Dajiba Fakirrao Shinde vs The Divisional Traffic ...
2016 Latest Caselaw 7387 Bom

                                             1




                                                                               
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                          WRIT PETITION NO.9233 OF 2012
                                       WITH
                        CIVIL APPLICATION NO.16135 OF 2016




                                                      
    1.     The Divisional Traffic Supdt. (Default)
           Maharashtra State Road Transport
           Corporation, Division Parbhani,
           Dist. Parbhani,




                                            
    2.     The Divisional Controller,
           Maharashtra State Road Transport
                              
           Corporation, Division Parbhani,
           District : Parbhani,
           Through its Divisional Controller                 -- PETITIONERS
                             
    VERSUS

    Dajiba Fakirrao Shinde,
    Age-46 years, Occu-Nil,
      


    R/o Rupur, Tq.Kalamnuri,
    Dist.Hingoli                                             -- RESPONDENT

Mr.A.D.Wange, Advocate for the petitioners. Mr.S.B.Kadu, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 16/12/2016

ORAL JUDGMENT :

1. The petitioner/Corporation is aggrieved by the concurrent

findings of the Labour Court dated 18/12/2009 partly allowing

Complaint (ULP) No.13/2003 and the judgment of the Industrial

Court dated 01/08/2012 by which Revision (ULP) No.16/2010 filed by

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the MSRTC has been dismissed.

2. I have considered the strenuous of Mr.Wange, learned Advocate

for the petitioners, who has vehemently criticized the impugned

judgments. He submits that an opportunity to conduct a denovo

enquiry was not given to the Corporation after the enquiry was

vitiated and the findings of the Enquiry Officer were branded as

perverse in the same judgment by which the complaint was partly

allowed. He, therefore submits that allowing of the complaint by the

Labour Court is unsustainable and for the same reasons, the

judgment of the Industrial Court is also rendered perverse.

3. He strenuously submits that the respondent/clerk was held

guilty of misappropriation in the domestic enquiry. His act of

misappropriation amounts to moral turpitude. Gratuity therefore

stands forfeited under the Payment of Gratuity Act and the Rules.

Though the respondent has been reinstated in service, has

superannuated and has been given his retiral pensionery benefits,

gratuity has not been paid as the offence for which he has been

punished constitutes moral turpitude.

4. Learned Advocate for the respondent/employee relies upon the

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judgment of the Hon'ble Supreme Court dated 06/12/2016 in Civil

Appeal No.11807/2016 in the matter of Jorsingh Govind Vanjari

Vs.Divisional Controller, MSRTC, Jalgaon. He specifically points out

paragraph Nos. 15 and 17 of the judgment of the Hon'ble Apex Court

and submits that committing offence of misappropriation has not

been held to be an act of moral turpitude by the Hon'ble Apex Court.

5.

I have considered the submissions of the learned Advocates.

6. There is no dispute that long standing law of more than 60

years laid down by the Hon'ble Apex Court mandates that the

fairness of the enquiry and the fairness of the findings of the Enquiry

Officer are to be dealt with peremptorily and are to be decided by the

Part I judgment of the Labour Court or the Tribunal, as the case may

be. (See Workmen of Motipur Sugar Factory Private Ltd., Vs. The

Motipur Sugar Factory Private Limited, AIR 1965 SC 1803, Delhi

Cloth and General Mills Company Limited Vs. Ludh Budh Singh,

1972(1) SCC 595, Shambhu Nath Goyal Vs. Bank of Baroda, AIR

1984 SC 289, The Workmen of M/s Fire Stone Tyre and Rubber of

India Private Ltd., Vs. The Management and others, AIR 1973 SC 1227

= 1973(1) SCC 813 and Bharat Forge Company Ltd., Vs. A.B. Zodge and

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another, AIR 1996 SC 1556.)

7. However, once the enquiry is vitiated, the employer is to be

given an opportunity of conducting a denovo enquiry only if this right

is reserved in the written statement, as is the view of the Hon'ble

Apex Court (5 Judges Bench) in the matter of Karnataka Road

Transport Corporation Vs. Lakshmidevamma, AIR 2001 SC 2090.

The Labour Court as well as the Industrial Court have observed by

perusing the written statement of the corporation that the right to

conduct a denovo enquiry was not reserved by the Corporation. In

this backdrop, the Labour Court cannot be faulted for deciding the

complaint without giving an opportunity to the petitioner to conduct

a denovo enquiry.

8. There is no dispute that the respondent is awarded the

punishment of dismissal from service on charges of

misappropriation. No denovo enquiry was conducted by the

Corporation before the Labour Court. In similar circumstances, the

Hon'ble Supreme Court in paragraph No.15 of its judgment in the

matter of Jorsingh Govind (supra) has observed as under :-

"15. The Labour Court, on the available materials on record, found that the termination was unjustified on the basis of the

khs/DEC.2016/9233-d

perverse finding entered by the inquiry officer. There was no attempt on the part of the management before the Labour Court

to establish otherwise."

9. This Court, in the matter of Jorsingh Govind (supra), in WP

No.3268/2014 had refused gratuity to the employee by its judgment

dated 08/07/2015. Since the charges were not proved before the

Labour court by the Corporation, the Hon'ble Apex Court, by its

judgment dated 06/12/2016 in Jorsingh Govind (supra) has observed

in paragraph No.17 as under :-

"17. In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an

offence involving moral turpitude as per the report of the

domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude."

10. In the light of the above, since no charge was proved before the

Labour Court after the enquiry was vitiated, the respondent/

employee is presumed to be innocent. Learned Advocate for the

petitioner strenuously submits that the past service record of the

respondent/employee is seriously blemished with 56 punishments

for various misconducts. However, I am not depriving the respondent

of the gratuity keeping in view the observations of the Hon'ble

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Supreme Court in paragraph No.17, reproduced above.

11. In so far as the back wages are concerned, the Industrial Court

has reduced the back wages of 50% as granted by the Labour Court

and has directed payment of only 25% back wages. The respondent

has not challenged this judgment.

12.

In the light of the above, this petition, being devoid of merit, is

dismissed. Rule is discharged. The respondent/employee can

withdraw the amount of back wages deposited in this Court

alongwith accrued interest by presenting an application supported

with tangible evidence in the form of Income Tax PAN card and

Election Commission Voter ID card. Needless to state, the

petitioner / Corporation shall settle the legal dues of the respondent

while making the payment of unpaid dues including gratuity, within

a period of 12 weeks from today.

13. Pending civil application does not survive and is disposed of.

( RAVINDRA V. GHUGE, J.)

khs/DEC.2016/9233-d