Bombay High Court
Depot Manager & Another vs Abdul Rahim Khan on 15 September, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2752 OF 1995
WITH
CIVIL APPLICATION NO.5809 OF 1995
1. Depot Manager,
Maharashtra State Road
Transport Corporation,
Manjalgaon Depot,
Manjalgaon.
2. The Divisional Controller,
Maharashtra State Road
Transport Corporation, Beed -- PETITIONERS
VERSUS
Abdul Rahim Khan,
Age-Major, Occu S.T.Mechanic,
R/o New Idgah Naka,
In front of Dr.Dolas's house,
Gajanand Nagar, Beed -- RESPONDENT
None for the parties.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 15/09/2016
ORAL JUDGMENT :
1. The petitioner/Corporation has challenged the judgment of the
Industrial Court dated 17/02/1995, by which the revision petition
filed by the respondent/employee has been partly allowed and he has
been granted back wages from the date of termination, except the
period from 03/12/1990 to 01/11/1991.
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2. The petitioner/Corporation contends that the respondent was
absent from duties on two dates which are 07/09/1989 and
08/09/1989. He was issued with a charge sheet for the absence of
one month and by the order of punishment dated 04/12/1990, he
has been dismissed from service. He preferred a first department
appeal, which was rejected on 28/02/1991. His second department
appeal is pending. It was erroneously mentioned in the order of
dismissal that his absence was of two days, when in fact he was
absent for one month.
3. The respondent preferred Complaint (ULP) No.332/1992 before
the Labour Court at Aurangabad. After considering that the charge
of absence was proved, the Labour Court concluded that the
punishment of dismissal from service was shockingly
disproportionate. Therefore, By judgment dated 25/10/1993, the
respondent was reinstated in service with continuity. However, he
was deprived of entire back wages.
4. The Corporation did not challenge the said judgment before the
Industrial Court u/s 44 of the MRTU and PULP Act, 1971. The
respondent/employee preferred his revision petition. He prays for
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100% back wages since the punishment of dismissal from service for
absence of two days was held to be shockingly disproportionate. By
the impugned judgment dated 17/02/1995, the Industrial Court
concluded that the respondent could be deprived of the back wages
for the period 03/12/1990 till 01/11/1991 when he preferred his
Complaint before the Industrial Court for challenging his dismissal
w.e.f.04/12/1990, on 01/11/1991.
5. This Court, by its order dated 26/06/1995, admitted the
petition and did not grant any interim relief.
6. It is now settled in the light of the judgment of the Hon'ble
Supreme Court in the matter of J.K.Synthetics Ltd., Vs. K.P.Agrawal
and another, [(2007) 2 SCC 433] that back wages are not to be
granted mechanically. The employee has to prove that he has been
unemployed ever since his dismissal.
7. In the instant case, the respondent has been dismissed from
service from remaining unauthorizedly absent for two days. Though
it was contended that the respondent was absent from 07/07/1989
to 08/08/1989, it was wrongly typed in the enquiry proceedings that
he was absent for two days. The Industrial Court considered the
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record and concluded that the respondent was absent
unauthorizedly considering the fact that the order of dismissal
erroneously mentioned only two days of absence. In this backdrop,
the Industrial Court granted full back wages to the respondent except
for the period 03/12/1990 to 01/11/1991 which is the period of delay
caused by the respondent in filing the complaint before the Labour
Court.
8. Even if it is held that the respondent was absent from
07/07/1989 to 08/08/1989, the punishment of dismissal from
service for unauthorized absenteeism for one month is shockingly
disproportionate. His past record placed before the Labour Court
indicated that he was unauthorizedly absent and for which he was
punished on a few occasions.
9. He did not state in his evidence that he tried to obtain alternate
employment. However, he has specifically stated that he was
unemployed ever since his termination. Considering the law as it
stood then, the Industrial Court has granted back wages, as noted
above. This Court has not caused any interference while admitting
this petition and has not stayed the direction of the Industrial Court
to pay the back wages.
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10. Considering the above, as well as the passage of time and
keeping in view that the respondent/employee by now may have
retired from service, as he joined employment 46 years ago in 1970, I
do not find any reason to interfere with the impugned judgment.
11. This petition, being devoid of merit, is therefore, dismissed.
Pending civil application, if any, does not survive and stands
disposed of. Rule is discharged.
( RAVINDRA V. GHUGE, J.)
khs/SEPT.2016/2752-d
