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2014 DIGILAW 623 (GAU)

Napuk Tea Estate v. State of Assam

2014-06-12

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner assails the Award dated 02.05.2005, passed by the Labour Court of Assam at Dibrugarh in Reference Case No. 17/2000. By the impugned Award, the Labour Court held that the petitioner was not justified in dismissing the workman (whose cause is espoused by respondent No. 3 herein). The workman was directed to be reinstated forthwith with all back wages with a rider that he should not be kept as a Head Store Clerk, which post the workman was holding at the time of his termination and further providing that he should be posted in any other department in same grade and scale of pay. 2. The Government of Assam vide Notification dated 25.09.2000 had referred an industrial dispute between the Management of Napuk Tea Estate and the Secretary, Assam Chah Karmachari Sangha, Sonari Circle for adjudication of the following issues:- "(i) Whether the Management of Napuk T.E., P.O. Suffry, District - Sivasagar are justified in dismissing Shri Sandip Baruah, Store Clerk? (ii) If not, is the workman entitled to reinstatement or any other relief in lieu thereof?" 3. The relevant facts may be noticed at this stage: The petitioner is a Tea Estate and the workman Sandip Baruah, while working as Stores Clerk, was issued a show-cause-cum-charge-sheet dated 10.12.1999 on the allegation that he along with Shri Jayanta Handique, who was working as 2nd Stores Clerk, had received huge quantity of various stores items worth Rs. 6.2 lakhs during a period covering last 15 months but had not prepared any Local Purchase Order (LPO) against receipt of those items and thus committing acts of gross misconduct according to Standing Order of the company, which if proved, may result in termination of service. By the said show-cause notice-cum-charge-sheet, the workman was required to show-cause within 7 days of receipt of the notice as to why disciplinary action under Standing Order 10(a)(3), 10(b)(3) should not be taken against him. Similar notice was also issued to the 2nd Stores Clerk, namely, Jayanta Handique. 4. Both the workmen submitted their replies on 17.12.1999. By the said show-cause notice-cum-charge-sheet, the workman was required to show-cause within 7 days of receipt of the notice as to why disciplinary action under Standing Order 10(a)(3), 10(b)(3) should not be taken against him. Similar notice was also issued to the 2nd Stores Clerk, namely, Jayanta Handique. 4. Both the workmen submitted their replies on 17.12.1999. In the reply, the workman, inter-alia, stated that the Management did not fill-up 4 clerical staff from January, 1999 till October, 1999 and the 2nd Stores Clerk got completely busy with issue of ration after sudden death of Health Assistant in the month of April, 1999. It was also pleaded that backlog of preparation of L.P.Os was continuing for last 5/6 years and the problem was repeatedly apprised to the superiors but no effective steps were taken. It was also stated by him that all L.P.Os were prepared by the 2nd Stores Clerk and the workman was over-burdened as a result of which he had requested for deputing other clerical staff. 5. Being not satisfied with the show-cause reply, the Management conducted a domestic enquiry on 11.01.2000. In the said domestic enquiry, Management examined one witness and the workman examined two witnesses. The Enquiry Officer submitted report on 15.05.2000 holding the workman guilty of misconduct. A second show-cause notice was issued to the workman on 29.05.2000 and the workman submitted a reply on 05.06.2000 praying for copy of domestic enquiry proceedings. It was also stated that there was no financial loss to the company as a result of alleged non-preparation of the L.P.Os in question and requested the Management not to impose the extreme penalty of termination of service as decided. 6. By a letter dated 15.06.2000, the Management granted liberty to the workman to file a fresh representation within a period of seven days. Copy of the proceedings of the domestic enquiry was also enclosed and it was also indicated that personal hearing would be afforded to the workman on the proposed penalty. In response to the said letter dated 15.06.2000, the workman again submitted a reply dated 22.06.2000. Copy of the proceedings of the domestic enquiry was also enclosed and it was also indicated that personal hearing would be afforded to the workman on the proposed penalty. In response to the said letter dated 15.06.2000, the workman again submitted a reply dated 22.06.2000. In the said reply, apart from highlighting his defence with regard to non-preparation of L.P.Os, it was also stated that as he is an office bearer of the Assam Chah Karmachari Sangha, being the Unit Secretary of Napuk Tea Estate, he had to espouse the cause of the members, as a result of which, he might have incurred the wrath of Management and that the Management might have also borne ill feeling against him and that the entire proceeding was a window-dressing. 7. On 30.06.2000, Management terminated the service of the workman with effect from 01.07.2000. 8. Both the parties submitted written statements before the Labour Court. On the plea of the workman that there was no proper enquiry and that he got no opportunity to defend himself, to prove the validity of the enquiry, Management examined 2 witnesses. The workman also examined himself. On the ground that no list of witnesses and copies of documents were supplied along with the charge-sheet, the Labour Court, by an Order dated 31.07.2003, declared the domestic enquiry to be improper and invalid. 9. In the Labour Court, thereafter, both the parties adduced evidence on merits. On behalf of the Management, four witnesses were examined and the workman examined himself. Thereafter, on consideration of the materials on record and after hearing the parties, the Labour court passed the Award dated 02.05.2005 by answering the issues which have already been noted. 10. Mr. D. Baruah, learned counsel for the petitioner submits that the Labour court exceeded its jurisdiction in passing the impugned Award and the direction not to keep the delinquent workman as a Head Clerk and that he should be posted in another department in the same grade and pay is beyond the term of the reference. It is also submitted by him that having regard to the gravity of the charge and the fact that misconduct had been proved, the Labour court committed error apparent on the face of the record in holding that the negligence of the workman is a minor misconduct and such negligence cannot be a ground of dismissal of an employee. It is also submitted by him that having regard to the gravity of the charge and the fact that misconduct had been proved, the Labour court committed error apparent on the face of the record in holding that the negligence of the workman is a minor misconduct and such negligence cannot be a ground of dismissal of an employee. It is also submitted by him that in any view of the matter, in absence of any materials on record placed by the workman, the Labour Court committed error apparent on the face of the record in granting payment of full back wages. It is submitted by Mr. Baruah that at no stage of the proceeding, either before the Labour Court or before this Court, the workman has pleaded, either on evidence or by filing affidavit on oath, that he is not gainfully employed. He has also submitted that though the Tribunal held that the workman should be given minor punishment, no punishment was imposed by the Labour Court. 11. Mr. Baruah has referred to the following decisions in support of his argument: (i) Bharat Petroleum Corporation Ltd. & Ors. Vs. T.K. Raju, reported in (2006) 3 SCC 143 . (ii) J.K. Synthetics Ltd. Vs. K.P. Agrawal & Anr., reported in (2007) 2 SCC 433 . (iii) Managing Director, Balasaheb Desai Sahakari S.K. Ltd. Vs. Kashinath Ganapati Kambale, reported in (2009) 2 SCC 288. 12. Ms. A. Bhattacharya, learned counsel for the respondent No. 3 has submitted that as has been held by the Labour Court, if there was any negligence on the part of the workman, Management is also equally guilty of contributory negligence as L.P.Os forwarded, were also not taken approval of in due time. The Labour Court recorded the finding that articles were not misused and there was no malafide intention for not preparing the L.P.Os. Having regard to the allegations made against the workman, the Labour Court rightly set aside the order of termination with direction for reinstatement forthwith. She submitted that there is no infirmity in the direction for payment of full back wages. However, on a query of this Court, the learned counsel does not dispute the submission of Mr. Baruah that the workman has not pleaded that he is not gainfully employed. She submitted that there is no infirmity in the direction for payment of full back wages. However, on a query of this Court, the learned counsel does not dispute the submission of Mr. Baruah that the workman has not pleaded that he is not gainfully employed. The learned counsel in support of submission, on the entitlement of back wages, relies, apart from J.K. Synthetics (supra), on the following judgments:- (i) General Manager, Haryana Roadways Vs. Rudhan Singh, reported in (2005) 5 SCC 591 . (ii) Reetu Marbles Vs. Prabhakant Shukla, reported in (2010) 2 SCC 70 . (iii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors., reported in (2013) 10 SCC 324 . 13. A perusal of the show-cause notice-cum-charge-sheet shows that the gravamen of the charge was that L.P.Os were not prepared by the workman and the 2nd Stores Clerk despite receipt of a good quantity of stores for 15 months creating accounting problems to the company and the purchase orders were not prepared intentionally and with malafide purpose. 14. Clause 10(a) of the Standing Order deals with acts and omissions which constitute gross misconduct. Clause - 10(a)(3) provides that taking, giving, offering or soliciting bribes or any illegal gratification whatsoever constitute gross misconduct. Clause 10(b) provides that the acts and omissions mentioned thereunder shall constitute misconduct, for which offences, the Management reserves the right to fine any worker to the extent permitted by the Payment of Wages Act, 1936. Clause 10(b)(3) provides that neglect or default causing the quality or quantity of material produced by the workman to be under the average quality or quantity produced by other workers is a misconduct within the meaning of Clause - 10(b). 15. The Labour Court rendered a categorical finding that Management has not proved that with a malafide intention, the workman did not prepare L.P.Os. The Labour Court recorded the finding that there is no evidence to attract provision of Clause - 10(a)(3). In the Award of the Labour Court at line 20 of Page - 11, there is an apparent typographical error while discussing the violation of Standing Order under Clause 10(b)(3) in typing the same as 10(a)(3). The mistake is obvious and apparent as before beginning of the sentence regarding such violation, discussion on Clause 10(a)(3) was already completed. In the Award of the Labour Court at line 20 of Page - 11, there is an apparent typographical error while discussing the violation of Standing Order under Clause 10(b)(3) in typing the same as 10(a)(3). The mistake is obvious and apparent as before beginning of the sentence regarding such violation, discussion on Clause 10(a)(3) was already completed. The Labour Court held that negligence in duties is a misconduct only under Clause 10(a)(3) (sic) [should have been typed as 10(b)(3)] and that only a minor penalty may be imposed by the Management. 16. There is not an iota of evidence of the workman taking/giving/offering or soliciting bribe or any illegal gratification whatsoever and therefore, the Labour Court rightly held that the workman should not have been terminated on the ground of gross misconduct. 17. The Standing Order talks about gross misconduct in respect of Item Nos. 1 to 12 of Clause 10(a) and misconduct in respect of Item Nos. 1 to 8 of Clause 10(b). Although the Labour Court has used an expression "minor penalty", there is no such term or specific provision for imposition of such minor penalty and all that Clause - 10(b) authorises in case of misconduct is to fine any worker to the extent permitted by the Payment of Wages Act, 1936. It is also noticed by the Labour Court that the other charged workman, who was equally responsible with the workman in question in the present case, was given minor punishment. The finding that there is a misconduct under Clause - 10(b)(3) and that a minor penalty may be imposed by the Management as recorded by the Labour Court has not been assailed by the workman. 18. From the Award of the Labour Court, it is seen that on more than one occasion, it is recorded that the workman deserves only a minor punishment. I am unable to agree with the submission of Mr. Baruah that having recorded the said finding, the learned Labour Court did not impose even a minor punishment. Reading the Award as a whole, it appears to the Court that the Management was left with the liberty to impose the punishment of fine, in view of the provision of Clause - 10(b), to the extent permitted by the Payment of Wages Act, 1936. 19. The case relied on by Mr. Baruah in Bharat Petroleum Corporation Ltd. and Ors. Reading the Award as a whole, it appears to the Court that the Management was left with the liberty to impose the punishment of fine, in view of the provision of Clause - 10(b), to the extent permitted by the Payment of Wages Act, 1936. 19. The case relied on by Mr. Baruah in Bharat Petroleum Corporation Ltd. and Ors. (supra) to substantiate his argument that the Management was right in imposing the penalty of termination of service is entirely misplaced. In the first place, order of termination could have issued only if gross misconduct could have been proved, which the Management failed to do. That apart, in Bharat Petroleum Corporation Ltd. and Ors. (supra), the charge against the delinquent was that the action of the delinquent in collecting short-term loans from distributors and not repaying many of them, had put the appellant company in embarrassment and led to a loss of image and it is in that context, the Apex court held that it could not be said that quantum of punishment (of dismissal) levelled against him was disproportionate to the charges levelled to merit interference of this Court. 20. The direction to reinstate the workman in another department in the same grade of Head Stores Clerk and not as Head Stores Clerk cannot vitiate the Award of reinstatement. Such direction does not cause any prejudice to the Management according to the perception of the Court. However, if the Management desires to reinstate the workman as Head Stores Clerk, liberty is granted to the Management to do so. 21. Coming to the entitlement of the workman to receive back wages, it will be apposite to consider the cases cited by the learned counsel for the parties. 22. In General Manager, Haryana Roadways (supra), the Apex Court held that there is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Clause 25-F of the Act, entire back wages should be awarded. 22. In General Manager, Haryana Roadways (supra), the Apex Court held that there is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Clause 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. 23. In para 11 of General Manager, Haryana Roadways (supra), the Apex Court held as follows: "11. In the case at hand the respondent had worked for a very short period with the appellant, which was less than one year. Even during this period there were breaks in service and he had been given short-term appointments on daily-wage basis in different capacities. The respondent is not a technically trained person, but was working on a Class IV post. According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. The respondent is not a technically trained person, but was working on a Class IV post. According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages." 24. In J.K. Synthetics Ltd. (supra), in paragraphs 17 and 18, the Apex Court laid down as follows: "17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC V.S. Naragoud, A.P. SRTC Vs. Abdul Kareem and Rajasthan SRTC. V. Shyam Bihari Lal Gupta. 18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may." 25. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may." 25. In Managing Director, Balasaheb Desai Sahakari S.K. Ltd. (supra), in paragraph 13, the Apex Court laid down as follows: "13. It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant. This Court in U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey held: (SCC pp. 495-96, paras 61-62) "61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. 62. In Kendriya Vidyalaya Sangathan v. S.C. Sharma this Court held: (See p. 366, para 16) "... when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard." 26. In Reetu Marbles (supra), the Apex Court laid down as follows: "14. The aforesaid judgment was subsequently considered in U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey and it was observed as follows: (SCC pp. 486-87 & 492, paras 17, 22 & 43) 17. In Reetu Marbles (supra), the Apex Court laid down as follows: "14. The aforesaid judgment was subsequently considered in U.P. State Brassware Corpn. Ltd. V. Uday Narain Pandey and it was observed as follows: (SCC pp. 486-87 & 492, paras 17, 22 & 43) 17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. 22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. 15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry." 27. In Deepali Gundu Surwase (supra), in paragraph 38, the Apex Court laid down the propositions regarding granting of back wages as follows: "38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. In Deepali Gundu Surwase (supra), in paragraph 38, the Apex Court laid down the propositions regarding granting of back wages as follows: "38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 28. Though direction to full back wages on a declaration that the order of termination was invalid used to be the trend earlier but over the period of time, there is a paradigm shift and in today's context, grant of full back wages on setting aside of termination order does not automatically follow on reinstatement. There is no straight-jacket formula for awarding back wages. It is apparent that grant of back wages cannot be a mechanical exercise of power. The nature and manner of appointment as well as length of service are important factors to be taken into consideration. Burden is also cast on the workman to plead that he or she was riot gainfully employed. The nature of the misconduct proved against the workman, financial condition of the employer are also relevant considerations. If the Labour Court/Tribunal finds that the workman is not at all guilty of any misconduct or that the employer had foisted a false charge on the workman, then there may be justification for award of full back wages. The Court, however, has to be alive to the situation that there can be no justification to give premium in cases of wrongful/illegal termination of service, for which the workman has to suffer the brunt, by relieving the employer of the burden to pay the workman his dues in the form of back wages. 29. In the instant case, without taking into consideration any of the relevant considerations and without any reasoning, the Labour Court granted full back wages. The workman had also not pleaded at any point of time that he was not gainfully employed. 29. In the instant case, without taking into consideration any of the relevant considerations and without any reasoning, the Labour Court granted full back wages. The workman had also not pleaded at any point of time that he was not gainfully employed. Though the Labour Court held the workman to be not guilty of any gross misconduct, it recorded the finding that there is a misconduct under Clause - 10(b)(3) [wrongly recorded as Clause - 10(a)(3)], which aspect has already been discussed in paragraph 15 of the judgment. 30. In such circumstances, grant of full back wages to the workman by the Labour Court cannot be sustained. The workman was in employment of the Management from 1976. Thus, he served the petitioner for about 26 years. The Management failed to prove the charge of gross misconduct, which alone permitted termination from service. For misconduct, the Management can only impose, in terms of the Standing Order, fine to the extent permissible under the Payments of Wages Act, 1936. Taking a totality of the circumstances, I am of the considered opinion that in the facts and circumstances of the case, ends of justice would be sub-served if direction is issued for grant of back wages to the extent of 35%. 31. In view of the aforesaid discussions, no interference with the Award of reinstatement as passed by the Labour Court is made out. The workman shall be reinstated forthwith with 35% back wages and not with full back wages as ordered by the Labour Court. Liberty is also granted to the Management to either reinstate the workman as Head Stores Clerk or in any other department in same grade and scale of pay and to that extent, Award of the Tribunal is also modified. 32. In the result, the writ petition is partly allowed as indicated above. No costs. Send back the LCR.