Gujarat High Court
Devendrabhai Ramalal Patel vs Mehsana District Co-Operative Bank on 10 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/1570/2024 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1570 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 18692 of 2017
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DEVENDRABHAI RAMALAL PATEL
Versus
MEHSANA DISTRICT CO-OPERATIVE BANK & ANR.
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Appearance:
MR G R MANAV(6064) for the Appellant(s) No. 1
DELETED for the Respondent(s) No. 2
MR AKASH MODI FOR MR PRABHAKAR UPADYAY(1060) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865 is directed against the judgment dated 02.05.2024, passed by the learned Single Judge dismissing the captioned writ petition and another filed by the respective parties.
2. Two writ petitions were filed, one by the appellant- employee and other by the respondent-Cooperative Bank, assailing the award dated 14.08.2014 passed by the Industrial Court, Ahmedabad dated 27.04.2017 in Appeal (IC) No.23 of 2014 in T. Application No.142 of 2008, wherein the Industrial Court, Ahmedabad declared the order of dismissal as illegal and directed the employer Bank to pay 50% of back-wages to the appellant-employee with effect from 29.11.2005 i.e. from Page 1 of 5 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:14 IST 2025 NEUTRAL CITATION C/LPA/1570/2024 ORDER DATED: 10/01/2025 undefined the date of dismissal till the date of superannuation. The learned Single Judge has dismissed both the writ petitions. Being aggrieved, the appellant-employee, has filed the present Letters Patent Appeal against the dismissal of his petition claiming 100% back-wages.
3. It is the case of the appellant that the Industrial Court below ought to have granted 100% back-wages instead of 50% wages from the date of dismissal till the date of superannuation since the order of dismissing him from service is found illegal. It is his case, that he cannot be made to suffer for the illegal action, and he would be entitled to 100% back- wages as default once the order of dismissal is set aside. Placing heavy reliance on the order dated 27.04.2017 in Appeal (IC) No.23 of 2014, it is contended that the Industrial Court has rightly held that all the allegations levelled against the appellant were not proved, hence the order of dismissal was rightly held as illegal and accordingly quashed and set aside.
4. Per Contra, the respondent-Bank has opposed the present appeal. Learned advocate Mr. Akash Modi has placed reliance on the judgment of the Supreme Court in the case of Chairman-cum-M.D., Coal India Limited Vs. Ananta Saha, 2011 (5) SCC 142.
5. We have considered the impugned award and order passed by the Industrial Court, Ahmedabad dated 27.04.2017 as well as the common judgment passed by the learned Single Judge rejecting both the writ petitions, one filed by the Page 2 of 5 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:14 IST 2025 NEUTRAL CITATION C/LPA/1570/2024 ORDER DATED: 10/01/2025 undefined present appellant-employee and another by the respondent- Cooperative Bank. On a perusal of the order dated 27.04.2017, the Industrial Court had recorded that the date of birth of the appellant-employee as 17.11.1956 and since he has already reached the age of superannuation and after examining the facts it is recorded that, it would be appropriate to grant 50% back-wages to the appellant- employee.
6. Thus, the only issue which falls for deliberation is the entitlement of 100% back-wages for the intervening period to the appellant. It is no more res integra that there is no automatic entitlement of back-wages on the setting aside of the dismissal order, and the payment of back wages is discretionary.
7. At this stage, we may refer to the observations recorded by the Supreme Court in the case of Ananta Saha (supra). The same are as under:
47. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic.
(Vide: U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing Direction, Balasahen Desai Sahakari S.K. Limited v. Kashinath Ganapati Kamble, (2009) 2 SCC 288)."
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8. The Apex Court in the case of Kendriya Vidyalaya Sangathan Versus S.C.Sharma, 2005 (2) SCC 363 has held thus:
"11 Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."
9. Thus, even if the delinquent is re-instated, it would not automatically make him entitled for back-wages as entitlement to get back wages is independent of re- instatement, and such power has to be exercised by the Court/ Tribunal keeping in view the facts in their entirety as not straight jacket formula can be evolved. The appellant was required to place material to show that he was not gainfully employed, and the burden lies on him, and if such material is produced, the respondent-employer has the right to rebut the claim by placing evidence. In the present case, there is no material placed by the appellant, except a bald statement that he did not get work, which has been controverted by the respondent Bank. In absence of any material/evidence, the appellant is not entitled to full back-wages. We may reiterate the facts also. The appellant was subjected to disciplinary proceedings for serious misconduct of misbehaving with superiors and the staff. He was dismissed from service after the charges were proved, which was subject matter of challenge before the Labour Court, Mehsana. The Labour Page 4 of 5 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:14 IST 2025 NEUTRAL CITATION C/LPA/1570/2024 ORDER DATED: 10/01/2025 undefined Court, Mehsana, passed an order dated 15.03.2012, holding the inquiry proceedings as illegal, however, granted opportunity to the employer-bank to prove charges before it, by leading oral as well as documentary evidences. Upon adjudication, the Labour Court Mehsana, passed final order dated 14.08.2014, below Exh-69 in T. Application No.142 of 2008, wherein the order of dismissal dated 29.11.2005, was modified into discharge, and directed to pay monetary benefits till the order of discharge. On appeal, the Industrial Court directed the employer-bank to pay 50% back-wages from the date of dismissal till the date of retirement. After appreciating the facts of the case, and in absence of any cogent and reliable evidence produced by the appellant the Industrial Court has precisely granted 50% back wages. The learned Single Judge has also reconsidered the facts, and has confirmed the order passed by the Industrial Court. In such circumstances, the judicial review of re-appreciation of the facts in the Letters Patent Appeal becomes very restricted, and the conclusion cannot be disturbed unless the same is perverse.
10. Hence, the present Letters Patent Appeal fails. The same is rejected.
(A. S. SUPEHIA, J) (GITA GOPI,J) Pankaj /9 Page 5 of 5 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:25:14 IST 2025