Maharashtra State Road Transport ... vs Krishna Eknath Jadhav
2017 Latest Caselaw 2356 Bom

                                      1                    WP No.4317/2005

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.4317 OF 2005

  Maharashtra State Road 
  Transport Corporation,
  having its office 
  at Vahatuk Bhavan,
  Dr. A.Nair Marg, Bellasis Road,
  Bombay Central, Bombay - 400 008  ..  PETITIONER

                   VERSUS

  Krishna Eknath Jadhav
  Walchand, Shivaji Nagar,
  Satorkar Chawl, Room No.8,
  Kalyan, Dist. Thane.              .. RESPONDENT

                              ...
           Mr.G.S. Hegde i/by G.S. Hegde & Associates, 
           for the Petitioner.

           Mr. Ravindra V. Sankpal, Advocate for the 
           Respondent.
                              --- 
                                CORAM: P.R.BORA, J.
  Reserved on :   09.03.2017
  Pronounced On : 05.05.2017

  JUDGMENT:

1. The order passed by the Labour Court,

Thane in Complaint (ULP) No.546 of 1997 on 02 nd

April, 2004 and the order passed by the

Industrial Court, Thane in Revision Application

(ULP) No.51 of 2004 decided on 18th October, 2004

whereby it has confirmed the order passed by the

Labour Court are challenged in the present

petition.

2. The respondent herein was in the

employment of the petitioner corporation as a

conductor. A charge-sheet was issued to him,

concerning to the incident dated 15.11.1993. The

respondent, on that day was plying the bus

between Bhiwandi and Borivali. The said bus, when

was checked at Kapurbowdi, it was found that

thought the respondent had received Rs.22 from

the group of six passengers had not issued

tickets to them and had closed the way bill. It

was the defence of the respondent that he had

collected Rs.22 from the said passengers and had

demanded additional Rs.27 from them, as a total

bus fare was Rs.49 for the group six passengers.

It was further contended by the respondent that

due to late arrival of the bus at the platform,

he was directed by the stand-in-charge to collect

fare from the passengers in the running bus.

There were 81 passengers in the said bus. It was

the contention of the respondent that the said

group of six passengers was making delay in

payment of Rs.27 and in the circumstances, he

thought that he should issue tickets to the other

passengers and then busy in issuing tickets to

huge number of passengers, it went out of his

mind that the said group of six passengers had

not paid the balance amount of Rs.27 and the

tickets were not issued to the said passengers.

It was his further contention that when the said

passengers gave a signal to get down at

Kapurbowdi, he noticed that he has not issued

them the tickets and the said passengers did not

give him the balance amount of Rs.27 and when he

was about to issue tickets to the said

passengers, the checking squad entered into the

bus and the way bill as well as a cash amount

with the respondent was seized by the said squad.

3. On the basis of the aforesaid incident,

charge sheet was issued to the respondent and a

departmental enquiry was conducted against him.

In the enquiry conducted, the respondent was

found guilty of the misconduct alleged against

him and having regard to the fact that an element

of dishonesty was involved and mis-appropriation

of the amount was proved against the respondent,

punishment of dismissal was imposed on him and

accordingly, he was dismissed from service vide

order dated 23rd September, 1997.

4. Against the order of dismissal, the

respondent filed complaint (ULP) No.545 of 1997

before the Labour Court at Thane, which came to

be allowed by the impugned order dated 2nd April,

2004. The learned Judge though held the enquiry

to be fair and proper, the findings recorded by

the enquiry officer were held to be perverse. The

labour court, therefore, directed the

reinstatement of the respondent with continuity

of service and with back wages.

5. Against the judgment and order passed by

the Labour Court, the petitioner preferred the

revision application (ULP) No.51 of 2004 before

the Industrial Court at Thane. However, the same

came to be rejected by the judgment and order

dated 18th October, 2004. Aggrieved by the

aforesaid orders, the present petition is filed

by the petitioner.

6. The record shows that the petitioner

corporation filed a purshis dated 12th April,

2006, giving up the challenge to the order of

reinstatement and confined its challenge to the

part of the order, granting back wages. The

purshis was accepted by the then learned single

Judge of this Court (V.C.Daga, J). Vide order

passed by the learned single Judge on 12th April,

2006, stay was granted to the implementation of

the order passed by the Labour Court and

confirmed by the Industrial Court, subject to

deposit of the entire amount of back wages by the

petitioner before the Labour Court. The record

further reveals that in civil application no.882

of 2007 filed by the respondent, he was permitted

to withdraw 50% of the amount deposited by the

petitioner corporation, amounting to

Rs.3,79,582/- on furnishing a security to the

satisfaction of the Labour Court and the balance

amount was directed to be invested in a

nationalized bank for the period till the

disposal of the appeal.

7. In view of the fact that challenge to

the order of reinstatement has been given up by

the petitioner, the question left for

determination in the present petition is

restricted to the legality and correctness of the

orders passed by the labour court, granting full

back wages to the respondent which has been

confirmed by the industrial court.

8. Shri Hegde, learned Counsel appearing

for the petitioner/Corporation vehemently argued

that the Labour court as well as the Industrial

Court both have failed in appreciating that in

the enquiry conducted against the respondent, it

was sufficiently proved that he did not issue the

tickets to the group of six passengers though he

has recovered from them an amount of Rs.22/-.

The learned Counsel further submitted that the

plea taken by the Respondent that because of

heavy rush in the bus, the fact went out of his

mind that he has not issued the tickets to the

group of six passengers since they have not given

him the full amount of the bus fare is ex-facie

unacceptable. The leaned counsel further

submitted that before closing the way bill, the

respondent was duty bound to verify the number of

passengers in the bus and further to verify

whether each of them has purchased the ticket or

not. The learned counsel further submitted that

dishonest intention of the respondent is writ-

large in closing the way bill without giving

tickets to the group of six passengers. The

learned Counsel further submitted that had the

bus been not checked, the respondent would have

certainly appropriated the cash amount for his

own benefit, which was collected by him from the

group of said six passengers. The learned

counsel further submitted that there was

sufficient evidence against the respondent

showing his complicity in misappropriating the

amount collected by him from the passengers and

not issuing the tickets to the said passengers.

9. The argument so advanced by the learned

Counsel for the petitioner could have been held

apt by me had it been against the order of

reinstatement. However, it is the matter of

record that the petitioner/corporation has given

up the challenge to the order of reinstatement

and the present petition is now confined to the

part of the order granting the back wages. As

such the learned Counsel for the petitioner was

expected to point out as to how the order

granting full back wages passed by the Labour

court and confirmed by the Industrial Court, is

unsustainable.

10. In cases of wrongful termination of

service, reinstatement with continuity of service

and back wages is the normal rule. No doubt, an

employee whose services are terminated and who is

desirous of getting the back wages is required to

either plead or make at least a statement before

the Court that he/she was not gainfully employed

or was employed on lesser wages. If the employer

wants to avoid payment of full back wages, then

it has to plead and also lead cogent evidence to

prove that the employee was gainfully employed

and was getting wages equal to the wages he or

she was earning prior to the termination of

services. Once the employee shows that he was

not employed, the onus lies on the employer to

specifically plead and prove that the employee

was gainfully employed and was getting the same

or substantially similar emoluments. In the

present case, in para 11 of its judgment, the

Labour court has specifically observed that,

" There is nothing on record to show that the present complainant in any way was employed anywhere.

The respondent failed to prove that

the complainant is employed or gainfully employed since his termination from 25th September, 1997. Hence the complainant is entitled for full back wages and continuity of service with all benefits from time to time, which he could have received had it been in continuous services."

In the present petition, no such case is even

pleaded that the observations made, as above, by

the Labour court are factually incorrect. Nothing

has been further brought on record by the

petitioner to show that in the relevant period,

the respondent was gainfully employed. A mere

fact that the respondent did not serve with the

petitioner corporation in the period between

1997, i.e. from the date of his dismissal, till

his reinstatement in 2006, is not enough to dis

entitle the respondent from receiving the back

wages. No blame can be attributed on part of the

respondent, if he had not worked in the aforesaid

period. The back wages also cannot be denied

simply because there is a long lapse of time

between the termination of his service and

finality given to the order of reinstatement. It

is also not the case put forth by the petitioner

corporation that the respondent has not even

pleaded that in the intervening period, he was

not gainfully employed.

11. In the instant case, though the enquiry

conducted against the respondent is held to be

fair and legal, the Labour court has recorded a

clear conclusion that the findings recorded by

the Enquiry Officer were perverse. The Labour

court has held that the charges levelled against

the respondent do not constitute misconduct and

penalty of dismissal from service was, therefore,

not justified. Resultantly, the Labour Court has

directed reinstatement of the respondent with

continuity of service and with full back wages.

The Industrial Court has not interfered in the

order so passed. In such cases it is trite that

the High court should not exercise power under

Articles 226 and 227 of the Constitution of India

and interfere with the award passed by the Labour

court merely because there is possibility of

forming a different opinion on the entitlement of

the employee/workman to get full back wages or

the employer's obligation to pay the same. Had

the Labour court held the misconduct proved and

further had recorded a finding that the

punishment was disproportionate, then certainly

there was scope for exercising the discretion

whether to award full back wages or otherwise.

Admittedly, this is not the situation in the

present matter.

12. In the foregoing circumstances, I do not

see any reason for causing any interference in

the orders passed by the courts below granting

full back wages to the respondent. The writ

petition being devoid of any substance, deserves

to be dismissed and is accordingly dismissed.

Rule discharged.

13. It would be open for the respondent to

withdraw balance 50% amount deposited by the

petitioner Corporation along with interest

accrued thereon.

(P.R.BORA) JUDGE

bdv/ fldr 27.4.17