Bombay High Court
State Of Maharashtra, Through The ... vs Vivekanand S/O Rajabhau Sapkal on 22 February, 2021
Bench: Avinash G. Gharote
WP3628.11.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3628 OF 2011
PETITIONER: State of Maharashtra, through
The Deputy Director of Health Services,
Akola Circle, Main Hospital, Akola.
...VERSUS...
RESPONDENT: Vivekanand Rajabhau Sapkal,
aged about 30 years, R/o. Bharti Nagar,
Near Balapur Naka, Tq. and Dist. Akola.
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Ms. H. Jaipurkar, AGP for Petitioner.
None for respondent
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CORAM : AVINASH G. GHAROTE, J.
DATE : 22/02/2021.
1] Heard Ms. Jaipurkar, the learned AGP for the petitioner.
None present for the respondent when called.
2] The complainant was appointed as Junior Clerk on
11.2.1986, at District General Hospital, Amravati, where he
continued to work till 12.02.1988, and on 13.02.1988 his services
came to be terminated orally, as claimed by the complainant.
According to the complainant, the nature of work and the
employment of the petitioner was permanent. The said oral
WP3628.11.odt
termination was challenged before the Labour Court in the year
1992, by way of ULP No. 143/1992, in which by judgment dated
14.07.1998, the learned Labour Court held that the action of the
petitioner in orally terminating the respondent amounted to
retrenchment, which for the reasons as recorded therein quashed
and set aside. A revision carried to the Industrial Court came to be
dismissed on 20.11.2004.
3] This Court while issuing Rule on 05.12.2011, has kept
the question of delay and latches open, in view of the fact that
though the revision filed before the Industrial Court was dismissed
on 20.11.2004, the present petition came to be filed on 06.05.2011,
more than 6 years thereafter.
4] Though there is delay of 6 years and more in filing of
the petition, however, considering the fact that the initial complaint
itself was filed after more than 4 years of the termination, the
matter is being considered on its merits.
WP3628.11.odt
5] With the help of learned AGP Ms. Jaipurkar, I have
perused the impugned judgment passed by the learned Labour
Court, as confirmed by the Industrial Court. It is material to note
here that the judgment of the learned Labour Court directing to
continue the complainant with continuity in services from the date
of termination, according to the respondent, has been complied with
as per the averment made in the submissions of the respondent
dated 16.11.2011, where it is stated that since 1992 and even on
the date of filing of the submissions, the complainant was in
employment, which position is not controverted by the learned AGP.
The order of reinstatement and continutity in service, therefore, has
taken effect, and considering the position as arrived at in the
judgment of the Labour Court, there is no reason to distrub the
same, as the reasons recorded therein are logical, based upon the
fact position stated therein.
6] The only issue which now remains is the question of
award of back-wages by the learned Labour Court for the period from
13.02.1988 till 23.11.1992. As found by this Court in the order dated
05.12.2011 while admitting the petition and so also from the copy
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of the complaint and the judgment of the learned Labour Court, there
is no averment that the complainant was not gainfully employed
during the above period. In my considered opinion, such a statement
by the complainant was necessary in order to enable the learned
Labour Court to grant back-wages for the above period. In the case of
G.M.Tank vrs. State of Gujrat and ors, reported in 2006 (5) SCC 466
and in Basanti Prasad vrs. Chairman, Bihar School Examination
Board and others, reported in 2009 (6) SCC 791, the Hon'ble Apex
Court, has declined to grant back-wages, on the principle that since
the employee has not rendered the work, he was not entitled to any
back-wages. In W.P No. 263/2016 M.S.R.T.C. vrs. Mohangir
Shankargir Gosawi, I have also taken a similar view, based upon the
judgments in Basanti Prasad and G.M.Tank ( Supra), in light of which
the judgment of the Labour Court in so far as it relates to awarding of
back-wages for the period 13.02.1988 till 23.11.1992 cannot be
sustained.
7] The petition therefore is partly allowed. The judgment of
the Labour Court directing to continue the complainant in services
with continuity of service from the date of termination, as upheld by
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the Industrial Court is maintained. The judgment of the Labour Court
dated 14.7.1998, and that of Industrial Court upholding it, 3
to the extent it awards back-wages for the period from 13.02.1988 to
23.11.1992 is quashed and set aside.
8] Rule is accordingly made absolute in above terms. In the
circumstances, there shall be no order as to costs.
JUDGE
Rvjalit
