Bombay High Court
M.S.R.T.C. Jalna vs Tulsidas Dagdoba Kharabe on 15 October, 2016
Bench: R.V. Ghuge
WP/798/1997
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 798 OF 1997
Maharashtra State Road
Transport Corporation,
Through its Divisional Controller,
Jalna. ..Petitioner
Versus
Tulasidas Dagdoba Kharabe,
Age 49 years, Occ. Ex. Conductor,
R/o Pimper-kheda, Tq. Partur,
District Jalna. ig ..Respondent
...
Advocate for Petitioner : Shri D.S.Bagul
Advocate for Respondent : Shri V.R.Mundada
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 15, 2016
...
ORAL JUDGMENT :-
1. The petitioner is aggrieved by the award dated 7.8.1996, by
which, the Labour Court has partly allowed Reference (IDA) No.30 of
1990 and has granted reinstatement with continuity of service and
40% backwages to the respondent.
2. This Court by order dated 25.4.1997 admitted this petition
and, on the condition that the respondent would be reinstated,
stayed the direction to pay backwages to the respondent.
3. I have heard the strenuous submissions of Shri Bagul, learned
WP/798/1997
Advocate on behalf of the petitioner and Shri Mundada, learned
Advocate for the respondent / employee. I have gone through the
available record.
4. The respondent was appointed as a Bus-Conductor in 1989. In
1974, the respondent was dismissed from service on the charge of
being guilty of habitual absenteeism. In 1978, he was granted a
reappointment. He was charge sheeted in 1986, vide charge sheet
dated 8.8.1986 alleging that he had remained unauthorizedly absent
for 17 days and was absent on the ground of sickness for 74 days.
After conducting a full- fledged enquiry, he was held guilty of all the
charges and was dismissed from service by order dated 19.10.1989.
5. The respondent raised an industrial dispute for challenging his
dismissal in Reference (IDA) No.30 of 1990. By the Part I award, the
Labour Court concluded that the enquiry conducted by the MSRTC
was not vitiated. By final judgment dated 7.8.1996, the Labour
Court interfered with the quantum of punishment on the ground that
only 17 days of absence was proved and the 74 days of absence on
the ground of sickness cannot be termed to be unauthorized
absenteeism.
6. The respondent has been reinstated in service from 1.7.1997
and has retired from employment on 30.4.2007.
WP/798/1997
7. I have considered the grounds raised by the petitioner /
Corporation below paragraph No.6. It is also apparent that the
respondent was earlier dismissed in 1974 for unauthorized
absenteeism.
8. The issue, therefore, is as to whether the punishment awarded
to the respondent was shockingly disproportionate to the seriousness
and gravity of the misconduct proved. The Labour Court has arrived
at a finding that the respondent was absent for 17 days
unauthorizedly. His absence due to sickness can not be said to be
unauthorized absenteeism.
9. The respondent has already suffered punishment for his earlier
act of unauthorized absenteeism when he was dismissed in 1974 and
was reappointed in 1978. From his fresh employment from 1978 till
his dismissal in 1989, he has been held guilty of unauthorized absence
for only 17 days. The impugned award does not indicate that there
was any other punishment imposed upon the respondent in this
period of 11 years of service. Though the Labour Court has disagreed
with a part of the findings of the Enquiry Officer, it has sustained the
findings to the extent of unauthorized absenteeism for 17 days. In
my view, the Labour Court has rightly concluded that the punishment
for dismissal from service was extremely harsh and disproportionate
WP/798/1997
and hence rightly reinstated the respondent with continuity of
service.
10. In so far as backwages are concerned, I find that the Labour
Court has concluded that the punishment of dismissal from service
could be modified by awarding the punishment of depriving the
respondent of 60% backwages. Taking into account his earlier
dismissal and his habit of remaining absent and in the light of the
judgment of the Honourable the Supreme Court in the matter of
Gauri Shankar Vs. State of Rajasthan [2015 II CLR 497], I find that the
backwages of 30% and deprivation of 70% would be an appropriate
punishment for the respondent.
11. As such, this petition is partly allowed only to the extent of
reducing the backwages from 40% as granted by the Labour Court to
30% from the date of his dismissal - 19.10.1989 till his reinstatement
on 1.7.1997.
12. The petitioner shall, therefore, pay 30% of the backwages to
the respondent, calculated on the basis of his last drawn wages by
drawing an average of the months of July, August and September,
1989. The said amount of 30% of the backwages shall be paid to the
respondent within 12 weeks from today. So also, if retiral benefits
have not been given to the respondent, the petitioner shall do so
WP/798/1997
within 12 weeks from today by taking into account continuous service
of the respondent from 1978 till 30.4.2007.
13. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
