Bombay High Court

Ganpat Bhimsenrao Phalke vs M.S.R.T.C.Kothala Maidan ... on 31 July, 2017

Bench: P.R. Bora

                                   1     WP Nos.4560/98 & WP 5110/99

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO.4560 OF 1998

   
  Shri Ganpat Bhimsenrao Phalke,
  At Chankanwadi Post. 
  Tq. Paithan,Dist. Aurangabad        ..PETITIONER
                                  (Orig.IInd Party)

                   VERSUS

  Maharashtra State Road 
  Transport Corporation, 
  Kothala Maidan,
  Ahmednagar                                     ..RESPONDENT
                                              (Orig.Ist Party)

                             ****
           Shri. V.N. Upadhye, Advocate for Petitioner;
           Shri. M.K. Goyanka, Advocate for Respondent.


                                   WITH
                      WRIT PETITION NO.5110 OF 1999

  Maharashtra State Road 
  Transport Corporation, 
  through its
  Divisional Controller,
  Ahmednagar                                   ..PETITIONER

                   VERSUS

  Shri Ganpat Bhimsenrao Phalke,
  Age Major, Occ. Ex-conductor,
  R/o. Chakanawadi, Tq. Pathardi,
  Dist. Ahmednagar                    ..RESPONDENT
                                    
                         ****
       Shri. M.K. Goyanka, Advocate for Petitioner;
       Shri. V.N. Upadhye, Advocate for Respondent.




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                                      2    WP Nos.4560/98 & WP 5110/99


                               CORAM :  P.R.BORA, J.

   
  RESERVED ON:-    3
                     rd
                        
                         May,2017
                                  
   
  PRONOUNCED ON:- 31
                       
                     st
                        July,2017
                                 
                                   
  JUDGMENT:

1) Since both these writ petitions take

exception to the judgment and Award passed by the

2nd Labour Court at Ahmednagar in Reference (IDA)

No.72/1989 passed on 11.9.1997, I deem it

appropriate to decide both these petitions by a

common reasoning.

2) Petitioner in Writ Petition No.

4560/1998 had raised a dispute in regard to his

dismissal from the services of Maharashtra State

Road Transport Corporation (for short, MSRTC),

which is the petitioner in Writ Petition No.

5110/1999 and the Deputy Commissioner of Labour,

Nasik had referred the said dispute for

adjudication to the second Labour Court at

Ahmednagar, invoking the provisions under Section

10(1) read with Section 12(5) of the Industrial

Disputes Act, 1947 (for short the Act).

3) Petitioner in Writ Petition No.

4560/1998 was serving as a conductor in MSRTC.

He joined the services with MSRTC w.e.f. 6th

June, 1977. While he was attached to Pathardi

depot of MSRTC and was on duty on 24th May, 1985

on the route Ahmednagar - Pathardi, his bus was

checked by the checking staff of MSRTC and it was

noticed that the said conductor had re-sold the

bus tickets. Charge sheet was, therefore issued

to him and subsequently a Departmental Enquiry

was also conducted against him. In the

Departmental enquiry, the conductor was held

guilty for the misconduct alleged against him and

the Disciplinary Authority, therefore, imposed

the punishment of dismissal of service on the

said conductor. The punishment so imposed by the

Disciplinary Authority was challenged by the said

conductor by filing a Departmental Appeal. The

same was rejected by the Appellate Authority. The

said conductor then raised the dispute with the

Deputy Commissioner of Labour. As stated herein

above, the said dispute was forwarded for

adjudication to second Labour Court at

Ahmednagar.

4) Since the punishment of dismissal was

imposed on the said conductor after conducting

the departmental enquiry against him, and since

the said conductor had challenged the

departmental enquiry conducted against him to

have been conducted in violation of the

principles of natural justice, the learned Labour

Court, at the first instance, decided the issue

as regards the fairness of the departmental

enquiry conducted against the said conductor.

The learned labour Court, held that the enquiry

as was conducted against the said conductor was

in violation of the principles of natural

justice.

5) The learned Labour court thereafter gave

an opportunity to MSRTC to prove the misconduct

alleged against the said conductor by leading

evidence before the said Court. The record

reveals that despite availing ample

opportunities, MSRTC did not lead any evidence

before the Labour Court to prove the misconduct

as was alleged against the said conductor and in

such circumstances, the learned Labour Court

ultimately allowed the Reference Application and

directed MSRTC to reinstate the said conductor

with continuity of service and with 50% back

wages from the date of dismissal till the date of

award.

6) The aforesaid order has been assailed by

the conductor as well as by MSRTC by filing these

writ petitions. As stated herein above, Writ

Petition No.4560/1998 is filed by the said

conductor, whereas Writ Petition No.5110/1999 is

filed by MSRTC.

7) Shri V.N.Upadhye, learned Counsel

appearing for the bus conductor, submitted that

the learned Labour Court has grossly erred in not

awarding 100% back wages even though it has

recorded a finding that the order of dismissal

was illegal and improper. The learned Counsel,

placing his reliance on the judgment of the

Hon'ble Apex Court in the case of Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya

- AIR 2014 SC (Supp) 121, submitted that the

order passed by the Labour Court needs to be

modified and the petitioner conductor deserves to

be made entitled to receive 100% back wages from

MSRTC.

8) Shri M.K.Goyanka, learned Counsel

appearing for MSRTC, submitted that merely

because the MSRTC did not adduce any evidence,

the learned Labour Court ought not have held that

the punishment of dismissal imposed on the bus

conductor was improper and illegal. The learned

Counsel submitted that the Labour Court must have

looked into the charges levelled against the bus

conductor and the other material forming part of

the enquiry proceedings which was per se

sufficient to hold the bus conductor guilty of

the misconduct alleged against him. The learned

Counsel, placing reliance on the judgment of the

Hon'ble Apex Court in the case of State of

Haryana and anr. Vs. Ratansingh AIR 1977 SC 1512,

which was followed by this Court in the case of

P.K.Wani Vs. Divisional Controller, MSRTC, Dhule

- 1995 (1) CLR 1052, submitted that the learned

Labour Court ought to have looked into the

statements of the passengers and the admission

given by the bus conductor as about the events

which had occurred on the day on which the bus

was checked by the checking staff of MSRTC. The

learned Counsel submitted that the said evidence

was enough to hold the bus conductor guilty of

the misconduct alleged against him and in view of

the judgment, cited supra, though there was no

oral evidence, the Court ought not have decided

the issue against the MSRTC. The learned Counsel

further submitted that the learned Labour Court

has also erred in awarding 50% back wages without

considering the fact that the bus conductor had

approached the Court belatedly and in the

meanwhile a long period of 11 years has lapsed.

The learned Counsel, therefore, prayed for

setting aside the order passed by the Tribunal

and consequently, to reject the Reference

Application.

9) First, I would like to deal with Writ

Petition No.5110/1999 filed by MSRTC. As has

been argued by the learned Counsel appearing for

MSRTC, even though the MSRTC had failed to adduce

any evidence before the Labour court in order to

prove the misconduct alleged against the

respondent/conductor, the Labour court, at its

own, must have looked into the evidence which was

adduced in the Departmental enquiry conducted

against the respondent and according to the

learned Counsel, sufficient material was existing

in the enquiry proceeding, which would have

justified the disciplinary action taken by the

MSRTC against the respondent of dismissing him

from the services. In support of his contention,

the leaned Counsel had relied upon the judgment

of the Hon'ble Apex court in the case of State of

Haryana and Anr. Vs. Ratansingh (cited supra) and

the judgment of this Court in the case of

P.K.Wani Vs. The Divisional Controller.

10) The submission so made by the learned

Counsel is liable to be rejected for plural

reasons. Admittedly, in the Reference IDA, the

preliminary issue as about the fairness of the

enquiry was decided against the MSRTC and it was

held by the Labour Court that the enquiry was

illegal; improper and in violation of the

principles of natural justice.

11) The record further reveals that after

recording the finding, as above, in Part-I Award,

the Labour court had granted the application

submitted by the management for examining the

witnesses before the Court to prove the

misconduct of the respondent - conductor. The

record further reveals that the Labour court

allowed the application so filed by the

management and the matter was adjourned time to

time for adducing evidence by the management to

prove the charges levelled against the respondent

- conductor in the charge sheet on the basis of

which the departmental enquiry was conducted

against the said conductor. The record further

reveals that the matter was time to time

adjourned for the period of about two yeas at the

instance of the MSRTC for leading the evidence.

As has been pointed out by the learned Counsel

appearing for the respondent conductor, Roznama

of the Labour Court shows that 40 such

adjournments were granted by the Labour Court to

the MSRTC for adducing evidence to prove

misconduct of the respondent conductor before

the Court. The record further shows that even

after availing ample opportunities, since the

MSRTC failed to adduce any evidence before the

Labour Court, the Labour Court was constrained to

proceed further and the matter was then placed

for the evidence of the respondent conductor. As

has been recorded by the Labour Court, though the

respondent conductor was cross-examined by the

MSRTC, no such material has come on record, which

would become helpful to MSRTC to prove the charge

of re-selling of the tickets against the

respondent conduct. In the aforesaid

circumstances, the Labour court held the charges

levelled against the respondent conductor not

proved and, therefore, directed reinstatement of

the respondent conductor with 50% back wages.

12) The departmental enquiry conducted

against the respondent conductor, when was held

illegal and improper by the Labour court, it was

incumbent on part of the MSRTC to prove the

misconduct of the respondent conductor by

adducing necessary evidence in that regard before

the Labour Court. As has been noted above, the

MSRTC failed in adducing any such evidence though

ample opportunities were granted to it by the

Labour Court. As has been observed by the Labour

Court, even in the cross-examination of the

respondent conductor, no such material has come

on record which would lead to any adverse

inference against the said conductor.

13) In view of the facts as above,

apparently, it does not appear to me that the

learned Labour Court has committed any error in

recording a conclusion that MSRTC has failed in

proving any misconduct against the respondent

conductor. Since the enquiry conducted against

the respondent conductor was held illegal and

improper by the Labour court and when the MSRTC

had failed to prove the misconduct against the

respondent conductor even before the Court, the

order of dismissal of the respondent conductor,

was liable to be quashed and set aside. Once the

order of dismissal was set aside, the order of

reinstatement was bound to follow. I, therefore,

do not see any infirmity in the order passed by

the Labour court directing reinstatement of the

respondent conductor.

14) The judgments relied upon by the learned

Counsel appearing for MSRTC to support its

contentions cannot be made applicable to the

facts of the present case. In the aforesaid

case, at least there was evidence of the officer

of the Haryana Road Transport and that was relied

upon by the Court. In the instant matter, the

MSRTC has not adduced any evidence, even of its

officer, for the reasons best known to it. The

said judgment, therefore, cannot be of any help

to take the cause of the MSRTC further.

. The another judgment of the Division

Bench in the case of P.K.Wani (cited supra) also

cannot be applied in the present case for the

similar reasons. In the said matter also, though

the passengers were not examined, the statements

of the said passengers recorded by the officer of

the ST Corporation were believed by the Court. In

the instant matter, even that material is not

available before this Court. Thus, in so far as

order of reinstatement is concerned, the MSRTC

has failed in making out any case for causing

interference in the order passed by the Labour

court directing reinstatement of the respondent

conductor.

15) The next question, which falls for my

consideration is, Whether the order passed by the

Labour court, awarding 50% back wages, requires

any interference ? In writ petition filed by the

MSRTC, the challenge was for both, the order of

reinstatement as well as order of granting 50%

back wages. In the writ petition filed by the

conductor, it is his contention that the Labour

court must have awarded 100% back wages to him in

view of the fact that his dismissal was held to

be illegal and was set aside by the Labour court.

16) As I recorded herein above, the order of

reinstatement does not require any interference.

It is the contention of the MSRTC that even if

the order of reinstatement is sustained, the

order of granting back wages cannot be sustained.

The contention so raised by the MSRTC is liable

to be rejected at the threshold. Once the

termination is set aside, in normal course, it

follows with further order of full back wages.

17) In so far as the contention of the MSRTC

that, no back wages were liable to be awarded

even if the reinstatement order is sustained, is

liable to be rejected at the threshold since no

such case is made out by the MSRTC. Once the

termination or dismissal is set aside and

reinstatement is directed, ordinarily it is

followed with the order of back wages. However,

it is the discretion of the Court whether to

award the back wages in full or in part. There

cannot be a straight jacket formula for awarding

the relief of back wages. The Tribunal has to

exercise its discretion keeping in view all the

relevant circumstances. Of course, the discretion

is to be exercised in judicial and judicious

manner. The reasons for exercising the discretion

must be cogent and convincing and must appear on

the face of the record. The judgment and award

passed by the Labour court, if perused with this

angle and applying the criterion, noted herein

above, apparently, there appears no need to cause

any interference in the said order also.

18) The learned Counsel for the bus

conductor has relied upon the judgment of the

Hon'ble Apex court in the case of Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya

(D.Ed.) and Ors. - AIR 2014 SC (Supp) 121 to urge

that in the cases of wrongful termination of

service, the wrongdoer is the employer and

sufferer is the employee and, therefore, there is

no justification to give premium to the employer

of his wrongdoings by relieving him of the burden

to pay the employee his dues in the form of full

back wages.

19) I have carefully perused the aforesaid

judgment wherein the Hon'ble Apex court has

referred to its earlier judgments on the point

of back wages. The Hon'ble Apex court though has

held that in cases of wrongful termination of

services, reinstatement with continuity of

service and back wages is the normal rule, it is

further observed that the aforesaid rule is

subject to the rider that while deciding the

issue of back wages, the adjudicating authority

or the Court may take into consideration the

length of service of the employee; the nature of

misconduct, if any, proved against the employee;

the financial condition of the employer and the

similar other facts.

20. In the instant matter, the learned

Labour court in para No. of the impugned judgment

has made the following observations, -

"9. Issue No.2 - Since the charges are not proved the workman is entitled for the relief of reinstatement. The facts of the present reference is that the workman was dismissed on 29/9/1986, however, he has made reference in the year 19/7/1989 that means he has made reference after 3 years from the order of dismissal. The first party has not lead evidence to prove the charges before the court. But that does not mean the second party has right to get 100% back wages.

It is not known as to why the second

party has waited for 3 years for making reference. In view of the decision of Apex court reported in 1993 (I)-CLR 1072, reference has to be made within time. However, I am of the view that the reference may not be rejected on the point of delay only. Since the charges are not proved, however, the point of delay has to be considered while awarding back wages. Considering the point of delay, I am of the view that he may be granted 50% back wages from the date of dismissal till the date of reinstatement."

21) Considering the observation as above

made by the learned Labour Court, it appears to

me that it has rightly struck the balance. Since

the termination is held illegal, the employer

could not have been absolved from the liability

of paying the back wages. Similarly, for

approaching late to the court, the employee was

also not entitled for the back wages in full.

22) Moreover, in Writ Petition filed by

MSRTC, a specific plea is raised as about the

past service record of the bus conductor. It is

stated that the bus conductor was involved in