JUDGMENT : 1. Heard Mr. K.M. Patel, learned Senior Counsel with Mr. V.K. Patel, learned advocate for the petitioner and Mr. Mansuri, learned advocate for the respondent workman. 2. The captioned two petitions are taken out against the same award passed by learned Labour Court at Bharuch i.e. award dated 18.1.2005 in Reference (LCB) No. 226 of 1997. The first petition i.e. Special Civil Application No. 7072 of 2005 is taken out by the employer whereas second petition i.e. Special Civil Application No. 14818 of 2005 is taken out by the workman. 3. The petitioners have brought under challenge the award dated 18.1.2005 passed by learned Labour Court at Bharuch in Reference (LCB) No. 226 of 1997 whereby learned Labour Court has directed the employer to reinstate the respondent workman on his original post and to pay 65% backwages. 4. In view of the fact that both the petitions arise from same award, the petitions are heard and decided by this common order / judgment. 4.1 In this view of the matter, for the sake of convenience the original claimant – workman (i.e. petitioner in Special Civil Application No. 14818 of 2005) is referred to and described, in present decision, as “respondent workman” and the petitioner in Special Civil Application No. 7072 of 2005 is referred to and described as the “petitioner” or “petitioner employer” in present decision. 5. The petitioner employer is aggrieved by the direction which requires the petitioner employer to reinstate the workman and also obliges the petitioner to pay backwages 65%. 5.1 Whereas the respondent workman is aggrieved by the decision of learned Labour Court to refuse the benefit of 100% backwages and the respondent workman has claimed that the award whereby benefit of balance 35% backwages is denied to him may be set aside and he should be awarded backwages @ 100%. 6. So far as factual background is concerned, it has emerged from the details mentioned in the petitions and from the factual aspect recorded by the learned Labour Court in the impugned award, that upon being terminated from the service by order dated 22.11.1995 the respondent workman raised dispute which was considered and treated as industrial dispute and since any settlement between contesting parties did not materialize, the appropriate government referred the dispute for adjudication to learned Labour Court at Bharuch vide order of reference dated 10.6.1998. The said order or reference culminated into Reference (LCB) No. 226 of 1997. 6.1 During the proceedings before the learned Labour Court the respondent workman filed statement of claim wherein he alleged that his service came to be terminated illegally and arbitrarily and without following any procedure prescribed by law. 6.2 The respondent workman also claimed that he was working in the petitioner company since February 1989 on the post of Accountant – Clerk and at the salary of Rs.3300/- per month. He also claimed that he was member of the office bearer in the Union viz. “ABC Karmachari Union” and he held the post of Treasurer in the said union. 6.3 The respondent workman also claimed and alleged that though a settlement was arrived at between Union and the petitioner, and according to the terms of the settlement the employees whose services were terminated by the petitioner were to be reinstated, the petitioner did not implement the said settlement qua him and thereby committed breach of the settlement. The respondent workman also claimed that the settlement dated 13.6.1996 was not implemented by the petitioner in respect of other two workmen as well. 6.4 The respondent workman also claimed that any departmental proceedings were not initiated and conducted against him and before terminating his service the petitioner had not paid him any compensation or any other amount except the wages for current month and 1 month notice pay. 6.5 On the premise of such allegations, respondent workman claimed that the order passed by the petitioner terminating his service may be set aside and the petitioner may be directed to reinstate him with consequential benefits. 7. The said claim and allegations by the respondent workman were disputed and denied by the petitioner employer who filed written statement before the learned Labour Court. 7.1 In its written written statement the petitioner claimed that the service of the respondent workman came to be terminated w.e.f. 22.11.1995 by the order of even date and that the service of the respondent workman was terminated on account of act of omission and commission amounting to misconduct. 7.1 In its written written statement the petitioner claimed that the service of the respondent workman came to be terminated w.e.f. 22.11.1995 by the order of even date and that the service of the respondent workman was terminated on account of act of omission and commission amounting to misconduct. 7.2 The petitioner claimed and alleged that the respondent workman indulged himself in instigating other workmen to resort to go slow / strike and thereby conducted himself against interest of the petitioner and his act of omission and commission amounting to misconduct under model standing order more particularly clause 5 and clause 24 and clause 24 thereof. 7.3 The petitioner also claimed that because of the dispute and hostile atmosphere created at the relevant time on account of go-slow it was not possible to conduct departmental inquiry and that therefore the service of the respondent workman was terminated without conducting departmental inquiry. On such claim the petitioner reserved right to establish the charge against the respondent workman, by leading appropriate evidence during proceedings before the Court. According to the petitioner the service of the respondent workman was terminated on account of his conduct and indiscipline amounting to misconduct. 7.4 The petitioner also claimed that the case of the respondent workman was not covered under the settlement dated 30.6.1996 and the benefit of the said settlement was not available to the respondent workman and case of the respondent workman that the benefit of the said settlement ought to have been extended to him is misconceived. 7.5 The crux of the case of the petitioner against respondent workman is that the respondent workman had instigated other workmen of the petitioner to resort to go slow / strike which resulted into loss of production during period from October 1995 to March 1996. Having put-up such case before learned Labour Court, the petitioner claimed that the decision and action of terminating the service of the respondent workman was justified and the claim of the respondent workman to reinstate him by setting aside order of termination deserved to be rejected. 8. The respondent workman as well as petitioner led documentary as well as oral evidence to support their case. The petitioner employer examined 4 witnesses to establish the allegations against the respondent workman viz. 8. The respondent workman as well as petitioner led documentary as well as oral evidence to support their case. The petitioner employer examined 4 witnesses to establish the allegations against the respondent workman viz. that the respondent workman had indulged into instigating other workmen of the petitioner to resort to go slow / strike and thereby committed misconduct as contemplated under Clause 5 and clause 24 of applicable standing orders. The respondent workman did not examine any other witness except leading his own oral evidence. 9. Learned Labour Court considered the oral and documentary evidence available on record and also considered the submissions by learned Counsel for the petitioner employer and the respondent workman and having regard to the material on record, learned Labour Court reached to the conclusion that the action of the petitioner viz. terminating service of the respondent workman vide order dated 22.11.1995 is unjust and arbitrary. Learned Labour Court also reached to the conclusion that the petitioner failed to establish the allegations against the respondent workman viz. that he had indulged into instigating other workmen of the company to resort to go slow / strike. Having reached such conclusion learned Labour Court directed the petitioner to reinstate the respondent workman on his original post and to pay 65% of backwages. 10. While assailing the impugned order Mr. K.M. Patel, learned Senior Counsel with Mr. V.K. Patel, learned advocate for the petitioner submitted that the impugned award is contrary to the evidence on record. 10.1 Mr. Patel, learned Senior Counsel emphasized that this is a case wherein inference should have been drawn in light of evidence on record. 10.2 He also submitted that the learned Labour Court failed to appreciate that the circumstantial evidence justified an inference about involvement of the respondent workman in instigating the workmen. Mr. 10.1 Mr. Patel, learned Senior Counsel emphasized that this is a case wherein inference should have been drawn in light of evidence on record. 10.2 He also submitted that the learned Labour Court failed to appreciate that the circumstantial evidence justified an inference about involvement of the respondent workman in instigating the workmen. Mr. K.M. Patel, learned Senior Counsel for the petitioner submitted that in view of the overall evidence on record and other material available before the learned Labour Court, inference about involvement by the respondent workman in acts of misconduct should have been drawn and the Court ought to have accepted the case of the petitioner that the workman was involved in instigating other workmen to resort to strike / go slow however by not drawing such inference and not accepting the case of the petitioner against the respondent workman, the learned Labour Court has committed error of law as well as facts. 10.3 Mr. K.M. Patel, learned Senior Counsel for the petitioner submitted that the learned Labour Court failed to appreciate that the respondent workman was treasurer of the Union and the Union had supported the case of the Contract Labourers for regularization. 10.4 Mr. K.M. Patel, learned Senior Counsel for the petitioner relied on various notices which were allegedly issued by the petitioner during relevant period and on strength of the said notices he claimed that the workmen had resorted to strike / go-slow and the respondent workman was the person who instigated the workman to resort to and continue the strike / go slow. Mr. K.M. Patel, learned Senior Counsel for the petitioner submitted that in view of such facts and circumstances the petitioner was left with no alternative but to terminate the service of the respondent workman and therefore vide order dated 22.11.1995 his service was terminated. Mr. K.M. Patel, learned Senior Counsel for the petitioner submitted that the charge and allegations against the respondent workman were expressly mentioned in the order dated 22.11.1995 and the said charge and allegations have been proved by the petitioner by leading documentary evidence as well as oral evidence by 4 witnesses however, learned Labour Court ignored the evidence, more particularly oral evidence and reached to the conclusion which is not supported by the evidence on record. 11. Per contra Mr. 11. Per contra Mr. Mansuri, learned advocate for the respondent workman submitted that the learned Labour Court has found, from the evidence on record that there is no evidence to support and justify allegations about instigation by the respondent workman. 11.1 Mr. Mansuri, learned advocate for the respondent workman submitted that the charge / allegation against the respondent workman viz. instigating other workmen to resort to strike / go slow is not established and when there is no evidence to support and justify such allegations, the conclusion by the learned Labour Court that the petitioner has failed to prove the charge against the respondent workman and therefore, action of termination of his service is bad, is correct and justified and does not deserve to be interfered with. 11.2 Mr. Mansuri, learned advocate for the respondent workman also relied on the settlement dated 13.6.1996 and submitted that actually two petitions were filed by the petitioner employer and other two petitions were filed by the union. He also submitted that in the petitions filed by the union all workmen whose services were terminated on 22.11.1995 and 23.11.1995 were covered and that therefore, the benefit of the terms and conditions of the said settlement dated 13.6.1996 was available to, and ought to have been granted, to the respondent workman also since his service was also terminated on 22.11.1995 however, the petitioner arbitrarily did not implement the said settlement qua the respondent workman and other two workmen. Mr. Mansuri, learned advocate for the respondent workman submitted that since the petitioner committed breach of the settlement the workman had filed complaint before learned Labour Commissioner however since order of reference was passed, the workman proceeded with the reference and that therefore the petitioner cannot claim that the respondent workman had not taken any steps with regard to alleged breach of settlement. 11.3 Mr. Mansuri, learned advocate for the respondent workman also claimed, by referring to the deposition by the witnesses of the petitioner that even according to the case of the petitioner since the cases filed by the workman were not withdrawn the settlement was not implemented. 11.4 Mr. Mansuri, learned advocate representing the respondent workman submitted that the respondent workman was member of different union i.e. Union of Staff Employees and that therefore also there was no question or occasion that the respondent workman would be involved in instigating other workmen of the petitioner. 11.4 Mr. Mansuri, learned advocate representing the respondent workman submitted that the respondent workman was member of different union i.e. Union of Staff Employees and that therefore also there was no question or occasion that the respondent workman would be involved in instigating other workmen of the petitioner. Mr. Mansuri, learned advocate for the respondent workman submitted that the petitioner has failed to establish the involvement of the workman in the go slow / strike and / or the petitioner has failed to establish allegations about his alleged conduct of instigating workmen to resort to strike / go slow and therefore also order dated 22.11.1995 terminating the service is unjust and arbitrary and is rightly set aside by the learned Labour Court. 11.5 Mr. Mansuri, learned advocate for the respondent workman further submitted that when the learned Labour Court found that order of termination of service was unsustainable and the service was terminated illegally and arbitrarily then labour Court ought to have awarded 100% backwages instead of awarding 65% of backwages and that therefore the award passed by the learned Labour Court so far as it grants reinstatement deserves to be confirmed however, the award so far as it denies 35% backwages deserves to be set aside and modified by allowing payment of backwages @ 100%. 12. With regard to the submissions by learned advocate for the respondent workman as regards his challenge against denial of part of backwages, Mr. Patel, learned Senior Counsel for the petitioner submitted that the petitioner was engaged in gainful activity inasmuch as he was running Cutlery Shop therefore denial of 100% backwages is justified. 12.1 Mr. Patel, learned Senior Counsel for the petitioner also submitted that even otherwise having regard to the fact that total length of service of respondent workman was only about 6 years and order dated 22.11.1995 came to be passed, the claim of the workman for 100% backwages is unjustified and learned Labour Court has rightly not granted 100% backwages. Mr. Patel, learned Senior Counsel for the petitioner submitted that actually in view of the fact of the case the respondent workman is not entitled for the benefit of backwages and in any case his claim for full backwages is not justified. Mr. Patel, learned Senior Counsel for the petitioner alternatively submitted that present case is case for reasonable compensation. 13. Patel, learned Senior Counsel for the petitioner submitted that actually in view of the fact of the case the respondent workman is not entitled for the benefit of backwages and in any case his claim for full backwages is not justified. Mr. Patel, learned Senior Counsel for the petitioner alternatively submitted that present case is case for reasonable compensation. 13. I have considered the submissions by learned Senior Counsel for the petitioner and the learned advocate for the respondent workman and also examined the material on record. 13.1 From the written statement filed by the petitioner and also from the award it has emerged that the petitioner terminated the service of the respondent workman on the charge that the respondent workman indulged in activity of instigating other workmen to resort to strike / go slow which resulted into loss of production and thereby the respondent workman committed misconduct. 13.2 Thus, the only allegation or charge against the respondent workman for which his service came to be terminated was regarding his alleged conduct of instigating the workmen to resort to go slow/ strike. 13.3 Therefore, and more particularly in view of the fact on such allegation the petitioner imposed capital penalty viz. termination of respondent's service it was necessary for the petitioner to conclusively demonstrate and prove that the respondent workman was involved in activity of instigating other workmen of the petitioner. 13.4 When such capital penalty is imposed then the allegations must be proved. Though in matter of disciplinary action preponderance of probability is permissible for justifying disciplinary action, nonetheless inferences and conjectures or presumption cannot be allowed to oust the need for cogent evidence and they cannot be allowed to take place of / replace need for legally sustainable proof and / or sufficient material having probative – evidentiary value. An action taken merely on allegations, presumptions, convenient assumptions and conjectures cannot be accept and maintained in absence of satisfactory proof with probative value more so when capital penalty of dismissal from service is imposed. Otherwise even the actions taken by way of victimization can get validated on such broad principle. 14. The petitioner, for the purpose of establishing said aspect, led oral evidence of 4 witnesses viz. Mr.J.K.Shah, Manager (F.U.S), M.V.Thakkar, Senior Manager (Manufacture), Thiodar Aalfred Khristi, Manager (Technical Services) and Mr.D.K.Patel, (Time Keeper). Otherwise even the actions taken by way of victimization can get validated on such broad principle. 14. The petitioner, for the purpose of establishing said aspect, led oral evidence of 4 witnesses viz. Mr.J.K.Shah, Manager (F.U.S), M.V.Thakkar, Senior Manager (Manufacture), Thiodar Aalfred Khristi, Manager (Technical Services) and Mr.D.K.Patel, (Time Keeper). So far as the documentary evidence is concerned, the Company relied on notices issued during the period of alleged strike / go slow as well as on the statements referring details of production. 14.1 In the facts and circumstances of the case, it would be appropriate to first deal with the contention raised on the basis of settlement dated 13.06.1996. 14.2 The workmen has placed reliance on the said settlement and claimed that his case stand covered under the said settlement dated 13.06.1996 and that therefore, the Petitioner-Company should have reinstated him and by not reinstating him the Company committed breach of settlement. Mr. Mansuri, learned advocate for the respondent-workman would contend that the settlement specifically mentions that the employees who were terminated on 22.11.1995 and 23.11.1995 were to be reinstated and since respondent's service was terminated by order dated 22.11.1995, his case was covered by settlement, and therefore, he was entitled for the benefits of the said settlement and the respondent ought to have reinstated in view of the said settlement. 15. On the other hand, Mr.Patel, learned Senior Counsel for the Petitioner-Company claimed that when the settlement was executed and submitted before the Court and when the Court accepted the settlement and disposed of the petition vide order dated 18.06.1996 the agreement between Company and the Union was already executed and implemented and all the employees who were terminated on 22.11.1995 and 23.11.1995 were already reinstated in view of the agreement/settlement between the Company and Union and that fact was also recorded in the agreement. So as to justify the said submission, Mr.Patel, learned Senior Counsel, placed heavy reliance on first paragraph of the terms and conditions recorded in the document dated 13.06.1996. 15.1 According to the Company, from the said fact and also from plain reading of the terms of the settlement, which was reduced into writing vide settlement dated 13.06.1996, it becomes clear that the workmen whose services were terminated, were reinstated on 11.6.1996 and they had resumed on 11.6.1996 when the settlement dated 13.6.1996 was executed. 16. 15.1 According to the Company, from the said fact and also from plain reading of the terms of the settlement, which was reduced into writing vide settlement dated 13.06.1996, it becomes clear that the workmen whose services were terminated, were reinstated on 11.6.1996 and they had resumed on 11.6.1996 when the settlement dated 13.6.1996 was executed. 16. On this count, it is relevant to note that the said settlement dated 13.06.1996 was placed before the Court on the record of the pending petitions being Special Civil Application Nos.1530 of 1996, 1548 of 1996, 1932 of 1996 and 1938 of 1996 and the Court recorded the said settlement and disposed of the said four petitions vide order dated 18.06.1996. 16.1 It is also relevant to note that the Court recorded the settlement and disposed of the petitions on 18.06.1996 i.e. about 5 days after the date when settlement was executed and signed (i.e. 13.6.1996) by the Company and the Union. 16.2 According to the company the workmen whose services terminated were already reinstated and that therefore, if the case of the respondent Workman was covered by the settlement then he would have certainly made grievance before the Hon’ble Court that the settlement has not been complied and has been breached by the Company however, such grievance was not raised at the time when the settlement was recorded by the Court and the petitions came to be disposed of and the fact that such grievance was not raised supports the case that the respondent was not covered under the settlement and he was not entitled for the settlement. 16.3 It is true that the order dated 18.06.1996 does not speak anything about the grievance of the concerned respondent that the settlement is not implemented qua him. At first blush, it would also appear that the Clause No.1 of the settlement dated 13.06.1996 supports the claim of the petitioner Company inasmuch as it is recorded in the said clause that the workman whose services were terminated have been reinstated and they have resumed their duties with effect from 11.06.1996. At first blush, it would also appear that the Clause No.1 of the settlement dated 13.06.1996 supports the claim of the petitioner Company inasmuch as it is recorded in the said clause that the workman whose services were terminated have been reinstated and they have resumed their duties with effect from 11.06.1996. 16.4 However, merely because order dated 18.06.1996 does not speak about the grievance of the concerned workman or about the Company’s refusal to implement the settlement qua the respondent, in absence of other material it cannot be readily and quickly inferred that the case of the concerned workman in present petition was not covered under the settlement dated 13.06.1996. 16.5 In the event the case of the respondent workman was covered under the said settlement and despite that if he was not reinstated by the Company then it would have been mentioned before the Court and in all probability the union would not have signed and executed the settlement 2 days thereafter i.e. 2 days after 11.06.1996 whereas the settlement is signed by the Union representatives from both unions i.e. ABC Workman Union and ABC Karmachari Union. However, it is also pertinent that according to the settlement any exception in respect of any workman (out of the workmen who were terminated on 22.01.1995 and 22.11.1995) is not carved out under the settlement. The said settlement does not exclude any employee whose service was terminated on 22.11.1995 or 23.11.1995. Consequently the terms and conditions of the settlement covers and takes in its sweepable employees – without any exception – who were terminated on 22.11.1995 or 23.11.1995 and that therefore it would be applicable in respect of all employees who were terminated during the period mentioned in the settlement i.e. on 22-23/11/1995. 17. Having regard to the fact that thereafter, the respondent workman raised industrial dispute and it came to be adjudicated and the said dispute culminated into an award which is impugned in present petition, the dispute raised with regard to alleged coverage of settlement pales into insignificance after and in view of the award passed by the learned Court. 17.1 Therefore, the question which actually arise and survives is as to whether the Labour Court has committed any error in reaching to the conclusion that the action of the Company terminating the services of the respondent is arbitrary and unjust. 17.1 Therefore, the question which actually arise and survives is as to whether the Labour Court has committed any error in reaching to the conclusion that the action of the Company terminating the services of the respondent is arbitrary and unjust. 17.2 As mentioned earlier, the services of the respondent came to be terminated on the ground that he indulged into instigating the other workmen of the Company to resort to strike / go slow i.e. allegation and the charge mentioned in the order dated 22.11.1995 and according to the said order, the service of the respondent workman came to be terminated for the said mis-conduct / allegation or charge. 17.3 Under the circumstances, it was necessary for the Company to conclusively demonstrate and establish that the respondent workman indulged into instigating the workmen. 17.4 The documentary evidence including the notices and/or the statement containing details of production do not help the petitioner Company in establishing its allegation against the respondent workman i.e. in establishing that he indulged in the activity of instigating other workmen of the Company to resort to strike / go slow. 17.5 This takes the Court to examine the evidence of the four witnesses. For the sake of convenience the evidence / deposition by Mr.D.K.Patel, Time Keeper may be considered first inasmuch as the other three witnesses are from managerial cadre and the only person examined from staff/workmen cadre as company's witness is said Mr.D.K.Patel. 18. On examining the evidence / deposition (Exh.91), of the time keeper it emerges that all that the said witness mentioned in the deposition is that on account of the go-slow adopted by the workmen there was reduction in production and that the workmen had put up a tent outside the gate of the Petitioner-Company and other workmen were sitting in the tent and were shouting slogans. The said part of the deposition / evidence by Mr.D.K.Patel does not mention anything which would support the allegation that the respondent workman was instigating the workmen to resort to strike / go slow. Thereafter, the said witness has mentioned in his deposition that he had seen the respondent workman going to the place where the other workmen had put up the tent where other workmen were shouting slogans. There is no reference or mention in his deposition that the respondent workman was instigating other workmen. Thereafter, the said witness has mentioned in his deposition that he had seen the respondent workman going to the place where the other workmen had put up the tent where other workmen were shouting slogans. There is no reference or mention in his deposition that the respondent workman was instigating other workmen. The deponent has not even said that he had heard the said workman instigating the other workers. On the contrary, during his cross-examination, the said deponent has accepted that he cannot say anything about the day on which he had seen the workman going to the tent and about the meeting and instigating them to resort to go slow. In his entire evidence i.e. examination in chief as well as in cross-examination the deponent / witness has not said anything which would even remotely support the allegation that the respondent workman instigated other workmen to resort to strike / go slow. 18.1 Thus, evidence of said Mr.D.K.Patel does not help the case of the petitioner and not establishing that the respondent was guilty of instigating other workmen to resort to strike. 18.2 The deposition of Mr.Khristi, Manager (Technical Services) is recorded at Exh.84. The deposition of the said witness Mr.Khristi does not help the case of the petitioner in any manner inasmuch as the said witness has mentioned about the instances / events which allegedly occurred on 24.11.1995 i.e. after the date on which the service of the respondent workmen was terminated. In his deposition, the said witness Mr.Khristi has referred to Exh.55 which is letter dated 25.11.1995 i.e. after the date of termination of the respondent. The said witness also spoke about the events on 24.11.1995 and that therefore, it does not help the case of the petitioner that before his service came to be terminated the respondent was instigating other workmen to resort to strike / go slow. In his entire evidence, i.e. examination in chief as well as cross examination the said witness Mr.Khristi has not uttered a word which would give out and prove the allegation that the respondent workman was involved in instigating other workmen to resort to strike / go slow. 18.3 Similar is the case so far as deposition by Mr.M.V.Thakkar, Managar (Manufacture) is concerned. Most part of his deposition is related to various documents viz. 18.3 Similar is the case so far as deposition by Mr.M.V.Thakkar, Managar (Manufacture) is concerned. Most part of his deposition is related to various documents viz. notices issued by the Company from time to time with regard to the alleged go slow allegedly resorted by the workman which merely establish that the Company had issued general / common notice addressed to all workmen about go-slow. However, it does not even by any remote chance or stretch of imagination speak about the involvement of the present respondent in instigating other workmen to resort to strike / go slow. 18.4 The said witness has referred to an agreement with the Union according to which it was agreed between the Company and the Union of the Workmen that Workmen will manufacture 1 lac bearings per month. However, on examination of the said agreement / settlement it comes out that there is no provision in the settlement which obliges workmen to give out put of minimum 1 lac bearings per month. Mr. Patel, learned Senior Counsel relied on clause 30. However, even the said clause does not speak of such obligation. Therefore it cannot be said that production of less then 1 lac bearing per month amounts to go-slow method / strike by workmen. At the most, what can be deduced from the said provision is that by virtue of said clause some standard of efficiency for workmen was settled by virtue of an agreement between Workmen's Union and the Company. Actually, the said witness in the later part of his deposition accepted that according to terms of the agreement referred to by him what is provided is incentive measure and not minimum quantum of production. However, it does not help in any manner to establish the charge against the respondent workman viz. that he was involved in instigating other workmen. 18.5 The said witness has accepted in his cross-examination that he could not say anything about the date and period during which the workman had resorted to strike or adopted go slow. In his entire evidence, there is not a whisper claiming that the respondent workman indulged into instigating other workmen. 19. The above discussion brings in picture evidence/deposition by last witness Mr.J.K.Shah, Manager (FUS). In his entire evidence, there is not a whisper claiming that the respondent workman indulged into instigating other workmen. 19. The above discussion brings in picture evidence/deposition by last witness Mr.J.K.Shah, Manager (FUS). In his deposition the said witness Mr.J.K.Shah mentioned that other workmen of the Company used to sit idle after starting machines and the respondent workman would leave Account Department and would go to the plant and instigate the workmen to stop work. However, on considering the deposition / evidence of said witness Mr.J.K.Shah in its totality i.e. examination in chief and cross examination, it emerges that the said statement by the witness is vague and is not sufficient to draw even inference about the involvement of the respondent Workman in instigating the other workmen to resort to strike / go slow. The witness has not said that he was present when the respondent was instigating other workmen and / or that he had heard what the respondent workman used to discuss with other workmen or whether someone had informed him about respondent's alleged actions. The said witness has not mentioned the date / shift when he saw and heard the respondent instigating other workmen and as to whether he had actually heard the alleged conversation between the respondent and other workmen. He also did not clarify as to whether the incident which he alleged had occurred before 22.11.1995 or after 23.11.195. The witness has accepted in his deposition that he cannot say anything about the date on which the strike started and the date on which the strike was wound-up / discontinued. The cross examination of said witness brings out that the allegations and statements are vague and do not establish the charge viz. of instigating other workmen to resort to go – slow / strike. 19.1 Thus, when the evidence of the said four witnesses by the Company are examined then it emerges that the allegations by the Company that the respondent workman had indulged into activity of instigating other workman to resort to strike / go slow is not established and the conclusion by the Labour Court on that count cannot be faulted. 19.1 Thus, when the evidence of the said four witnesses by the Company are examined then it emerges that the allegations by the Company that the respondent workman had indulged into activity of instigating other workman to resort to strike / go slow is not established and the conclusion by the Labour Court on that count cannot be faulted. The petitioner being conscious of this fact – i.e. lacuna or absence / shortfall in respect of relevant and necessary evidence to drive home and establish the charge of instigation, the learned Senior Counsel for the petitioner submitted that this is a case where an inference ought to have drawn / should be drawn from the overall circumstances. In view of this Court action of capital penalty viz. dismissal from service and thereby depriving a person (workman) his source of livelihood and shelter and bread for his wife and children / his family can neither be taken nor can be justified nor can be maintained or accepted and approved on “inferences” drawn from overall circumstances. Inferences cannot replace – or act as substitute of – minimum but basic and contemporaneous evidence which may justify the recourse to the doctrine of preponderance of probability. As mentioned earlier in cases where Court is examining actions of employer whereby an employee is dismissed from service, Court would be slow in approving action taken merely on presumption and conjecture and by drawing inferences, which do not have support of evidence or material with probative value. 19.2 Once it is found that the Company has failed to establish that the respondent workman had indulged into activity of instigating other workmen to resort to strike and go slow, then the premise on which the petitioner-Company based its action i.e. passed order dated 22.11.1995, would fall apart and would not survive and it would establish that the action of the Petitioner-Company was unjustified and without any evidence against the respondent workman and there is no cogent and satisfactory and conclusive evidence to establish the charge against the respondent workman viz. that he had indulged into activity of instigating workmen to resort to strike and go slow. 20. that he had indulged into activity of instigating workmen to resort to strike and go slow. 20. In this view of the matter, neither the conclusion by the Labour Court that the charge against the respondent is not proved and the petitioner failed to establish its allegations and charge against the respondent nor the direction requiring the Company to reinstate the workman can be faulted. The petitioner's objection against said conclusion and impugned direction deserves to be rejected and is hereby rejected. 20.1 The above discussion takes the Court to other directions by the Labour Court viz. the direction requiring the Company to pay back-wages. 20.2 The Labour Court has directed the Petitioner-Company to pay back-wages to the respondent workman at the rate of 65%. 20.3 As mentioned earlier, Mr.Patel, learned Senior Counsel for the Petitioner-Company would contend that the said direction is unjustified and unsustainable in its entirety and the workman is not entitled for any back-wages, more particularly in view of the fact that the Company brought on record the fact that the respondent Workman was gainfully engaged and was running a cutlery shop. On the other hand, the respondent has claimed that he is not the owner of the said shop and actually the said shop was run by his father even before his service came to be terminated and that therefore, the Company is not right and justified in claiming that he was engaged gainfully. 21. On this count, it is appropriate to take into account the deposition of the respondent workman. During his cross-examination, the respondent workman admitted that his father owned the shop which is run in the name and style of Ambica General Stores. He also accepted that his father has not engaged any person to assist him in running the shop. However, he denied the suggestion that it was he who used to open and close the shop and was running the shop instead of his father or any other employee. The respondent workman also mentioned in response to the suggestion about the daily income from the shop and said that he had no idea about the income from the shop, but during the period after his termination, the said shop was and is the source of income for the family. 22. The respondent workman also mentioned in response to the suggestion about the daily income from the shop and said that he had no idea about the income from the shop, but during the period after his termination, the said shop was and is the source of income for the family. 22. In view of this Court, though the said evidence falls short to lead the Court to the conclusion that the respondent workman was gainfully employed during the period after his termination in manner which would justify denial of any back wages to the respondent workman. 23. Having regard to the said evidence brought on record of the Petitioner Company with regard to gainful employment of the respondent workman, the labour Court has quantified the back wages at 65% and denied the respondent workman balanced 35% of back wages. 23.1 When the said aspect is considered in light of the evidence on record more particularly with regard to the alleged gainful engagement during the period in question, this Court does not find any reason or justification to interfere with the said direction. Thus, the objection against said direction is rejected. 24. Before concluding, it is relevant to deal with one more aspect. 24.1 As mentioned earlier, the petitioner Company terminated service of the respondent without conducting departmental inquiry in respect of the allegations levelled against him. Therefore, the Labour Court, after considering the said aspect had passed interim order directing the company to pay subsistence allowance during the pendecy of the case before the Labour Court. The said order is modified by this Court by directing the Petitioner Company to deposit lumpsum compensation to the tune of Rs.60,000/- before the Labour Court subject to result of the petition. The said order came to be passed on 05.07.20104 in Special Civil Application No. 6867 of 2004. The said order reads thus:- “In the present petition, the petitioner has challenged the order dated 26.4.2004 by which the Labour Court, Bharuch had allowed the application filed by the respondent-workman to pay subsistence allowance to the respondent from the date of his dismissal i.e. 22.11.95 till the reference is decided. The learned advocates for the parties at my request had considered finding an interim solution till the Labour Court finally dispose of the reference. The learned advocates for the parties at my request had considered finding an interim solution till the Labour Court finally dispose of the reference. Accordingly, both the advocates agreed that the order of the Labour Court dated 26.4.04 can be set aside on the condition that the petitioner shall deposit before the Labour Court an amount of Rs.60,000/- (Rupees sixty thousand only) and both the advocates agree not to raise legal contentions for and against the order of the Labour Court. They however submit that this formula is being adopted without prejudice to their rights and contentions. Accordingly, I direct that the petitioner shall deposit an amount of Rs.60,000/- (Rupees sixty thousand) before the Labour Court within a period of six weeks from today on which condition the order of the Labour Court dated 26.4.2004 is set aside. Considering the fact that the workman was dismissed in the year 1995 and that the reference is pending since 1997, the Labour Court is requested to give priority consideration to the pending reference and dispose of the same within a period of six months from today, as far as practicable. The deposit of Rs.60,000/- by the petitioner will be subject to the final outcome in the reference and shall not be taken to have any bearing on the rights and contentions of the parties. The Labour Court is also directed to invest the said amount in a fixed deposit for a period of six months. In view of the above directions, the petition stands disposed of with no order as to costs.” 24.2 So far as said amount and said direction is concerned, this Court is of the view that on this count it is relevant and appropriate to take into account the fact that the labour Court reached to the conclusion that the termination of the respondent was unjust and unsustainable and the said conclusion was reached by the Labour Court after taking into consideration evidence led by the Company in September 2004 i.e. almost 9 years after the termination order was passed against the respondent and the award came to be passed in January,2005. Having regard to the above mentioned facts and the fact that the workman was terminated without conducting inquiry in November,1995 and evidence was led after 9 years and the award came to be passed about 10 years after the respondent was dismissed from service, the amount quantified by this Court by interim order appears to be just and proper quantification for the period in question i.e. for the period during which the petitioner remained terminated without any inquiry in respect of the allegation against him. 24.3 Consequently, the respondent would be entitled to withdraw the said amount by submitting appropriate application before the Learned Court where the said amount is deposited by the Petitioner Company. The said amount must have been invested by the concerned Labour Court in fixed deposit, and therefore, the respondent would be entitled to withdraw the amount with interest accrued there on. 25. Mr.Patel, learned Senior Counsel, at this stage, submitted that it would open to the Petitioner Company to adjust the amount of Rs. 60,000/- with accrued interest as well as the wages paid under Section 17(b) while making payment of back wages to the respondent workman in compliance of the direction by the award. 26. As such any clarification on this count is not necessary however to allay any doubt, it is clarified that it will be open to the Petitioner Company to make said adjustment while making payment of backwages to the respondent workman. With the aforesaid observations, the petitions are disposed of. Rule is discharged. Interim relief, if any, stands vacated.