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5. Advocate Jagdale for respondent No. 1 contended that Shri Chotekhan was essential witness in the matter and he was not examined in departmental inquiry. He further contended that the previous two occasions pointed out in his past service record are incorrect. He states that on one occasion fine of Rs. 10/-only was inflicted and Service Rules (Discipline and Appeal Procedure) do not permit filing of any departmental appeal if amount of such fine is less than Rs. 50/-. He further states that the second occasion mentioned in his service record is incorrect because the Labour Court has found him not guilty for that misconduct and he was granted relief by it which has been accepted by his employer. Advocate Jagdale states that only a show cause notice for dismissal was served upon respondent No. 1 for alleged misconduct and it has been quashed by Labour Court. He states that no punishment has been and could have been inflicted upon respondent No. 1 for alleged misconduct. He also relies upon two judgments of Hon'ble Apex Court reported at 2002 Bombay Labour Cases 425 between Hindustan Motors Ltd. v. Tapan Kumar Bhattaccharya and reported at A.l.R. 1984 SC 914 between Ved Prakash Gupta v. Delton Cable India (p.) Ltd. He also places reliance upon unreported judgment delivered by me on 11-10-2004 in W. P. 933 of 1992 between present petitioner and one Abdul Rasid s/o Sk. Farid. It is his contention that the respondent had already superannuated from services and he was patient of paralysis when he was in service. In such circumstances, he contends that no interference is called for in writ jurisdiction against the concurrent orders and findings of both the Courts below.

9. When, the facts of present case are looked into, it is apparent that the reporter who lodged the report of incidence dated 21-2-1998 himself stated before Inquiry Officer that respondent No. 1 and Shri Chotekhan had verbal exchange between themselves in relation to office work and both of them abused each other. Other witnesses have also stated that Shri Chotekhan told respondent No. 1 that respondent No. 1 was paralysed and half of his work was done by his helper and respondent No. 1 wanted only to roam around. It also appears that respondent No. 1 also lodged complaint against Shri Chotekhan for insulting and abusing him. Though inquiry officer has recorded the finding that respondent No. 1 abused Shri Chotekhan and also lodged false complaint against him and though the Courts below have affirmed this finding as not perverse, still the fact remains that there was some hot exchange between Shri Chotekhan and respondent No. 1 which ultimately resulted into respondent No. 1 abusing Shri Chotekhan. The exact abuses uttered by respondent No. 1 are also not reproduced in inquiry report. It is not the case of petitioner that the abuses were filthy. These facts which are available on record distinguish this case from the other cases in which Hon'ble Apex Court has upheld the punishment of dismissal for abusing. There appears to be some provocation to respondent No. 1 and also a mitigating circumstances in this case. Respondent No. 1 was patient of paralysis and has attained the age of superannuation on 31-10-2002 itself. Perusal of past service record of respondent No. 1 reveals that he was departmentally punished at least on 7 earlier occasions. Though in record there are total 8 misconducts shown for last one no punishment was/has been inflicted and only show cause notice for dismissal was issued. It appears that said show cause notice was quashed and set aside by Labour Court and hence, there are only 7 earlier misconducts. One of them is for indisciplined behaviour while on duty and for it, respondent No.l was fined Rs. 10/- only on 24-7-1979. The argument that Discipline and Appeal Procedure does not provide for remedy of appeal against such fine is of no assistance to respondent No. 1. Apart from this, there are five other misconducts to his credit. Hence, this is not the matter in which respondent No. 1 can be permitted to go scot-free. I therefore, modify the order of grant of full back wages from 5-11-1998 till 31-10-2002 as passed by Labour Court and direct petitioner employer to pay him 50% amount of backwages for said period.