vs s IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3526 OF 1997 PETITION NO.3526 OF 1997 PETITION NO.3526 OF 1997 Maharashtra State Road Transport Corporation ... Petitioner V/s. Sitaram Chimaji Godse & Anr. ... Respondents Mr.G.S. Hegde for Petitioner Ms.S.K. Shinde for Respondent No.1 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: August 14, 2008 August 14, 2008 August 14, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . The petition has been filed against the award of the Labour Court in Reference (IDA) No.142 of 1991. The Labour Court has allowed the Reference partly by directing the petitioner to reinstate the workman notionally till he had attained the age of superannuation on 31.7.1996, with continuity of service till that date for the purposes of availing of other benefits and retiral dues. The Labour Court has also directed payment of backwages of 50% to the workman. 2. The respondent-workman was employed as a driver with the petitioner. He was drawing a monthly salary of Rs.1600/-. On 7.12.1987, the respondent-workman collided with a cyclist while he was driving a bus under the influence of alcohol. A medical examination was : 2 : conducted on the same day and it was found by the Doctor examining him that he had consumed alcohol. The Depot Manager reported the incident and an enquiry report was submitted by the Security Officer on 24.12.1987. Thereafter, a chargesheet was issued to the respondent workman on 31.12.1987. An enquiry was conducted against him as the petitioner was not satisfied with the reply submitted by the respondent. The respondent workman was found guilty of the misconduct alleged against him and he was dismissed from service on 24.7.1988. 3. The workman obtained a reference for adjudication of the inudstrial dispute raised by him, consequent to his dismissal from service. In his statement of claim filed before the Labour Court, the workman pleaded that he had not consumed alcohol and, therefore, the action taken by the petitioner against him of dismissal from service was illegal. The respondent workman challenged the findings of the enquiry officer as also the enquiry itself by submitting that it was not held in accordance with the principles of natural justice. The petitioner contested the reference by filing its written statement contending that a proper and legal enquiry had been held against the workman and that the enquiry officer on the basis of the evidence on record had found that the workman was guilty of having committed an accident while driving a : 3 : bus under the influence of alcohol. 4. The Labour Court has found that the enquiry held against the workmen was fair and proper and that it had been conducted in accordance with the principles of natural justice. By award part II, the Labour Court concluded that the evidence led at the enquiry did not establish any misconduct against the workman. The Labour Court therefore, granted reinstatement with continuity of service upto the date when the respondent retired from service. 50% backwages were also granted to the workman. 5. Mr.Hegde, takes exception to the finding recorded by the Labour Court that there was no misconduct on the part of the workman. He submits that the Labour Court has erroneously discarded the medical certificate issued by the medical officer, PHC, Narayangaon which indicates that the examination was conducted on 7.12.1987 at 5.10 pm. The examination showed that the workman was under the influence of alcohol and, therefore, submits the learned advocate the Labour Court had erred in granting reinstatement with continuity of service and part of the backwages. He further submits that the cyclist had been knocked down by the workman only because the latter was intoxicated and, therefore, no leniency should be shown to him by : 4 : granting him reinstatement with continuity of service and backwages. 6. The learned advocate appearing for the respondent submits that there is no evidence on record as held by the Labour Court to demonstrate that the workman had driven the bus after consuming alcohol. She submits that the Labour Court has recorded this finding that as the pathology reports of the blood and urine samples of the respondent had not been placed on record. According to her, the medical certificate which was on record cannot be considered as conclusive proof of the workman having consumed alcohol and of having driven the bus in an intoxicated state. The learned advocate further submits that the Labour Court has rightly observed that there has been a huge delay in initiating proceedings against the workman and that by itself would indicate that the charge against the workman was made out. 5. The Labour Court on the basis of the findings recorded by him has held that that the charges had not been established against the workman and, therefore, he was entitled to reinstatement. These are findings of fact drawn by the Labour Court on the basis of the evidence led before him. The Labour Court was impressed by the submission on behalf of the Respondent that the : 5 : pathology reports were not furnished and had not been placed on record as these would indicate to some degree of certainty whether the person so tested was under the influence of alcohol. The medical certificate produced on record is a subjective examination by the medical officer based on the breath, dilated pupils of the patient, etc. i.e. Respondent No.1. The Labour Court has discarded this document. In my view, the Labour Court has taken a possible view in the matter which cannot be termed as erroneous and, therefore, can be accepted. The Labour Court was also impressed by the fact that the prosecution against the respondent before the JMFC, Junnar ended in an acquittal. 6. However, as regards the backwages the Labour Court has erred in concluding that 50% of backwages should be paid to the workman. The workman in the statement of claim has stated that he was drawing Rs.1600/- p.m. as wages with the Corporation. After his dismissal from service, he was earning about Rs.1,500/- to Rs.2,000/- p.m. This fact has been deposed to by the workman and, therefore, can be accepted. The workman has stated in his evidence that he was working as a driver on a tempo or a truck as and when a job was available for at least 4 days a week and that he earned Rs.100/- per day. Thus, the workman had admitted that he earned Rs.1500/- to Rs.2000/- per month : 6 : during the period of his unemployment. In these circumstances, the Labour Court ought not to have awarded any backwages to the workman as he was earning only Rs.1,600/- per month with the petitioner while he earned about Rs.1,500/- to Rs.2,000/- per month elsewhere, after he was dismissed. 7. In this situation, in my view, the Labour Court has erred in awarding backwages to the workman. However, the Labour Court has rightly granted reinstatement with continuity of service to the workman till his age of retirement i.e. 31.7.1996 for calculating his retiral benefits and other legal dues. 8. The award of the Labour Court granting 50% backwages is therefore, set aside and modified as aforesaid. Rule made absolute partly. No costs. 9. Writ petition is disposed of accordingly.