Bombay High Court
Divisional Controller, Mah. ... vs Ramesh S/O Gopinath Tidke And Anr on 30 January, 2018
Bench: B.P. Dharmadhikari
wp526of2012.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.526 OF 2012
Divisional Controller,
Maharashtra State Road Transport Corporation,
Buldhana.
....... PETITIONER
...V E R S U S...
1] Ramesh s/o Gopinath Tidke,
S.T. Depot, Chikhli,
District- Buldhana.
2] Labour Court, Buldhana.
....... RESPONDENTS
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Mrs. Tanjawar Khan, APP for Respondent No. 2.
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CORAM: B.P. DHARMADHIKARI, J.
DATE: th
30 JANUARY 2018.
ORAL JUDGMENT
1] Nobody for the petitioner. Learned AGP appearing for
respondent no.2 has assisted the Court.
2] Perusal of written statement filed by petitioner
/employee in U.L.P. Complaint No. 44/2003, before the Labour
Court at Akola, reveals a plea in paragraph 12 that on
30-06-1996, complainant was on duty on Bus No.1897 proceeding
from Shegaon to Ujjain. Bus was checked at 12.15 P.M. near
Shahapur and group of passengers was found travelling from
Adilabad to Indore. Fare amount was then collected at the rate of
Rs. 65/- per head but the used tickets of lessor denomination
(Rs.30/-) were issued to them. It was revealed from the way bill
that those tickets were, already sold while on duty earlier from
Shegaon to Ujjain and these tickets were re-issued to the group of
passengers mentioned above.
3] The mis-conduct was subject matter of the
departmental inquiry and because of that he was dismissed on
29-03-2000.
4] In U.L.P. Complaint No. 44/2003 (registered as
552/2004), Labour Court at Buldhana found departmental inquiry
to be unfair and invalid by order dated 25-2-2005. An opportunity
was given to the employer to prove mis-conduct but employer
filed pursis vide Exhibit-72, refusing to lead the evidence and
mis-conduct was, therefore, not established. The Labour Court,
Buldhana, delivered final judgment on 14-03-2006 and dismissal
order dated 23-03-2000 was set aside. It appears that he was
reinstated already on 13-07-2005 and therefore, he was given full
backwages upto that date.
5] This adjudication forms subject matter of ULP
Revision No.94/2006 filed by the employer before Industrial Court
at Akola. The Industrial Court, Akola, on 22-03-2011 dismissed
that revision.
6] In present petition, on 02-02-2012 while issuing
notice, impugned orders were stayed on the condition that
petitioner/employer deposit the entire back-wages in this Court.
It appears that accordingly the amount of Rs. 2,54,906/- has been
deposited with the Registry of this Court. On 19-3-2012 this Court
restricted ad-interim stay only in regard to back-wages and on 09-
07-2012 after hearing parties, passed the reasoned order
admitting the matter for final hearing.
7] On 09-7-2012 this Court noticed that finding of
Labour Court, declaring departmental inquiry to be vitiated, was
challenged before the Industrial Court but it did not receive any
consideration at the hands of that Court. Hence, Industrial Court
was asked to record its finding on order of Labour Court dated
25-02-2005. All parties were directed to appear before Industrial
Court Amravati camp at Akola on 01-08-2012 and Industrial Court
was given period of 3 months to complete the exercise. Matter
was then listed on 20-11-2012 and on that day as report from
Industrial Court was not received, a direction to decide that issue
within three months was given. The Court on that day noticed
that in the order dated 09-7-2012, direction was given to
Industrial Court, Amravati, while it ought to have been to the
Industrial Court at Akola to correct error. After that day matter
came to be listed on 25-09-2017 i.e. almost after 5 years. On that
day this Court noticed that outcome of exercise by the Industrial
Court was still awaited, hence matter came to be adjourned.
8] Perusal of memo of revision under Section-44 of The
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 filed by the employer before
Industrial Court does not reveal any specific challenge to the order
of Labour Court dated 25-2-2005. In fact memo of revision does
not mention any particular order of date thereof. Only in prayer
clause ULP Complaint No. 552/2004 appears and in opening
paragraph alongwith that complaint number, date of judgment i.e.
14-03-2006 has been mentioned.
9] In paragraph-4 facts are correctly described. However,
there is no mention that Labour Court on 25-02-2005 found the
inquiry to be vitiated. There is no mention that pursis
Exhibit-72 was filed before the Labour Court refusing to lead
evidence to prove misconduct, reserving right to challenge said
order dated 25-02-2005. In fact in grounds (D) and (E) the
specific contention in relation to fairness of inquiry and procedure
followed, ought to have been mentioned. Grounds D & E in
revision memo read as under:-
"D) The Lower Court ought to have dismissed the
complaint deciding that the enquiry is legal, fair and proper,
and also ought to have held that the charges leveled against
the complainant were of so severe nature, and the same is
duly proved. But the Lower Court failed to consider this
aspect.
E) The Lower Court ought to have given weight that the
complainant is not a driver of the Bus, and he is a conductor,
and without obtaining the permission of the higher authority,
he drove the said Bus indulting himself in serious
misconduct."
Thus, the grounds show that the respondent
/employee though conductor, drove bus unauthorizedly, the
employer has submitted that it is a serious misconduct.
10] The discussion above shows that respondent
employee was already reinstated on 13-7-2005 and the Labour
Court, therefore, effectively can be said to have granted him
wages for the period from the date of dismissal till his
reinstatement.
11] The order of Labour Court vitiating departmental
inquiry is passed on 25-2-2005 and within 5 months thereof, the
respondent was reinstated and final judgment is passed about
nine months after said reinstatement.
12] The amount of backwages payable during this period
is also deposited with the Registry of this Court but respondent
has not withdrawn it. The learned A.G.P. has rightly pointed out
that backwages appear to have been granted but is no discussion
of evidence lead by respondent showing that during said period he
did not have any gainful employment.
13] The controversy is covered by adjudication of the
Hon'ble Apex Court in case of U.P State Brassware Corporation V/s
Uday Narain Pandey reported at ( 2006)
1 SCC 479
.
14] In this situation, I find that the interest of justice can
be met with by partly allowing writ petition and by deleting grant
of backwages to respondent for the period mentioned supra. Thus,
direction to reinstate him is maintained and he is denied wages
only for the period from 23-3-2000 upto his reinstatement on
13-7-2005. However, the said period shall be treated as service for
all other purposes.
15] The petitioner is given leave to withdraw amount in
deposit with the Registry of this Court, with interest accrued upon
it.
16] Accordingly, writ petition is partly allowed and
disposed of. However, in the facts and circumstances of the case,
there shall be no order as to costs.
RKN JUDGE
