WP/3146/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3146 OF 1999 Smt.Pratibha V. Kulkarni ... Petitioner V/s. Divisional Controller Maharashtra State Road Transport Corporation, Thane & anr. ... Respondents Mr.Avinash Jalisagi for Petitioner Mr.G.S. Hegde, for Respondent No.1 Respondent No.2 - formal party CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 28, 2010 ORAL JUDGMENT: 1. The petition has been preferred against the award of the Labour Court dated 13.10.1997 in Reference (IDA) No.125 of 1994. By this award, the Labour Court has directed the respondent Corporation to reinstate the workman with continuity of service. While doing so, the Labour Court has denied backwages to the workman. 2. The workman was employed as a typist with the Corporation from 1967. The Corporation permitted her to participate in theatre activities. The petitioner applied for casual leave on 3.12.1981 stating that she had important work to be attended to on the next day. The leave was sanctioned. 3. The petitioner was served with a chargesheet on 13.2.1982 in which the WP/3146/1999 : 2 : Respondent Corporation alleged that she had been irregular in her attendance and that her “extreme habits” had adversely affected her working. It was mentioned that leave had been sanctioned to her for 4.12.1981 because she had stated that she had urgent work. However, she was found to have taken part in a play which was staged in an auditorium in Mumbai. The petitioner, therefore, was called upon to attend the enquiry and to defend herself. 4. The enquiry was held against the petitioner. However, it appears that she did not participate in the enquiry. The petitioner was then dismissed from service by the Corporation on 30.9.1982. She preferred two departmental appeals which were dismissed, the second one being dismissed on 21.9.1987. Aggrieved by the decision of the Corporation in dismissing her, the Petitioner raised an industrial dispute in 1993 which was referred for adjudication in 1994. 5. The parties filed their pleadings and led evidence before the Labour Court. The Labour court held that the enquiry conducted against the petitioner was fair and proper and that the punishment was shockingly disproportionate. The Labour Court was of the view that the dismissal of the workman was not bonafide and that the punishment imposed was shockingly disproportionate. The Labour Court found that considering the documents on record, the Corporation ought not to have dismissed the petitioner from service. It then held that the workman was not entitled to backwages by way of punishment. 6. Mr.Jalisatgi, appearing for the petitioner points out that the Labour Court after concluding that the misconduct was not proved, ought to have held that the WP/3146/1999 : 3 : Corporation could not have deprived the workman of the backwages payable to her. He also submits that even assuming that the misconduct had been proved, it was of a trifling nature and therefore the workman ought to have been paid the entire backwages. 7. Mr.Hegde, appearing for the Corporation on the other hand, contends that once it has been held that the enquiry is not vitiated, the Labour Court having accepted the findings of the enquiry officer, some punishment had to be imposed on the workman. He points out that the Labour Court has found that the punishment was severe and has, therefore, granted reinstatement with continuity of service. He submits that the petitioner cannot be allowed to go scot free for the acts of misconduct committed by her namely, irregular attendance and of indulging in extreme habits which adversely affected the work. 8. There is no doubt that the petitioner was extended a concession by the corporation to participate in theatre activities because the corporation supported and encouraged the cultural activities engaged in by its employees. There is also no dispute that on several occasions when the petitioner was absent she had obtained leave. It is also true that on most of these occasions, the petitioner had acted in plays. However, in my opinion, this could not be construed as a misconduct as the corporation itself had granted her this leave of acting in plays. Mr.Hegde was unable to point out to the Court as to whether such concession was to be availed of only during the weekends or only for a particular number of days in a year. In these circumstances, in my opinion, once the leave has been sanctioned by the corporation, it would not be open for it to contend that the petitioner's theatre WP/3146/1999 : 4 : activities had adversely affected the working of the corporation. 9. The contention of Mr.Hegde that the respondent had not informed it that on 4.12.1981 she would be acting in a play and that she had cheated the corporation is also unsustainable. The petitioner had obtained leave by stating that she had important work. This was construed by the corporation to mean domestic work, unjustifiably. In these circumstances, in my opinion, the finding of the Labour Court that the dismissal was not bonafide cannot be faulted. 10. The Labour Court has however erred in not granting backwages to the petitioner. It is true that the dismissal was of the year 1982 whereas the Reference is of the year 1994. The workman would thus not be entitled to backwages from 1982 to 1984. The Labour Court has accepted the statement of the workman that she was unemployed after she was terminated from service. The Labour Court has also observed that the Corporation was unable to prove her gainful employment. In these circumstances, in my view, the Petitioner would be entitled to backwages from the date of reference till the award. Undisputedly, the petitioner has been reinstated in service. 11. Accordingly, the petition is allowed partly. The backwages as aforesaid shall be paid to the petitioner within 12 weeks from today. Rule made absolute accordingly. No costs.