M.D. BALASAHEB DESAI SAHAKARI S.K. LTD. versus KASHINATH GANAPATI KAMBALE

Citation: [2008] 17 S.C.R. 446 · Decided: 12-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

A 
B 
[2008) 15 S.C.R. 446 
. M.0. BALASAHEB DESAI SAHAKARI S.K. LTD. 
v. 
KASHINATH GANAPATI KAMBALE 
(Civil Appeal No. 7249 of 2008) 
DECEMBER 12:, 2008 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.] 
Labour laws: Back wages - Workman found guilty of 
indiscipline at work place, unautf10risedly absent without 
c leave, misbehaviour with superiors, leaving place of work early 
withoutpermission - Dismissal from service - Award of re-
instatement with 50% back wages - Held: Since charges were 
serious in nature, forfeiture of Sb% back wages- was not 
adequate punishment- No back wages awarded in his favour. 
D 
Industrial Disputes Act, 1947: s.11A - Power under -
Scope of. 
1 
Evidence Act, 1872: s.106 - Burden of proof of gainful 
employment - Held: Is on workmap. 
I 
Respondent-workman was found guilty of 
E misconduct including being absent without leave, late 
attendance and for leaving the work place without 
permission etc. A departmental proceeding was held and 
he was dismissed from servicei He filed an application 
praying for re~instatement with continuity of service and 
F full back wages. Before labour court, appellant-employer 
examined several witnesses to e,stablish that respondent 
was running a footwear shop. ' 
Labour court, while holding ithat the respondent. was 
found guilty of committing the ,misconduct, passed an 
G award of re-instatement with continuity of service with 
50% back-wages on the .premise that the punishment of 
termination from service was disproportionate to the 
charges of misconduct leveHed against him. The 
appellate authority upheld th~ order of labour court. 
H 
446 
t •' 
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M.D. BALASAHEB DESAI SAHAKARI S.K. LTD. v. 
447 
KASHINATH GANAPATI KAMBALE 
Appellant filed writ petition before High Court. It held that 
A 
labour court and appellate authority were right in holding 
that the lesser punishment of forfeiture of 50% of back 
wages was adequate punishment and accordingly 
dismissed the writ petition. Hence the present appeal. 
Partly allowing the appeal, the Court 
B 
HELD: 1. The labour court while exercising its 
jurisdiction under Section 11A of the Industrial Disputes 
)':.-
Act is entitled to consider as to whether the punishment 
awarded is wholly disproportionate to the delinquent 
employee or not However, the discretion vested in it must c 
be exercised in a judicious manner. The labour court 
ordinarily should not interfere with the discretion 
exercised by the employer unless the same is found to 
be inconsistent with the provisions of a statute or 
otherwise perverse or unjust. It may be true that in terms 
D' 
of the Model Standing Order framed under the Industrial 
Employment Standing Orders Act, 1946, ordinarily fine for 
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wrongful absence was to be imposed but in this regard 
~. 
the number of o·ccasions on whiCh the workman had 
remained on unauthorized absence was also required to 
be taken into consideration. In the instant case, apart from 
E 
remaining· unauthorizedly absent without leave, the 
respondent was found guilty of indiscipline at the work 
place, misbehaviour with his superiors, leaving place of 
work early without permission and without leave, signing 
the muster for showing presence although he was 
F' 
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absent. Forfeiture of 50% back wages, thus, was not an 
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adequate punishment. In a case of such nature, he should 
have been awarded some punishment in lieu of the order 
of dismissal. [Paras 15 and 16] (453-D-G; 454-A] 
2. Having regard to the principles contained in G' 
Section 106 of the Evidence Act, the burden of proof to 
show that the workman was not gainfully employed is not 
on the employer. In this case, the burden of proof had 
wrongly been placed upon the appellant-employer. Some 
materials were brought on record to show that the H, 
448 
SUPREME COURT REPORTS 
[2008] 17 S.C.R. 
A respondent was gainfully employed. The evidence 
adduced by the appellant on· that behalf, were not 
considered on its proper perspective. The Industrial 
r 
Court while holding that no licence is necessary to run a 
\-
, footwear shop in a small town committed a serious 
t 
B illegality in arriving at his finding that the respondent 
must have been doing so, to meet his both ends. It may 
be correct that a person cannot afford to remain 
.... 
unemployed for a long time, but for arriving at a 
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conclusion that the respondent~was gainfully employed 
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or not, a large number of factors are required to be taken 
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c into consideration .. [Par

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