M.S.R.T.C. Thru. Divn. Traffic ... vs Sudhakar Haribhau Dadhe & Anor
2017 Latest Caselaw 3744 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 LETTERS PATENT APPEAL NO.211 OF 2008
            IN
 WRIT PETITION NO.4745 OF 2007


 Maharashtra State Road Transport
 Corporation, through its Divisional 
 Traffic Superintendent, M.S.R.T.C., 
 Station Road, Nagpur.                                     ....       APPELLANT


                     VERSUS


 Sudhakar Haribhau Dadhe, 
 Age - Major, Occupation - Service,
 R/o Near Vinayakrao Deshmukh 
 High School, Shantinagar, Nagpur.                         ....       RESPONDENT


 ______________________________________________________________

             Shri R.S. Charpe, Advocate for the appellant, 
            Shri C.V. Jagdale, Advocate for the respondent.
  ______________________________________________________________


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

DATED : 29-06-2017

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

1. Heard learned Advocate Shri R.S. Charpe for the appellant

and learned Advocate Shri C.V. Jagdale for the respondent.

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2. Order delivered by learned Single Judge of this Court in

Writ Petition No.4745/2007 on 01-11-2007 has been questioned by

appellant-employer. Learned Single Judge has maintained the grant of

25% back-wages by the Industrial Court to respondent-employee. This

Court while admitting the appeal on 25-08-2008 stayed that grant.

3. Learned Advocate Shri R.S. Charpe for appellant submits

that denial of back-wages by Labour Court was part of punishment

imposed by it or accepted by it. This nature of denial is overlooked by

Industrial Court while allowing revision partly preferred by employee

and by learned Single Judge. He contends that there was no pleading

and proof as recorded by learned Single Judge. He is relying upon the

judgment of Hon'ble Apex Court in the case of Deepali Gundu

Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and

Ors reported at 2014 II CLR 813 and in the case of Subhash vs.

Divisional Controller, Maharashtra State Road Transport

Corporation & Anr. reported at AIR 2010 SC 2484, to urge that in

such matters the denial of back-wages as part of punishment is

accepted by Courts. According to him, there is jurisdictional error.

4. Learned Advocate Shri C.V. Jagdale submits that as settled

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by various judgments, the employee has entered witness bock, led

evidence and pointed out absence of gainful employment. He contends

that because of absence of gainful employment and no challenge

thereto in cross-examination, full back-wages ought to have been

allowed, however, Labour Court wrongfully declined to grant any back-

wages. This denial was questioned under Section 44 of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair

Labour Practices Act, 1971. In revision, learned Member of Industrial

Court has correctly appreciated the law on the point and found positive

material brought on record by respondent/employee sufficient and

awarded 25% of the back-wages. He contends that in this situation

when other findings recorded by Labour Court on merits were not in

dispute, learned Single Judge was justified in refusing to intervene in

the writ jurisdiction. Lastly, he adds that respondent-employee

superannuated after his reinstatement during pendency of present

appeal.

It is no doubt true that employee in order to qualify for

grant of back-wages is supposed to lead only positive evidence and

here that evidence was led by present respondent. He pointed out that

he did not have any gainful employment. He was cross-examined and

he has stated that he did not search for any alternate job as litigation

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was pending. This admission may show that he did not find it

necessary to have any other job. However, it does not disentitle him to

claim back-wages. Learned Member of Industrial Court has rightly

appreciated this evidence as sufficient.

5. The learned Single judge of this Court has also accepted

this application of mind by the Industrial Court as proper, however, in

the process has used words "pleaded" and "proved". It is admitted

position that there was no such plea and proof. Only oral evidence

adduced was about absence of gainful employment and it was not

challenged by present appellant in cross-examination.

6. The relevant part of the judgment delivered by Labour

Court which declines relief of back-wages to employee reads as under :

"Now, the relief of back wages is concerned, the complainant cannot claim as of right and Court cannot grant it, liberally and blindly, but it depends upon the facts and circumstances of each case. The complainant examined himself below Exh.36 and merely deposed that, he is jobless and not having ways of income. He frankly admitted that, he did not try to search other job, but tried to explain, as matter was subjudice. It is not his pleading or evidence that, in spite of sufficient efforts, he could not get another job. If we go through the past service record cannot say that, this is first misconduct on the part of complainant. It is also not held that, the findings of Enquiry Officer are totally perverse. On

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the contrary the misconducts to some extent on the part of complainant has been proved. If the complainant was serious in his duty, the present complication should not arise, but due to the fault on his part, the present situation arose and hence, he is not entitled to get back wages, I answered the Issue No.5 accordingly and proceed to pass the following order."

7. The latter part of discussion clearly shows that after

appreciating absence of gainful employment, Labour Court has also

looked into nature of misconduct and past service record. It has,

therefore, not declined back-wages only because of so called inability

of respondent to prove or demonstrate that he made efforts to secure

alternate job and failed therein. It has found that facts at hand,

particularly nature of misconduct and past record, did not warrant

grant of back-wages. Whether this approach adopted by Labour Court

is correct or not, was not the bone of contention before the Industrial

Court. Learned Member of Industrial Court has not looked into this

aspect and merely by accepting the fact of absence of gainful

employment, back-wages have been awarded. Thus fact that Labour

Court denied back-wages as a part of punishment or a disciplinary

measure, has been overlooked by Industrial Court. The learned Single

Judge also has, accordingly, overlooked this aspect.

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8. As we find that Labour Court did not deny back-wages

only on count of failure of respondent/employee to bring on record

necessary material, but as a part of disciplinary measure, the grant of

25% back-wages by Industrial Court cannot be sustained. Accordingly

the judgment and order delivered by learned Member, Industrial Court,

Nagpur on 05-06-2007 in Revision (ULP) No.186/2006 is quashed and

set aside. Consequential order of learned Single Judge dated

01-11-2007 in Writ Petition No.4745/2007 is also set aside. The

judgment and order delivered by Labour Court, Nagpur on 18-05-2006

in Complaint (ULP) No. 403/1998 is restored.

Letters patent appeal is allowed. No costs.

                                 JUDGE                                    JUDGE

adgokar