Bombay High Court

The Divisional Controller M S R T C ... vs The Maharashtra State Transport ... on 26 October, 2015

Bench: R.V. Ghuge

                                           1




                                                                            
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                    
                             WRIT PETITION NO.2487 OF 2006
                                          WITH
                           CIVIL APPLICATION NO.2378 OF 2009 
                                          AND 




                                                   
                           CIVIL APPLICATION NO.11127 OF 2009

    1.The Divisional Controller,
       Maharashtra State Road Transport




                                         
       Corporation, Division-Latur,
       Dist.Latur,
                               
    2. The General Manager (Traffic),
        Maharashtra Vahatuk Bhavan,
        Central Office, Mumbai-08,
                              
    3. The Regional Manager,
        Maharashtra State Road Transport
        Corporation, Regional Office, CIDCO,
      

        Aurangabad.                                             PETITIONERS
   



    VERSUS 

    1. The Maharashtra State Transport 
        Kamgar Sanghatana,





       Latur Division, MSRTC Office,
       Through Divisional Secretary,
       Shri Suryakant R.Naderge

    2. Shaikh Raheman Shaikh Ismail,





        Age-59 years, Occu-Nil,
        R/o Jai Santoshi Mata Nagar,
        Yenki Road, Udgir,
        Tq.Udgir, Dist.Latur                                    RESPONDENTS

Mrs.R.D.Reddy, Advocate for the petitioners. Mr.M.P.Gude, Advocate for the respondents.

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( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 26/10/2015

ORAL JUDGMENT :

1. This petition was admitted by order dated 27/04/2006.

2. On 17/04/2009, this Court passed the following order :-

"1. Heard.

2. The recovery notices issued by the petitioner were held to be improper vide the impugned order dated 30,9,2005, rendered by

the Industrial Court, Latur.

3. The learned Advocate for the petitioner states that the employees are now likely to be superannuated and the recovery

will become impossible. Therefore, she seeks interim relief.

4. Mr.Yenge, learned advocate appearing for the Respondent is said to have been now in the panel of advocates of the petitioner and, therefore, Mr.M.P.Gude, learned advocate has filed

vakilpatra for the Respondent. The name of Mr.Yenge, be deleted and he be deemed as discharged instead of Mr.M.P.Gude's appearance be shown.

5. The petitioner is at liberty to withhold the disputed amount from the final payments to be made to the members of the Respondent No.1 at the time of payment of the retiral benefits but not from the gratuity amount and such deducted amounts be invested so as to earn proper interest. The disbursement of such invested amounts shall be subject to final decision in the

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petition. The final hearing of the petition is expedited and be scheduled for final hearing in the 2nd week of November, 2009."

3. The submissions of the learned Advocate for the petitioners can

be summarized in brief as under :-

[a] The Latur Division of the MSRTC was established on 02/05/1986.

[b] The Government Auditor raised an objection on 27/12/2001

[c]

while conducting the Government audit.

The Government Auditor points out a loss of Rs.2,51,43,000/-

caused to the petitioners on account of payment of wages for 3 rd day working.

[d] The report is that several employees have earned wages for 3 rd day without actually working on the third day.

[e] Notices were issued to 671 workers contending that they have

illegitimately acquired the said amounts and the said amounts therefore deserve to be recovered from them. [f] A specimen copy of the notice dated 02/02/2005 is placed on

record by which each of the employees concerned were directed to repay small/meager amounts. In the event, they are unable to pay, same was to be deducted in installments from their salaries.

[g] The respondent/employees preferred Complaint (ULP) No.30/2005 for challenging the impugned notice dated 02/02/2005 seeking recovery against 671 workers. [h] By judgment dated 30/09/2005, the Industrial Court partly allowed the complaint and set aside the notice of recovery dated 02/02/2005.

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[i] A settlement was signed between the Union and the workers with the petitioner/Organization by which the drivers and

conductors agreed to work on the 3rd day by taking some rest. [j] The abovesaid settlement dated 16/10/1999 has not been challenged or set aside.

[k] The Industrial Court has framed issues and has answered issue No.2 and 4 against the petitioners.

[l] Since the amounts to be recovered were meager, the petitioner/

Corporation did not initiate disciplinary proceedings against any of the workers.

[m] Despite these workers having not worked on the 3rd day, each of them accepted the payment even for the 3 rd day as the

concerned officials marked their attendance for the same. [n] This petition deserves to be allowed and the impugned judgment and order deserves to be quashed and set aside.

4. Mr.Gude, learned Advocate has appeared on behalf of the

respondents. His submissions are as under :-

[a] The recovery notice dated 10/06/2005 is unsustainable. [b] The 3rd day payment made to the respondents/workmen in between 1991 and 2000 was sought to be recovered in 2005 after the passage of about 10-15 years.

[c] Those workmen, who worked continuously for two days and did not get any rest, were legally permitted to take rest on the 3 rd day and after taking rest, they have the liberty to work on the 3rd day for a short duration.

[d] They never denied to work on the 3rd day. [e] Whenever they were present on the 3rd day, their attendance

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was marked by the Officials and accordingly they have got their payments.

[f] If the average of each of the workman, who have earned their 3rd day wages, is drawn, the amounts may not be more than Rs.4,000/- to 5,000/- .

[g] No disciplinary proceeding has been initiated by the petitioners for allegedly refusing to work on the 3rd day. [h] There was no act of misrepresentation or fraud played by any

of the workers.

[i] It is not the allegation of the petitioners that the respondents have earned extra money by indulging in a fraud. [j] The petition be dismissed as the Industrial Court has arrived

at a finding on facts.

5. I have heard the learned Advocates for the respective sides and

have gone through the petition paper book with their assistance.

6. The respondent No.1/Union had preferred a Complaint alleging

unfair labour practices against the petitioners. A stale dispute has

been dug out by the petitioners on the basis of an audit report. In

the absence of the respondents having acted fraudulently, the

petitioners should have caused recovery of amount from the Officers,

who have allotted the duties and marked the presence of these

workers. Nothing has been placed on record to indicate that

stringent action has been taken by the Corporation against its

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Officers for wrongfully marking the employees as "present" on the 3 rd

day and facilitating the payment of wages for such 3rd day.

7. It is not in dispute that the respondents/employees have not

committed any fraud with an intention of drawing or gaining more

money which could be termed as an act of "unjust enrichment". It is

not the case of the petitioners as well, that the respondents have

manipulated the records or have committed a fraudulent act so as to

earn extra wages.

8. The pattern of working for 2 days continuously and taking rest

on the 3rd day for a some time and then reporting for duties, is

monitored by the concerned Officers of the petitioners. It is not its

case that the Officers of the petitioner/Corporation have acted hands

in gloves with the employees and have therefore marked their

presence on the 3rd consecutive date of working so as to enable the

payment of the 3rd day wage in the absence of any actual work

performed.

9. The Industrial Court has framed the following issues while

deciding the complaint :-

[1] Does the complainant proved that, the respondent has

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shown favoritism or partiality to one set of workers, regardless of merits as alleged under Item 5 of Sch.IV of M.R.T.U. And

P.U.L.P. Act. ? --- NO [2] Does the complainant prove that, by issuing notice of recovery of wages, the respondent has committed unfair labour

practice under Item 9 of Sch.IV of M.R.T.U. And P.U.L.P. Act ?

--- YES [3] Does the complainant prove that, the respondent has

indulged in unfair labour practice under Item 10 of Sch.IV of

M.R.T.U. And P.U.L.P. Act ? --- NO [4] Whether the complainant is entitled for the relief claimed ?

--- YES [5] What order ? --- YES

10. The Industrial Court has considered the aspect that the drivers

and conductors operate on long distance schedule for the past

several decades. Such long distance schedules are to be monitored

by arranging appropriate crew members at different places. If for any

reason, there is no change in crew or if the crew is not arranged for a

change, these employees have to work continuously and they

returned back to the depot on the third day. The practice started at

Latur Division by the Officers of Petitioner/ Corporation was that

those who have done their long 2 days duty consecutively, they were

marked present on the 3rd day despite the fact that they were taking

rest.

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11. The grievance of the petitioners is that their officers have joined

hands with the employees and had marked them present and had

accordingly paid them the wages for the 3rd day.

12. I have considered the impugned judgment of the Industrial

Court threadbare. By way of an example, the 3 rd day payment can

be better understood as follows :-

"Suppose "A" employee starts duty on 1 st Feb. at about 6.00 (i.e. 18.00 hours) from Latur to Pune scheduled trip and he reaches at

Pune on 2nd February at about 2.00 a.m. (i.e. 14 hours) then it has to be presumed by the M.T.W. Act, that, he has completed 8 hours duty on 1st February that means "A" employee has

completed his duty of 1st Feb. though he reaches at Pune on 2 nd

Feb. After reaching at Pune "A" employee halts at Pune, takes full day rest and then starts at 11.00 p.m. i.e. (23 hours) on the same day i.e. on 2nd Feb."

13. I do not find any evidence on record by which it could be

concluded that the drivers/bus conductors were hands in gloves with

the Officers and they have acted fraudulently for earning more wages

without working, which could be termed as an act of "unjust

enrichment".

14. The Motor Transport Workers Act, 1961 defines a "day" u/s

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2(d), as under :-

"2(d) - "day" means a period of twenty-four hours beginning at midnight:

Provided that where a motor transport worker's duty

commences before midnight but extends beyond midnight, the following day for him shall be deemed to be the period of twenty- four hours beginning when such duty ends, and the hours he

has worked after midnight shall be counted in the previous day;"

15.

The issue, therefore, is as to who was actually responsible if at

all it is established that all these 671 workers were not present on the

3rd day, were marked "present" and hence they earned their wages for

the 3rd day. The petitioners could have initiated a disciplinary

proceeding in any appropriate manner as it could deem fit and proper

to fix the responsibility of the abovesaid act. Needless to state, it was

therefore the responsibility of the petitioner / Corporation to

establish that these bus drivers and conductors were getting

themselves marked present on the 3rd day without actually being

present. No such disciplinary proceeding was initiated by the

petitioners.

16. It is immaterial as to whether the amount sought to be

recovered is small or large. The said amount can be recovered if it is

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established that the same was paid to the worker as the worker had

acted fraudulently to earn the extra amount. Neither has the

petitioner established this aspect by an in house mechanism of

conducting disciplinary proceedings, nor could it bring such evidence

before the Industrial Court by which it could be established that each

of these 671 workers deserve to be subjected to a recovery of

amounts, excessively paid.

17. The Apex Court has dealt with a similar situation in the case of

Syed Abdul Qadir and others Vs. State of Bihar and others, 2009 AIR

(SCW) 1871 = 2009(3) SCC 475 and State of Punjab and others Vs.

Rafiq Masih (White Washer) AIR 2015 SC 1267.

18. It would apposite to reproduce the observations of the Apex

Court in the State of Punjab case (supra) from paragraph Nos.4 to 10

as under :-

"4. To answer the reference, the decisions need to be

considered.

5. In Shyam Babu Vienna's case (Supra), this Court while observing that the Petitioners-therein were not entitled to the higher pay scales, had come to the conclusion that since the amount has already been paid to the Petitioner, for no fault of theirs, the said amount shall not be recovered by the

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Respondent-Union of India. The observations made by this Court in the said case are as under:

"Although we have held that the Petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the

recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have

received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with

effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid

to them.

(Emphasis supplied)

6. In Sahib Ram Verma's case (Supra), (1995 AIR SCW 1780)

(supra), this Court once again held that although the Appellant-therein did not possess the required educational qualification, yet the Principal granting him the relaxation, had

paid his salary on the revised pay scale. This Court further observed that this was not on account of misrepresentation made by the Appellant but by a mistake committed by the Principal. In a fact situation of that nature, the Court was

pleased to observe that the amount already paid to the Appellant need not be recovered. In the words of the Court:

"Admittedly the Appellant does not possess the required educational qualifications. Under the circumstances the Appellant would not be entitled to the relaxation. The principal

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erred in granting him the relaxation. Since the date of relaxation the Appellant had been paid his salary on the

revised scale. However, it is not on account of any misrepresentation made by the Appellant that the benefit of the higher pay scale was given to him but by wrong

construction made by the Principal for which Appellant cannot be held to be fault. Under the circumstances the amount paid till date may not be recovered from the Appellant."

7. In our considered view, the observations made by the Court not to recover the excess amount paid to the Appellant-therein

were in exercise of its extra-ordinary powers Under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.

8. In Chandi Prasad Uniyal's case (AIR 2012 SC 2951 : 2012 AIR SCW 4742) (Supra), a specific issue was raised and

canvassed. The issue was whether the Appellant-therein can retain the amount received on the basis of irregular/wrong pay

fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee

and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered. While holding so this Court observed at paragraphs 14 and 16 as under:

14. We are concerned with the excess payment of

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public money which is often described as "taxpayers' money" which belongs neither to the officers who have

effected overpayment nor to the recipients. We fail to see whey the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is

whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers

may be due to various reason like negligence,

carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the

payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without

any authority of law and payments have been received

by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme

hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

16. The Appellant in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the Appellants were working would be responsible for recovery of the amount received in excess

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from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High

Court. However we order that excess payment made be recovered from the Appellants salary in 12 equal monthly instalments.

9. In our view, the law laid down in Chandi Prasad Uniyal's case, no way conflicts with the observations made by this

Court in the other two cases. In those decisions, directions

were issued in exercise of the powers of this Court Under Article 142 of the Constitution, but in the subsequent decision

this Court Under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of

the provision in Article 136 and 142 of the Constitution of India. Distinctively, although the words employed under the

two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting

special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the

specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged Under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing 'complete justice' in any cause or matter.

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The word 'complete justice' was fraught with uncertainty until Article 142 of the Constitution received its first interpretation in

Prem Chand Garg v. Excise Commissioner, U.P.: AIR (1963) SC 996 which added a rider to the exercise of wide extraordinary powers by laying down that though the powers are wide, the

same is an ancillary power and can be used when not expressly in conflict with the substantive provisions of law. This view was endorsed by a Nine-Judges Bench in Naresh

Shridhar Mirajkar v. State of Maharashtra : (1966) 3 SCR 744

reiterated by a Seven Judge Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531) and finally

settled in the Supreme Court Bar Association v. Union of India : (1998) 4 SCC 409 : (AIR 1998 SC 1895 : 1998 AIR SCW 1706).

10. Article 136 of the Constitution of India, confers a wide

discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction and can be best described in the words of this Court in Ramakant Rai v.

Madab Rai : (2003) 12 SCC 395 : (AIR 2004 SC 77 : 2003 AIR SCW 5633), "It is a residuary power, it is extraordinary in its amplitude, its limits when it chases injustice, is the sky itself".

Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as

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forthrightly forwarded in the case of Union of India v. Karnail Singh : (1995) 2 SCC 728, it makes the law operational to

make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as Under Article 141 of the Constitution."

19. The petitioner has placed reliance upon the judgment of the

Apex Court in the case of Shree Digvijay Cement Co.Ltd and another

Vs. Union of India and another, AIR 2003 SC 767. The facts of the

said case under the Industries (Development and Regulation) Act and

the Cement Control Order, 1967 are different and distinct from the

facts in the present case.

20. The petitioner has relied upon the judgment of the Full Bench

of the Punjab and Haryana High Court in the matter of Budh Ram

and others Vs. State of Haryana and others, 2009(122) FLR 1053.