Divisional Controller, M.S.R.T. ... vs M.N. Vijapure
2001 Latest Caselaw 883 Bom

JUDGMENT

J.G. Chitre, J.

1. By this writ petition, the petitioner, the Divisional Controller, M.S.R.T. Corporation, Solapur Division, Solapur is taking exception to the judgment and Award passed by Industrial Court, Maharashtra at Solapur in the matter of Complaint (U.L.P.) No. 13 of 1986 wherein the learned Court while entertaining the said complaint filed by the respondent held that the present petitioner was guilty of unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act for convenience).

2. Few facts need to be stated for understanding the controversy and the grievance raised before the Industrial Court. The present respondent was medically examined on 6-10-1981 by Medical Officer of the Maharashtra State Road Transport Corporation (hereinafter referred to as the "Corporation" for convenience) and the said Medical Officer declared him as unfit for the job of "driver". To redress the grievance, the complainant approached the higher authorities of the Corporation. A settlement was reached between the recognised union of the employees of the Corporation which resulted in issuance of Circular No. BT/EST/478-U-7663 dated 19th September, 1980 on the subject of providing alternate employment to the unfit drivers medically examined by the Medical Officers of the Corporation and who are above the age of 40 years and below the age of 55 years. By virtue of the said agreement, the complainant was entitled to have the alternate employment with the protection of his pay.

3. Except eye sight which was impaired, all other physical qualities and capacities of the respondent were good and he was capable of doing other service except the service as a driver. The petitioner did not implement the said agreement-settlement and, therefore, the respondent alleged that the petitioner committed unfair labour practice against him by lodging the said complaint.

4. The respondent examined himself. The petitioner did not examine any witness as the record and submissions advanced by his Advocate show. The learned Judge of the Industrial Court held that there were five instances in the career of the respondent. Those instances were dealt with by imposing "minor penalty" on the said employee and hence it cannot be treated to be "major incidents" as the petitioner wanted to contend. The learned Judge held that as those incidents could not be treated to be "major incidents" and as minor penalty was imposed on the employee, by not implementing the settlement agreement, the petitioner had engaged itself in unfair labour practices. He passed the Award directing the present petitioner to pay full back wages to the respondent (the complainant) from the date of his termination till his retirement. He directed the present petitioner to desist from practising unfair labour practice. The petitioner is hereby making a prayer to this Court to issue a writ of certiorari for correcting the mistake committed by the said Industrial Court and to quash his judgment and Award which is against the present petitioner.

5. Mr. Hegde Counsel appearing for the petitioner submitted by making reference to the cross-examination of the present respondent that there were five accidents on the service record of the respondent and out of them two accidents were serious. He pointed out that one was committed on 8-5-1965 which happened on Baramati-Indapur Road wherein a beggar who was sitting by the side of the road was over run by the bus which the present respondent was driving and the second accident took place on 14-10-1971 on Barsi- Solapur Road where the bus which was driven by the present respondent struck three guard stones, uprooted them and on account of the impact created, three passengers fell from the bus and out of them one lady passenger died. Mr. Hegde submitted that these accidents are major accidents and it is for the petitioner to decide as to whether those accidents were major or minor and, therefore, the learned Judge committed the error in judging the said accidents by putting his own yardsticks. According to Mr. Hegde, the learned Industrial Court should have held that these two accidents were the major accidents by following the approach taken by the petitioner, and, therefore, should have come to a conclusion that there was no unfair labour practice on the part of the present petitioner.

6. Mr. Hegde submitted that when the record of the respondent was not "unblemished" he was not entitled to have the benefit of the said settlement and, therefore, the learned Judge should have dismissed the said complaint of the respondent. He prayed that a writ of certiorari deserves to be issued in favour of the petitioner as prayed for and by allowing this writ petition such writ be issued in favour of the petitioner.

7. Mr. Kudale praying for dismissal of the present writ petition submitted that the learned Judge happens to be right in coming to the conclusion that the petitioner himself treated all the said accidents as minor accidents and punished the respondent with minor penalty. When that is so, according to Mr. Kudale, the learned Judge has rightly concluded that the petitioner engaged itself in unfair labour practice and rightly passed the said judgment and Award in favour of the respondent.

8. Though Mr. Hegde, read out the cross-examination of the respondent, he was unable to demonstrate and point out that any question was put to the respondent suggesting him the way in which those accidents took place. No where it has been brought on record in the substantive evidence that on account of the peculiar circumstances in which those two accidents took place, those accidents were "major accidents". Mr. Hegde submitted that the service record of the respondent was produced in the Court and, therefore, there was no necessity of putting such questions to the respondent. While dealing with the writ petition praying for a writ in view of Article 227 of the Constitution of India, this Court would not be able to agree with the proposition advanced by Shri Hegde for the present petitioner. When the said settlement speaks of "major accidents", it was the duty of the petitioner to bring it on record by substantial evidence that those two accidents took place in peculiar circumstances. It was necessary for the petitioner to enter into the witness box and to narrate as to how those accidents took place. The petitioner did not follow these two ways (1) by putting the suggestion to the respondent in that context for demonstrating that those accidents were serious accidents with peculiar circumstances and, therefore, were "major accidents" (2) to adduce substantive evidence and prove that those accidents with peculiar circumstances were "major accidents". In the absence of both these ways of demonstrating the seriousness, ghastliness of those two accidents, the petitioner would not be permitted to say that those two accidents were "major accidents". The petitioner is at liberty to interpret those accidents according to his way but when it comes to the point of law and legal litigation, the petitioner would be exposed to the examination of finding out whether his approach and attitude is "reasonable" or not. "Reasonable" means rational act on the part of such employer. He cannot be permitted to say that the nature of the accidents would be according to the approach he takes, according to the interpretation which he applies and according to the judgment of his own. The subjective approach taken by the petitioner cannot be upheld in legal field. On the contrary, it smells of unfairness and capriciousness. The Court is not bound to give any weightage to his approach or attitude which is not "reasonable and rational".

9. In addition to that, the petitioner has saddled the respondent with penalty of stoppage of three increments in respect of said accidents and that too with no cumulative effect. In legal terminology he treated those accidents as "minor accidents" and imposed "minor penalty" on the respondent. The fact that for those accidents the respondent has been punished with minor penalty goes against the stand taken by the petitioner in this writ petition. When a litigant by his own conduct or act treats a particular default in a non-serious way and imposes a minor penalty on such defaulting employee, such employer happens to be estopped from deserting such approach in view of rule of estoppel. When an employer punishes such defaulting employee with "minor penalty" such employer cannot be permitted to treat such default as "major default" in later stages.

10. The settlement which came into existence between the recognised union and the employee including the respondent for providing employment to the drivers who are declared unfit by competent medical authority i.e. S.T. Medical Officer, Central Officer, Bombay. A circular has been issued by the M.R.S.T.C. employer, cannot be permitted to go back and discard such settlement-agreement and the said circular when it is called on to implement it. It cannot be permitted to discard it, refuse to implement it by finding out various excuses. When it does so, it and its concerned officers become guilty of practicing unfair labour practice on such employee of the Corporation.

11. In the said settlement Clause 1(A) shows that if the service record of the driver in question is free from "major accidents" and if he had been taken on time-scale; he may be asked to choose one of the following facilities :

i) If he is a departmental promotee, he may be considered for absorption in the category from which he was promoted, without affecting his pay, and break in service, if any, should be condoned and the service should be treated as continuous.

ii) In other cases, not covered by (i) above, he may be absorbed in any other category suitable to his qualification, etc. without any loss of pay, and break in service, if any be condoned as in (i) above.

iii) An opportunity may be given to his son, if the latter is physically fit, to learn driving, with a view to his eventual absorption in the Corporation as a driver.

iv) His son/daughter may be employed in the Corporation in any category suitable to his/her qualifications.

12. Unfortunately, the respondent retired when the complaint was pending for hearing and disposal in the Industrial Court. The complaint was filed, as the record shows on 29-9-1982 and it came to be decided as the judgment and Award of the Industrial Court shows on 30-3-1994. Therefore, keeping in view this aspect of the matter, this Court finds it necessary in the interest of justice and for the purpose of protecting the larger interest of such hapless employees to issue certain directions for avoiding repetition of such unfortunate incidents in future.

13. When a petitioner prays to the High Court for issuing writ in his favour in view of Article 227 of the Constitution of India, he has to demonstrate that he has come with clean hands before the Court. It should be by averments as well as by conduct also. Here this Court cannot say that the conduct of the petitioner was making him entitled to such a writ as he has prayed from the Court. The petitioner should have gone for introvert thinking and should have desisted from filing this writ petition and causing delay to the agony of the respondent and to aggravate the fault of engaging in unfair labour practice. He should have with all goodness of mind implemented the Award passed by the said Industrial Court. But that was not so.

14. Thus, in view of the discussion above, this Court dismisses this writ petition with costs and directs the petitioner to implement the Award passed by the Industrial Court. Back wages be paid within six months with interest at the rate of 12% per annum from the date of the Award. This Court also directs all the Labour Courts and Industrial Courts to hear the complaints in contest with the unfair labour practices as early as possible and to decide those complaints as far as possible within one year from the date of filing of such complaints for avoiding circumstances like the present one.

15. Parties to act on ordinary copy of this order duly authenticated by the Private Secretary.