Divisional Controller ... vs Sham Venkatrao Gangakhedkar
2016 Latest Caselaw 2008 Bom

                                                                                   WP/3696/1999
                                                   1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                  
                                    WRIT PETITION NO. 3696 OF 1999




                                                          
                                                  WITH
                                   CIVIL APPLICATION NOS. 9327/2005,
                                          2083/2008 & 2082/2008

     Divisional Controller,




                                                         
     Maharashtra State Road
     Transport Corporation,
     Latur.                                                        ..Petitioner

     Versus




                                              
     Sham Venkatrao Gangakhedkar
                             
     (since deceased) through L.Rs.:-

     1. Meenabai Shamrao Gangakhedkar
     Age 73 years, Occ. Household,
                            
     R/o Lekchar colony, Ahmedpur,
     Tq. Ahmedpur, Dist. Latur.

     2. Sitaram Shamrao Gangakhedkar
      

     Age 39 years, Occ. Agriculture,
     R/o Lekchar colony, Ahmedpur,
     Tq. Ahmedpur, Dist. Latur.
   



     3. Laxmikant Shamrao Gangakhedkar
     Age 37 years, Occ. Agriculture,
     R/o Lekchar colony, Ahmedpur,





     Tq. Ahmedpur, Dist. Latur.                                    ..Respondents

                                               ...
                         Advocate for Petitioner : Smt. Ranjana Reddy
                          Advocate for Respondent : Shri Milind Patil
                                               ...





                                    CORAM : RAVINDRA V. GHUGE, J.

Dated: April 28, 2016 ...

ORAL JUDGMENT :-

1. This petition was admitted by this Court by order dated 29.7.1999.

WP/3696/1999

Impugned judgment was stayed only to the extent of backwages, on the

condition that the petitioner / Corporation deposits Rs.50,000/-. The said

amount was deposited in this Court on 10.3.2000.

2. By order dated 7.4.2000, the respondent / employee was permitted

to withdraw the entire amount on furnishing a security to the satisfaction of

the Additional Registrar of this Court.

3.

I have heard the learned Advocates for the petitioner and L.Rs. of

deceased respondent, at length.

4. Considering the order that I intend to pass, the entire submissions of

the learned Advocates are not required to be considered.

5. The petitioner is aggrieved by the judgment of the Labour Court

dated 1.11.1996, by which, Complaint (ULP) No.36 of 1998 was allowed.

The petitioner is also aggrieved by the judgment of the Industrial Court

dated 22.1.1999 by which Revision (ULP) No.13 of 1997 filed by the

petitioner has been dismissed.

6. Certain developments that have occurred prior to the delivering of

the impugned judgments and the passing away of the respondent /

employee would have an impact on the case in hand.

WP/3696/1999

7. The respondent was dismissed from service by way of punishment on

account of the charges proved against him. He questioned the enquiry as

well as its findings before the Labour Court, while challenging the order of

punishment. The Labour Court framed the following issues:-

1. Whether the enquiry was held against the Yes principles of natural justice?

2. Does complainant prove that the respondent Yes

has exercised unfair labour practice against him by way of victimization and for patently false reasons?

3. If so, is complainant entitled to a relief of Yes reinstatement, continuity of service and back

wages?

8. By it's judgment dated 22.11.1990, the enquiry was set aside and the

complaint was allowed granting reinstatement with continuity and full

backwages to the respondent.

9. The petitioner preferred Revision (ULP) No.26 of 1990 before the

Industrial Court, which was partly allowed. The judgment of the Labour

Court dated 22.11.1990 was set aside in its totality. Consequentially, the

conclusion of the Labour Court that the enquiry is vitiated on account of

non-observance of the principles of natural justice, stood set aside.

Surprisingly, the Industrial Court allowed the petitioner to lead evidence for

WP/3696/1999

proving the charges against the respondent. It is, therefore, apparent that

though the Industrial Court held that there is a material infirmity in the

exercise of jurisdiction by the Labour Court, it did not direct the Labour

Court to frame the following issues in addition to issue No.1 framed by the

Labour Court:-

"Whether the complainant proves that the findings of the

Enquiry Officer are perverse?"

10.

It is trite law that unless the fairness of the enquiry and the findings

of the Enquiry Officer are not adjudicated upon by the Labour Court or the

Industrial Court as the case may be, the charges are not required to be

proved once again before the said Court. In the matter of Maharashtra

State Co-operative Cotton Grovers Marketing Federation Ltd. & another Vs.

Vasant Ambadas Deshpande [2014 MLJ 339 : 2014 I CLR 878] and in the

matter of Maharashtra State Roadways Transport Corporation Vs. Syed

Saheblal Syed Nijam [2014 III CLR 547 : 2014 (4) Mah.L.J.687], this Court has

referred to the law as is laid down by the Honourable Supreme Court and

has concluded that the first two issues, which form the Part I judgment of

the Court, are to be decided purely on the basis of the record and

proceedings of the domestic enquiry conducted.

11. To add to the confusion, the petitioner did not pray before the

Labour Court to frame the second issue and decide the fate of the enquiry.

The deceased employee led evidence and the Corporation as well led its

WP/3696/1999

evidence to prove the charges, despite the fact that in effect, the domestic

enquiry already conducted, did not stand set aside under any order of any

Court. Based on the evidence, the Labour Court again concluded that the

enquiry is vitiated, there is no evidence before the Enquiry Officer to hold

the employee guilty and the conclusion reached by the Eqnuiry Officer was

prejudicial. Based on such conclusions, the Labour Court allowed the

complaint. The Industrial Court, which could have gone into the illegality

committed by the Labour Court, dismissed the Revision Petition, filed by

the Corporation.

12. In the above backdrop, both the judgments impugned, deserve to be

quashed and set aside. However, it cannot be ignored that there is no

purpose in remanding the complaint back to the Labour Court, either for

following the due procedure laid down in law or for conducting a de novo

enquiry, since the employee has passed away.

13. The deceased respondent was dismissed by order dated 14.1.1988

made effective from 18.1.1988. In the peculiar facts of this case, I am of

the view that the retiral benefits of the deceased employee, if not already

paid, need to be ordered to be paid, as the deceased had worked till

17.1.1988. Shri Patil, learned Advocate for the legal heirs of the deceased

respondent, makes a serious grievance that despite the order of

reinstatement of the Labour Court as well as by the Industrial Court and

these orders having not been stayed by this Court, the deceased employee

WP/3696/1999

was not reinstated in service by the Corporation.

14. Learned Advocate for respondent submits on instructions that the

Corporation has declared the respondent medically unfit and declined to

reinstate him in service.

15. Considering the above and to balance the equities, I am of the view

that the gratuity payable to the deceased employee, with effect from

18.1.1988 deserves to be granted with simple interest @ 3% p.a. effective

from 18.2.1988 (as it payable one month after severing relationship of

master - servant).

16. In the light of the above, this petition is partly allowed. The

impugned judgments of the Industrial Court dated 22.1.1999 and of the

Labour Court dated 1.11.1996 are quashed and set aside. The legal heir of

the deceased employee, namely, Meenabai Shamrao Gangakhedkar, who is

the wife of the deceased, shall be entitled for all retiral benefits, if not

already paid inclusive of gratuity, calculated on the 18 years of service, put

in by the respondent / employee with interest at the rate of 3% p.a. from

18.2.1988, if not already paid. Unpaid legal dues, therefore, shall be paid

by the Corporation to the wife of the deceased employee within a period of

ten weeks from today.

17. Rule is partly made absolute accordingly.

WP/3696/1999

18. It is clarified that the amount of Rs.50,000/- already withdrawn by

the deceased under the orders of this Court are not to be adjusted against

the retiral benefits payable to the respondent. The L.Rs. of the deceased

are released from security which the deceased had furnished to the

Registrar of this Court.

19. All pending Civil Applications stand disposed off.

( RAVINDRA V. GHUGE, J. )

...

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