Oral Judgment: 1. Heard the learned Advocates for the respective sides. 2. The petitioner is a factory covered under the Factories Act, 1948 and situated at the address mentioned in the cause title of the petition. The respondent was a workman appointed on 01-01-1984. 3. The respondent had filed Complaint (ULP) No. 265/1987 before the Industrial Court at Ahmednagar on 02-12-1987, claiming permanency and benefits incidental and consequential thereto. The said complaint was subsequently allowed and it was held that the petitioner-employer had indulged in unfair labour practices under item No. 6 Schedule IV of the MRTU & PULP Act by engaging the respondent as a temporary with an intent and object of depriving him of the status and privileges of permanency. Non compliance of Standing Order 4(C) of the Industrial Employment (Standing Order) Act, 1946, was held to be an act of unfair labour practices under item No. 9 of the said schedule. 4. By a charge-sheet dated 14-09-1989, the respondent was charge-sheeted for having refused to perform work, having left the place of work, sitting idle for the entire shift and speaking in an arrogant manner with his superior. Having refused to accept the charge-sheet, another charge-sheet dated 16-09-1989 was served upon him. 5. A domestic enquiry was thereafter, initiated against the respondent and upon its conclusion, the Enquiry Officer held the respondent guilty of charges levelled against him only under Standing Order 24(a) and 24(x). The charges under Standing Order 24(k) and 24(l) were not held to be proved against him. 6. Subsequently he was issued with the dismissal order dated 15-04-1991 and was dismissed from employment by way of punishment. It is conceded that the Enquiry report was given to the respondent along with the order of dismissal and not there before. 7. The respondent-workman challenged the order of dismissal by filing Complaint (ULP) No. 52/1991 before the Labour Court at Ahmednagar. It was averred in the complaint that the employer, upon being aggrieved by his claim of permanency, had charged him with misconducts set out in the said charge-sheets. In paragraph 3(F) of the Complaint, the respondent had contended that the charges were not proved against him and the findings of the Enquiry Officer were totally perverse and bad in law. 8. The petitioner had contested the complaint by filing its written statement. In paragraph 3(F) of the Complaint, the respondent had contended that the charges were not proved against him and the findings of the Enquiry Officer were totally perverse and bad in law. 8. The petitioner had contested the complaint by filing its written statement. In paragraph 8 of the written statement, the petitioner submitted that it was relying on the enquiry papers to justify the action and with leave of the Hon’ble Court to adduce further evidence to justify the order of termination. In the entire written statement, the petitioner did not reserve its right to conduct a de-novo enquiry. 9. The litigating sides were allowed to lead evidence before the Labour Court. It is informed that the domestic enquiry by consent of the parties was not called in question and, therefore, held to have been conducted in a fair and proper manner. Issue as regards whether findings of the Enquiry Officer are perverse, was not framed. 10. By the impugned judgment of the Labour Court dated 05-09-1996, the complaint was partly allowed and the order of dismissal of the respondent was held to be bad in law. Findings of the Enquiry Officer were held to be perverse as can be seen from paragraph 17 of the judgment of the Labour Court. 11. The contention of the petitioner, therefore, is that neither was an issue framed as regards the perversity of the findings, nor did the Labour Court decide the claim of the respondent on perversity as a preliminary issue. It is, therefore, the grievance of the petitioner that the judgment of the Labour Court has watered down the enquiry by holding that the findings of the Enquiry Officer are perverse and simultaneously has partly allowed the complaint. Back wages, however, are denied to the respondent, while granting reinstatement with continuity. 12. The petitioner as well as the respondent preferred revision petitions before the Industrial Court at Ahmednagar bearing (ULP) Nos. 95/1996 and 98/1996 respectively. Both the revision petitions were decided by the common judgment dated 10-02-2000. The petitioner had raised a ground in revision that the Labour Court did not grant an opportunity to the petitioner to conduct a de-novo enquiry. By the said judgment which is impugned in this petition, the Industrial Court rejected the revision petition of the petitioner and allowed the petition filed by the respondent. The petitioner had raised a ground in revision that the Labour Court did not grant an opportunity to the petitioner to conduct a de-novo enquiry. By the said judgment which is impugned in this petition, the Industrial Court rejected the revision petition of the petitioner and allowed the petition filed by the respondent. Along with reinstatement and continuity of services, the Industrial Court directed the petitioner to pay 50% back wages to the respondent from the date of dismissal till the date of reinstatement. 13. By order dated 04-09-2001, the petition was admitted. The impugned judgments of the Industrial Court and Labour Court were stayed subject to the condition that the petitioner would deposit half of the back wages as granted by the Industrial Court. Amount of Rs. 50,006/- (Rs. Fifty thousand six only) was deposited in this Court on 26-11-2001, by Demand Draft dated 29-10-2001. 14. By this petition, the petitioner firstly assails the conclusion of the Labour Court of declaring the findings of the Enquiry Officer as perverse. He has drawn my attention to paragraph 17 of the impugned judgment of the Labour Court. 15. With the assistance of both the learned Advocates, I have gone through the impugned judgment of the Labour Court and it appears that besides paragraph 17, the Labour Court has no where considered the issue of perversity of the findings of the Enquiry Officer. Para No. 17 of the impugned judgment reads thus :- “But I found from the enquiry proceedings that the findings of enquiry officer as regards willful in subordination or disobedience of lawful and reasonable order of superior is perverse.” 16. I have heard learned Advocate for the respondent on the said conclusions drawn by the Labour Court. I have also gone through the evidence recorded by the Labour Court on this count. 17. I am of the view that perversity in the findings of the Enquiry Officer is not to be proved by leading fresh evidence before the Labour Court. Such a conclusion ought to be based on the evidence recorded in the enquiry and the conclusions drawn by the Enquiry Officer. When perversity is to be pointed out from such findings, it is primarily the conclusions of the Enquiry Officer that have to be looked into in the light of the evidence recorded in the enquiry. Such a conclusion ought to be based on the evidence recorded in the enquiry and the conclusions drawn by the Enquiry Officer. When perversity is to be pointed out from such findings, it is primarily the conclusions of the Enquiry Officer that have to be looked into in the light of the evidence recorded in the enquiry. On account of there being no evidence or insufficiency of evidence, that the findings can be held to be perverse. 18. I, therefore, find that the Labour Court has failed in considering the oral and documentary evidence recorded in the enquiry before concluding that the findings are perverse. Moreover, in the cross-examination of the respondent recorded in the Labour Court, it is seen that he has admitted that he declined to work. He has, however, tried to justify as to why he refused to work. Nevertheless, the factum of refusal to work was proved in the enquiry in as much as the respondent admitted to such refusal of work before the Labour Court as well. The Labour Court was, therefore, not required to look into the aspect of perversity and more so, when there was no issue framed in that regard and the domestic enquiry was not set aside. As such, in view of the ratio laid down by the Apex Court in the case of Usha Breco Mazdoor Sangh V/s. Management M/s. Usha Breco, reported at 2008 (118) FLR 400, the conclusion of the Enquiry Officer could not have been substituted by the judgment of the Labour Court. 19. In the light of the above, the conclusion of the Labour Court holding the findings of the Enquiry Officer as perverse is unsustainable. Need less to state, the conclusion of the Industrial Court on that count also needs to be rejected. I, therefore, conclude that the findings of the Enquiry Officer are sustainable. 20. The petitioner has strenuously contended that the charges levelled upon the respondent are grave and serious in nature. It is claimed that he deserves to be dismissed. It is also contended that the charges proved are not minor in nature or technical in character. 21. The learned Advocate for the respondent has submitted that he had put in almost eight (8) years of service with the petitioner. He has not indulged in any act of mis-conduct and his past service record is clean and unblemished. It is also contended that the charges proved are not minor in nature or technical in character. 21. The learned Advocate for the respondent has submitted that he had put in almost eight (8) years of service with the petitioner. He has not indulged in any act of mis-conduct and his past service record is clean and unblemished. It is further contended that the impugned dismissal order makes no reference to his past record. It is, therefore, submitted that his clean and unblemished past record was a mitigating factor and which would, therefore, result in reducing the seriousness and the gravity of the mis-conducts proved against him. 22. The learned Advocate for the petitioner has fairly stated that the past record of the respondent is not referred to in the order of dismissal. However, he states that the charges are so grave and serious in nature that the unblemished past record would not operate as a mitigating factor. 23. Standing Order 25 from the Model Standing Orders framed under the Industrial Employment (Bombay) Rules, 1959 provide for awarding punishment to a workman. Four types of punishments are prescribed. Standing Order 25(3) precludes an employer from issuing an order of dismissal unless domestic enquiry is conducted against the workman concerned in respect of the alleged misconducts committed by him. Standing Order 25(6) prescribes the reasons for considering the previous record of a workman before awarding punishment. It is thus, settled that the disciplinary authority has to taken into account any extenuating or aggravating circumstances along with the past service record of a workman. 24. Standing Order 25(6) makes it mandatory for the employer to consider the past service record before awarding punishment. The 42nd amendment (Article 311) to the Constitution which gave the workman a right to show-cause on the charge-sheet and the enquiry report, makes it even more obligatory on the part of the employer to consider the past service record since the quantum of punishment to be awarded has been left to the subjective assessment of the employer by the 42nd amendment. Earlier, by the 15th amendment (Article 311) to the Constitution, the workman had a right to show-cause on the quantum of punishment to be awarded to him. Now this right has been taken away by the 42nd amendment as has been discussed in the judgment of the Apex Court in Managing Director, ECIL, Hyderabad Vs. Earlier, by the 15th amendment (Article 311) to the Constitution, the workman had a right to show-cause on the quantum of punishment to be awarded to him. Now this right has been taken away by the 42nd amendment as has been discussed in the judgment of the Apex Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported at (1993) 4 SCC 727 . 25. In my view, the employer is obliged to consider the past record since a clean and unblemished record operates as a mitigating factor to reduce the seriousness and the gravity of the mis-conduct proved against a workman. Similarly, a bad/blemished past record would aggravate the seriousness and gravity of a proved misconduct. In the instant case, that past record has not been considered at all. 26. I have, keeping in view the above facts and with due circumspection, considered the charges proved against the respondent-workman. The charge is of refusal to work in a particular shift. Thereafter, he has refused to accept the chargesheet offered to him. The charges held to be proved are disobedience of a lawful order and refusal to accept a charge-sheet or a communication in accordance with the Standing Orders. The charge of drunkenness, riotous, disorderly or indecent behavior on the premises of establishment has not been proved under 24 (k). Similarly, the charge of commission of any act subversive of discipline or good behavior on the premises of the establishment under clause 24 (l) has also not been proved. As such, the Enquiry Officer has held the respondent guilty of refusal to obey an order and refusal to accept a charge-sheet. 27. Eight (8) years of clean and unblemished service record of the respondent, in my view, operates as a mitigating factor. This has been the view of the Apex Court in the case of PalghatBPL & PSP Thozilali Union Vs. BPL India Ltd. & another, reported at 1996 I CLR 368 and also of this Court in the case of Bajaj Auto Ltd. Vs. Kalidas Devram Patil, reported at 1999 II CLR 1108. 28. In the light of the findings of the Enquiry Officer, the charges proved are refusal of work in a shift and refusal to accept a charge sheet. Gravity and the seriousness of these two charges, in my view, are mitigated and stand reduced because of the clean and unblemished past service record. 28. In the light of the findings of the Enquiry Officer, the charges proved are refusal of work in a shift and refusal to accept a charge sheet. Gravity and the seriousness of these two charges, in my view, are mitigated and stand reduced because of the clean and unblemished past service record. In this back drop, the order of dismissal of the respondent employee is rendered unsustainable in law. He, therefore, deserves to be reinstated in employment. 29. By the judgment of the Labour Court dated 05-09-1996 and of the Industrial Court dated 10-02-2000, the respondent was supposed to be reinstated in employment. However, this Court by its order dated 04-09-2001 had stayed both the judgments. As such, the respondent has been out of employment since his dismissal dated 15-04-1991 till this date. 30. Since I have concluded that the seriousness and the gravity of the charges against the respondent have been reduced owing to his clean and unblemished past service record, I find it fit and proper to mould the punishment in the form of denial of back wages to the respondent to the extent of 50%. As such, the respondent deserves reinstatement with continuity and 50% of the back wages. 31. The learned Advocate for the petitioner submits that the petitioner Company as on date employees of about 700 workman and there isn’t sufficient work for 700 persons to perform. The petitioner claims to be in failing health. It is, therefore, contended that reinstatement with continuity would amount to foisting the respondent upon the petitioner. It is further stated that the respondent would be about 52 or 53 years old. Retirement age of the workman in the petitioner-Company is 58 years. It is, therefore, submitted that the respondent need not be foisted upon the petitioner. 32. In view of the order of dismissal having been held unsustainable and in view of continuity of service with 50% back wages been granted, in the eyes of law the petitioner is construed to have been working from 01-11-1984 till this date. It is almost 30 years of employment. 33. The Hon’ble Supreme Court in the case of Assistant Engineer Rajasthan Agricultural Board Vs. Mohanlal, reported at 2013, Volume III CLR, page 305, has held that for two years of employment put in by respondent Mohanlal, compensation of Rs. 1,00,000/- (Rs. One Lakh only) was appropriate. 34. It is almost 30 years of employment. 33. The Hon’ble Supreme Court in the case of Assistant Engineer Rajasthan Agricultural Board Vs. Mohanlal, reported at 2013, Volume III CLR, page 305, has held that for two years of employment put in by respondent Mohanlal, compensation of Rs. 1,00,000/- (Rs. One Lakh only) was appropriate. 34. The Hon’ble Supreme Court in the case of SardariLal Vs. Chairman, Managing Committee, Mehar Chand Polytechnic and others, Civil Appeal No. 2699 of 2003 with Special Leave Petition (Civil) No. 31854 of 2010, decided on 23-03-2013, has concluded that compensation of Rs. 3,00,000/- (Rs. Three Lakhs only) granted by the High Court to an employee having twenty three (23) years of service left, is inadequate. As such, the Apex Court ordered the payment of Rs. 7,50,000/- (Rs. Seven Lakhs Fifty Thousand only) to the said employee. 35. In the instant case, I have already moulded the punishment in the form of depriving the respondent of back wages to the extent of 50% from the date of dismissal which is 15-04-1991 till this date. As such, I am of the view that by applying the ratio laid down in the Assistant Engineer Rajasthan Agricultural Board’s case (supra), and SardariLal’s Case (Supra), in lieu of reinstatement, continuity of service, and 50% back wages, the petitioner deserves to be directed to pay an amount of Rs. 10,000,00/-(Rs. Ten Lakhs only) to the respondent. This is by way of quantifying the compensation to be paid for having put in thirty (30) years of employment, with wages for about five (5) years of employment left, and in lieu of 50% back wages, but excluding Gratuity to be paid in accordance with the Payment of Gratuity Act, 1972. 36. It is pointed out by the learned Advocate for the petitioner that an amount of Rs. 50,000/-(Rs. Fifty thousand only) has been deposited in this Court under an order dated 04-09-2001. By order dated 02-05-2009, the said amount has been kept in Fixed Deposits all along. He, therefore, submits that the said amount along with the accrued interest may be withdrawn by the respondent and that amount be set off as against compensation ordered by this Court in this judgment. The learned Advocate for the respondent has no objection. 37. In view of the said submission, the amount of Rs. 50,000/-(Rs. He, therefore, submits that the said amount along with the accrued interest may be withdrawn by the respondent and that amount be set off as against compensation ordered by this Court in this judgment. The learned Advocate for the respondent has no objection. 37. In view of the said submission, the amount of Rs. 50,000/-(Rs. Fifty thousand only) along with accrued interest is allowed to be withdrawn by the respondent. By deducting the said amount, remaining amount of compensation and also Gratuity be paid by the petitioner to the respondent within a period of eight (8) weeks from today. 38. With the above directions, Writ Petition is disposed off by the above directions modifying the impugned judgments of the Labour Court and Industrial Court. Rule is accordingly made absolute. No costs.