Bombay High Court
Jalgaon Jilha Rajya Shaskiya ... vs Baburao Ramdas Ladvanjari on 7 October, 2016
Bench: R.V. Ghuge
WP/2312/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2312 OF 2016
Jalgaon Jilha Rajya Shaskiya
Karmachari Sahakari Patpedhi Ltd.,
33, Mahatma Fule Market,
Jalgaon through its Chairman
Shri Devendra Dayaram Chandankar
Aged 48 years, Occ. Service
R/o Jalgaon, Dist. Jalgaon. ..Petitioner
Versus
Shri Baburao Ramdas Ladvanjari
Aged 67 years, Occ. Nil
R/o Sant Dnyaneshwar Chowk,
Joshi Wada,Mehrun, Jalgaon. ..Respondent
...
Advocate for Petitioner : Shri Salunke P.B. h/f Shri Pawar V.A.
Advocate for Respondent : Shri Wani Girish V.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 07, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
WP/2312/2016
4. While issuing notice on 2.3.2016, this Court had passed the
following order:-
"1. The petitioner is aggrieved by the judgment and
award dated 16.04.2015 delivered by the Labour Court,
Jalgaon by which Reference IDA No. 21/2012 has been
partly answered in the affirmative. The order of
dismissal issued by the petitioner as against the
respondent dated 01.07.1995 has been held to be
illegal and set aside. 50% back wages have been granted
with continuity in service from the date of dismissal till
attaining the age of superannuation.
2. I have heard Mr. Pawar, learned Counsel for the
petitioner.
3. I find that the issues as to whether the departmental
enquiry conducted was vitiated and as to whether the
findings of the enquiry officer are perverse, were
framed. Both the issues were not decided in order to
deliver the Part I award by the Labour Court, much
against the ratio laid down by this Court (Maharashtra
State Cotton Growers Marketing Federation Vs. Vasant
Ambadas Deshpande, 2014 MLJ 339 : 2014 I CLR 878 and
MSRTC, Beed v/s Syed Saheblal Syed Nijam, 2014 (III)
CLR 547 : 2014(4) Mh.L.J. 687).
4. By the impugned award, the Labour Court has
granted relief to the respondent despite the dismissal
dated 01.07.1995 having been challenged by way of
reference in the year 2012. The respondent is said to
WP/2312/2016
have retired upon attaining the age of superannuation
in 2006.
5. Issue notice before admission to the respondent,
returnable on 23.03.2016. Till then, the respondent
shall not initiate steps for seeking execution of the
impugned award."
5. It is undisputed that the Labour Court has set aside the enquiry
as being vitiated. It is equally undisputed that the petitioner has not
reserved it's right to conduct a de novo enquiry (if the departmental
enquiry is set aside) in it's written statement. As such, considering
the law laid down by the Five Judges' Bench of the Honourable
Supreme Court in the matter of Karnataka State Road Transport
Corporation Vs. Laxmidevamma & another [2001 (II) CLR 640], the
petitioner cannot, therefore, conduct a de novo enquiry before the
Labour Court.
6. It is in this backdrop that the Labour Court has concluded that
the charges levelled against the respondent have not been proved
before the Labour Court. On this Count, this petition need not be
entertained.
7. Shri Wani, learned Advocate for the respondent has
strenuously supported the grant of 50% backwages from the date of
WP/2312/2016
dismissal 1.7.1995, till his superannuation on 19.3.2006. The
petitioner has contended that the respondent was silent as regards
his dismissal from 1.7.1995 till he raised an industrial dispute in 2011.
The demand notice was issued on 22.11.2011, which is even 5 years
after he stood retired. Yet the Labour Court has granted backwages
to the extent of 50%.
8. I find that the respondent did not question his dismissal for 16
years.
Even after his retirement, he was silent for 5 years.
Honourable Supreme Court in the matter of J.K. Synthetics Ltd. vs.
The
K.P. Agrawal and Anr. [(2007) 2 SCC 433], has observed in paragraphs
18 and 19 that the employee would be entitled to backwages only if
he steps into the witness box and leads evidence that he was
unemployed, he made efforts for an alternate employment and he
did not succeed in securing any such employment. In the instant
case, the respondent challenged his dismissal much after his
retirement and hence, by his own conduct, he has disentitled himself
from claiming backwages. By the impugned award, the Labour Court
has virtually rewarded him for causing delay of 16 years in raising an
industrial dispute.
9. Considering the above, this petition is partly allowed. The
direction issued by the Labour Court in Clause 3 of the impugned
order is quashed and set aside to the extent of the payment of
WP/2312/2016
backwages. The direction to the petitioner to pay all retiral benefits
by considering that the respondent is in continuous service till his
retirement on 19.3.2006, is sustained.
10. As such, the retiral benefits of the respondent, including
gratuity shall be calculated from the date of his joining duty till
19.3.2006 and the same shall be paid within a period eight weeks
from today, failing which, the petitioner shall pay interest at the
rate of 6% per annum on the amount of retiral benefits as well as
gratuity from the date of the judgment of the Labour Court.
11. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
