WP/3836/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3836 OF 1999 Force Motors Limited ... Petitioner V/s. Shri D.M. Hindurao ... Respondent Mr.S.K. Talsania i/b Sanjay Udeshi & Co. for Petitioner Ms.Gayatri Singh for Respondent CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON : FEBRUARY 18, 2011 JUDGEMENT DELIVERED ON: MARCH 11, 2011 JUDGMENT: 1. The petition is directed against the award in Reference (IDA) No.44 of 1986 passed on 21.4.1999. The respondent was employed as an Assistant Turner in the machine shop for the production of steering knuckles. He was chargesheeted on 11.3.1985 on the ground that he had not attained the production levels required by the management. An enquiry was held against the respondent. The enquiry officer found him guilty of the charges levelled against him. On the basis of the report submitted by the enquiry officer, the petitioner dismissed the respondent from service on 5.7.1985. 2. The respondent raised an industrial dispute which was referred for adjudication before the Labour Court in Reference (IDA) No.44 of 1986. The Labour Court found that the enquiry conducted against the respondent was not fair and proper and, therefore, was vitiated. WP/3836/1999 : 2 : 3. The petitioner then led evidence before the Labour Court to prove the charges against the respondent. The Assistant Foreman, the Senior Manager and Junior Officer from the Time Office were examined by the petitioner in order to prove that the production levels fixed by the petitioner had not been achieved by the respondent. The respondent also examined himself before the Labour Court. On assessing the evidence led before it, the Labour Court concluded that the petitioner had failed to prove the charges levelled against the respondent. It appears that the monthly production report for February 1985 of the Respondent was produced and compared with the production report of one Birje for November 1982. On the basis of this comparison, the petitioner made an attempt to establish that the respondent had adopted a go-slow policy and had not achieved the desired production levels. The Labour Court found that it was inappropriate to compare the production levels of the respondent for February 1985 and Birje for November 1982. The Labour court did not accept the evidence of the petitioner and observed that despite the fact that there were several workmen employed on the same type of machine as the respondent, not a single employee had been examined by the petitioner. The norms of production were not finalised between the petitioner and the trade union representing the workers is a finding of fact recorded by the Labour Court on the basis of the evidence on record. The Labour Court further found that there was no material on record to establish that there was any deliberate or purposeful act on the part of the respondent in slowing down his work or wasting time as alleged in the chargesheet. On this basis, the Labour Court set aside the order of dismissal and granted reinstatement with continuity of service and full backwages. WP/3836/1999 : 3 : 4. After perusing the impugned award, in my opinion, there was no need to differ with the findings of the Labour Court. A possible view has been taken by the Labour Court and in my opinion, it was the only view which could have been taken because the production norms were never fixed by the petitioner. 5. As regards the backwages, Mr.Talsania has submitted that the workman has neither pleaded nor proved that he was unemployed after he was dismissed from service. In the case of Taranjit Singh I. Bagga vs. Maharashtra State Transport Corporation, 2008 III LLJ 273, the Division Bench of this Court at Nagpur has considered the judgment of the Supreme Court in various decisions including U.P. State Brassware Corporation Ltd. vs. Uday Narayan Pandey, (2006) 1 SCC 479 and has relied on the judgment in the case of J.K. Synthetics Limited vs. K.P. Agarwal, (2007) 2 SCC 433. The Division Bench has observed “we would not be in a position to conclude that the moment a person is sacked he could find alternate means to his wherewithal. In this situation it would be unjust to insist upon the requirement of pleading and proof of absence of gainful employment by an employee who is wrongly dismissed”. Considering the fact that the workman has discharged his burden by stating that he was unemployed in his evidence in my opinion, the submission of Mr.Talsania cannot be accepted. The respondent having stated that he was unemployed it was for the petitioner to establish that the respondent had a regular source of income and therefore, was not entitled to backwages. Having failed to discharge this burden, in my view, the petitioner is not entitled to any relief in the present petition. WP/3836/1999 : 4 : 6. In my opinion, the Labour Court has not committed any error in granting relief to the workmen. The norms of production were not fixed and, therefore, the Labour court has rightly held that the misconduct alleged against the workman has not been proved. I have taken a similar view in Writ Petition Nos.3834 of 1999 and 3835 of 1999 filed by the petitioner against two other workmen. 7. Writ Petition is therefore dismissed. Rule discharged. No costs.