Bombay High Court

Administrator & Managing ... vs Afzalkhan Kasamkhan Patel on 5 May, 2017

Bench: P.R. Bora

                                      1                WP No.5184/1998

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                     WRIT PETITION NO.5184 OF 1998 

  Administrator & Managing Director,
  Aurangabad District, Co-operative,
  Milk Producers Union Ltd., 
  Jalna Road, Aurangabad             =                PETITIONER
                                                      (EMPLOYER)
           VERSUS

  Afzalkhan S/o. Kasamkhan Patel,
  Age: 42, Occ.: Service,
  R/o. Ashok Nagar, 
  Opp. Samaj Mandir, Old Jalna,
  Taluka & Dist. Jalna                       =         RESPONDENT
                                                       (EMPLOYEE) 
                                   -----
           Mr.S.G. Karlekar, Advocate for Petitioner;
           Mr.N.L. Dhobale, Advocate for Respondent.
                                   -----
                               CORAM :  P.R.BORA,J.

   
  RESERVED ON  : 20
                    th
                       
                       April,2017
                                 
   
  PRONOUNCED ON:  5
                      
                    th
                       MAY,2017
                               
                                                     
  JUDGMENT:

1) Heard. The present petition is filed

against the Judgment and Order dated 7th August,

1995 passed by the Labour court, Aurangabad in

Complaint (ULP) No.226/1993 which has been

confirmed by the Industrial court vide its order

dated 11th February, 1998 passed in Revision

(ULP) No.68/1995.

2) The respondent had filed the aforesaid

Complaint before the Labour court challenging the

order of termination dated 25th March, 1991 issued

by the petitioner. It was the contention of the

respondent that he was illegally terminated

without following due process of law and without

conducting any enquiry against him.

3) Whereas, it was the case of the

petitioner that the Respondent had unauthorizedly

remained absent from duty for a period of more

than one year and has indicated his intention of

not joining the services again. It was the

further contention of the petitioner that the

respondent was insisting for taking his son on

the establishment of the petitioner on his place

by giving him premature retirement. It was the

further contention of the petitioner that when

the long unauthorized absence was accepted and

admitted by the respondent, in fact, there was no

need of conducting any enquiry against the

respondent. The petitioner had thus justified the

order of termination on the aforesaid grounds.

4) The submissions so made by the

petitioner, however, did not find favour by the

Labour court. The Labour court held the

termination illegal and directed reinstatement of

the respondent with continuity of service and

with full back wages, excluding the period of

delay. Though the Revision Application was filed

by the petitioner, the Industrial court did not

cause any interference in the order passed by the

Labour court and dismissed the Revision

Application. Aggrieved by, the petitioner has

filed the present petition, challenging both the

aforesaid orders.

5) Learned counsel appearing for the

petitioner, has assailed the impugned order on

various grounds. However, before adverting to

the objections so raised by the petitioner in

exception to the impugned judgments, it is

necessary to record certain subsequent events.

6) After the decision of the Labour court

declared on 7th August, 1995, the petitioner filed

a Revision Application on 2nd September, 1995.

During pendency of the said Revision Application,

the petitioner reinstated the respondent w.e.f.

2nd November, 1995 and since then the respondent

continued to be in the employment of the

petitioner till his attaining the age of

superannuation.

7) In the present petition, this court,

vide order passed on 22nd February, 1999, has

stayed the effect and operation of the order

passed by the Labour court and confirmed by the

Industrial court to the extent of payment of back

wages.

8) In view of the fact that the respondent

was reinstated in the service and continued to be

in the employment of the petitioner till he

attained the age of superannuation, the challenge

as regards to the order of reinstatement has

rendered infructuous and this court may now need

not to enter into the said controversy. It was

also informed during the course of hearing of the

petition that the retiral benefits are also

extended to the respondent, giving him continuity

in service. Thus, the only question which

requires consideration is, legality and

correctness of the order passed by the Labour

court and confirmed by the Industrial court as

regards to the grant of full back wages to the

respondent.

9) It is not in dispute that the respondent

had remained absent since 21st February, 1990 till

25th of March, 1991, i.e. for the period of about

more than 13 months. There is further no dispute

that the petitioner has issued notices to the

respondent on 2nd March, 1990; 26th June, 1990 and

5th December, 1990. The copies of these notices

were placed on record by the petitioner in the

proceeding before the Labour court. In the

cross-examination, the respondent had admitted

that he has received the aforesaid notices. Vide

the said notices, the respondent was called upon

to explain his unauthorized absence and was

directed to resume duties or else was cautioned

that his services may be terminated assuming that

he was not inclined to join the duties. It was

the case of the respondent that in the relevant

period he was ill and had sought the leave on

medical ground.

10) My attention was invited by the learned

counsel appearing for the petitioner to the

letter dated 14th December, 1990 written by the

respondent to the petitioner. In the said

letter, the respondent has confirmed that from

21st February, 1990 he was not on duty and was on

long leave. The contents of the said letter

further reveal that the respondent had also

communicated to the petitioner that because of

his ill-health, he was not sure whether he would

be able to resume the duties. The respondent had

thereafter requested that in view of the fact

that he was ill and was not likely to resume the

duties, his son by name Afsarkhan Patel, be taken

on the establishment on his place on the post of

Helper on which he was working. A copy of the

aforesaid letter has been filed by the respondent

himself at the time of filing the Complaint

before the Labour Court. It is thus evident that

in a way the respondent has accepted the fact of

abandoning the services. His request to appoint

his son on his place also suggests that he had

declared his intention not to join the services

and get relieved from the job with the

petitioner.

11) After the termination notice was served

upon him, the respondent, took the somersault and

made allegation against the petitioner that

without giving him any opportunity and show cause

and without conducting any enquiry against him,

his services were illegally terminated and

further that he was being victimized by the

petitioner. From the record it is further clear

that the respondent did not file the Complaint

before the Labour Court within the prescribed

period. It is further the matter of record that

the application for condonation of delay was

preferred by the respondent seeking condonation

of delay which has occurred in filing the

Complaint by him. It is not in dispute that the

delay was condoned by the Labour court and the

Complaint was proceeded further.

12) On perusal of the Judgment of the Labour

Court, it is quite clear that it has set aside

the order of termination only on the ground that

before terminating the services of the

respondent, due procedure was not followed. Even

though it is the contention of the petitioner

that in view of the admitted facts, conduction of

any domestic enquiry could have been an empty

formality, the contention so raised is difficult

to be accepted. Having regard to the principles

of natural justice, it was necessary on part of

the petitioner to conduct an enquiry into the

alleged absence of the respondent from duties and

only thereafter his services could have been

dispensed with by the petitioner. In for as these

aspects are concerned, there seems no reason to

cause any interference in the finding recorded by

the learned Judge of the Labour Court. Even

otherwise, as noted herein above, since the

petitioner has reinstated the respondent w.e.f.

2.11.1995 and the respondent continued in the

employment of the petitioner till he attained the

age of superannuation, there seems no reason now

to enter into the said controversy. However,

there is substance in the argument made on behalf

of the petitioner that while directing

reinstatement of the respondent, the relief of

back wages was not liable to be granted as of

rule. Perusal of the impugned judgment reveals

that while directing reinstatement of the

respondent with full back wages, the Labour Court

has not assigned proper reasons for granting the

full back wages to the respondent.

13) It is not a rule of thumb that the order

of reinstatement shall automatically follow the

relief of continuity of service and the back

wages. In the case of State of Punjab Vs. Jagir

Singh - (2004) 8 SCC 120, the Hon'ble Apex court

has laid down the factors to be considered by the

Labour Court in granting relief of back wages. As

has been observed by the Hon'ble Apex court in

the aforesaid judgment, while directing grant of

back wages, the Labour court must consider the

totality of the circumstances.

. As has been observed by the Hon'ble Apex

court in the case of UP State Brassware

Corporation Ltd. Vs. Uday Narayan Pandey - (2006)

1 SCC 479 " No precise formula can be laid down

as to under what circumstances payment of entire

back wages should be allowed. Indisputably, it

depends upon the facts and circumstances of each

case. It would, however, not be correct to

contend that it is automatic. It should not be

granted mechanically only because on technical

grounds or otherwise an order of termination is

found to be in contravention of certain

provisions of the Act."

14) It is not in dispute that the respondent

had remained absent for a considerable long

period of more than one year and committed delay

of about 2 ½ to 3 years in approaching the Labour

court. The period in which the Respondent had

remained absent is liable to be governed by Leave

Rules. It was up to the Department whether to

treat the said period as extra-ordinary leave or

to grant the permissible leaves which were at the

credit of the Respondent. However, the wages of

the said period cannot be the subject matter of

the Complaint filed by the Respondent in the

Labour Court. In so far as delay which has

occurred in filing the Complaint by the

Respondent is concerned, the Labour Court in the

impugned order has disentitled the Respondent

from receiving the wages of the said period and

the said order has not been challenged by the

Respondent. Now, the only period, which remains

to be considered for grant or refusal of the

wages, is the period from the date of filing of

the Complaint by the Respondent till his

reinstatement.

15) The Complaint was filed by the

Respondent on 6.7.1993 and he was reinstated in

service on 2.11.1995. The order of the Labour

Court read as it is makes the Respondent entitled

for the full back wages of the said period. It

is the precise grievance made by the petitioner

that when in the said period the Respondent had

admittedly not worked with the petitioner, grant

of full back wages was unjustified. I find

substance in the point so urged by the

petitioner. It is not the case that the services

of the Respondent were terminated on false

grounds or without there being any reason. The

order of termination has been set aside by the

Labour Court on the ground that before

terminating the services of the Respondent, the

procedure was not followed. As I noted earlier,

the fact that the Respondent was unauthorisedly

absent from duties for a long period of 13

months, is not in dispute. Only because the

procedure was not followed, the misconduct

alleged against the Respondent does not cease to

exist. In the circumstances, though it would

have been unjust and improper to deprive the

respondent from the wages of the entire said

period, it was equally unjust to grant full back

wages to the respondent of the said period.

Having regard to the facts and circumstances of

the case, it appears to me that it would subserve

the ends of justice, if the Respondent is made

entitled for half of the back wages from the date

of filing of the Complaint by him till his

reinstatement. I am, therefore, inclined to

modify the impugned order. Hence, the following

order, -

O R D E R

1) The Order passed by the Labour

court in Complaint (ULP) No.226/1993 is

quashed and set aside to the extent of grant

of full back wages. It is directed that the

petitioner shall pay to the Respondent 50%

back wages for the period between 6 th July,

1993 to 2nd November, 1995, within three

months from the date of this order or else

the said amount shall carry interest @ 9%

p.a. till its realization, from the date of

filing of the Complaint ULP by the

Respondent, i.e. 6th July, 1993.