Bombay High Court
Maharashtra State Road Transport ... vs Abdul Gani on 15 October, 2010
Bench: Mridula Bhatkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No.2135/2001
Maharashtra State Road Transport Corporation,
Nagpur, through its Divisional Controller,
Near Railway Station, Nagpur. ..Petitioner
V/s.
1. Abdul Gani s/o Abdul Gafoor,
aged about 57 Yrs., Occu. Not known,
R/o Umred, Dist. Nagpur.
2. Member,
Industrial Court,
Civil Lines, Nagpur. ..Respondents
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Shri R.S. Charpe, Adv. for petitioner.
Shri B.M. Khan, Adv. for respondent no.1.
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CORAM : Mrs. MRIDULA BHATKAR J
.
th
Date of Reserving judgment : 7
September 2010.
th
Date of Pronouncing Judgment : 15
October 2010
.
JUDGMENT
1. The petitioner - Maharashtra State Road
Transport Corporation (for short "M.S.R.T.C.) has
challenged the order dated 12/6/2001 of the Member of
Industrial Court, Nagpur whereby the Industrial Court has
reinstated the complainant with continuity of service along
with 50 % back wages.
2. The respondent who is a Driver with the
petitioner made leave application on 19/2/1992 addressed
to the Depot Manager and in said leave application he
used the threatening language. The charge sheet was
issued on 9/3/1992 leveling the charges under clause 26
and 28 of the Disciplinary and Appeal Procedure. After
inquiry he was held guilty and was dismissed on
26/12/1992. Against said order the
delinquent - respondent filed ULPA Complaint No.
116/1993 and Labour Court in its order dated 11/1/1999
allowed the complaint and declared that the dismissal of
the complainant is an unfair labour practice within the
meaning of Item (9) of the Schedule 4 of the Maharashtra
Recognition of Trade Union and Prevention of Unfair
Labour Practices Act, 1971 and reinstated the complainant
with payment of full back wages and continuity in service
w.e.f. 22/12/1992. The said order was challenged before
the Industrial Court. The Industrial Court though held him
guilty for the misconduct for the use of intemperate
language observed that the dismissal was disproportionate
and also held that the reinstatement of the respondent
with continuity of service with full back wages was not
justified. Therefore, it cut down the back wages up to
50 %. Hence this writ petition.
3. Shri Charpe, learned counsel for respondent,
argued that the order of reinstatement of the Industrial
Court is illegal. He has submitted that the language used
was of a serious nature and it was a grave misconduct.
Under such circumstances, it is not open for the Court to
reinstate the delinquent. In support of his submissions he
has relied on citation - Vilas Vithalrao Takale V/s.
Jaya- Hind Industries Ltd. reported in 2008 (5) Mh.L.J.
4. The respondent has given threats in his leave
application and Industrial Court has rightly held that
misconduct was proved. However, degree of misconduct
is measured on the basis of seriousness and the nature of
the threats given. In the case of Vilas Thakre V/s.
Jaya- Hind Industries Ltd. there was a serious altercation
between delinquent and his officer however, in the present
case employee has mentioned only one objectionable
sentence in his leave application. Therefore, the present
case cannot be covered under the ratio laid down in the
case of Jaya- Hind Industries Ltd. Thus, order of
reinstatement with continuity of service is just and correct.
5. On the point of back wages Shri Khan, learned
counsel for delinquent - respondent, has submitted that
though as per the ratio laid down in the case of U.P. State
Brassware Corp. Ltd. and Anr. V/s. Udai Narain Pandey
reported in 2006 1 CLR 39 it is necessary for the
delinquent to plead and prove the fact of his
unemployment during the period of dismissal. The said
judgment was not holding field when this case of
1992-1993 has taken place. At the relevant time the law
laid down by the Supreme Court in Hindustan Tin Works
Ltd. V/s. Employees (1979) 2 S.C.C. 80 was applicable.
6. On the issue of back wages the judgment of the
Supreme Court in the case of J.K. Syntheticks Ltd. V/s. K.P.
Agrawal and another reported in 2007 (2) S.C.C. 433 and
U.P. State Brassware Corp. Ltd. and Anr., cited supra, are
relied on. The law laid down by the Supreme Court comes
in operation and is applicable retrospectively unless it is
specifically mentioned. Acceptance of the statement of
learned counsel Shri Khan will amount to apply the law of
the Supreme Court prospectively. Doctrine of 'prospective
overruling' cannot be attracted here in view of Article 141
of the Constitution of India. However, the respondent
no.1 has filed an affidavit wherein it is mentioned that
from 26/12/1992 till he was reinstated he was not
gainfully employed. Therefore, this statement made in the
affidavit is substituted as a pleading and also a proof. The
fact that a person is not employed is a matter of negative
proof and if it is disputed then only a person can tender
evidence accordingly however, in the present case such
issue was not raised by either of the parties before either
the Labour Court or before the Industrial Court and
therefore, the statement made by the respondent no.1 on
oath int he affidavit is sufficient and is accepted.
Shri Charpe, learned counsel for petitioner, on
affidavit argued that this factual aspect is to be tested and
therefore, this matter be remanded to the Labour Court.
The charges sheet was issued to the respondent in the year
1992. This matter is 18 years old. Under such
circumstances, I do not find it just or equitable to remand
the matter for cross examination of the respondent.
Moreover the petitioners have not contravened these
pleadings of non-employment by filing a counter affidavit.
Therefore, in view of facts and circumstances of the case,
petition is dismissed and the judgment of the Industrial
Court, Nagpur dated 12/6/2001 is not disturbed and
maintained.
No order as to costs.
JUDGE
Tambaskar.
