Maharashtra State Road Transport ... vs Namdeo T. Nalavade
2002 Latest Caselaw 845 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioner, Maharashtra State Road Transport Corporation, a statutory body and its two officers are the petitioners aggrieved by the order dated 26th July 1995 passed by the Industrial Court, Thane in Complaint ULP No. 570 of 1990 filed by the respondent employee under Section 28 read with Section 30 and Item 9 of Schedule IV of the M.R.T.U. and PULP Act, 1971 alleging failure on the part of the petitioners to implement the award of the Labour Court dated 31st July 1990 granting reinstatement with full backwages and continuity of service to the employee with effect from 17th September 1982.

2. It appears that the petitioners had dismissed the said employee after completing the disciplinary proceedings against him in the charges levelled by the petitioners. It appears that the said order of dismissal was successfully challenged by the said employee by raising an industrial dispute and by getting an award of reinstatement with full backwages and continuity of service in his favour as aforesaid from the Labour Court. It appears that the petitioners have subsequently implemented the award by reinstating him and by paying him an amount of Rs. 1,65,000/- towards full backwages. As far as that part of the award is concerned, there is no grievance in the present petition, nor is their anything to show that the employee was not satisfied with that part of the award having been implemented by the petitioners. The respondent employee filed the aforesaid complaint before the Industrial Court to demand bonus for the period from 1982 to 1992 and leave wages for the said period and the pairs of uniform to which he was entitled to every year. The employee filed the aforesaid complaint under Item 9 on the basis that he had succeeded in getting reinstatement with full backwages and continuity of service. The respondent, therefore, became entitled to get all the benefits of continuity of service including leave wages and bonus paid by the petitioners from time to time to all other employees. It was the case of the employee that had he not been wrongfully dismissed, he also would have earned the amount of bonus for that period and also he would have got benefit of the leave under the rules. Since, he was kept out of employment wrongfully and since, he succeeded to get reinstatement with continuity of service, he is entitled to get the benefits of continuity of service.

3. The Industrial Court, after considering the facts and circumstances, held in favour of the employee and declared that the petitioners had engaged in an unfair labour practice under Item 9 of Schedule IV of the Act by not paying the amount of bonus to the employee for the period from 1982 to 1992 and also not paying the leave wages for that period. The Industrial Court, however, rejected the demand of the employee for uniforms.

4. As far as the effect of reinstatement is concerned, it is very well established that the order of reinstatement means restoration of the dismissed or discharged employee to the original position which existed at the time of severance of the employer employee relationship. He has to be put into the same position, as if he would have legitimately continued, had he not been dismissed or discharged or removed from employment. Considering this effect of reinstatement, in my opinion, the employee is entitled to get the benefit of bonus or ex gratia amount paid by the petitioners to all other employees every year from 1982 to 1992. It is clear that if the said employee were not dismissed from employment, he would have continued in employment and he would have earned that amount of ex gratia paid to all other employees of the petitioners during that period. In my opinion, therefore, the respondent has become entitled to get the amount of ex gratia paid by the petitioners to all the other employees for that period. The Industrial Court was right in awarding the benefit of bonus/ex gratia declared and paid by the petitioners to all other employees. The respondent employee is, therefore, entitled to get full amount of ex gratia for the entire period from 1982 to 1992 paid to all other employees for that period. The order of the Industrial Court cannot be interfered with to that extent. The Industrial Court was also right in rejecting the demand for uniforms for that period by the respondent employee as part of the benefit of the award of reinstatement with continuity of service.

5. As far as the claim of leave wages is concerned, I am not able to agree with the findings recorded by the Industrial Court that the respondent employee is entitled to get leave wages also for that period. The Industrial Court has failed to appreciate that the petitioners have paid full wages to the respondent employee. If he were to be in employment and if he were to work for 11 months he would have earned wages for 12 months i.e. 11 month's for working and one month without doing any work i.e. leave period. The petitioners have paid him wages for 12 months per year of service from 1982 to 1992, therefore, it is clear that the petitioners have paid 12 months wages per year of service which would include one month's leave wages. It is not that the employee earns 13 months wages after doing work for 12 months. It is the other way round that the employee gets 12 months wages in a year after doing 11 months work and one month's leave. He earns total 12 months wages in a year. The petitioners have paid 12 months wages from 1982 to 1992 which would include the claim of leave which the respondent has prayed for. There is no dispute in respect of receipt of full wages to the tune of Rs. 1,65,000/- as full backwages for the entire period and in my opinion, that includes the payment towards the leave wages. There cannot be any other separate claim for wages after receiving 12 months' wages for the service. The order of the Industrial Court, therefore, cannot be sustained to that effect. The impugned order of the Industrial Court is quashed and set aside to the extent of grant of leave wages from 1982 to 1992. However, other part of the order is retained.

The petitioner shall compute the amount of ex gratia for that period and pay the same to the respondent, if not paid, within a period of eight weeks from today. Rule is partly allowed with no orders as to costs. The petition is disposed of as above.