Municipal Corporation Of Greater ... vs Sunder Rao B. Shinde And Ors.
2002 Latest Caselaw 497 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioners, in writ petition No. 2393 of 1996, the Municipal Corporation of Greater Mumbai, a body corporate under the Bombay Municipal Corporation Act, 1888 is aggrieved by the judgments and orders passed by the Labour Court and the Industrial Court under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the M.R.T.U. & PULP Act") holding that the petitioners had engaged in unfair labour practice under Item l(b) of Schedule IV of the M.R.T.U. and PULP Act and directing the petitioners to give alternative job to the respondent employee or to pay a sum of Rs. 60,0007- as compensation to him. The Labour Court has passed this order in the complaint of unfair labour practices filed by the respondent employee against the petitioner in exercise of its powers under Section 28 read with Section 30 of the M.R.T.U. & PULP Act. The petitioners were aggrieved by the said order and, therefore, they filed a revision application under Section 44 of the M.R.T.U. & PULP Act before the President, Industrial Court, Maharashtra, Mumbai. The learned President by the impugned order confirmed the order of the Labour Court and dismissed the revision application filed by the petitioner. It would be convenient to mention at this stage itself that even the respondent employee was aggrieved by the order of the Labour Court, as he had prayed for reinstatement with full backwages and continuity of service on the ground that the impugned order of discharge passed by the petitioner, was an act of unfair labour practice within the meaning of Item 1 of Schedule IV of the M.R.T.U. & PULP Act. It appears that the said revision application, on account of peculiar events and developments, was heard by another Member of the Industrial Court and by order dated 24th June 1999, the same was dismissed. The respondent employee has also challenged the aforesaid order of the Industrial Court by way of writ petition No. 2298 of 1999.

2. I have heard both the petitions together. The facts are in a very narrow compass. The respondent employee was employed by the petitioner as a driver of the bus. He had put in six years of service. It appears that on 24th February 1987, the employee met with an accident which was not in any way connected with the employment or his work. It is not the case of the petitioner that the employee had sustained injury during the course of and arising out of employment. Admittedly, there was no accident by him while driving the bus. It appears that he had some injury outside the course of his employment. It further appears from the medical certificate that on account of the aforesaid accident the right thumb had to be amputed and which injury was assessed by the G. T. Hospital as permanent disability of 30%. It is also on record that the employee was examined by the senior medical officer of the petitioner undertaking on 17th July 1987 as he was referred to him for medical test and fitness to drive the vehicle. It appears that the senior medical officer by his certificate dated 17th July 1987 certified the employee to be medically unfit and invalid as a bus driver. He has also observed in his certificate that the employee suffered from traumatic amputation of a right thumb with poor grip as a consequence of which he became invalid to be employed as a bus driver. Acting on the aforesaid medical certificate, the General Manager of the BEST undertaking passed the order dated 5th August 1987 under Standing Order No. 26(2) discharging the employee from his duties on account of his being unfit on the ground of his disability.

3. The respondent employee was aggrieved by the aforesaid order of termination passed by the General Manager of the petitioner BEST Undertaking. He also appears to have filed two internal departmental appeals before the prescribed higher authorities but he failed at both the stages.

4. Thereafter the respondent employee filed a complaint of unfair labour practice before the Labour Court as stated hereinabove, challenging the aforesaid order of termination being unfair labour practice within the meaning of Item 1 of Schedule IV of the M.R.T.U. & PULP Act. He had invoked items 1(a), (b), (d) and (f) to challenge the order of termination. The petitioner appeared before the Labour Court to contest the complaint. The petitioner filed its written statement setting out the facts to say that its order was a bonafide, valid and legal and that it had not engaged in any unfair practice as alleged by the employee.

5. On the basis of the pleadings and the oral evidence, adduced by both the parties before the Labour Court, the Labour Court by its order dated 9th January 1996 held that the employee had proved unfair labour practice under Item l(b) of Schedule IV of the M.R.T.U. & PULP Act only. The other items of unfair labour practice invoked by the employee were not accepted by the Labour Court. The Labour Court in its operative order gave an option to the petitioner to give alternative job to the employee which he was able to perform and in the alternative to pay Rs. 60,000/- as compensation. The operative part of the order is not happily worded. Though, however, the aforesaid is the only sense in which the order can be read. The Labour Court has specifically held that the employee was not entitled to the relief of any backwages. According to Shri Talsania, the learned Counsel for the petitioner, the Labour Court has nowhere found specifically that the petitioner had engaged in any unfair labour practice by passing the order of termination terminating the employee from employment. He has pointed out that according to the Labour Court, the fact that the petitioner did not employ the employee in any other job was an act of unfair labour practice as it was not done in good faith. Shri Talsania submits that the order of termination has not been held to be unfair labour practice. The Labour Court has no powers to grant any other reliefs on compassionate grounds as is done by the Labour Court. The Labour Court has specifically observed in para 9 as under :--

"Considering all this in the facts and circumstances at the most it can be said that the action of the respondent in not giving him suitable alternative available job to the complainant is only and at the most be said to be not in good faith and therefore I am holding that the complainant had only proved that this much unfair labour practice under Item 1(b) and I am holding that he had failed to prove all the other alleged unfair labour practice. Hence I am observing my finding on Issue No. 1 accordingly."

6. I agree with the submissions of Shri Talsania that there is no specific finding recorded by the Labour Court to hold that the termination order amounted to unfair labour practice. The Labour Court has held as quoted above that the petitioner ought to have given an alternate employment to the employee and not doing so was not in good faith. There is absolutely no material on record to conclude the lack of bona fides or lack of good faith on the part of the petitioner undertaking.

7. The facts are very simple. The employee had lost his thumb. He was employed as a heavy vehicle bus driver. There is material on record to show that at the fitness test the employee had a poor grip on the steering wheel and that he was not able to take the vehicle in reverse. There is sufficient material on record to show that before terminating the employee, the petitioner had taken sufficient care to see whether he was in a position to drive the bus. The employee had undergone a test and the result of the test was that he was not able to take the vehicle in reverse and that he had poor grip over the steering wheel. In my opinion, this was the sufficient material for the petitioner to conclude that the employee was medically unfit to be employed as a driver of the bus. There is no other specific allegations against the management to prove the case of mala fides or lack of bona fides or victimization. It cannot be said that merely because the petitioner had not offered alternate job on compassionate ground the action of termination would be objected to as colourable exercise of powers. The petitioner could not have offered any alternative job to the respondent employee as it was bound by an award in terms of settlement with the representative union. The relevant clause 8 of the settlement reads as under :--

"8. It is agreed that those employees who will be invalidated from the service of the Undertaking will be paid compensation at the rate of 15 days' wages (i.e. half a month's Basic Wages plus half a month's Dearness Allowance) applicable to the immediately preceding month, for every completed year of continuous service or part thereof in excess of six months, provided they have put in not less than 15 years continuous service in the undertaking, provided further they are not eligible for compensation under various enactments such as Workmen's Compensation Act/F.S.T. Act, etc. Consequently, the existing benefit of giving alternative employment to such employees will stand withdrawn."

It is therefore, clear that even if the General Manager had abundant compassion and sympathy, he could not have acted contrary to the aforesaid binding term of the award. The existing benefit of giving alternative employment to the employees was withdrawn. The compensation was provided only for such employees who had put in not less than 15 years continuous service. It is, therefore, clear that the petitioner could not have acted contrary to the aforesaid award which was in terms of the settlement with the representative union. It is pertinent to note that the respondent employee had put in only six years of service and was not able to get benefit of this clause also. It is, therefore, not possible for me to agree with the view taken by the Labour Court that merely because the employee was not given compassionate alternate employment, the order of termination got reduced to unfair labour practice. The petitioner could not have offered an alternate job to him in view of the subsisting award prohibiting the petitioner from doing so. It is significant to note that the Labour Court has not at all dealt with the aspect of unfair labour practice, qua the order of termination. It has nowhere observed or found as to in what way the order of termination of the respondent employee amounted to unfair labour practice even within the meaning of Item 1(b) of Schedule IV of the Act. The facts are admitted. The respondent employee had met with an accident and he had lost his right thumb. He was employed as a driver. The medical evidence was before the General Manager. The report of the test to which the employee was subjected to was also before the General Manager. It cannot be said that the General Manager had acted arbitrarily and without any reason or without any material. He had considered the material before him which according to him was sufficient for any reasonable and prudent employer to take decision in the given circumstances, it cannot be said by any stretch of imagination that the decision of the General Manager to terminate the respondent employee amounted to unfair labour practice as contemplated under Item 1 of Schedule IV of the Act. The order of the Labour Court, therefore, could not have been sustained. I have gone through the order passed by the President of Industrial Court in revision. Even the learned President of the Industrial Court has not found anywhere as to in what way and on what basis the order of termination amounted to unfair labour practice. He has merely mechanically confirmed the order of the Labour Court. In fact, the order of the Labour Court holding that the order of termination of the respondent employee amounted to unfair labour practice was a perverse order. The Labour Court has not given any reasons or any ground to find the order of termination as unfair labour practice. He has condemned the order of termination as unfair labour practice only on the ground that the petitioner had not provided alternate job to the respondent employee and that, that was an act not in good faith. Apart from this reasoning, there is not an iota of reason given by the Labour Court to hold that the order of termination was unfair labour practice, even within the meaning of item l(b) of Schedule IV of the Act. The learned President has also missed the aforesaid crucial aspect of the matter. Shri Talsania, the learned Counsel for the petitioner has relied upon a judgment of the Supreme Court in the case of U.P.S.R.T.C. v. Pukhraj Singh and Ors., reported in 7999 S.CC. (L & S) 193. The Supreme Court in para 6 of the judgment has observed as under:--

"6. Once the Labour Court came to the conclusion that the action of the appellant in terminating the services of the first respondent was justified, legal and valid and he was not entitled to any benefit, we are unable to understand wherefrom the Labour Court drew the jurisdiction to require the appellant to engage the first respondent in a post other than as a driver. It is one thing to hold in a given case that the punishment imposed by the employer is very harsh and to substitute something less. It is altogether different, and untenable, to find that the employer has validly and legally terminated the services of the employee and that the latter is not entitled to any benefit and yet to require the employer to engage the employee in some other post."

8. The observations of the Supreme Court clearly apply to the present case. The petitioner was further bound by the award in terms of the settlement prohibiting it to give any alternate job in the given circumstances. It, therefore, cannot be said that the act of the petitioner in not giving alternate job to the respondent employee was an act of unfair labour practice or was not in good faith. If it had done so, it would have attracted a charge of unfair labour practice under Item 9 of Schedule IV of the Act as the representative union would have accused the petitioner of violating the terms of the award in terms of the settlement and perhaps would have also alleged favoritism in favour of the respondent employee. The Labour Court was, therefore, wholly wrong in concluding that the act of the petitioner in not giving alternate job to the respondent employee was an act not in good faith. There is no question of good or bad faith or bona fide and/or mala fide decision when there is a clear term specified in the award that no alternate employment would be given by the petitioner in the similar circumstances as provided in Clause 1 of the settlement. Both the Courts below have failed to consider the aforesaid crucial aspect of the matter.

9. To conclude, I hold that the order of termination as passed by the petitioner against the respondent employee was not an act of unfair labour practice. The General Manager had acted bona fide on the basis of material before him and there was nothing on record to allege any mala fides or colourable exercise of powers vested in him under the standing orders. The order of the Labour Court and the order of the Industrial Court both have wrongly concluded that the act of the petitioner in not giving an alternate employment to the respondent employee amounted to unfair labour practice or that it was an act not in good faith and, therefore, the order of termination became unfair labour practice. Both the orders are illegal and cannot be sustained.

10. In the result the impugned order is quashed and set aside. The petition succeeds. Rule is made absolute with no orders as to costs.