WP1899-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1899 OF 2010 Municipal Corporation of Greater Mumbai through the General Manager, BEST Undertaking .. Petitioner versus The General Secretary, BEST Workers Union & Anr .. Respondents Mr.P.M.Palshikar a/w Ms.Kavita Anchan i/by M.V.Kini & Co for the petitioner. Mr.M.D.Nagle for the respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January 2011. P.C.: . This matter was placed today because of the appeal made by the respondent No.1-Union that the concerned employee who has been directed to be reinstated with 50% backwages be given an opportunity to report for work and if he is in a position to do so, he may be allowed to work and particularly because he has nine years of service before retirement. 2 It is stated that the worker/employee reported but his physical condition is such that he will not be able to discharge his duties. Mr.Nagle on instructions states that the said workman suffers from cancer and it will not be possible for him to work with the petitioner. WP1899-10 2 3 The petitioner is aggrieved by the order of the Industrial Court interfering with that of the Labour Court and directing reinstatement of the concerned employee/workman with 50% backwages. 4 The employee has been dismissed from service on the ground of habitual absence from duties. The Industrial Court has interfered with the order of the Labour Court on the ground that the misconduct in this case cannot be brought within the four corners of the relevant rule/standing order as the absence cannot be said to be habitual. Without going into the larger controversy but keeping the issue of interpretation of the relevant rule/standing order open, in the peculiar facts of this case when the employee is suffering from cancer, he is not in a position to work, the amount of backwages have been deposited in this Court, the employee giving up his right to reinstatement, interest of justice would be served if the sum deposited by the petitioners in this Court is allowed to be withdrawn by the respondent and paid over to the concerned employee with accrued interest, if any. 5 The earlier order was passed bearing in mind the request of the employee to resume work and to take a sympathetic view of the matter. However, in the changed circumstances, when the condition of the said employee is such that he is unable to render any services and he is suffering from cancer, the matter can be closed by allowing him to withdraw a sum of Rs.3,00,000/- with accrued interest. Mr.Palshikar on instructions states that the terminal dues have been paid to the employee including gratuity and nothing is due and payable to him by the petitioner. Mr.Nagle states that if at all gratuity is payable and has WP1899-10 3 not been paid, the same may be also paid over. The employee will accept the sum of Rs.3,00,000/- deposited in this Court with accrued interest in full and final settlement of his claims and shall not raise any claim against the petitioner in future. Accordingly, the following order:- ORDER If the gratuity amount is not paid, the same shall be paid within a period of four weeks from today. The amount deposited in this Court be allowed to be withdrawn by the respondent No.1-Union with accrued interest and paid over to the concerned employee Mr.Siddharth V. Jadhav. The petition is disposed off in these terms. It is clarified that the Court has not expressed any opinion on the conclusions drawn by the Industrial Court and therefore it should not be construed as an approval of the interpretation placed on the said standing order/rule by the Industrial Court. That aspect can be gone into an appropriate case. (S.C.DHARMADHIKARI, J)