Rajesh Kumar U Bajpai vs The General Manager And Anr
2021 Latest Caselaw 15486 Bom

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Prajakta Vartak
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.7182 OF 2021
            Mr. Rajesh Kumar U. Bajpai                         ...Petitioner
                  V/s.
            The General Manager, BEST & Ors.                   ...Respondents
                                                  -----



            Mr. Brijesh Mishra for Petitioner.
            Mr. Arsh Misra i/b. Mr. M.V. Kini & Co. for Respondent No.1/BEST.
                                                  -----




                                           CORAM :        G. S. KULKARNI, J.

                                           DATE :         OCTOBER 27, 2021

            PC :

1. There are concurrent findings against the respondent/BEST in the

present proceeding. The Labour Court by its judgment and order dated 27

June, 2018 declared the termination of the petitioner as illegal and set aside

the order of termination dated 27 April, 2016 with a direction to the

respondent to reinstate the petitioner in service. The said order passed by

the Labour Court has been confirmed by the learned Member of the

Industrial Court.

2. However, although the Labour Court for the reasons which are set out

in paragraph 22 of its judgment 20 November, 2019 granted relief in

relation to the back wages in favour of the petitioner, on the basis of

observations of the Industrial Court as set out in paragraph 10 of its

judgment, the Industrial Court has set aside the award of backwages to the

petitioner. Prima facie the reasons as set out by the Industrial Court do not

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inspire confidence, so as to accept such reasons to be valid to upset the

orders of the Labour Court regarding back wages.

3. Be that as it may although the petitioner has succeeded in the

proceedings instituted by him before the Labour Court whose orders are

now confirmed by the order dated 10 June, 2021 passed by the Industrial

Court, till date no steps are taken by the respondent to reinstate the

petitioner in service.

4. In the above circumstances, in my opinion, the order passed by the

Labour Court on reinstatement of the petitioner and as confirmed by the

Industrial Court needs to be implemented. The petitioner cannot be

dragged to a further litigation on this count even for implementing the said

orders. The respondent cannot meet out such treatment to the petitioner

who was working as a conductor and who has already suffered for a long

period without an employment. Thus in the peculiar facts of the case, the

petitioner shall be entitled to join duties from tomorrow i.e. 28 October,

2021 and discharge his duties as a conductor, as there can be no dispute at

least in regard to the orders of reinstatement of the petitioner, which are not

assailed by the respondent.

5. In so far as back wages are concerned, as noted above, it appears that

the petitioner/employee has discharged his burden by pointing out that he

was not gainfully employed during the pendency of the proceeding and

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which was the consideration before the learned labour Judge in awarding

back wages. Once such burden was discharged by the petitioner, prima

facie it appears that there was no material brought on record which would

show that the petitioner was gainfully employed during the pendency of the

proceedings till his reinstatement by the Labour Court and till the final

orders were passed on the appeal by the Industrial Court. Learned counsel

for the petitioner has rightly placed reliance on the decision of the Supreme

Court in Jayantibhai Raojibhai Patel Versus Municipal Council, Narkhed &

Ors. passed in Civil Appeal No.6188 of 2019 wherein the Supreme Court

has held in cases of wrongful termination of service, reinstatement with

continuity of service and back wages is the normal rule. Thus, prima-facie it

appears that the order of the Industrial Court in regard to back wages is not

correct. In the above circumstances, the respondent is directed to deposit in

this Court the amount of back wages as ordered by the Labour Court on or

before 15 November, 2021. There shall be no further extension in regard to

the compliance of such direction. Such direction to deposit the amount by

15 November, 2021 would not preclude the respondent from depositing the

amount at an early date and in that case, the petitioner is at liberty to make

an application to withdraw the said amount.

6. Stand over to 17th November, 2021.

                                                                                 (G. S. KULKARNI, J.)
           Digitally signed
PRAJAKTA   by PRAJAKTA
           SAGAR VARTAK                                                                                  3/3
SAGAR      Date:
VARTAK     2021.10.27
           21:27:02 +0530