Prashant D. Surve vs Konkan Railway Corporation Ltd
2024 Latest Caselaw 22045 Bom

Bombay High Court

Prashant D. Surve vs Konkan Railway Corporation Ltd on 1 August, 2024

2024:BHC-AS:30945
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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                      CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO. 8012 OF 2007

             Konkan Railway Corporation Limited                                     ... Petitioner
                   Versus
             Mr. Prashant D. Surve (Deceased)
             Thr. LRS. Pradnya Prashant Surve & Anr.                                ... Respondents


                                                        WITH
                                       WRIT PETITION NO. 4136 OF 2007

             Prashant D. Surve (Deceased)
             Thr. LRS. Pradnya Prashant Surve & Anr.                                ... Petitioners
                   Versus
             Konkan Railway Corporation Limited                                     ... Respondent

             __________________________________________________

             Mr. Vishal Talsania a/w Mr. Netaji Gawade i/b M/s Sanjay Udesh & Co. for
             the Petitioners in WP/8212/2007 & for Respondent in WP/4136/2007.
             Mr. P. M. Mokashi for the Respondent in WP/8012/2007 & for Petitioner in
             WP/4136/2007.


                                                    CORAM          : SANDEEP V. MARNE, J.

                                                    DATE           : 1 AUGUST 2024.
             P.C. :

             1)               These are cross Petitions filed by the Employer-Konkan Railway

Corporation Ltd. (KRCL) and Employee-Prashant D. Surve challenging the Award dated 3 October 2006 passed by the learned Presiding Officer, Central ___Page No.1 of 11___ 1 August 2024

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Government Industrial Tribunal No.2, Mumbai (CGIT) in Reference No. CGIT - 2/219 of 1999. The Reference is answered partly in the affirmative by CGIT. The employee has been directed to be reinstated in service, however, the prayer for backwages is rejected. Writ Petition No. 8012 of 2007 is filed by the employer-KRCL challenging the entire Award dated 3 October 2006, whereas the employee - Prashant D. Surve has filed Writ Petition No. 4136 of 2007 to the extent of denial of backwages.

2) Both the Petitions came to be admitted by this Court. In Writ Petition No. 8012 of 2007, application was filed by the employee for payment of wages under Section 17-B of the Industrial Disputes Act, 1947 (ID Act). By Order dated 14 July 2008, this Court directed payment of last drawn wages minus Rs. 800/- to the employee, after noticing that he was earning wages of Rs. 800/- per month. This is how from 14 July 2008 onwards, the employee continued to be paid last drawn wages minus Rs. 800/-. It appears that the employee-Prashant D. Surve has passed away on 22 April 2021 and his legal heirs are now prosecuting the present litigation. This is how the employee has drawn wages under Section 17-B of ID Act from 14 April 2008 till the date of his death i.e. 22 April 2021.

3) It appears that the employee came to be initially engaged in KRCL as a daily rated driver on 9 March 1993. On completion of 6 months service, he was granted consolidated pay of Rs.1,825/- per month by Order dated 5 November 1993. He was granted appointment on contract basis as Driver at the wages of Rs. 40/- per day vide Order dated 12 December 1993. It appears that the employee continued in service as daily rated/contract

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driver until he came to be arrested on 7 June 1995 in connection with the allegation of theft of an Air Cooler. On account of his implication in a criminal case, KRCL terminated his services vide Order dated 26 June 1995. The employee raised demand for his reinstatement by letter dated 18 January 1999. The Reference was made to CGIT on the basis of the said demand, which was registered as Reference No. CGIT - 2/219 of 1999. The Tribunal has partly answered the Reference in affirmative by directing reinstatement of the employee in service. However, the prayer for backwages is rejected. The Award dated 3 October 2006 is challenged both by employer-KRCL as well as by employee by filing these two cross Petitions.

4) I have heard Mr. Talsania, the learned counsel appearing for Petitioner in Writ Petition No. 8012 of 2007 and for Respondents in Writ Petition No. 4136 of 2007. He would submit that the CGIT has erred in directing reinstatement of the employee in service ignoring the fact that he embroiled himself in criminal prosecution. That he was not a regular staff of KRCL and therefore he did not have any right to remain in the employment. That concrete evidence was led before the Tribunal to prove involvement of the employee in respect of charges leveled against him. That in any case, considering the short stint of service rendered by him with KRCL, this was not the case where his belated demand for reinstatement could have been entertained and decided. That the employee slept over his termination for over 5 years and raised stale demand for reinstatement. He would submit that in such circumstances the Award passed by the Tribunal deserves to be set aside.

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5)               Per contra, Mr. Mokashi the learned counsel appearing for the

employee would oppose the Petition submitting that termination Order passed by KRCL castes a stigma on the employee since the termination order clearly refers to 'disciplinary action'. That therefore the Order gives an impression that he has been terminated as a measure of disciplinary action. He would further submit that as per Clause 2 of the Order dated 21 December 1994, the services of the employee were terminable only in the event of he being charged with any criminal offence. That in the present case, when his services were terminated on 26 June 1995, he was not charged with any criminal offence. That no charge was framed against him as on the date of issuance of termination order. Mr. Mokashi would further submit that in any case, if the KRCL wanted to terminate the services of the employee by accusing him of any misconduct, regular disciplinary enquiry ought to have been held against him. That the termination order itself made it clear that disciplinary action ought to have been conducted against him. That therefore this cannot be treated as a case of a simplicitor discharge. He would submit that the employee had completed more than 240 days' of service and therefore his termination amounts to retrenchment within the meaning of Section 2(oo) of the ID Act, 1947. That the CGIT has therefore rightly held the termination to be bad in law. He would submit that the employee has ultimately been acquitted in respect of the false accusations levelled against him. That therefore the very ground for his termination was ab initio void.

6) Mr. Mokashi would further submit that the CGIT has erred in denying backwages to the employee on the ground of delay in raising the demand. That the employee was acquitted in October 1998 and thereafter

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immediately raising the demand in January 1999 without any delay. He would submit that the normal rule is that once the termination is held to be bad in law, and order for payment of full backwages must be made. In support of his contentions Mr. Mokashi would rely upon following judgments:

i) D.K. Yadav Vs. J. M.A. Industries Ltd. (1993) 3 SCC 259

ii) Scooters India Ltd. Vs. M. Mohammad Yaqub and Another. (2001) 1 SCC 61.

iii) CAPT. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Anr. (1999) 3 SCC 679.

iv) Wai Taluka Sahakari Kharedi Vikri Sangh Ltd. Satara Vs. Bajirao Mahadeo Mahadik 1992 I CLR 637

v) Desh Raj Gupta Vs. Industrial Tribunal IV, U. P., Lucknow and Anr. (1991) 1 SCC 249

vi) Manager L. P. S. Koovalloor Vs. C. Mathew and Anr.

vii) J. N. Srivastava Vs. Union of India & Anr. (1998) 9 SCC 559

viii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Anr. (2013) 10 SCC 324

ix) Maharashtra General Kamgar Union Vs. Anand Kamal Co- operative Housing Society Ltd. & Ors. 1994 (3) Bom. C. R. 507

x) The General Secretary, B.E.S.T. Workers' Union Vs. The General Manager, The B.E.S.T. Undertaking 7 Ors. 1997 I CLR 898.

xi) Sachiv, Krishi Upaj Mandi Samiti Vs. Aditya Baijnath Shukla 2003 0 Supreme (MP) 219.

7) Rival contentions of the parties now fall for my consideration.

8) It is seen that the employee was initially engaged in service as a daily rated driver on 9 March 1993. It is not even known as to whether any appointment order was issued to him at the time of his initial engagement.

What is placed on record by KRCL is the Office Order No. 114 of 1993 dated 5 November 1993, by which consolidated salary was granted to him at the

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rate of Rs. 1,825/- per month on account of completion of six months service. There is nothing on record to indicate that the initial engagement of the employee was effected after following due process selection. KRCL is a Government of India undertaking and bound to follow the provisions of Articles 14 and 16 of the Constitution of India while making any appointment on its establishments. Thus, initial engagement of the employee was of purely casual nature, without any right to remain in service. It appears that the second stint of service is by way of contractual appointment vide Order dated 12 December 1993, which was only for a period of six months and the appointment was automatically coming to an end on 3 May 1994. The next appointment appears to have been made on 21 December 1994. There is nothing on record to indicate any appointment order in respect of gap period from 4 May 1994 to 21 December 1994. Mr. Mokashi would, however, clarify that even in respect of this gap period, the employee has continued in service. Be that as it may. Even if it is assumed that the employee continued in service uninterruptedly, the same would be for the period from 9 March 1993 to 26 June 1995. Considering the nature of appointment, the employee did not have any right to remain in service of KRCL.

9) Now the issue is about completion of 240 days of service and termination amounting into retrenchment within the meaning of Section 25-F of the ID Act. It appears that CGIT has granted the relief of reinstatement essentially on account of the factum of completion of 240 days of service and termination amounting unlawful retrenchment. Firstly, I am unable to agree with a proposition that in respect of contractual employment having fixed tenure, provisions of Section 25-F were separately required to be

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followed, when the employee was clearly given an idea at the time of each stint of appointment that the same would come to an end on expiry of a specified period. Secondly and more importantly, even if it is assumed that the termination in the present case amounted to unlawful retrenchment, reinstatement could not have been ordered considering the peculiar facts and circumstances of the present case. The employee was terminated on 26 June 1995. He slept over his termination for five long years and raised a demand for the first time on 18 June 1999. By the time CGIT decided the Reference, period of 11 long years had elapsed. The question here is if the employee did not have any right to remain in continuous service of KRCL, whether the Labour Court could have exercised jurisdiction in directing his reinstatement after expiry of period of 11 long years. There is nothing on record to indicate that the employee worked on regular sanctioned posts on the establishment of KRCL. There is no finding recorded by the CGIT that his initial appointment was made against regular sanctioned posts and after following the due process of selection. Considering these facts and circumstance of the present case, in my view even if it was to be held that the termination of employee amounted to unlawful retrenchment, at the highest, some compensation could have been directed to be paid by the CGIT to him.

10) In the present case, the employee has drawn wages under provisions of Section 17-B of the Industrial Disputes Act, from 14 July 2008 till his death on 22 April 2021. In my view, the amount so paid to him shall constitute the amount of lumpsum compensation payable in respect of his unlawful retrenchment.

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11)              So far as the submissions of Mr. Mokashi about denial of

backwages is concerned, in my view, since reinstatement itself could not have been granted in the facts and circumstances of the present case, both on counts of absence of any right in favour of the employee to remain in continuous employment of KRCL as well as passage of substantial period of time from the date of his termination, there is no question of granting any backwages to him. In my view therefore, the Order denying backwages by the CGIT does not warrant any interference by this Court.

12) So far as the direction for reinstatement is concerned, the employee has already passed away. As held above, the amount of wages paid to him under Section 17-B of the ID Act shall constitute lumpsum compensation payable to him in lieu of reinstatement.

13) What remains now is to deal with the judgments relied upon by Mr. Mokashi:

i) Judgment in D. K. Yadav (supra) is relied upon in support of his contention that termination of service involves civil consequences and results in deprivation of right to livelihood and therefore the same must be effected in accordance with just, fair and reasonable procedure. In the present case, the employee was merely working as daily rated/contract worker. He embroiled himself into criminal prosecution. He did not have any right to remain in service of a public authority. His services could otherwise have been retrenched. For failure to follow retrenchment procedure, he ought to have been paid some compensation rather than ordering his reinstatement.

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ii) Judgment in Scooters India Ltd. (supra) is relied upon in support of his contention that, since the employee completed more than 240 days of service, the termination is required to be treated as retrenchment. As held above even if the termination is treated as retrenchment, reinstatement in the facts and circumstances of the present case, was unwarranted. Therefore, the judgment would have no application to the facts and circumstances of the present case.

iii) Judgment in Capt. M. Paul Anthony (supra) has absolutely no relevance to the facts and circumstances of the present case and need not even be discussed.

iv) The Judgment of this Court in Wai Taluka Sahakari Kharedi Vikri Sangh (supra) is relied upon in support of contention that since no chargesheet was issued to the employee, the Labour Court could not have permitted the employer-KRCL to lead evidence. Even if this contention is accepted to be correct, the termination of the employee at the highest would amount to retrenchment, making him entitled for compensation. In my view, having held that the employee needs to be paid lumpsum compensation for his unlawful retrenchment, it is not necessary to go into the aspect of permission granted by the Labour Court to employer to lead evidence.

v) Judgment in Desh Raj Gupta (supra) is relied upon in support of the contention that the date of dismissal does not relate back to the date of illegal order of the management and that therefore the employee is entitled to the salary between the date of dismissal and date of Award. I have already held that in the facts and circumstances of the present case, the employee is

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not entitled to backwages and therefore the judgment in Desh Raj Gupta would have no application to the facts and circumstances of the present case.

vi) Judgment in Manager L. P. S. Koovalloor (supra) is relied upon in support of the contention that the relief of reinstatement or backwages cannot be denied only because someone else is appointed in place of the terminated Employee. This is not even a contention raised by the Employer - KRCL and therefore reliance on the Judgment of the Kerala High Court in Manager L. P. S. Koovalloor is quite unnecessary.

vii) Judgment of the Apex Court in J. N. Srivastava, Deepali Gundu Surwase and of this Court in Maharashtra General Kamgar Union and General Secretary B.E.S.T Workers' Union (supra) are relied upon in support of the contention that backwages must follow the illegal termination effected without notice and enquiry. I have already held that in the facts and circumstances of the present case, where the employee did not have any right to remain in the employment of KRCL, even if the termination is to be treated as unlawful retrenchment, backwages are not payable. It is also required to be borne in mind that the employee himself raised the demand for reinstatement after lapse of period of 5 long years. In my view therefore, the judgments sought to be relied upon in support of contention for payment of backwages would have no application to the facts and circumstances of the present case.

14) After considering over all conspectus of the case, in my view both the Petitions are required to be disposed of by passing the following Order:

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i) The Award passed by CGIT dated 3 October 2006 shall stand modified to the extent that the employee shall be entitled to lumpsum compensation in lieu of reinstatement in service.

ii) The amount of wages paid by employer-KRCL to the employee in pursuance of the Order passed by this Court on 14 July 2008 till his death shall constitute lumpsum compensation payable to him.

15) With the above directions, Writ Petition No. 4136 of 2007 filed by the employee is dismissed and Writ Petition No. 8012 of 2007 filed by employer-KRCL is partly allowed. Rule is discharged in Writ Petition No. 4136 of 2007 and made partly absolute in Writ Petition No. 8012 of 2007. There shall be no orders as to costs.

[SANDEEP V. MARNE, J.]

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