LPA.500.12
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
LETTERS PATENT APPEAL NO. 500/2012
IN
WRIT PETITION NO. 4846/2006
Smt. Vimla D/o Marotrao Nagrale,
R/o Bembal, Tahsil - Mul, District
Chandrapur. .. APPELLANT
versus
Zilla Parishad, Gadchiroli,
Through its Chief Executive Officer. .. RESPONDENT
...............................................................................................................................................
Shri J.L. Bhoot, Advocate for the appellant.
Shri H.A. Deshpande, Advocate for the respondent.
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 15 & 16th November, 2017 ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Heard Shri Bhoot, learned counsel for the appellant and Shri H.A. Deshpande, learned counsel for the respondent.
2. The judgment dated 20.06.2012 delivered in Writ Petition No. 4846 of 2006 by the learned Single Judge, remanding the matter to Labour Court because of absence of finding on continuous service of 240 days, has been assailed in this Letters ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:23:09 ::: LPA.500.12 2 Patent Appeal.
3. On 05.12.2012, while admitting LPA, this Court has passed the following order :
"CORAM : B.R. GAVAI & A.P. BHANGALE, JJ.
DATE : DECEMBER 05, 2012
Heard.
For the reasons stated, the application is allowed. The appeal be registered.
L.P.A. NO. 500/ 2012 Heard.
Admit.
By way of ad-interim order, there shall be stay to the order passed by learned Single Judge and also to the order passed by the learned Judge, Labour Court, Chandrapur, only to the effect of payment of back wages. Needless to state that the appellant shall be permitted to continue in the service.
Shri H.A. Deshpande, Advocate waives notice for the respondent.
4. With the result, proceedings after remand before Labour Court were stayed, grant of wages to the respondent-workman were also stayed and the workman continued on duty and earned wages. It is not in dispute that in writ petition, a direction was issued on 01.04.2008 whereby the respondent was allowed to join duty on her post as Auxiliary Nurse Midwife at Primary Health Unit, Zinganu. Accordingly, she reported ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:23:09 ::: LPA.500.12 3 for work and continued to do so till her superannuation on 30.09.2017.
5. When LPA was called out on earlier occasion, it appears that parties made some efforts to settle the controversy. The appellant - workman waived wages in terms Award delivered in her favour by the Reference Court and also incremental arrears. She insisted only for grant of notional increments from 26.08.1994 till her joining in 2008 and thereafter till her superannuation. The effort, therefore, is only to see that wages last drawn are proportionately hiked so as to result in more pension on account of superannuation. Attempts made by the parties could not fructify as the respondent before this Court is a local body having several constraints.
6. The submission of Shri Bhoot, learned counsel is, terms of reference by appropriate government to the Labour Court at Chandrapur, in Reference Case No. 5 of 1999 were decisive and only controversy needed to be answered was about termination dated 26.08.1994. The respondent - employer did not accept termination on that date and pointed out that as the appellant - workman was absconding, after due notices and paper publication, she was terminated on 19.10.1995. The Reference Court framed issues at Exh. 12 and vide second issue embarked upon correctness of this action. As no Departmental Inquiry was admittedly held, the employer was given an opportunity to prove misconduct before the Court and employer did not lead any evidence in that respect. In this situation, award of reinstatement with continuity and back wages could not have been interfered with by the learned Single Judge. He, ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:23:09 ::: LPA.500.12 4 however, adds that now this Court has to only consider the propriety of grant of back wages with continuity. According to him, completion of 240 days of work was not germane and irrelevant exercise. The learned Single Judge has remanded the matter to Labour Court on merits. He submits that award delivered by the Reference Court is just and proper and, therefore, calls for no intervention. He prays for its restoration.
7. Shri Deshpande, learned counsel, on the other hand, relied upon written statement filed and defence made therein. He submits that specifically it was pointed out to that Court that workman absconded after 01.07.1994 and as such she was sent notices and when notices were returned back unclaimed, paper publication was also made. He submits that in this situation, notices sent and paper publication is itself proof of misconduct and ought to have been accepted by the Reference Court. He further submits that as there was grievance of violation of Section 25-F of the Industrial Disputes Act, 1947, by workman before Reference Court, finding on completion of 240 days of continuous service became necessary and hence learned Single Judge has rightly remanded the matter to the Reference Court. He submits that without prejudice to merits of the controversy and only as an ideal employer, the respondent made bona fide efforts to settle the controversy. However, it could not be so settled and this effort should not be used to draw any adverse inference against the respondent. He, therefore, prays for dismissal of Letters Patent Appeal.
16th Nov.2017.
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8. Language of reference read out to us by Adv. Bhoot reveals that it only enables Labour Court to consider propriety or otherwise of termination on 26.8.1994.
9. In defence, respondent-employee pointed out that workman was absconding and though reminders were sent, she did not report. Hence, show-cause notice for misconduct of remaining absent was required to be issued. Even those communications, public notices were issued on 9.7.1995 in Marathi daily "Janvad" and, thereafter in "Nav Bharat" on 29.8.1995. She was given 15 days' time to explain her absence. As she did not report and did not explain, her services were terminated vide order dated 29.10.1995. The award mentions date "29.10.1995". However, the order of termination produced on record is 19.10.1995 and its publication is on 23.10.1995. Thus, in defence, employer has denied oral termination with effect from 26.08.1994 and, has pointed out, the termination after following principles of natural justice. It is not in dispute that in written statement, employer also reserved leave to prove misconduct before reference Court.
10. Accordingly, the Reference Court framed the following two issues and has answered the same as under :-
(i) Whether the party no.2 was illegally
terminated from service w.e.f.
26.8.94 as alleged by her ? ..No
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LPA.500.12
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(ii) Whether the party No.1 justify its action
of termination of the party No.2 by adducing
evidence before the Court? ..No
(iii) Whether the party No.2 is entitled to
reinstatement with continuity of service
and back wages? ..Yes
11. From defence itself, it at once follows that as per procedure adopted by Reference Court everything turned on proving of misconduct by employer. It is not in dispute that workman-lady entered witness box and pointed out oral termination with effect from 26.8.1994. She was cross-examined and thereafter employer did not enter witness box. Thus, burden of proving misconduct which needed to be discharged by employer, has not at all been discharged.
12. It needs to be mentioned here that as per judgment of Hon'ble Apex Court, in the case of Cooper Engineering Ltd. vs. P.P.Mundhe, reported at AIR 1975 SC 1900 and, in the case Bharat Forge Co.Ltd. vs.A.B.Zodge and another, reported at (1996 ) 4 SCC 374, the misconduct can be proved by leading evidence before Labour Court, by employer. For that Labour Court has to frame preliminary issue about fairness and validity of departmental enquiry. If the issue is answered against employer and departmental enquiry is held to be unfair, the employer, if he has reserved leave while filing written statement, gets opportunity to prove misconduct. R ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:23:09 ::: LPA.500.12 7 Here, admittedly, there was no charge-sheet and no departmental enquiry. Hence, Labour Court vide Exh.12, framed issues before-hand and Issue No.2 therein expected employer to justify the action of termination i.e. to prove misconduct.
13. It appears that after framing of issues, workman/Party No.2 entered witness box on 3.12.2004 and her evidence has been recorded vide Exh.23. Hence, on that date, employer was very much aware of issues framed and burden cast upon it.
14. Still the employer did not enter witness box, did not produce any muster roll to show that from a particular date she remained absent without any intimation or permission and also did not therefore attempt to prove misconduct at all.
15. In this situation, reasons recorded in Award do not appear to be either erroneous or perverse.
16. As it was oral termination and workman was appointed permanently against the post of Auxillary Nurse Midwife, by way of abundant precaution, workman also pointed out violation of Section 25F of the Industrial Disputes Act. It was, therefore, not the sole ground of attack.
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17. When Writ Petition was argued before learned single Judge of this Court, the learned single Judge has been swayed away by observations or finding of violation of Section 25F of Industrial Disputes Act. The findings recorded by the learned single Judge show that such a conclusion by Labour Court could not have been reached in absence of a finding of completion of 240 days of continuous service, in terms of Section 25B. The discussion above shows that such a finding was not at all warranted or called for in the matter. The workman came up with a story of oral termination and employer pointed out that workman was a deserter and hence was terminated in adherence to principles of natural justice.
18. We, in this situation, find that the application of mind by learned single Judge is unwarranted and unsustainable.
19. In view of the developments thereafter as workman has joined in 2008 and expressly accepted to waive back wages as also incremental arrears, the only question which survives is whether for purposes of computing total length of her service or then the last pay drawn for calculation of pension, notional increments for the period from 26.8.1994 onward can be awarded.
21. Reference Court has, while delivering award, granted full back wages with continuity with reinstatement. Adv. Deshpande has submitted that though some ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:23:09 ::: LPA.500.12 9 evidence was adduced to bring on record absence of gainful employment it was without any pleadings. Adv.Bhoot disputes this. He has pointed out that burden was all the while upon employer to show availability of such employment. We need not delve more into this controversy as the workman has fairly given up back-wages as also incremental arrears.
22. In this situation, we find that the appellant is entitled to notional increments from 26.8.1994 till she was actually permitted to join duties in year 2008 and thereafter from 2008 till her superannuation on 30th September, 2017. Her salary shall accordingly be fixed and revised on relevant dates by releasing increments notionally in her favour and her last pay shall then be worked out as on date of her superannuation,as per law. Her terminal benefits including gratuity, provident fund and pension shall accordingly be revised upwards. This exercise shall be completed within a period of three months from today. The amount becoming due and payable towards arrears of gratuity, provident fund and pension shall be made over to her in next three months.
23. We clarify as increments are to be released only notionally, she shall not get any arrears on account of wages from 26.8.1994 till her superannuation on 30th September, 2017.
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24. Accordingly, we quash and set aside the judgment dated 20th June, 2012 and modify the award delivered by Labour Court, Chandrapur in Reference Case No.5/1999 on 11.11.2005 to that extent.
25. Letters Patent Appeal is, thus, partly allowed and disposed of. No costs.
JUDGE JUDGE
GS/sahare
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