:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.191 OF 2001 NO.191 OF 2001 NO.191 OF 2001 IN IN IN WRIT WRIT WRIT PETITION NO.1824 OF 1997 PETITION NO.1824 OF 1997 PETITION NO.1824 OF 1997 Bhagat Punja Bagul Mumbai, Indian Inhabitant, residing at 185/5113, 2nd Floor (A), Pant Nagar, Ghatkopar (E), ..Appellant Mumbai - 400 075. (Ori.Petitioner) Vs. 1. Ceat Ltd., a Public Limited Company registered under the Companies Act,1956 and having its factory at Bhandup Village Road, Bhandup, Mumbai - 400078. 2. Mr.P.C.Rathod Presiding Officer, 3rd Labour Court, Bombay, having his ..Respondents office at Arun Chambers, (Ori.Respondents) 6th Floor, Tardeo, Mumbai - 400 034. Mr.M.S.Topkar i/b.Prashant Jadhav for the Appellant. Mr.P.K.Rele, Senior Advocate with Vinod Tayade i/b.Piyush Shah for the Respondents. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & ANOOP ANOOP ANOOP V.MOHTA, JJ. V.MOHTA, JJ. V.MOHTA, JJ. DATE DATE DATE : 11TH MARCH, 2008 : 11TH MARCH, 2008 : 11TH MARCH, 2008 JUDGMENT JUDGMENT JUDGMENT (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) (PER : DR.S.RADHAKRISHNAN,J.) 1. By this Appeal, the Appellant workman is challenging the common judgment dated 13th August,1999, passed by the learned Single Judge, whereby the learned Single Judge had disposed of both the Writ Petition No.887 of 1997 filed by the Employer as well as the Writ Petition No.1824 of 1997 filed by the Workman i.e. to say, that both the Employer and :2: Employee were aggrieved by the Award dated 31st March,1997, passed by the Third Labour Court, Mumbai. By the said Award, the Labour Court had directed the Employer to provide some suitable post taking into consideration his ailment. By the said Award, the Labour Court had also held that the Workman was not entitled to his back wages since the mis-conduct against him was proved. Aggrieved thereby, the Employer and the Employee moved this court before the learned Single Judge, the employee seeking backwages, and the employer seeking to challenge the order directing the reinstatement of the Workman on some suitable post, considering the ailment of the workman. 2. We have perused the Award dated 31st March,1997 passed by the Labour Court as well as the judgment dated 13th August,1999, passed by the learned Single Judge. 3. The brief facts are, that the Appellant workman was working in one of the departments of the employer known as Band Building Department. Earlier, he used to work for Passenger Tyre Building Department. It appears that in both the departments, the Appellant workman was required to use his feet to rotate drums with his legs. Similarly, in Band Building Department, the workman was required to use his feet to squeeze the fabric on the drums using the foot pedal. The present workman was charge-sheeted :3: for mis-conduct on the ground of giving less production and the Appellant-workman could only achieve 39% of the norms fixed by the Company. The labour Court had perused the entire evidence and record and also found that three Doctors had certified that the Appellant workman was suffering from varicose-veins on his both legs and the said ailment appeared to be an occupational hazard. It also indicated that the workman may need surgery to achieve less suffering from varicose-veins. The labour Court had categorically given a finding that though the mis-conduct was not willful, it was a mis-conduct since if an employee is unable to give production as per the norms, even it may be due to disease, still it amounts to mis-conduct under the Standing Order 24(c) of the Model Standing Orders. Under these circumstances, the Labour Court had adopted a humanitarian approach and had directed that the Appellant workman be absorbed in some suitable post taking into consideration all his ailment, however declined to grant any backwages, since the mis-conduct was clearly proved as per the Standing Order 24(c) of the Model Standing Orders. 4. The learned Single Judge by the aforesaid judgment came to a conclusion that there is no apparent error or error in law in the order of the Labour Court since the Labour Court had clearly given a finding that the charge against the workman had been :4: proved, as he could not fulfil the requisite norms due to his ailment. It may not be willful mis-conduct, however it amounts to a mis-conduct. Under these circumstances, the learned Single Judge found that there is nothing erroneous in the Award passed by the Labour Court in not awarding back wages, as admittedly, the Appellant was not able to work right from 1988 and as such it was not possible even for the learned Single Judge to award backwages. The learned Single Judge had also recorded that pursuant to this Court’s interim order dated 1st September,1997, the Appellant workman had already been reinstated by the Company on the post of Cleaner in the Administrative Security Department at their Bhandup Factory and ever since he has been working as a Cleaner in the said department. The learned Single Judge had also directed the Company to give benefit of continuity of service on a notional basis for the purpose of calculating retirement benefits as and when workman stands superannuated. The learned Single Judge however, held that the workman was not entitled to the backwages. 5. As stated earlier, the Company had accepted the judgment of the learned Single Judge and Mr.Rele, the learned Senior Counsel appearing on behalf of the employer stated that even if the Appellant employee wants to get operated for his ailment of varicose-veins, the Company will get him admitted in :5: an appropriate hospital and bear the expenses in that regard. Mr.Topkar, the learned Counsel appearing on behalf of the Appellant mainly sought to contend that both the Labour Court as well as the learned Single Judge were wrong in not awarding full back wages to the Appellant workman and tried to contend that when the reinstatement is granted, the Appellant ought to be granted full back wages. 6. After having heard both the learned Counsel for the parties and perusal of the Award of the Labour Court and the judgment passed by the learned Single Judge, we do not find any error apparent or anything contrary to law. In fact, it is pertinent to note in this case, that it is not a case of reinstatement being granted to the Appellant since the Appellant could not at all work in the capacity as a workman either in Passenger Tyre Building Department or Band Building Department to the full capacity, in the sense, the workman could only achieve 39% of the capacity of the norms prescribed and as such adopting humanitarian approach, the Labour Court had directed the Company to appoint the Appellant workman and absorb him in a suitable post and this Court, by an ad-interim order dated 1st September,1997 had directed the Respondent No.1 Company to provide a job as a Cleaner in the Administrative Security Department at their Bhandup Factory, which has been done by the Respondent Company. In fact, when we queried :6: Mr.Topkar, that in the event we grant reinstatement to the Appellant in Band Building Department, will he be able to give full production efficiency, as per the norms? Mr.Topkar fairly conceded that the employee will not be able to achieve the same. Therefore, in the instant case, there cannot be any order of reinstatement, and only alternative way to do justice was to provide suitable appointment, which has been duly done by the employer. If that be so, there is no question of granting any back wages, as admittedly the employee has not been working and was not able to work right from 1988, in view of his physical ailment. 7. Having regard to the facts and circumstances of the case, we do not find any error apparent or any illegality in the order passed by the learned Single Judge or in the Award passed by the Labour Court, refusing to grant full back wages to the Appellant. The Appeal is totally devoid of merits. The same stands dismissed. However, with no order as to costs. (ANOOP (ANOOP (ANOOP V.MOHTA,J.) V.MOHTA,J.) V.MOHTA,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)