Divn. Controller, M.S.R.T.C vs Subhchandra Premnarayan Pathak
2017 Latest Caselaw 3356 Bom

   lpa238.07                                                                     1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH

              LETTERS PATENT APPEAL NO.  238  OF  2007
                                 IN
                  WRIT PETITION  NO.  419  OF  1993


  Divisional Controller,
  Maharashtra State Road 
  Transport Corporation at
  Chandrapur.                                   ...   APPELLANT

                    Versus

  Subhchandra s/o Premnarayan 
  Pathak, aged 60 years, occ. -
  Retired, r/o Mujranai, Ward No.
  1, Bramhapuri, Dist. Chandrapur.              ...   RESPONDENT


  Shri V.G. Wankhede, Advocate for the appellant.
  Shri B.M. Khan, Advocate for the respondent.
                    .....

                                    CORAM : B.P. DHARMADHIKARI &
                                              ROHIT B. DEO, JJ.

JUNE 20, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Heard Shri V.G. Wankhede, learned counsel for the

appellant - Maharashtra State Road Transport Corporation and

Shri B.M. Khan, learned counsel for the respondent -

Conductor.

2. This Court has, while issuing notice to the

respondent on 18.10.2007, on prayer for stay, stayed the

judgment of the learned Single Judge. This order was

confirmed on 14.03.2008. In that order, the Division Bench has

taken note of period of 29 years for which back wages were

allowed by the learned Single Judge and stayed that part. The

appellant - Corporation was directed to reinstate the

Conductor.

3. According to Shri Khan, learned counsel, in view of

this order, Conductor was reinstated and he worked for some

time and then superannuated.

4. Shri Wankhede, learned counsel invites attention to

observations by the learned Single Judge in paragraph 10 of the

impugned judgment to show that on the date on which writ

petition was heard, the Conductor had already superannuated.

5. We do not wish to go into this controversy. For

proved misconduct of misappropriation of M.S.R.T.C. amount

by tampering with the Concise Way Bill Abstract (CWA), by

order dated 14.07.1983, punishment of dismissal was inflicted

upon the Conductor. It is to be noted that prior thereto, on

24.04.1979, ID Application No. 75 of 1979 was moved by the

present appellant before Conciliation Officer, seeking

permission to dismiss the respondent - Conductor, a protected

employee. The permission was refused by the Conciliation

Officer on 28.05.1980. After that refusal, the Inquiry Officer

took some steps and then above mentioned order of dismissal

was passed. This is only to show that the period for which back

wages are payable is almost 29 years.

6. The punishment of dismissal formed subject matter

of Reference (IDA) No. 23 of 1990 before the Labour Court,

Chandrapur. That Court decided preliminary issue regarding

fairness and validity of Departmental Inquiry as also issues on

merits by common order dated 31.10.1991. The inquiry was

held to be valid, misconduct was held to be established and

punishment was maintained. With the result, Labour Court

answered the reference in negative.

7. This Award was then questioned before this Court

in Writ Petition No. 419 of 1993. The learned Single Judge

pronounced the judgment on 04.06.2007. In that judgment, it

has been found that authority competent to initiate

departmental inquiry was Depot Manager as misconduct came

to light in the premises of Aheri Depot. Initiation of

proceedings by the Divisional Traffic Superintendent and

issuance of charge sheet by that authority was, therefore, held

bad. Apart from this, while commenting upon the validity or

otherwise of Departmental Inquiry, course adopted by the

Inquiry Officer, after rejection of permission by the Conciliation

Officer, has been criticized. It has been held that the Conductor

was not given due and proper opportunity, with the result,

inquiry itself was found bad. In the light of these findings and

the fact that the Conductor had superannuated already, Court

granted him full back wages as relief of reinstatement could not

have been granted.

8. Shri Wankhede, learned counsel, in this background

submits that the misconduct consists of carrying passengers

without ticket and of tampering records to misappropriate the

amount. Tickets earlier sold and recorded with numbers in

CWA were again shown as sold by the Conductor, with the

result, double sale of very same tickets was reflected. However,

while depositing M.S.R.T.C. cash and unsold tickets, this double

sale was not pointed out. He contends that thus,

misappropriation was not within the premises of Aheri Depot

but when bus was travelling from Shironcha to Asarali and

hence, the Divisional Traffic Superintendent was the right

authority to issue charge sheet.

9. Shri Wankhede, learned counsel points out that in

routine course and at random when this CWA of Conductor was

checked, the mischief was discovered and thereafter action

started. Merely because CWA was deposited with Depot

Manager at Aheri and misconduct came to light there, it cannot

be said that the misconduct occurred within Depot premises

and hence Depot Manager was not and could not have been the

competent authority. He further submits that regarding

procedure followed in Departmental Inquiry, no grievance was

made by the Conductor, when inquiry was going on and show

cause notices were served upon him. He further states that in

written statement filed before the Labour Court, in specific

pleadings, a right to prove misconduct before the Labour Court,

if inquiry be found vitiated, was specifically reserved. Thus, the

learned Single Judge, after finding that inquiry was vitiated,

ought to have remanded the matter to the Labour Court for

giving an opportunity to the appellant to prove misconduct. As

that has not been done, the judgment impugned in present LPA

is unsustainable. However, he adds that after refusal of

permission by the Conciliation Officer, Inquiry Officer has not

reopened inquiry but only rectified the errors pointed out by

the Conciliation Officer, after giving necessary opportunity to

the Conductor.

10. Shri Khan, learned counsel for the Conductor

submits that after defects in inquiry were pointed out, for the

first time, a copy of CWA was made available to the respondent

and as such, the Inquiry Officer could not have proceeded

further from the stage of show cause notice. He adds that

misconduct (alleged) was about tampering in CWA and as CWA

itself was not supplied, the misconduct could not have been

held to be proved. He further adds that in the proceedings

before the Labour Court also, CWA was not brought on record

as per law by examining any witness. Overwriting or tampering

therein is not proved to be by the Conductor. He submits that

the learned Single Judge has, therefore, correctly found inquiry

vitiated. He further adds that if inquiry is vitiated and the

respondent is to be given an opportunity to prove misconduct

by adducing evidence before the Labour Court, the competency

of the authority to issue charge sheet may not remain material.

He, however, adds that as tampering, for which action has been

taken, has come to light in depot premises, Depot Manager only

was the competent authority. He contends that it cannot be

presumed that overwriting has been done by the Conductor in

the bus while carrying passengers from Shironcha to Asarali.

Lastly, he adds that in any case, now the respondent has already

superannuated and alleged misconduct is about 30 years old,

therefore, remand of matter to Labour Court for proving that

misconduct will be an empty formality as necessary witnesses

for that purpose may not be available and it will be undue

harassment not only to the respondent - conductor but also to

M.S.R.T.C. Officers, who may also have superannuated.

11. In reply arguments, Shri Wankhede, learned

counsel, without prejudice to the contentions noted supra,

states that if back wage are to be awarded, the same could not

have been for the entire stretch of 29 years. He submits that

the same should have been proportionately scaled down as per

settled law on the point.

12. After hearing the respective counsel, we find that

the controversy which has surfaced in the year 1979 is being

examined by this Curt in 2017. There is some dispute between

the parties about reinstatement or otherwise. A perusal of

Division Bench order dated 14.03.2008 shows a direction to

reinstate, if employee had not already superannuated. There,

the fact that back wages are required to be paid for huge period

of 29 years finds mention. The learned Single Judge has while

molding the relief to be granted, taken note of the fact that the

respondent - Conductor had already superannuated. It is not

in dispute that today he is not in employment and he is a senior

citizen.

13. The officers of Corporation who may be required to

be examined to prove alleged 1979 misconduct may not now be

available. Similarly, if the respondent - Conductor is to prove

his innocence, he may also face serious handicaps because of

passage of time of about 29 years. Hence, even if the matter is

to be sent back to the Labour Court to allow the appellant -

employer to exercise its right to prove misconduct before it,

grant of opportunity may not yield any positive result.

14. If we accept the arguments of Shri Wankhede,

learned counsel and hold that the Divisional Traffic

Superintendent has rightly issued charge sheet and initiated

disciplinary inquiry, as the inquiry is vitiated, appeal cannot

succeed. If we accept his arguments on law, as laid down by

the Hon'ble Apex Court in the case of Cooper Engineering Ltd.

vs. P. P. Mundhe, reported at AIR 1975 SC 1900, the matter

needs to be sent back to the Labour Court. Sending matter

back to Labour Court will be undue harassment not only to the

appellant but also to the respondent. At the same time, the

findings on procedure followed by the Inquiry Officer, after the

denial of permission by the Conciliation Officer, cannot be

ignored. The facts show that very important document like

CWA was not made available to the respondent during

Departmental Inquiry initially. Though he may have maintained

that document, that by itself does not mean that he has

tampered with it and overwriting, if any, upon it is by him.

This fact, therefore, is required to be established independently.

Law requires grant of opportunity not only to the appellant for

that purpose but also to the respondent. It follows that

Departmental Enquiry held is rightly found unsustainable by

the learned Single Judge.

15. Hence, if we record any finding on any of the

contentions raised by Shri Wankhede, learned counsel, at this

stage, at the most matter may be required to be sent back to

Labour Court. That course is now practically rendered

infructuous. In this situation, instead of dwelling more on this

controversy, we find it appropriate to concentrate only on

quantum of wages i.e. back wages from the date of termination

i.e. from 13.01.1979 till the date of reinstatement (if there was

any reinstatement) or then till the date of superannuation. The

period in either case is about 29 years.

16. If the Conductor was reinstated, as claimed by Shri

Khan, learned counsel, he may have worked thereafter till his

superannuation, earned his salary and may also have secured

retirement benefits. If he has not worked, wages allowed by

the learned Single Judge may be the only compensation

available to him.

17. The Hon'ble Apex Court in the case of Lokmat

Newspapers Pvt. Ltd. vs. Shankarprasad, reported at 1999 (6)

SCC 275, considered grant of back wages for the period from

22.06.1982 to 03.05.1995 i.e. for about 13 years. 1/3rd of the

wages due for this period have been allowed as reinstatement

was not possible due to superannuation on 03.05.1995. A

Single Judge of this Court (B.P. Dharmadhikari, J.) in the case

of Punjaram s/o Dharmaji Wogdarkar vs. Presiding Officer,

School Tribunal, Amravati & Anr., reported at 2007 (3) Mh. L.J.

627, while considering the similar issue under the provisions of

the Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977, when back wages were due for

13 years, allowed back wages at 25%. This grant has been

upheld by the Division Bench of this Court while rejecting LPA.

The judgment of the Division Bench is in the case of P.M. Ruikar

Trust, Yavatmal vs. Punjaram s/o Dharmaji Wagdarkar, reported

at 2016 (5) LJS 76/ 2016 (2) Mh. L.J. 783. It appears to be a

settled position in such circumstances that when reinstatement

is not possible and back wages are required to be allowed for

huge period, 1/3rd amount is normally granted to the

concerned employee.

18. Hence, keeping in mind this position, we direct the

appellant - Corporation to calculate wags of the employee from

the date of his termination/ dismissal till his reinstatement or

till his superannuation (whichever event may have taken place

earlier) and to pay 1/3rd amount thereof to him in lieu of

reinstatement. This exercise shall be finished within a period of

four months from today. If the exercise is not so finished, the

respondent - Conductor shall be paid interest calculated @ 8%

per annum on said amount from today till realization thereof

by him.

19. At this stage, on the request of Shri Khan, learned

counsel for the respondent - Conductor, we add that non

payment accordingly may invite action in contempt.

20. With these directions, we partly allow the present

Letters Patent Appeal. However, in the facts and circumstances

of the case, there shall be no order as to costs.

           JUDGE                                                      JUDGE
                                             ******

  *GS.