* 1 * Appeal-783.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 783 OF 2002 IN WRIT PETITION NO. 557 OF 1997 Bombay Labour Union ...Appellant/Orig. Respondent no.1 V/S. Bhartiya Arogya Nidhi & Ors. ....Respondents/ Orig.Petitioner * * * Mr. Mihir Desai i/by. B.V. Phadnis,Advocate for the appellant. Mr. Bharat Goel with Ms. Madhavi and Mr. Manish Upadhye, Advocate for the respondents. CORAM : D.K. DESHMUKH, & SMT. R.P. SONDURBALDOTA, JJ. DATED : 22nd JUNE, 2010. P.C. :- 1. By this appeal, the apellant challenges order dated 12th March, 2005 passed by the learned * 2 * Appeal-783.2002 Single Judge of this court in Writ Petition No. 557 of 1997. That Writ Petition was filed by the respondent challenging the Award passed by the Labour Court dated 15th October, 1996 in Reference I.D. No.319 of 1988. 2. The facts giving rise to this appeal are that :- 3. The respondent runs a hospital. The workmen involved were working with the hospital. A departmental inquiry was held against them. They were found guilty of the charge levelled against them and punishment of dismissal was imposed. Under the Industrial Disputes Act, a reference was made by the appropriate Government to the Labour Court. The Labour Court made Part-I of the Award dated 18th July, 1995. The operative part of the Award reads as under : “1. Reference is partly answer in negative. 2. The findings of the enquiry officer are perverse in respect of the enquiries except the enquiry no.1 and 6 on the point of going on * 3 * Appeal-783.2002 illegal strike. 3. Parties to lead evidence, if any, for final Award. 4. The matter be fixed on 28-8-1995.” 4. The final Award was made by the Labour Court on 15th October, 1996. The Labour Court allowed the Reference and directed the hospital to reinstate the employees concerned, who were thirteen in number, in service with full backwages. These two Awards were challenged in Writ Petition No.557 of 1997. The learned Single Judge by his order dated 12th March, 2001 has allowed the petition, set aside both the Awards passed by the Labour Court and rejected the Reference. The present Appeal is directed against the order of the learned Single Judge. 5. The learned Counsel appearing for the petitioner, submitted, firstly that the charge against the workmen was that they went on illegal strike. The learned Counsel submits that, unless * 4 * Appeal-783.2002 the strike is declared as illegal by a competent court of law, charge that the workmen went on illegal strike, cannot be levelled. Secondly, he submits that, totally 85 employees proceeded on strike, but, only 13 of them were picked up to be charged with misconduct. This according to the learned Counsel is discriminatory. Thirdly, he submitted that the punishment of dismissal imposed on the workmen is harsh and disproportionate. 6. The respondent-Bhartiya Arogya Vidhi runs a hospital which is a public utility service. They employ about 125 workmen. The charge against 13 workmen involved, was that they refused to do work without giving any notice, indulged in assaulting the officers of the hospital and disrupted the smooth working of the hospital. The learned Single Judge has found that the enquiry officer has held, that misconduct of going on illegal strike has been proved against the 13 * 5 * Appeal-783.2002 workmen. So far as the first submission is concerned, in our opinion, it has no substance. The learned Single Judge has considered this aspect of the matter in detail. He has held that the misconduct alleged against the workmen is of going on illegal strike. According to the learned counsel, the strike was not declared illegal by the competent authority i.e. the Labour Court and therefore the finding of the enquiry officer is perverse. Therefore, the charge of participation in the illegal strike is not proved in absence of any finding from the competent court about the strike being illegal. In our opinion, the learned Single Judge has rightly considered the provisions of the Industrial Disputes Act and the Standing order and rejected the submission. We do not see any reason to take a different view. So far as the second submission is concerned, that has also been considered by the learned Single Judge in * 6 * Appeal-783.2002 detail. We find that so far as 13 workmen are concerned, the misconduct of riotous behaviour, using abusive language was also proved against them and therefore, in our opinion, in these circumstances, the hospital was justified in proceeding against the 13 workmen. On this aspect also, we see no reason to take a different view. So far as the aspect of punishment is concerned, considering the conduct of the workmen of stopping work, indulging in riotous behaviour, abusing the hospital staff, in our opinion, the punishment cannot be said to be excess. 7. In any case, a court of law will not be justified in making an order which will result in sending all such employees back to work in hospital, because their conduct shows that they are unfit to work in any hospital as they have no regard for the welfare of the patients. Therefore, when the matter was heard by us on the last occasion, we had suggested to the learned * 7 * Appeal-783.2002 counsel appearing for the hospital, whether any ex-gracia payment can be made to the workmen. After taking instructions, the learned counsel for the hospital has informed us, that the hospital is willing to pay two years wages to each of the 13 workmen. On this statement being made, we put it to the learned counsel appearing for the petitioner that in the facts and circumstances of the case, they should accept the payment and withdraw the litigation, but, the offer was not accepted. The learned counsel appearing for the hospital, has stated before us that even if now they come, the hospital is willing to make the payment today. Taking overall view of the matter, therefore, there is no need to interfere with the order of the learned Single Judge. Appeal dismissed. [SMT. R.P. SONDURBALDOTA, J] [D.K. DESHMUKH, J]