Bombay High Court

Divisional ... vs Sanjay Laxman Wadage on 15 June, 2016

Bench: P.R. Bora

                                                                    2800-95 WP.doc
                                              1




                                                                            
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                    
                               WRIT PETITION NO.2800 of 1995

              Divisional Controller,
              Maharashtra State Road




                                                   
              Transport Corporation,
              Division Office, Kotla Raod,
              Ahmednagar.                                    ...PETITIONER
                                                               (Ori. Respondent)
                          Versus




                                        
              Sanjay Laxman Wadage
                             
              Age 32 years, Occupation Ex-
              employee as Helper
              R/o Nirfirke-Galli, Maliwada,
              Ahmednagar.                                 ...Respondent
                            
                                                           (Ori. Complainant)
                                          ...
              Mr. M.K.Goyanka, Advocate for Petitioner
                                         ...
                               CORAM: P.R.BORA, J.
      


              Date of reserving the judgment : 09th June, 2016
   



              Date of pronouncing the judgment : 15th June, 2016
                                              ...
              JUDGMENT :

1) The present petition is preferred against

the order dated 23.12.1994 passed by the Industrial

Court at Ahmednagar in Revision (ULP) No.36/1994,

whereby it has confirmed the order passed by the

Labour Court, Ahmednagar in Complaint (ULP) No.

208/1993. The Petitioner thus takes exception to both

the aforesaid orders; one passed by the Industrial

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Court and the another passed by the Labour Court.

2) The facts which are relevant to decide the

present writ petition are thus:

The Respondent was serving as Helper in the

Ahmednagar Depot of the Petitioner Corporation. On

the charge of absenteeism from duty without taking

any leave and prior permission of the authorities, the

departmental action was initiated against the

respondent. He was held guilty and was dismissed

from service by way of punishment. Against the said

decision of the disciplinary authority, the respondent

filed a Complaint (ULP) No.208/1993 before the

Labour Court at Ahmednagar. The complaint so filed

by the respondent was contested by the petitioner.

However, on assessment of the oral and documentary

evidence brought before him, the learned Labour

Judge partly allowed the complaint filed by the

respondent. The learned Labour Judge set aside the

punishment of dismissal and instead directed the

stoppage of three yearly increments of the

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respondent. The learned Labour Judge consequently

directed the reinstatement of the Respondent with

back wages after calculating and deducting three

annual increments.

Being aggrieved with the order so passed by the

Labour Court as above, the petitioner preferred

Revision (ULP) No.36/1994 in the Industrial Court at

Ahmednagar. The learned Industrial Court, however,

did not interfere in the order passed by the Labour

Court and accordingly dismissed the Revision

Application. Aggrieved by the same, S.T. Corporation

has preferred the present petition through its

Divisional Controller, Ahmendgar.

3) The Respondent, though duly served, did

not enter his appearance in the matter. The record

shows that, ad-interim stay to the order of back

wages was passed in favour of the petitioner

Corporation on 29.06.1995 when the matter was

admitted by the Court and Rule was issued.

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4) Mr. M.K.Goyanka, the learned Counsel

appearing for the petitioner Corporation, at the outset

made it clear that, the petitioner is assailing the

impugned orders only to the extent of grant of full

back wages to the respondent. Learned Counsel

submitted that, without assigning any reason and

without considering the fact that, the respondent

herein i.e. the original complainant had not

discharged the burden on him to prove that during

the pendency of the complaint before the Labour

Court, he was not gainfully employed, the Labour

Court has awarded full back wages to the respondent

employee. Learned Counsel further submitted that,

though it was brought on record that, on at least 13

previous occasions, the respondent employee had

remained absent without obtaining any prior

permission, the learned Labour Judge ignored the said

fact and has erroneously awarded the full back wages

to the respondent employee. The learned Counsel

further submitted that, the learned Industrial Court

also without appreciating the facts on record and

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ignoring the legal submissions advanced on behalf of

the petitioner Corporation, dismissed the Revision

filed by the petitioner Corporation and mechanically

confirmed the order passed by the Labour Court.

Learned Counsel has placed reliance on the judgment

of the Hon'ble Apex Court in Talwara Co-operative

Credit Service Society V. Sushil Kumar, 2008

AIR SCW 6532.

5) After having considered the submissions

made on behalf of the petitioner Corporation and on

perusal of both the impugned orders, it apparently

appears that, the Courts below have grossly erred in

awarding full back wages to the respondent

employee. The judgment delivered by the learned

Labour Court nowhere reveals that, any such case

was pleaded by the respondent employee that during

the pendency of the complaint before the Labour

Court, he was not gainfully employed and was

therefore entitled to full back wages of the entire said

period. In such circumstances, the Labour Court

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ought not have granted the back wages to the

respondent employee of the said period. In so far as

the relief of reinstatement is concerned, as noted

earlier, the petitioner Corporation has not pressed the

said issue and the learned Counsel appearing for the

petitioner was fair enough in submitting that the

petitioner Corporation is not objecting to the relief of

reinstatement granted by the Labour Court and has

restricted his argument only to the relief of back

wages.

6) In view of the fact that, the respondent

employee had failed to discharge the burden on him

to prove that, he was not gainfully employed in the

relevant period, he was not entitled for the relief of

back wages. The Hon'ble Apex Court in Para No.11 of

its Judgment in the case of Talwara Co-operative

Credit Service Society Ltd. V. Sushil Kumar,

2008 AIR SCW 6532 observed thus:

"11. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section

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11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of

this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the

statutory rules so far as a public sector undertaking is concerned etc. should be taken into consideration.

For the purpose of grant of back wages; one of the relevant factors would indisputably

be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after

termination of his service.

Some of the other relevant factors in this behalf have been noticed by this Court in G.M. Haryana Roadways v. Rudhan Singh,

[(2005) 5 SCC 591], stating:

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation

of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement

of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of

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back wages. One of the important factors, which has to be taken into

consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his

services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification

possessed by him he may not be in a position to get another employment.

However, where the total length of service rendered by a workman is very small, the award of back wages

for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important

factor, which requires to be taken into consideration is the nature of

employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it

may be for 240 days in a calender year."

[See also Correspondent, St. Michael's T.T.I. v. V.N. Karpaga Mary and Ors.

2008 (6) SCALE 621]

In U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another, [(2006) 4 SCC 733], this Court held :

"16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be

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laid down as to when payment of full back wages should be allowed by the

court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or

tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and

may come to the conclusion that the ig action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the

question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the

second question, the court or tribunal would consider all relevant

circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."

In Municipal Council, Sujanpur v. Surinder Kumar [(2006) 5 SCC 173], this Court observed:

"Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11A of the said Act being discretionary in nature, a Labour Court was required

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to consider the facts of each case therefor. Only because relief by way

of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically.

For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question

whether the post was a sanctioned one, being relevant facts, must be taken into

consideration."

7) It appears that, the aforesaid aspect was

lost site of by the learned Industrial Court also. In

view of the law laid down by the Hon'ble Apex Court

in the judgment referred to herein above, the order

passed by the Labour Court so far as it relates to

grant of back wages to respondent employee is

concerned, deserves to be set aside and quashed.

Since this Court had granted stay to the execution of

the order in regard to the payment of back wages to

the respondent employee, no further orders are

required to be passed.

8) For the reasons stated above, the following