WP/1875/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1875 OF 1998 Bajaj Auto Ltd. Akurdi, Pune – 35. ... Petitioner V/s. 1. Shri Dalpat Dagaru Koli c/o. B.K. Kalbhor Room NO.84, P.K. Chawl Kalbhor Nagar, Chinchwad Pune – 411 019 2. Shri R.B. Nimse Presiding Officer 3rd Labour Court, Pune ... Respondents Mr.J.P. Cama a/w Ms.S. Kher and Ms.Prachi Mhatre i/b M/s.Bodhanwalla & Co. for Petitioner Mr.V.H. Shekdar for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: AUGUST 26, 2010 ORAL JUDGMENT: 1. The Petitioner has challenged award part II of the Labour Court in Reference (IDA) No.433 of 1988. By this award, the Labour Court has while denying the Respondent workman reinstatement, directed the Petitioner to pay 50% of the backwages from the date of termination till the date of publishing the award. 2. The facts giving rise to the present petition are as follows: The Petitioner had employed the Respondent as a Miller w.e.f. 11.12.1967. On WP/1875/1998 : 2 : 6.10.1985, a settlement was executed between the Petitioner and the union representing the employees working with the petitioner. Certain norms of production were agreed by this settlement. According to the Petitioner, the Respondent refused to comply with the norms set in clause 3 of the settlement. Several warnings were issued to the Respondent despite which he did not improve his production level. The Petitioner therefore issued a chargesheet on 6.4.1996 alleging that the Respondent had committed acts of misconduct by not achieving the requisite production levels and had thereby committed acts of misconduct under Standing Order 24(a) and 24(m) applicable to the Petitioner's establishment. An enquiry was held against the Respondent in which he participated. The enquiry officer found the respondent guilty of the charges of misconduct levelled against him. Based on the recommendations of the enquiry officer, the Petitioner dismissed the respondent from service on 30.4.1988. 3. The Respondent therefore approached the machinery available under the Industrial Disputes Act to redress his grievance. A reference was made to the Labour Court, Pune for adjudication of the dispute relating to the respondent's reinstatement in service with continuity and backwages. The Respondent filed his statement of claim contending that the enquiry held against him was not in consonance with the rules of natural justice since the enquiry officer was biased. He also contended that several attempts were made by the Respondent through his representative to settle the dispute with the Petitioner in order to exonerate him of the charges levelled against him, which had failed. 4. In the written statement filed by the Petitioner, the service record of the WP/1875/1998 : 3 : Respondent has been set out. He was warned on several occasions for remaining absent without sanctioned leave or any intimation. He was warned and suspended on several occasions as a measure of punishment for neglecting his work. He was also suspended on occasions for disobeying the lawful orders of his superiors and deliberately failing to give the required production as per the norms stipulated under the settlement dated 6.10.1985. The Labour Court by award part I has held that the enquiry conducted by the Petitioner against the Respondent was fair and proper. It observed that all the requirements of the principles of natural justice had been violated by the Petitioner and therefore, there was no need to set aside the enquiry. 5. By award part II, after considering the evidence led before the enquiry officer, the Labour Court held that the services of the workman have not been illegally terminated. The Labour Court found that the Petitioner had proved the charges of misconduct levelled against the respondent satisfactorily with credible evidence. It therefore, held that the findings of the enquiry officer were not perverse. While considering whether the Respondent was entitled to any relief, the Labour Court observed that the workman had deposed that he could not get employment after his services were dismissed by the Petitioner. The Labour Court then observed that the workman could not give production as per the norms and therefore, it showed that he had no capacity to work any more. In these circumstances, according to the Labour Court some economical help was essential for the workman. It, therefore, granted 50% of the backwages. However, no reinstatement was granted to the Respondent. 6. Mr.Cama, appearing for the Petitioner submits that the Labour Court could not have granted backwages at all once it held that the Petitioner was not entitled to WP/1875/1998 : 4 : reinstatement. He submits that there is not even a whisper in the statement of claim that the Respondent was claiming backwages or that he had remained unemployed after his services were terminated by the petitioner. It is true that the Labour Court could not have awarded backwages. However, it is apparent from the award that what has been awarded are not backwages per se, but compensation in lieu of reinstatement calculated at 50% of backwages. Mr.Cama then submits that in any event the Labour Court could not have awarded compensation as well as it had concluded that the termination of service of the Respondent was legal and proper. He submits that the workman could not have therefore been entitled to any compensation in lieu of reinstatement as the Labour Court had in fact denied him reinstatement. He therefore urges that the award be set aside. 7. Mr.Shekdar appearing for the Respondent submits that the Labour Court has committed no error by awarding a certain amount of compensation in lieu of reinstatement. He points out that the eyesight of the Respondent had failed and therefore it was not possible for him, physically, to fulfill the norms of production. He submits that the Labour Court has considered all aspects of the matter while directing payment of compensation. According to him, there is therefore no need to interfere with the award. 8. Once the Labour Court has concluded that the action of the Petitioner in conducting the enquiry was correct it was necessary for the Labour Court to consider whether the findings recorded by the Enquiry Officer were perverse. The Labour Court has, after perusing the enquiry proceedings, concluded that the findings recorded by the Enquiry Officer were not perverse. In fact the Labour Court has held WP/1875/1998 : 5 : that the termination of the services of the Respondent was legal and proper since he could not give the required production. Despite this, the Labour Court has granted compensation to the workman. There is no discussion at all on record as to why it was necessary to grant compensation in lieu of reinstatement. Undoubtedly the Labour Court can always mold the relief which is to be granted to the workman once it decides that the action of the employer was bad in law. However, unless the Labour Court comes to the conclusion that the order of dismissal was incorrect the question of considering whether the order of dismissal should be set aside and a lesser punishment should be imposed on the workman does not arise. The Labour Court has in fact found that the dismissal was proper in the present case. In these circumstances, the Labour Court could not have granted compensation to the workman. 9. In my view, the award is required to be set aside. Accordingly, the award part II dated 6.1.1997 is set aside. 10. Rule made absolute accordingly. No costs.