JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Gandhi, learned advocate for the petitioner and Mr. Majmudar, learned advocate for the respondent. 2. The petitioner has brought under challenge the award dated 30.4.2002, passed by learned Labour Court at Surat in Reference (LCS) No. 29 of 1988, whereby the learned Labour Court has directed the petitioner to reinstate the respondent on his original post with continuity of service and 40% backwages. 3. So far as factual backdrop is concerned, it has emerged that in view of reported misconduct allegedly committed by present respondent, he was placed under suspension vide order dated 24.3.1987 pending domestic enquiry. Thereafter, he was visited with charge-sheet dated 27.3.1987. In connection with the said charge-sheet, domestic inquiry was conducted. On conclusion of the domestic enquiry, the Enquiry Officer submitted his finding/report holding that the charge against the respondent are proved. After considering the material on record and the report of the Enquiry Officer and other relevant aspects e.g. the past service record, gravity of misconduct etc., the Disciplinary Authority terminated service of the respondent herein vide order dated 20.8.1987 (28.9.1987). 4. Being aggrieved by the said termination order, the respondent raised industrial dispute. The appropriate Government referred the dispute for adjudication. The order of reference was registered as Reference (LCS) No. 29 of 1988. During the proceedings of the reference, the contesting parties submitted their respective pleadings and thereafter their evidence were placed on record of the reference before the learned Labour Court. Thereafter, the learned Labour Court considered the evidence on record and the submissions by learned advocates and passed the award which is impugned in present petition, with the above-mentioned directions. The petitioner is aggrieved by the award. Hence, present petition. 5. Learned advocate for the petitioner assailed the impugned award and submitted that the findings recorded by the learned Labour Court are contrary to the evidence on record and they are perverse. He submitted that the learned Labour Court has committed serious error of law in passing the final direction obliging the petitioner to reinstate the respondent and to pay 40% backwages. He submitted that the learned Labour Court has committed serious error of law in passing the final direction obliging the petitioner to reinstate the respondent and to pay 40% backwages. He also submitted that the learned Labour Court failed to appreciate the gravity of misconduct and the learned Labour Court committed error in setting aside the order of penalty passed by the petitioner by holding that the employer ought to have imposed some minor penalty or other penalty instead of terminating the service of the respondent. According to learned advocate for the petitioner, the respondent reportedly committed misconduct of remaining absent from duty without leave and prior permission and since the respondent had not given any intimation about his absence from duty, any alternative arrangement was not made, as a result of which crucial treatment procedure in respect of a patient who was in critical condition could not be conducted and completed which resulted into death of a patient. However, the learned Labour Court failed to appreciate the said aspect and the fact that the said charge and allegation was proved, however, the learned Labour Court disagreed with the said findings of the Enquiry Officer and without properly appreciating the evidence available on record reached to the conclusion contrary to the Enquiry Officer. Learned advocate for the petitioner submitted that on one hand the learned Labour Court recorded conclusion contrary to the conclusion by the Enquiry Officer, whereas on the other hand the learned Labour Court also observed and recorded in the award that it may be true that the respondent remained absent and it may also be true that the respondent may not be innocent and free of any guilt or misconduct but the employer could have and ought to have imposed some other minor penalty or some penalty other than termination from service. According to the learned advocate for the petitioner, the learned Labour Court recorded self-contradicting findings and the learned Labour Court arbitrarily interfered with the order of penalty and committed serious error of law and jurisdiction in granting the relief to the workman, whereas in the facts of the case, the reference should have been rejected. 6. According to the learned advocate for the petitioner, the learned Labour Court recorded self-contradicting findings and the learned Labour Court arbitrarily interfered with the order of penalty and committed serious error of law and jurisdiction in granting the relief to the workman, whereas in the facts of the case, the reference should have been rejected. 6. Learned advocate for the petitioner also submitted that after termination from service the respondent workman had established laboratory and he has been engaged in business activity of running laboratory and thereby he has been gainfully employed and that, therefore, the direction qua backwages is, even otherwise, not justified and not sustainable. 7. Per contra, learned advocate for the respondent submitted that the learned Labour Court has not committed any error in directing the petitioner employer to reinstate the respondent workman and if at all the award is to be considered as erroneous, then the error is committed in denying balance 60% of the backwages to the respondent inasmuch as when the learned Labour Court found that the penalty order is unsustainable, then the learned Labour Court ought to have granted full backwages to the respondent while directing the petitioner employer to reinstate the respondent. Learned advocate for the respondent submitted that the concerned doctor was not examined by the petitioner employer. He also submitted that the relevant documents with regard to the charge and allegation levelled against the respondent workman were not placed on record before the Enquiry Officer and were not supplied to the respondent and the respondent was denied sufficient and reasonable opportunity of hearing and defence by depriving of relevant documents and the Enquiry Officer recorded findings in absence of relevant documents and that, therefore, there was violation of principles of natural justice. He submitted that the Enquiry Officer recorded findings on presumptions, surmises and conjectures and the learned Labour Court has not committed any error in holding that the conclusion of the Enquiry Officer is not supported by evidence. Learned advocate for the respondent submitted that the petition filed by the petitioner employer deserves to be rejected and the award passed by the learned Labour Court is required to be modified only to the extent that the direction requiring the employer to pay 100% backwages should be made part of the award and final direction. Learned advocate for the respondent submitted that the petition filed by the petitioner employer deserves to be rejected and the award passed by the learned Labour Court is required to be modified only to the extent that the direction requiring the employer to pay 100% backwages should be made part of the award and final direction. Learned advocate for the respondent workman submitted that the petition filed by the workman, i.e. SCA No. 5425/2003 deserves to be and may be allowed. 8. So far as the petitioner's submissions with regard to the backwages are concerned, Mr. Majmudar, learned advocate for the respondent workman (in SCA No. 1151/2012) relied on an affidavit made by the workman and he submitted that while it is true that after termination from service, the respondent had established a Pathology/Diagnostic Laboratory, however, the said venture of the petitioner never generated any income and the respondent workman did not earn any income out of the said business activity and that, therefore, the direction to award backwages is justified, however, the petitioner to pay only 40% is not justified and the learned Labour Court ought to have directed payment of 100% backwages. 9. I have considered the submissions by learned advocates for the employer and the workman. I have also considered the material and evidence on record and the award impugned in present petition. 10. Before proceeding further, it is relevant and appropriate to mention that after the Court admitted the petition, the respondent has not taken out any application to claim benefit under section 17B of the Act and it is for the first time that the respondent workman filed any affidavit dated 8.1.2010 with regard to gainful employment. 11. The respondent was visited with charge-sheet dated 27.3.1987 whereby it was alleged that (i) the respondent had remained absent from duty without leave on 8.9.1985 for which he was warned vide letter - order dated 4.9.1985. Thereafter, the respondent was again absent from the duty without leave for the period from 10.11.1985 to 23.11.1985, i.e. for 14 days. 11. The respondent was visited with charge-sheet dated 27.3.1987 whereby it was alleged that (i) the respondent had remained absent from duty without leave on 8.9.1985 for which he was warned vide letter - order dated 4.9.1985. Thereafter, the respondent was again absent from the duty without leave for the period from 10.11.1985 to 23.11.1985, i.e. for 14 days. It was also alleged under the said charge-sheet that when the respondent resumed his duty after remaining absent without leave he submitted a forged and fabricated medical certificate for which the notice-cum-warning was issued on 11.12.1985; and that (ii) when the respondent's duty was scheduled for night shift on 17.3.1987, the respondent workman did not report for duty without any intimation and prior permission and from 17.3.1987 he remained continuously absent from duty until 20.3.1987 and that since the respondent workman remained absent from duty without any intimation on 17.3.1987, a patient died for want of immediate and timely treatment (inasmuch as since the respondent was absent, dialyzes of the said patient could not be conducted); and that (iii) the respondent workman tampered with the office record (Overtime Register) and by overwriting the figures to overtime put in by employees he changed the figure of overtime from 14 hours to 44 hours and thereby he received payment for 44 hours (in December, 1986) and thereby he committed dishonesty; and that (iv) the conduct of the respondent with co-employees and other staff members is always wanting discipline and that he is negligent and irresponsible in performing his duties. 12. From the record, it has emerged that vide order dated 25.2.1999 the domestic enquiry conducted against the respondent was held to be defective. Against the said order dated 25.2.1999, the petitioner filed an application dated 31.3.1999 (Exh.33) and requested the learned Labour Court to review the order dated 25.2.1999 on the ground that the it was passed without granting opportunity of hearing to the petitioner. The application Exh.33 was granted and the original status was restored by the learned Labour Court. However, feeling aggrieved by the said order restoring the original status, the respondent filed writ petition, i.e. SCA No. 3869/2000. The petition came to be rejected vide order dated 19.9.2001 whereby the Court directed, inter alia, that: "The petitioner or the witnesses should complete the evidences and management is permitted to cross examine all witnesses. However, feeling aggrieved by the said order restoring the original status, the respondent filed writ petition, i.e. SCA No. 3869/2000. The petition came to be rejected vide order dated 19.9.2001 whereby the Court directed, inter alia, that: "The petitioner or the witnesses should complete the evidences and management is permitted to cross examine all witnesses. Immediately thereafter, the respondent management will be permitted to lead evidences on the first issue to the validity of the inquiry and the concerned workman will be entitled to cross examine the management witnesses on the said point." 13. Thereafter, the proceedings were conducted to decide the legality and propriety of the domestic inquiry. The details of the proceedings before the learned Labour Court after 19.09.2001 are elaborately mentioned by the petitioner in Paragraph Nos. 18 to 20 of the petition memo. The said factual narration by the petitioner is not disputed by the respondent. It emerges from the said narration that in pursuance of the order dated 19.09.2001, passed by the Court in Special Civil Application No. 3869 of 2000, the learned Labour Court passed order dated 04.01.2002 holding, inter alia, that the domestic inquiry was defective since the petitioner failed to examine the postal authority to establish that the intimation about hearing were given to the respondent. 14. It is not in dispute that the petitioner-accepted the said order dated 04.01.2002, whereby the learned Labour Court held that the inquiry was not conducted in accordance with principles of natural justice. 15. In view of the fact that the learned Labour Court granted permission to the petitioner to establish the allegations and charge against the respondent, the petitioner proceeded to lead evidence to establish the allegations and charge against the respondent before the Court. 16. For the said purpose, documentary and oral evidence was led before the learned Labour Court and the petitioner herein examined 9 witnesses before the learned Labour Court so as to establish the charge/allegations levelled against the respondent. The persons, who came to be as witnesses to support and justify the allegations against the respondent are:-- "1. Ms. S.S. Damodar (Nurse) 2. Mr. B.J. Patel (PRO) 3. Ms. P.M. Patel (Sister in charge) 4. Mr. B.P. Purohit (Manager) 5. Mr. V.R. Kuril 6. Mr. A.T. Shah (Secretary) 7. Haidarali Abdulbhai (Office Administrative) 8. Mr. K.M. Vaidh" 17. The persons, who came to be as witnesses to support and justify the allegations against the respondent are:-- "1. Ms. S.S. Damodar (Nurse) 2. Mr. B.J. Patel (PRO) 3. Ms. P.M. Patel (Sister in charge) 4. Mr. B.P. Purohit (Manager) 5. Mr. V.R. Kuril 6. Mr. A.T. Shah (Secretary) 7. Haidarali Abdulbhai (Office Administrative) 8. Mr. K.M. Vaidh" 17. At that stage, the petitioner also led evidence to establish that after the service of the respondent was terminated, he was gainfully employed. On this count, an officer/employee from Ashaktashram Hospital was examined, who deposed before the Court that the respondent was employed by the said hospital. 18. The respondent did not examine any witness, however, the witnesses examined by the petitioner were subjected to cross-examination by/on behalf of the respondent. 19. Thereafter, the learned Labour Court heard rival submissions of the contesting parties and upon examining the material on record and after considering the submissions by the parties, the learned Labour Court reached to the conclusion that the charge against the respondent was not proved. 20. At this stage, it is pertinent to note that on one hand the learned Labour Court held that the charge against the respondent is not proved, however, in the same breath, the learned Labour Court also observed that the petitioner might have remained absent without intimation and he may not be completely free of the guilt charged against him, however, for such mistake or conduct, the petitioner ought to have imposed some other penalty i.e. penalty other than penalty of dismissal from service. 21. Thus, the said observations in the award runs contrary to the observations and finding by the learned Labour Court that the charge and allegations against the respondent are not proved. 22. At this stage, it is appropriate to recall that one of the charge against the respondent was that the petitioner remained absent without permission. To establish the said charge, it was alleged in the charge-sheet that the respondent remained absent on 8.9.1985 for which he was warned vide communication dated 4.10.1985. It was further alleged in the charge-sheet that the respondent then remained absent from 10.11.1985 to 23.11.1985 and then he submitted incorrect/forged medical certificate for which he was served with a warning letter dated 11.12.1985. 23. It was further alleged in the charge-sheet that the respondent then remained absent from 10.11.1985 to 23.11.1985 and then he submitted incorrect/forged medical certificate for which he was served with a warning letter dated 11.12.1985. 23. It appears that the said instances were mentioned in the charge only with a view to demonstrate that prior to his absence on 17.03.1987, the respondent had, during past period, also remained absent without leave or permission. It is obvious that only with a view to establishing the gravity of the respondent's absence on 17.03.1987 that the said two instances were cited by the petitioner in the charge-sheet dated 27.03.1987. The chapter related to the respondent's absence on 08.09.1985 and from 10.11.1985 to 23.11.1985 was closed and concluded vide warning dated 04.10.1985 and 11.10.1985. Therefore, any question of 2nd penalty with regard to absence in 1985 did not arise. 24. Now, so far as instances dated 17.03.1987, which is expressly mentioned in the charge-sheet dated 27.03.1987 is concerned, it is relevant to note and mention that, according to the charge against the respondent, the respondent's duty was scheduled for night shift on 17.03.1987. However, the respondent, without any intimation, remained absent on 17.03.1987. Though the respondent was absent in the night shift on 17.3.1987 and since he had not given intimation about his absence any alternative arrangement was not made by the hospital administration, and that therefore, any other Lab Technician, Operator for Dialysis machine was not present. The case of the petitioner was that if the respondent had informed that he was not going to attend the duty in his nigh shift on 17.03.1987, then the petitioner would have made alternative arrangement, however, since the respondent did not give any intimation about his absence, it was assumed that he had reported for duty in ordinary course, and that therefore, any alternative arrangement could not be made. According to the petitioner, health of one patient deteriorated during night shift on 17.03.1987, which required immediate dialysis, however since due to respondent's irresponsible attitude alternative arrangement for immediate dialysis could not be made, consequently, the patient could not be attended and that led to complications in respect of patient's health and the patient died. The petitioner alleged that for the said incident, the responsibility rested on respondent's shoulders. 25. The petitioner alleged that for the said incident, the responsibility rested on respondent's shoulders. 25. On the other hand, the respondent claimed that he was not reporting for duty from 15.03.1987, and that therefore, he was not aware that for 17.03.1987 his duty was scheduled for night shift. 26. So far as this aspect is concerned, in this context, the petitioner examined the Sister in Charge Ms. Pravinaben Patel, who deposed that as per the practice the duty list are prepared for entire month and that is done before the next month begins and the schedule for the month is informed to all employees next day. In light of the said evidence, the petitioner while denying the allegation that the respondent was absent on 15th & 16th March, claimed that the respondent's claim that since he was not present on 15th and 16th March, 1987, he was not aware that his duty was scheduled for night shift is incorrect and should not be accepted. 27. The learned Labour Court took into consideration the evidence by another Nurse viz. Ms. Shushilaben S. Damodaran, deposed before the learned Labour Court that the Sister in charge (Pravinaben) used to prepare the duty list and the schedule/arrangement in respect of duties was informed on previous day. She also accepted that everybody informed Dr. Gupta or In-charge Nurse about leave and that if intimation about absence/leave was not given in advance then it would cause inconvenience to the patients. The learned Labour Court considered the said two depositions by Shushilaben and Pravinaben. The learned Labour Court noticed that the Sister in Charge i.e. Pravinaben said that as per the practice she prepared duty list for entire month and informed the persons about the schedule on the next day. On the other hand, Sushilaben, other Nurse, said in her evidence, they were informed about their duties on previous day. The learned Labour Court construed the deposition of Ms. Pravinaben that in respect of schedules as per the duty list were informed to the concerned persons on the next day (after the duty list for entire month was prepared) as preceding day and proceeded on that premise by taking into account the respondent's claim that he was absent from 15th March to 20th March, 1987 on account of his ill-health and had submitted the application form on 21.03.1987. It is pertinent that the correct fact as to whether the respondent was absent or not on 15th & 16 March is not examined and ascertained and dealt with. The learned Court has overlooked the said aspect and not dealt with and not even mentioned whether any evidence on this count was placed on record or not. 28. The construction of the evidence by Ms. Praviben and Ms. Shushilaben by the learned Labour Court is not correct and it is not in consonance with the evidence of said two Nurses. The learned Labour Court failed to noticed that Ms. Pravinaben, Sister in Charge specifically mentioned that duty list was prepared for entire month and Shushilaben, the other Nurse, did not say in her evidence that duty list was not prepared for entire month. Thus, the fact that the duty list was prepared for entire month was established by evidence of Ms. Pravinaben. Ms. Pravinaben said in her evidence that respective schedule of duties was informed to the persons on the next day, then the expression "next day" would mean the day next to the date on which the duty list for succeeding month was prepared. There was no scope to construe the expression "Aagla Divse" mentioned by Shushilaben to mean that though the schedule of the duty was prepared for entire next/coming month but the duty schedule will be informed only on previous day. Such construction completely overlooks and even nullifies the deposition by Ms.Pravinaben that the duty list was prepared in advance for entire month. However, in the facts of the case, the said controversy is not very relevant. 29. It is pertinent that the relevant fact that on 17.03.1987, the respondent was absent is undisputed. Likewise, the fact that the respondent had not informed the hospital administration, more particularly the concerned "in-charge" person about his absence (i.e. that he would be absent - on leave - on 17th March), is also undisputed fact. 30. The respondent claimed that he remained absent from 15th March to 20th March, 1987 and that he had submitted necessary application/filled up prescribed form on 21.03.1987, meaning thereby, even the respondent himself admitted that until 20.3.1987 he had neither given any intimation about his absence nor submitted any request about his absence on 17.3.1987 and he also admitted that on 17.03.1987, he was absent from duty without prior leave or permission or without intimation. 31. Under the circumstances, it is obvious that the administration would not know on 17.03.1987 that the respondent would not be attending his duty during the night shift and that he was going to be absent in the night shift. As a further consequences, any alternative arrangement was not made. 32. The respondent's claim that he was not present on 15th and 16th March, 1987 does not appear to have been established. The so-called application seeking sick leave allegedly for the period from 15th March to 20th March, 1987 does not appear to have been placed before the learned Labour Court by the respondent. The respondent has not placed any material on record that he was absent on 15th and 16th March, 1987. 33. Under the circumstances, there was no justification for the learned Labour Court to accept the respondent's unsubstantiated claim that he was absent on 15th and 16th March, 1987 as well. Unfortunately, the learned labour Court accepted the same claim of the respondent without supporting any evidence. 34. Not only this, but the learned Labour Court also failed to appreciate the fact that even if the respondent's claim with regard to 15th and 16th March, 1984 were to be believed, then also the respondent's action of not intimating the hospital administration about his absence could not have been ignored by the learned Labour Court. 35. The learned Labour Court ought to have appreciated that the respondent failed in his duty and obligation to inform the administration/management about his absence and his that conduct was wrong and unjustified and amounted to misconduct and it did not justify his conduct on 17th March, 1987. 36. Thus, the learned Labour Court conclusion that the charge against the respondent in connection with his unauthorized absence on 17th March, 1987 is not proved, cannot be sustained. By respondent's own claim that he had submitted an application on 21.03.1987, the charge and allegation that on 17.03.1987, the respondent remained absent without permission stands established. 37. In this background, the question which arises for consideration is with regard to gravity of respondent's action. 38. If the respondent was continuously absent from 15th March to 20th March, 1987, then the petitioner would have mentioned the said fact in the charge-sheet and the charge and allegations for remaining absent without leave from 15th to 20th March, 1987 would have been levelled. 38. If the respondent was continuously absent from 15th March to 20th March, 1987, then the petitioner would have mentioned the said fact in the charge-sheet and the charge and allegations for remaining absent without leave from 15th to 20th March, 1987 would have been levelled. Since any charge or allegation with regard to respondent's absence on 15th March, 16th March and 18th to 20th March, 1987 is not levelled against the respondent, this Court is not required to further deliberate on the respondent's alleged absence during the said period. 39. According to the charge-sheet, the allegation was restricted to the respondent's absence on 17.3.1987 and therefore also the Court is required to restrict the deliberation only with regard to 17.3.1987. 40. From the foregoing discussion, it has emerged that the allegation that the respondent remained absent without leave and permission and without any intimation on 17.3.1987, is established. Actually, the said allegation is established by the respondent's own admission that he had submitted application on 21.3.1987 and until 21.3.1987 he had neither applied for leave nor informed about his absence. 41. Ordinarily, in view of such fact viz. that the charge is only in respect of one day i.e. 17.3.1987 the gravity of the said charge and allegation would have been considered as single day's absence without leave. 42. However, in present case, gravity is attached to said single day's absence in view of the incident which occurred on the said day i.e. when a patient's health took critical turn which necessitated immediate dialysis and the respondent, who was supposed to be available and would be the only technician in night shift did not attend the duty without prior intimation and without seeking leave and therefore, the dialysis could not be provided immediately. 43. 43. In this context, it cannot be overlooked that during the night shift, the respondent was the only technical only available on duty and his unauthorised absence created problem since the administration was not aware that the technician was not available during night shift however at the same time it also cannot be overlooked that in the hospital, other nurse or ward boy and other staff would be available during the night shift and one of such staff personnel could have immediately informed the sister in-charge for any other doctor/physician about the condition of the concerned patient and on such intimation, alternative arrangement could have been made immediately. 44. Any evidence is not brought on record to establish as to whether other ward boy or nurse or other staff had noticed the concerned patient's condition and informed about the concerned patient's condition to sister in-charge or any other doctor on duty during the night shift or not and if such intimation was given then the time gap in giving such intimation and the reason for such time gap is also not brought on record. 45. On this aspect, the fact which emerges is that at initial stage, the petitioner's case that the administration would not be aware about the respondent's absence from duty during night shift on 17.3.1987 appears justified in absence of contrary evidence more particularly in view of the fact that he had not given any intimation. However, the petitioner's attempt to put entire blame on respondent's shoulder with regard to delay in providing necessary treatment to the concerned patient does not appear justified in absence of relevant and cogent evidence, more particularly in absence of any evidence to the effect that only due to respondent's absence without intimation timely treatment could not be given despite the fact that the nurse/ward boy on duty had taken measures to provide treatment and had taken steps by calling substitute technician but due to delay irreversible situation occurred. In absence of evidence it would not be just to hold the respondent as sole responsible person for the incident, though the respondent cannot be considered completely free of any guilt or responsibility and it cannot be said that he is completely free of any responsibility he is not at all involved in or responsible for the incident and the situation which occurred due to his absence without permission i.e. his irresponsible conduct. In absence of such evidence, any final decision with regard to the extent of respondent's responsibility cannot be changed. 46. In this view of the matter, the allegation and charge with regard to respondent's absence on 17.3.1987 would actually be restricted to his conduct of remaining absent without leave or permission or intimation and the gravity of other part of the charge i.e. for the incident on 17.3.1987 cannot be placed entirely on respondent's shoulder in absence of any evidence about the steps taken on 17.3.1987 by other staff members who were present on duty on 17.3.1987. 47. The third charge levelled against the respondent was that he tampered with the hospital's record viz. overtime register and altered the total number of hours of overtime work completed by him for the month of December 1986. It was also alleged that actual number of hours for which the respondent worked, was 14 hours, however, he altered it to 44 hours. 48. According to the conclusion recorded by the learned Labour Court, the said allegation is not proved. The learned Labour Court has observed and recorded that the petitioner did not place on record relevant documents to establish that the respondent had made any alteration in hospital's record and thereby he had tampered with the records. 49. The petitioner claims that overtime register was placed on record before the learned Labour Court and the evidence of the witness viz. sister-in-charge (provisional) who was examined, established the fact that overwriting was made in the overtime register to change 14 hours into 44 hours however the learned Labour Court has held that the said allegation is not proved because the petitioner did not examine Dr. B.K. Gupta who had signed the said overtime register for the month of December 1986. The learned Court also considered the documents and oral evidence relied on by both sides. The learned Court considered and discussed Exhibits 73, 170, 171 and O.T. Register of December 1986. After considering relevant evidence the learned Court reached to the conclusion that the said charge is not proved. The said conclusion does not warrant any interference. The said conclusion is reached on appreciation of evidence, documentary and oral. This Court would not sit in appeal over findings recorded by the learned Labour Court. This Court would also not re-appreciate evidence. After considering relevant evidence the learned Court reached to the conclusion that the said charge is not proved. The said conclusion does not warrant any interference. The said conclusion is reached on appreciation of evidence, documentary and oral. This Court would not sit in appeal over findings recorded by the learned Labour Court. This Court would also not re-appreciate evidence. This Court finds no reason to disturb the finding of fact recorded by the learned Labour Court. 50. With reference to the allegation against the respondent and the four charge levelled against the respondent vide charge-sheet dated 27.3.1987, the learned Labour Court has, as aforesaid, held that the charge are not proved. The said conclusion is recorded by the learned Labour Court after examination of the evidence on record. It is true that in respect of some of the aspects arising from the allegation and corresponding evidence, two possibilities arose before the learned Labour Court and the Court preferred to accept one possibility and rejected the other one. In such situation, merely because there is possibility of accepting other construction of evidence, the decision of the learned Labour Court cannot be faulted on the ground that the learned Labour Court committed error by not accepting particular construction of the evidence, unless it is established that the construction or interpretation accepted by the learned Labour Court is not legally possible. 51. This Court might have, and in present case the Court has, different view with regard to final analysis and conclusion about the evidence available on record, but this Court would resist from substituting its views in place of the conclusions recorded by the learned Labour Court because the petitioner has not established that the analysis of evidence and conclusion recorded by the learned Labour Court is perverse and could not have been reached in light of the evidence on record. All that the petitioner has been able to demonstrate is that there is other view possible with regard to the evidence available on record and the learned Labour Court ought to have accepted the said other conclusion rather than demand accepted by it. On such ground, this Court will not substitute its own view or the other view arising from the evidence. 52. On such ground, this Court will not substitute its own view or the other view arising from the evidence. 52. On the basis of the conclusions reached and recorded by the learned Labour Court at the end of the analysis and appreciation of evidence, the learned Labour Court has set aside the petitioner's order terminating service of the respondent. The learned Labour Court has, after considering the material available on record, awarded 40% backwages. 53. So far as the direction to pay 40% backwages is concerned, it is pertinent to note that the petitioner had placed on record before the learned Labour Court that after the respondent's service was terminated, he was serving with Ashatashram Hospital and thereafter he established his own clinical laboratory. On this count, the respondent filed an affidavit dated 8.1.2016 in this Court. The details mentioned in the affidavit were not on record before the learned Labour Court and the said material is placed on record for the first time by the said affidavit dated 8.1.2016. In this view of the matter, the learned Labour Court's direction with regard to the backwages cannot be sustained. The petitioner established that after his termination, the respondent was employed in the hospital and thereafter he established his own laboratory. Meaning thereby, the respondent was gainfully engaged during the intervening period. The respondent's claim in the affidavit (which was not before the learned Labour Court since it filed for the first time during final hearing of this petition) that he did not earn any income from the laboratory is untenable and unpalatable. No person will make such investment and maintain the premises, equipments etc. for so many years without any yield. Besides such claim was not placed before the learned Labour Court was the proof that the respondent has established laboratory and he is running the laboratory and prior to that he served with a hospital. When such evidence was on record the learned Labour Court could not and should not have awarded backwages. The said direction whereby the Court awarded 40% of backwages is unjustified and cannot be sustained. The said direction is, therefore, set aside. 54. So far as the direction to reinstate the respondent is concerned, as mentioned earlier, the learned Labour Court has passed the said direction after having reached to the conclusion that the charge levelled against the respondent are not proved. The said direction is, therefore, set aside. 54. So far as the direction to reinstate the respondent is concerned, as mentioned earlier, the learned Labour Court has passed the said direction after having reached to the conclusion that the charge levelled against the respondent are not proved. Though this Court finds that the learned Labour Court's conclusion with regard to the respondent's absence from duty on 17.3.1987 is not only contrary to evidence on record but is also contrary to the respondent's own admission and at least the said conclusion is not sustainable, however on this ground the direction to reinstate the respondent does not warrant interference because even if this Court proceeded on the premise that the charge - allegation that the respondent remained absent without leave on 17.3.1987 is established then also the fact that the penalty of dismissal from service would be excessive and harsh would still survive and when the learned Labour Court has passed direction setting aside penalty order then this Court would not interfere with exercise of such discretion. 55. Likewise, the conclusion by the learned Labour Court that the charge No. 1 and charge No. 4 are not established the said conclusion also, does not warrant any interference. 56. During the hearing of present petitions, a suggestion to substitute the award with regard to reinstatement with direction to pay lump sum compensation was considered. The respondent expressed his readiness and inclination to accept appropriate compensation by way of lump sum compensation in lieu of reinstatement, etc. However, the petitioner expressed reservation for payment of compensation in lieu of reinstatement and therefore, the said suggestion failed. 57. In the result, the petition filed by the employer partly succeeds. The challenge against the direction to reinstate the respondent is not interfered. However, the direction to pay 40% backwages is found unsustainable and therefore, the same is set aside. Thus, the petition filed by the employer stands partly allowed and the direction to pay 40% backwages is set aside. Rule is made absolute to said extent. 58. The challenge against the direction to reinstate the respondent is not interfered. However, the direction to pay 40% backwages is found unsustainable and therefore, the same is set aside. Thus, the petition filed by the employer stands partly allowed and the direction to pay 40% backwages is set aside. Rule is made absolute to said extent. 58. In view of the fact that this Court has found that the direction requiring the petitioner to pay 40% backwages is not sustainable, the claim of the respondent that the learned Labour Court's award denying 60% backwages may be set aside and it may be modified by awarding full backwages, must fail and accordingly, the petition filed by the workman fails. The workman has failed to establish entitlement for backwages. Therefore, the claim for backwages, for 40% (as awarded by the learned Court) and/or or for 100% backwages, fails and the workman's petition stands dismissed. Rule discharged.