miss M.R. Jamdade, Advocate for the respondent. CORAM : V.R. KINGAONKAR,J. DATED : 10.01.2011 ORAL JUDGMENT :- 1. By this petition, the petitioner challenges the award rendered by the Labour Court, Nanded, in Reference (IDA) No. 1 of 2005. Under the impugned award, the Labour Court directed to grant benefit of continuity of service along with 50% back wages to the respondent. ( 2 ) wp3161.09 2. The respondent was working as a Mechanic with the petitioner. He did not attend the work on a single day, had came late to the office and went out of the office one hour before. A departmental enquiry was held against him. He was dismissed from the service w.e.f. 20th November, 1976. He filed conciliation proceedings, which came to be dismissed. He preferred Writ Petition vide W.P. No.2997 of 1987. This Court allowed the writ petition by order dated 02.05.2004, to the extent of part of the prayers and directed the Labour Commissioner, Aurangabad, to make a reference of the industrial dispute for adjudication to the competent Court. The reference was accordingly made. The learned Presiding Officer of the Labour Court partly allowed the reference. 3. Heard learned advocate for the parties. 4. It appears that the respondent was working as a Mechanic and was initially appointed as such in 1968. He served the petitioner – MSRTC up till the date of termination i.e. 20.11.1976. Thus, for about eight years, he continued ( 3 ) wp3161.09 to work with the petitioner. It appears, prima facie, that the alleged misconduct was only of remaining away from office duty for one hour. The respondent had left the office premises early, without leave of the superior officer. That was only charge levelled against him. The respondent had filed reply to the charge-sheet. He had explained as to why he was required to leave the premises about one hour prior to the scheduled closure time of the office. His explanation was not duly appreciated. The Labour Court found that the dismissal order was shockingly disproportionate to the so called misconduct attributed to the respondent. There cannot be two opinions about the findings that the order of dismissal is harsh and the employee who had served for about eight years could not have been sacked just for a trivial reason of his going home early without seeking permission of the higher authority. There is absolutely nothing on record to show that due to so called misconduct of the respondent, the petitioner – MSRTC suffered any substantial loss. 5. The counsel for the petitioner would submit that the respondent did not challenge the dismissal order within a ( 4 ) wp3161.09 reasonable time and therefore the reference under section 10 (1) read with section 12 (5) of the Industrial Disputes Act, 1947, should not have been entertained after a lapse of long many years. The counsel would point out that the respondent had approached the High Court at belated stage by filing Writ Petition No. 2997 of 1987. He would submit that the delay of 11 years in filing such writ petition was disproportionate and therefore the respondent could not have been reinstated or granted any relief. 6. The Counsel for the petitioner, however, submits that as per suggestion of the Hon’ble Judge (Coram : B.R. Gavai,J.), vide order dated 16th June, 2009, the possibility of amicable settlement was explored. The petitioner is ready to give benefit of Rs.1 lakh to the respondent in lieu of 50% of the back wages. 7. It appears that the respondent might have attained the age of superannuation in 1999 and therefore there is no possibility of his reinstatement or any relief of such kind to infer his gainful employment on the establishment of the ( 5 ) wp3161.09 petitioner. Admittedly, he did not work with the petitioner since 20th November, 1976 till the date. The Labour Court has discretion under Section 11-A of the Industrial Disputes Act, 1947, to mould the relief and award suitable compensation instead of directing reinstatement. Section 11-A of the Industrial Disputes Act, 1947 was invoked by the Labour Court as per directions of this Court. Consequently, now the question of delay is not of much significance. Section 11-A of the Industrial Disputes Act, 1947, empowers the Labour Court to give appropriate relief in case of discharge or dismissal of workmen. The Labour Court may, therefore, set aside the order of dismissal on such terms as may be appropriate. The grant of back wages to the extent of 50% may not be a justified relief. The learned Counsel for the petitioner submits that as on 20th November, 1976, the pay of the respondent was Rs.176/- approximately. The pay structure was changed lateron, but details are not available. The respondent did not prove that he was not gainfully employed on any other employment or was unable to earn livelihood by working as a Mechanic. It is of common knowledge that such a skilled worker can earn livelihood by obtaining any other ( 6 ) wp3161.09 employment suitable to the skills as a Mechanic. Under the circumstances, it would be just and proper to grant benefit of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) to the respondent in lieu of the relief of 50% back wages granted by the Labour Court within two months. The remaining relief regarding the deeming effect to the continuity of service, however, may be confirmed. It is made clear that the respondent will be entitled to seek pensionery benefit only and only if he is found to have rendered pensionable service and such kind of pension is permissible under the rules and regulations of the MSRTC. 8. In the result, the petition is disposed of in the above terms. Rule is made partly absolute accordingly. [V.R. KINGAONKAR,J.] snk/2011/JAN11/wp3161.09