Bombay High Court
Mah.State Road Transport ... vs Baburao Bhoju Baviskar on 4 August, 2016
Bench: R.V. Ghuge
*1* 912.wp.2142.97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2142 OF 1997
Maharashtra State Road Transport
Corporation.
Through its Divisional Controller,
Jalgaon.
...PETITIONER
-versus-
Baburao Bhoju Baviskar,
Age : Major, Occupation : Ex-Driver,
R/o At Post Shirsade,
Taluka Amalner, District Jalgaon.
...RESPONDENT
...
Advocate for Petitioner : Shri M.K.Goyanka.
Advocate for Respondents : Shri Vijay Patil.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 04th August, 2016
Oral Judgment :
1 The Petitioner/ MSRTC is aggrieved by the judgment and
order dated 04.11.1991 delivered by the Labour Court, Jalgaon by which
Complaint (ULP) No.98/1987 filed by the Respondent/ Employee has
been allowed and he has been granted reinstatement with continuity of
service and back-wages from the date of his acquittal. The Petitioner is
also aggrieved by the judgment of the Industrial Court dated 21.06.1996
*2* 912.wp.2142.97
by which Revision (ULP) No.3/1996 has been rejected.
2 This Writ Petition was admitted on 26.06.1997 and by way of
interim relief, the payment of back-wages as granted by the Labour Court
was stayed.
3 It is informed that after reinstatement of the Respondent, his
salary was restructured by taking into account all increments to which he
would have been entitled to even for a period of unemployment from
08.06.1987 to 17.05.1993. The Respondent has now retired from service
upon attaining the age of superannuation on 31.07.2016.
4 By order dated 29.06.2001, on Civil Application
No.3578/2001, this Court noted that the Respondent was reinstated in
service pursuant to the order of the Labour Court on 17.05.1993 and
hence, the Petitioner was directed to fix his salary.
5 There is no dispute that the Respondent, who was working as
a Driver with the Petitioner/ MSRTC, was involved in an accident of his
bus on 07.04.1986 resulting in the death of a boy aged four years. After
conducting a full fledged domestic enquiry, he was dismissed from service
on 08.06.1987. The Petitioner had joined employment of the Respondent
*3* 912.wp.2142.97
in 1981. As such, he had put in only six years of service when he was
dismissed.
6 In Complaint (ULP) No.98/1987, the Respondent challenged
his dismissal. By the part-1 judgment dated 31.01.1991, the enquiry was
upheld, but stood watered down owing to the conclusion of the Labour
Court that the findings of the Enquiry Officer are perverse. It is undisputed
that though the Petitioner was given an opportunity of conducting a de-
novo enquiry for proving the charges, it did not choose to lead any
evidence and did not prove the charges against the Respondent. As is trite
law that in such circumstances, no charges are proved against the
delinquent. The revision petition of the Petitioner/ MSRTC has also been
rejected by the judgment dated 21.06.1996. I do not find any reason to
interfere with the said judgment since the charges were never proved by
the Petitioner/ MSRTC before the Labour Court.
7 Shri Goyanka, learned Advocate for the Petitioner/ MSRTC,
has strenuously canvassed that the Petitioner is in financial losses and
would not be able to sustain the burden of back-wages. He further submits
that the principle of "no work- no pay" needs to be applied in this case so
as to deprive the Respondent of the back-wages for the period 08.06.1987
to 16.05.1993. He further submits that after reinstating the Respondent on
*4* 912.wp.2142.97
17.05.1993, his pay structure was adjusted to include even the increments
which he would have earned in between June, 1987 to May, 1993 and
therefore, all benefits have been given to the Respondent.
8 Shri Patil, learned Advocate for the Respondent, has
strenuously opposed the submissions of Shri Goyanka. He prays that back-
wages should be paid to the Respondent. He may, at the most, waive the
interest component.
9 Shri Goyanka further submits that after the reinstatement of
the Respondent, he has not indulged in any accident and has
superannuated. All his legal dues would be paid to him as are permissible
by the service conditions and rules applicable.
10 Insofar as the back-wages are concerned, it cannot be
disputed that the Petitioner/ MSRTC is in financial losses. It is also
undisputed that the Respondent had driven the bus on 07.04.1986 which
resulted in the death of a boy aged four years. The Petitioner/ MSRTC did
not conduct a de-novo enquiry before the Labour Court to prove the
charge and hence, under fortuitous circumstances, the Respondent is a
beneficiary of this serious lapse on the part of the MSRTC.
*5* 912.wp.2142.97
11 The Honourable Supreme Court in the case of Gauri Shankar
vs. State of Rajasthan, 2015 (2) CLR 497 has concluded that back-wages
to the extent of 25% would be appropriate to reduce the rigours of
litigation suffered by the employee.
12 In the instant case, had the MSRTC proved the charges
against the Respondent before the Labour Court, things would have been
different. By not proving the charges, the Respondent has to be
exonerated. As such, considering the peculiarity of the fact situation as
above, which is quite unusual, I am modifying the impugned judgment of
the Industrial Court by granting only 25% back-wages to the Respondent/
Employee for the period from 08.06.1987 till 16.05.1993, which will be
calculated on the basis of his last drawn wages in the month of May, 1987.
13 In the light of the above, this Writ Petition is partly allowed
and the impugned judgments of the Labour Court dated 04.11.1991 and
the Industrial Court dated 21.06.1996 are modified only to the extent of
grant of back-wages, with a direction to the Petitioner/ MSRTC to pay
25% back-wages as noted above.
14 Rule is made partly absolute in the above terms.
*6* 912.wp.2142.97
15 At this stage, Shri Patil makes a request that the Petitioner/
MSRTC may consider the clearance of retiral benefits such as pension,
gratuity, provident fund, family pass, leave encashment, etc.. Shri Goyanka
submits that the Petitioner/ MSRTC shall consider this request strictly in
accordance with the Rules and the Service Conditions applicable and those
benefits which are legally payable to the Respondent/ Employee shall be,
accordingly, paid to him.
kps
ig (RAVINDRA V. GHUGE, J.)
