Bhojraj vs Divisional Controller
2010 Latest Caselaw 36 Bom

                                      1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH, NAGPUR.




                                                                                 
                                                         
                    Writ Petition No.3118/2001

     Bhojraj s/o Narayan Parate, 
     aged about 50 Yrs., Occu. Nil,




                                                        
     R/o Khapa, Tah. Saoner, 
     Dist. Nagpur, 
     presently R/o Wanadongri, 
     Tah. Hingana, Dist. Nagpur.                                        ..Petitioner




                                          
             V/s.       
     Divisional Controller,
     Maharashtra State Road Transport Corporation,
                       
     Nagpur Division, Nagpur.                             ..Respondent

     ----------------------------------------------------------------------------------
                   Shri M.V. Mohokar, Adv. for petitioner.
      


                   Shri R. S.Charpe, Adv. for respondent. 
   



     ----------------------------------------------------------------------------------


              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 has challenged the order dated

4/5/2001 passed by the Industrial Court dismissing him

from the service. The petitioner was working as a

Conductor and while on duty on 15/11/1999 at Aroli the

Inspection Squad found that a group of 18 passengers was

travelling without ticket. The Inspector recovered the

charges of the tickets with penalty from the travelers. A

charge-sheet was issued on 24/1/1991 and the petitioner

was chargesheeted for misconduct and was suspended

from service for some period. The petitioner was held

guilty in the inquiry followed by the order of dismissal

dated 10/10/1991 which came into effect from

13/10/1991. The petitioner therefore, challenged the

dismissal order before Labour Court vide Complaint ULPA

No.860/1991. The Labour Court gave preliminary finding

that the inquiry was not fair and finally by order dated

13/8/1998 allowed the complaint and set aside the

dismissal and reinstated the complainant with 25 % back

wages with continuity of service. The said order was

challenged by the respondent. The petitioner also

challenged it on the point of allowing only 25 % back

wages. The Member of the Industrial Court by order

dated 4/5/2001 allowed the revision filed by the

respondent and set aside the order of the Labour Court on

the point of dismissal and also back wages. Hence this

petition.

2. Shri Mohokar, learned counsel for petitioner,

submitted that the petitioner has good case as no actual

pecuniary loss was caused to the respondent - authority.

The Labour Court though held him guilty on the point of

misconduct, has rightly considered the conduct of the

petitioner not a deliberate but a negligent act and no

misappropriation of money was found at the time of

inspection. The learned counsel for petitioner argued

that the Member of Industrial Court re-appreciated the

evidence when it was not permissible in the revision and

thus has exceeded the limits laid down under section 44 of

the Maharashtra Recognition of Trade Union and

Prevention of Unfair Labour Practices Act, 1971 (for short

"the Act"). Shri Mohokar, the learned counsel for

petitioner, on the point of scope of the Industrial Court

under section 44 of the Act relied on the following rulings

of the Supreme Court -

(1) 2005 III CLR 669 (Ramesh s/o Ramkrishna Bakde

V/s. Divisional Controller, MSRTC & Anr.), (2) M.K.

Bhuvaneshwaran V/s. Premier Tyres Ltd. and another

reported in 2001 II CLR 245, (3) Colour-Chem Ltd. V/s. A.L.

Alaspurkar and Ors. reported in 1998 I CLR 638.

On the point of payment of back wages he has relied

on (4) J.K. Syntheticks Ltd. V/s. K.P. Agrawal and another

reported in 2007 (2) S.C.C. 433.

4. Shri Mohokar, the learned counsel for the petitioner,

highlighted the examination-in-chief and admissions given

in the cross examination by the witness of the

respondents. He argued that the said witness who was the

Inspector of the Inspection Squad has admitted that he did

not come across any misappropriation of the funds by the

petitioner. The learned counsel submitted that in totality

of the evidence and the limited scope of the powers given

under section 44 of the Act, petition deserves to be

allowed and the claim of remaining back wages of 75 %

also be allowed.

5. Shri Charpe, learned counsel for respondent,

submitted that the Industrial Court has rightly set aside the

findings of the Labour Court and dismissed the petitioner.

Though re-appreciation or reassessment of the evidence is

not permissible for the Industrial Court under section 44 of

the Act there is no total prohibition or complete bar for the

Industrial Court to look into the evidence and find out

whether Labour Court has considered the evidence

reasonably or not. Shri Charpe, the learned counsel for

respondent, submitted that the Act of the petitioner is not

a minor or technical misconduct but is falling under clause

7 (a), 7 (d) and 12 (b) of the Disciplinary and Appeal

Procedure laid down by the Maharashtra State Road

Transport Corporation (for short "M.S.R.T.C.). The

petitioner has not challenged the applicability of the said

procedure. The charges under clause 7(a), 7(d) and

12(b) of misconduct are proved against the petitioner.

The said charges are as follows :-

1) not to issue tickets without any reason; [Clause 7(a)]

2) failure to give ticket within a time specified; [Clause

7(d)] and

3) committing fraud, dishonesty and misappropriation

in respect of work and the property of M.S.R.T.C. [Clause

12(b)]

6. Shri Charpe, the learned counsel for respondent,

submitted that if all these charges are proved then as per

the proviso of clause 7, the delinquent is to be dismissed/

terminated. In support of his submissions he relied on the

case of Karnataka State Road Transport Corporation V/s.

B.S. Hulikatti reported in 2001 I CLR 699 in which the

Supreme Court has observed that if bus conductor either

not issued tickets to a large number of passengers though

should have or collected more amount and have issued

tickets of lesser denomination knowing fully well the

correct fair to be charged then it would be a case of gross

misconduct. He argued that not issuing the tickets by the

petitioner has resulted in monetary loss to the government

and therefore, conduct the of the petitioner is correctly

held as misconduct and dismissed him.

On the issue of back wages Shri Charpe

submitted that it is the responsibility of the petitioner to

demonstrate that during the period of suspension he was

not employed gainfully and if petitioner has not pleaded or

proved this fact of non-employment during said period of

dismissal, then no order of back wages can be passed. He

relied on the case of U.P. State Brassware Corp. Ltd. and

Anr. V/s. Udai Narain Pandey reported in 2006 1 CLR 39.

He has further relied on the judgment of this Court in the

case of Chief Engineer Irrigation Department, Nagpur and

others V/s. Aashish s/o Vasantrao Dabhade and another

reported in 2010 (2) Bom. LC 135 (Bom).

7. Section 44 of the Act confers supervisory powers

over Industrial Court and so has revisional jurisdiction to

set aside the order passed by the Labour Court if found

illegal. It does not empower the Industrial Court to sit in

appeal and enjoy wider scope over the orders of the

Labour Court. In the case of Sadanand Ramesh V/s.

Kirloskar Cummins Ltd. and others reported in 2002 (4)

Mh.L.J. 804 this Court hold that scope of the Industrial

Court can be stretched in its the revisional jurisdiction only

to look into the evidence which is not considered by the

Labour Court. On limitation of the powers of the

Industrial Court under section 44, I place reliance on the

case of M.K. Bhuvaneshwaran V/s. Premier Tyres Ltd. and

another reported in 2001 II CLR 245. The Industrial Court

in present case has exceeded its limits by reassessing the

evidence of the petitioner.

8. The Labour Court and Industrial Court both

have held that the charges of misconduct under clause

7(a), 7(d) and 12(b) under Disciplinary and Appeal

Procedure i.e. non-issuance of tickets to 18 passengers

were proved. This Court does not want to disturb the said

findings.

The two issues are before this Court for

consideration -

(a) Whether the penalty of dismissal given by

Industrial Court is proper considering the nature of

the charges against the petitioner; and

(b) Whether the petitioner is entitled to back

wages ?

10. Though the charges under clause 7(a), 7(d) and

12(b) are proved against the petitioner under the said

procedure and as per the proviso of clause 7 if said charges

are proved the employee should be dismissed. The said

procedure of M.S.R.T.C. is subject to the settled principles

of law. The quantum of punishment is always measured

and decided by applying the 'principles of natural justice'

and 'doctrine of proportionality' or 'doctrine of

reasonableness'. In the present case though the petitioner

did not issue the tickets to 18 passengers, on checking by

the Inspection Squad, the said passengers paid all the

amount of tickets along with the penalty charged thereon.

Thus, there was no actual pecuniary loss to the revenue of

M.S.R.T.C. - respondent. Moreover, there is no charge of

misappropriation of amount leading any financial gain to

the petitioner. The observations of Industrial Court that

the petitioner had ulterior motive to extract the amount

from the passengers are not legal and correct. On the

contrary, the findings of the Labour Court that omission to

issue tickets was a negligent act of the petitioner appears

sound and well founded.

In the case of Karnataka State Road Transport

Corporation, cited supra, the respondent bus conductor has

collected the more amount from 35 passengers but issued

tickets of lower denomination and therefore, it was held

that such conduct or non-issuance of the tickets to a large

number of passengers is a case of gross misconduct.

Moreover in the said case the order of dismissal rightly

was not set aside but respondent was already

superannuated and therefore, as a special circumstance the

order of reinstatement was not set aside. In the present

case the Labour Court has held that it is a negligent act

and not an act of deliberate intention. Hence the

punishment of dismissal is found disproportionate to the

guilt of the petitioner. The order of Industrial Court to

that effect is quashed and set aside and the order of the

Labour Court reinstating the petitioner with continuity of

service is restored.

12. On the point of back wages the Supreme Court

in the case of U.P. State Brassware Corp. Ltd. and Anr.,

cited supra, specifically held that the employee should

plead and prove that he was not employed during the

period of dismissal. This ratio is followed by the ruling of

the Divisional Bench of our High Court in the case of Chief

Engineer Irrigation Department, Nagpur and others, cited

supra. Thus, in nutshell back wages is not a necessary

corollary to the order of reinstatement with continuity of

service. This High Court in the case of Taranjitsingh I.

Bagga V/s. Maharashtra State Road Transport Corporation,

Amravati reported in 2008 (3) Mh.L.J.743 has taken a

different view and held in paragraph 8

"... At the same time, no Court can be oblivious to

the grim reality of unemployment pervading all stratas of the society. Therefore, we would not be in a position to conclude that the moment a

person is sacked he can find alternate means of

his wherewithal. In this situation, it would be unjust to insist upon a technical requirement of

pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed."

In the said ruling this Court has placed heavy reliance

on J.K. Synthetics Ltd., cited supra. The ratio laid down by

the Supreme Court in the case of U.P. State Brassware

Corp. Ltd. and Anr., cited supra, and in J.K. Synthetics Ltd.,

cited supra, is binding on this Court and no other view can

be taken other than the ratio laid down by the Apex Court.

In the case of J.K. Synthetics Ltd., cited supra, the Supreme

Court has considered all the possibilities of the

punishment, dismissal reinstatement and held that where

misconduct is proved and lesser punishment is given

awarding the back wages to the delinquent and where the

continuity of service is directed it should only be for the

purpose of pensionary and retirement benefits and not for

other benefits like promotions etc. In the event of

victimization of the employee if dis-proportionate

excessive punishment is given then back wages can be

awarded. Thus, it is expressly clear that in the absence of

specific pleading regarding non-employment, the order of

back wages cannot be passed.

13. Shri Mohokar, learned counsel for petitioner,

has pointed out that the petitioner has given the evidence

before the Labour Court that he was not employed during

the relevant period. He, with the permission of this Court,

filed an affidavit of the petitioner, which is taken on record

and marked as "X" for identification. In said affidavit the

petitioner has made specific statement that he was not

employed after his dismissal till he was reinstated. This

statement of the petitioner is not controverted by the

learned counsel for the respondent by way of counter

affidavit though he has prayed that the matter be

remanded as he wanted to cross examine the petitioner on

the point of his non-employment during the relevant

period.

14. Once the fact of non-employment is pleaded by

the worker either in the body of the petition or in the

affidavit, it is the responsibility of the respondent to file a

counter affidavit disclosing his knowledge or information

about the employment of the worker during that period. A

statement of non-employment is itself a negative fact

pleaded by the petitioner therefore, it has to be challenged

or denied specifically. If it is controverted specifically in

the counter affidavit, then only next stage of giving an

opportunity of cross examination on this issue may be

granted. However, in absence of specific challenge to the

said negative fact, remanding the matter with a view to

give an opportunity to the respondent to cross examine the

petitioner on this issue will not only be an empty formality

but will also amount to unreasonable delay in judicial

process. In the view of these facts and circumstances of

the case, the order passed by the Industrial Court is

quashed and set aside and the order of the Labour Court is

upheld.

With these observations writ petition is disposed of.

No order as to costs.

JUDGE

Tambaskar.