Shramjivi Nagari Sahakari ... vs Santosh Arjun Kamble
2023 Latest Caselaw 7619 Bom

2023:BHC-AS:21709

                                                                                   wp 13072 of 2019.doc

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.13072 OF 2019

            Shramjivi Nagari Sahakari Patsanstha Maryadit          ...         Petitioner
                  versus
            Santosh Arjun Kamble                                   ...         Respondent

            Mr. Pavan Patil with Mr. Sanchit Chavan, for Petitioner.
            Mr. Avinash Belge, for Respondent.

                                 CORAM:        N.J.JAMADAR, J.

                                 DATE :        1 AUGUST 2023

            JUDGMENT :

1. Rule. Rule made returnable forthwith and with the consent of the

learned Counsel for the parties, heard finally.

2. The challenge in this Petition is to a judgment and order dated 20 July

2019 passed by the learned Member, Industrial Court at Pune in Complaint (ULP)

No.192 of 2014 whereby and whereunder it was declared that the Petitioner -

Respondent therein had engaged in unfair labour practice and has been directed to pay

full wages from 4 January 2012 to 29 May 2014 during which period the Respondent-

complainant was placed under suspension without payment of any subsistence

allowance.

3. The background facts can be stated in brief as under :

3.1 On 20 May 1999, the Respondent came to be appointed with the

Petitioner Society, initially as a Peon. Subsequently, the Respondent was promoted as

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a Clerk. On 11 October 2011, the Respondent was served with a Show Cause Notice

alleging misconduct by engaging in exchange of abusive words with the co-employees.

The Respondent gave reply to the said Notice on 13 October 2011. However, the

Reply having been found to be unsatisfactory, the Respondent was placed under

suspension by an order dated 3 January 2012 with effect from 4 January 2012.

3.2 The Respondent approached the Industrial Court with a complaint of

unfair labour practice under Items 9 and 10 of Schedule IV of the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (the

Act, 1971) as the Petitioner neither paid the subsistence allowance nor served the

Respondent with the charge-sheet with a view to hold domestic enquiry. On the

contrary, the Respondent was served with a notice that he had been absent

unauthorizedly from 27 November 2013. Eventually, the Respondent was allowed to

join the service on 29 May 2014. Yet, the subsistence allowance was not paid for the

suspension period. Thus, the complaint.

4. The Petitioner resisted the complaint by filing written statement. It was

the stand of the Petitioner that in reply to the show cause notice, the Respondent had

admitted the charge of misconduct levelled against him and requested Shri Popat

Mane, the then Director of the Petitioner (who came to be examined as employer's

witness) not to institute the departmental enquiry as it would mar his career, and,

instead the Respondent would resign on his own, and, therefore, no further

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proceedings in the departmental enquiry were initiated.

5. It was further contended on behalf of the Petitioner that at the instance

of the Respondent, the suspension was revoked vide communication dated 1st August

2012 and the Respondent was called upon to resume the duty. The Respondent

avoided to accept the service of such communications. Eventually, after repeated

communications to resume duty, the Respondent joined the duty on 29 May 2014 and

resigned from service with effect from 15 January 2016. An endeavour was also made

to contend that the subsistence allowance was offered to the Respondent from time to

time, but the latter refused to accept the same, and, thus, there was no unfair labour

practice on the part of the Petitioner.

6. The learned Member, Industrial Court at Pune, after appraisal of the

pleadings and the evidence of the Complainant and Mr. Popat Mane, for the employer,

and the documents tendered for his perusal, was persuaded to allow the complaint

holding, inter alia, that the Petitioner having suspended the Respondent and not

instituted the disciplinary enquiry by serving charge-sheet and paid subsistence

allowance for the period for which the Petitioner was placed under suspension,

indulged in unfair labour practice under Item 9 of the Act, 1971. The Petitioner was,

thus, directed to pay full wages for the said period.

7. Being aggrieved, the Petitioner - employer has preferred this petition.

8. I have heard Mr. Pavan Patil, learned Counsel for the Petitioner and Mr.

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Avinash Belge, learned Counsel for the Respondent at some length. The learned

Counsel took the Court through the pleadings and the original record and proceeding

which had been called.

9. Mr. Patil, learned Counsel for the Petitioner, submitted that the learned

Member, Industrial Court misdirected himself in not at all adverting to the specific

defence of the employer that on account of the understanding arrived at between the

Petitioner and the Respondent, and that too at the instance of the Respondent, that a

formal enquiry be not instituted against the Respondent and the latter would resign on

his own, no further action was taken. The Petitioner, according to Mr. Patil, can be

said to have satisfactory explained the circumstances in which the charge-sheet was

not served on the Respondent. Therefore, the Industrial Court could not have

directed payment of full wages for the period of suspension, especially when there was

material to show that the Petitioner had revoked the suspension and called upon the

Respondent to resume the duty, time and again. The order of payment of full wages

on the premise that the Petitioner indulged in unfair labour practice in not paying

subsistence allowance is, in the circumstances of the case, legally unsustainable, urged

Mr. Patil.

10. In opposition to this, Mr. Belge, learned Counsel for the Respondent,

would urge that the learned Member, Industrial Court was fully justified in passing the

impugned order as the explanation sought to be offered can only be said to be a

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subterfuge. In fact, the evidence of the Petitioner's witness - Mr. Popat Mane, erodes

the veracity of the Petitioner's claim. Having neither instituted the appropriate

disciplinary proceedings, nor paid the subsistence allowance despite placing the

Respondent under suspension, the Petitioner cannot be absolved of the liability to pay

the full wages for the entire period of suspension, as the said action of the employer

was nothing but an unfair labour practice of highest order, submitted Mr. Belge.

11. To start with, it is imperative to note there is not much controversy on

facts. First, the then jural relationship is not in dispute. Second, issue of show cause

notice dated 11 October 2011 and the reply thereto by the Respondent on 13 October

2011, are not put in contest. Third, the fact that the Respondent was placed under

suspension vide order dated 3 January 2012 and remained under suspension till 29

May 2014, are also incontestable. Fourth, indisputably, during the said suspension

period, no steps were taken to conduct the domestic enquiry, in as much as no charge-

sheet was served on the Respondent. Fifth, though an endeavour had been made to

show before the Industrial Court that the Respondent refused to accept the

subsistence allowance, albeit post resumption of duty, yet the fact that the subsistence

allowance was not paid to the Respondent during the period of suspension, appears to

be, by and large, incontrovertible.

12. In the backdrop of the aforesaid facts, the challenge to the impugned

order mounted on behalf of the Petitioner deserves to be appreciated. Mr. Patil made

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an earnest endeavour to draw home the point that there was a verbal understanding

between the Petitioner and the Respondent not to precipitate the things on account of

the proximity of the Respondent to Mr. Mane, and, therefore, no charge-sheet was

served on the Respondent. In contrast, the order of suspension came to be revoked

and the Respondent was called upon to resume the duty, which latter failed to do.

13. The learned Member, Industrial Court, was not prepared to readily

accede to the aforesaid contention, and, in my view, rightly. It defies comprehension

that having suspended an employee for almost two and half years, the employer would

refrain from instituting disciplinary action purportedly at the instance of the

employee. The defence is too good to be believed, and, was rightly discarded by the

learned Member, Industrial Court. Any other view, would give a long leash to an

employer to place the employee under suspension, for any length of time, and then

turn around and take a spacious plea that at the instance of the employee himself, the

enquiry was not taken to its logical end. The proposition is fraught with infirmities

and has the propensity to cause grave prejudice to the employee.

14. On facts, as the learned Member, Industrial Court noted, even the said

stand could not be substantiated. Mr. Popat Mane, the employer's witness to whom

the Respondent had allegedly requested not to initiate departmental enquiry,

disowned the Petitioner's case. He conceded that in respect of the incident dated 5

October 2011, neither charge-sheet was served on the Respondent, nor subsistence

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allowance was paid to the Respondent from the date of suspension till the Respondent

was allowed to resume the duty.

15. It would be contextually relevant to note that in the cross-examination of

the Respondent, an endeavour was made to draw home the point that after the

Respondent resumed the duty, the subsistence allowance was offered in cash. The

suggestion was stoutly denied. The Respondent asserted that a cheque drawn for

Rs.18,000/- was offered, but he declined to accept the same as the subsistence

allowance for 29 months was not paid to him.

16. In the backdrop of the aforesaid facts and evidence, the learned Member,

Industrial Court was fully justified in returning a finding that by not paying subsistence

allowance for the period for which the Respondent was placed under suspension, and,

that too without instituting any disciplinary proceeding, the employer engaged in

unfair labour practice. In a case of this nature, where there is flagrant violation of the

elementary principle of domestic enquiry, there is no reason to deny full wages to the

employee. The Court also finds that neither it was a pleaded case of the Petitioner nor

any endeavour was made to establish that the Respondent was gainfully employed

during the said period. In such circumstances, the non-payment of the subsistence

allowance and the non-initiation of the domestic enquiry was at the own peril of the

Petitioner. A conclusion can be legitimately drawn that the Respondent was deprived

of the wages for the said period wholly unjustifiably.

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                                                                                            wp 13072 of 2019.doc

17. The conspectus of aforesaid consideration is that no interference is

warranted in the impugned order in exercise of extra-ordinary writ jurisdiction.

18. Hence, the following order :

ORDER

(i) The Writ Petition stands dismissed.

                                    (ii)    Rule discharged.

                                    (iii)   No order as to costs.

                                    (iv)    R and P be sent back.




                                                                              ( N.J.JAMADAR, J. )




                       SSP                                                        8/8



Signed by: S.S.Phadke
Designation: PA
Date: 02/08/2023 20:13:23