Bombay High Court
The State Of Mah vs Krishnath Vithalrao Derode on 20 October, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 687 OF 1997
1 The State of Maharashtra.
2 The Warden,
Government Boys Hostel,
Nilanga, District Latur.
...PETITIONER
-VERSUS-
Shri Krishnnath Vithalrao Darode,
Age : 29 years, Occupation : Nil,
R/o Renapur, Tq & Dist.Latur.
...RESPONDENT
...
AGP for Petitioner : Shri P.N.Kutti.
Advocate for Respondent : Shri R S Deshmukh.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 20th October, 2016
Oral Judgment :
1 The Petitioner is aggrieved by the judgment of the Industrial
Court dated 07.08.1996 by which Revision (ULP) No.24/1989 filed by the
Petitioner has been dismissed.
2 This petition was admitted on 22.09.1998 by this Court and
interim relief was refused to the Petitioner.
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3 I have heard the learned AGP on behalf of the Petitioner and
Shri Deshmukh, learned Advocate on behalf of the Respondent/
Employee.
4 The Respondent was before the Labour Court in Complaint
(ULP) No.44/1987 alleging that he has been disengaged w.e.f. 30.04.1987
by the written order dated 28.05.1987. He was working as a Clerk from
November, 1985. It is categorically informed that the Respondent has been
in service ever since he has been reinstated and is presently in
employment for almost two decades. After he was disengaged by order
dated 28.05.1987 w.e.f. 30.04.1987, he had approached the Labour Court.
By judgment dated 22.06.1989, the Respondent was granted
reinstatement with continuity of service and full back wages. Being
aggrieved by the said judgment, the Petitioner had approached the
Industrial Court in the revision petition which was dismissed by the
impugned judgment dated 07.08.1996.
5 The decisive issue in this matter is that the Respondent has
suffered termination with retrospective effect. By a written order dated
28.05.1987, he was discontinued from 30.04.1987. The learned Division
Bench of this Court, in the matter of Assaram Raibhah Dhage vs. Executive
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Engineer, Sub Divisional, Mula, 1988 (4) Bom. C.R. 158 : 1987 (2) CLR
231, has concluded that termination with retrospective effect is
unforeseen in law. This Court expressed it's astonishment and concluded
that even if a person is a temporary / daily wager or permanent, there
cannot be termination with retrospective effect. Paragraphs 1 to 3 of the
said judgment reads as under:-
"(1) The services of an employee, be he permanent or
temporary, cannot be terminated with retrospective
effect. Such is the ratio of this judgment.
(2) On June 7, 1980 the petitioner, a project displaced
person, was appointed as a Mustering Assistant in the
Work Charge Establishment at a monthly salary of
Rs.200/-. Thereafter he worked continuously without
break in service till March, 1986, when by a letter of
termination dated March 11, 1986 his services were
retrospectively terminated with effect from March 1,
1986. Hence this writ petition.
(3) The petitioner's learned counsel Miss Purohit is
perfectly justified in making a grievance that it is
unthinkable that an employee's services can be
terminated with retrospective effect, as done in the
present case. We join learned Counsel in her
astonishment. For that matter, one of the conditions
in the letter of appointment is that if the petitioner
desired to resign he was liable to pay one months
salary or give one months notice. It is therefore,
ironical that on the other hand, the petitioner's
services were terminated with retrospective effect."
6 The learned AGP has agitated the issue of grant of full back
wages by the Labour Court. Shri Deshmukh has strenuously supported the
impugned judgment and has submitted that once the termination is held
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to be illegal and unsustainable, the effect of unlawful termination can be
cured by grant of full back wages. Depriving the Respondent of back
wages would amount to giving the Employer a premium on an unlawful
termination.
7 The Honourable Supreme Court in the matter of J.K.
Synthetics Limited vs. K.P.Agrawal, 2007(2) SCC 433, has observed in
paragraphs 18 and 19 that an employee has to step into the witness box
and lead evidence that he was not in gainful employment after
termination, he attempted to obtain alternate employment and despite his
best efforts, he could not secure any employment. In the instant case, I
find from the judgment of the Labour Court that there is no reference to
these aspects. So also, the Honourable Supreme Court, in the matter of
Nicholas Piramal India Limited v/s Hari Singh, 2015 (2) CLR 468, has
concluded that 50% back wages would amount to an appropriate relief to
an employee for having suffered the rigours of litigation.
8 In the light of the above, this Writ Petition is partly allowed
only to the extent of reducing the back wages of the Respondent from
100% to 50% from the date of his termination till the date of his
reinstatement in service.
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9 In the event, on account of refusal of interim relief by this
Court if the Petitioner has already paid back wages to the Respondent, this
order shall not affect the said payment and there shall be no recovery of
the amount already paid.
10 Rule is made partly absolute in the above terms.
11 Before parting with this matter, I deem it proper to express
my displeasure to the language used by the learned Presiding Officer,
Labour Court, Latur in paragraph 6 wherein it is observed that "I would
say that this judgment of our High Court has not shut up the mouth of the
workers to avail their individual remedies." It is expected from a Judicial
Officer that the language used in the judgment should maintain the
respect and dignity of the judiciary. Rough language should never be used.
kps (RAVINDRA V. GHUGE, J.)
