Bombay High Court
Anilkumar Laxman Kambli vs The Board Of Trustees Of The Port Of ... on 25 March, 2025
2025:BHC-AS:13660
Megha 1_WP_8550_2009_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8550 OF 2009
Anilkumar Laxman Kambli ...Petitioner
V/s.
1. The Board of Trustees of the Port of
Mumbai
2. The Chairman, Mumbai Port Trust,
Mumbai.
3. The Assistant Labour Commissioner
(Central) III, Mumbai
4. The Presiding Officer, Central
Government Industrial Tribunal-cum
Labour Court No.2, Mumbai. ...Respondents
______________
Mr. Anilkumar L. Kambli, Petitioner in-person, present.
Mr. Anand Pai with Ms. Nina Motiwala, Ms. Anjali Kotecha i/b.
M/s. Motiwalla & Co. for Respondent Nos.1 and 2.
______________
CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 13 March 2025.
Judgment pronounced on: 25 March 2025.
Judgment:
1) Petitioner is aggrieved by the award dated 27 June 2006
passed by the Presiding Officer, CGIT-Court No.2, Mumbai (CGIT), to
Digitally
signed by
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
the extent of denial of prayer for backwages. Since the Petitioner has
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+0530
filed the present Petition in person, the prayers in the Petition are not
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happily worded. Petitioner has sought setting aside of punishment
awarded by order dated 3 November 1998, which is already set aside
by the CGIT. He has also sought various other reliefs, which do not
really stem out of the Award dated 27 June 2006. However, main
grouse of the Petitioner is denial of backwages by the Tribunal while
directing his reinstatement.
2) Petitioner was appointed on the post of Tally Clerk in
Mumbai Port Trust (MPT) in the year 1983. He was promoted to the
post of Clerk Grade II in the year 1990. Petitioner was issued show
cause notice memo dated 29 April 1998 alleging missing of bills of
lading, which was replied by him on 3 October 1992. On 13 January
1997, charge-sheet was served on him alleging misconduct of failure
to dispatch bills of lading and loss of 66 bills of lading during 1992-93
and unauthorised absence from 29 September 1993 and 30 September
1992. Domestic enquiry was conducted and Petitioner was held guilty
of misconduct. Respondent-employer issued order dated 3 November
1998 imposing punishment of dismissal from service on Petitioner.
Petitioner preferred appeal before the Appellate Authority, which set
aside punishment order dated 3 November 1998 on the ground of
penalty being imposed by incompetent authority and remanded the
matter to the disciplinary authority for giving personal hearing and
passing of fresh order. The Appellate authority's order was passed on
28 July 1999. Accordingly, the Traffic Manager passed order dated 20
September 1999 imposing the punishment of removal from service on
the Petitioner. At Petitioner's instance, Reference was made by the
Appropriate Government, which was registered as Reference CGIT-
2/3 of 2001. By Award dated 27 June 2006, the CGIT has partly
allowed the Reference and directed reinstatement of the Petitioner on
the post of Clerk, Grade-II with further directions to grant him
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monetary benefits of increments from the date of termination till the
date of presumption of resumption on duty. The prayer of the
Petitioner for backwages was however, rejected. Towards
implementation of the Award dated 27 June 2006 the competent
authority reinstated Petitioner on the post of Clerk Gr. II by order
dated 12 December 2006.
3) Petitioner has filed the present Petition in person seeking
following prayers:
(a) This Hon'ble Court be pleased to declare that the ultra virus
removal of Petitioner from services dated 3.11.1998 with
immediate effect by Disciplinary Respondent No.1. An action
without jurisdiction, null and viod and no legal effect
whatsoever. It has no legal legs to stand on.
(b) This Hon'ble Court be pleased to declare that the negligence
to the Petitioner's Industrial dispute application dated 11.10.99
by Respondents is unsustainable and bad in law.
(c) This Hon'ble Court be pleased to declare that the
Respondent No.2. Enhanced penalty during the pendency of the
proceeding in contravention of provisions of Section 33.
Industrial Dispute Act, 1947 and in contravention of Regulation
28 of the Mumbai Port Trust Employees' (Classification,
Control and Appeal) Regulations, 1976 illegal and unjustified
and should be quashed.
(d) This Hon'ble Court be pleased to issue a writ of mandamus
under article 226 of the Constitution of India and/or any other
appropriate writ and/or directions in the nature of writ of
mandamus, directing the Respondents to grant the Petitioner
full back wages with all consequential benefits as prayed in the
Industrial Dispute raised by the Petitioner vide letter dated
11.10.1999.
(e) This Hon'ble Court be pleased to issue a writ of mandamus
under article 226 of the Constitution of India and/or any other
appropriate writ and/or directions in the nature of writ of
mandamus, ultra virus removal from the services from
3.11.1998 and negligence by Respondents to Industrial Dispute
raised the by the Petitioner dated 10.11.1999 render the
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removal of petitioner from 3.11.1998 viod ab initio and
consequently Petitioner would be deemed to be in services and
the Petitioner is entitled to the full back wages with all
consequential benefits from date of removal i.e. 3.11.1998 till
resumed on duty i.e. 12.12.2006.
(f) Costs of this petition be provided for.
(g) Pass any such other order or orders as this Hon'ble Court
deems fit and proper in the circumstances of the case.
4) By order dated 8 December 2009, this Court admitted the
Petition. During pendency of the Petition, Petitioner has retired from
service on 28 February 2019. Petition is called out for final hearing.
5) I have heard the Petitioner appearing in-person. He would
submit that the CGIT-2 has grossly erred in denying backwages to
him despite holding the penalty of removal to be bad in law. That once
the penalty is set aside, backwages must automatically follow. He
would submit that Petitioner was prevented from working on account
of imposition of erroneous penalty of removal from service and that
therefore backwages cannot be denied to him. He would submit that
no reasons are recorded by the CGIT for denial of backwages.
Petitioner in-person has also raised grievance that he was actually
removed from service by order dated 3 November 1998 and therefore
backwages must be paid w.e.f 3 November 1998 till he resumed duty
on 12 December 2005. That setting aside of the earlier removal order
dated 3 November 1998 was attributable to the action of the
Respondents and that therefore Petitioner ought to have been
awarded backwages right since 3 November 1998.
6) Petition is opposed by Mr. Pai, the learned counsel
appearing for the Respondent Nos.1 and 2. He would submit that
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order of reinstatement has already been implemented by Respondent-
Port Trust and Petitioner has already rendered services after his
reinstatement and has superannuated on 28 February 2019. That
therefore there is no warrant for entertaining the present Petition
with regard to backwages. He would submit that Petitioner was
gainfully employed during the period of his removal. That Petitioner
was apparently owning a Tea Stall and earning livelihood right since
the year 1991. That he had suppressed the ownership of Tea Stall as
well as licenses issued in his name. He would invite my attention to
documents filed alongwith additional affidavit dated 8 January 2024.
He would submit that after owning the said Tea Stall for several
years, Petitioner finally sold the same to Mr. Pradip Gupta. He would
submit that MCGM issued notice dated 7 December 2010 for
cancellation /revision of licenses issued in favour of the Petitioner on
account of illegal transfer of license. He would therefore submit that
after learning about ownership of Tea Stall, Respondent-Port Trust
issued show cause notice dated 4 August 2012 to the Petitioner and he
has been penalized with punishment of reduction of two stages of one
year vide order dated 29 October 2012. That in such circumstances,
awarding any backwages in favour of the Petitioner would amount to
rewarding him for misconduct of suppression of his Tea Stall business
from the employer. Mr. Pai would therefore pray for dismissal of the
Petition.
7) Rival contentions of the parties now fall for my
consideration.
8) The punishment of removal from service has been set
aside by CGIT by Award dated 27 June 2006. However, the relief of
backwages is denied to the Petitioner. As observed above, Petitioner
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was reinstated in service by order dated 12 December 2006 and
continued to serve till he attained the age of superannuation on 28
February 2019.
9) For denying the backwages, the learned Member of CGIT
has not recorded reasons, which can inspire confidence. In paragraphs
14 to 16 of its award the CGIT-2 has recorded following reasons:
14) It is matter of record that, since the termination, 2nd
Party is not in the employment of anybody. He ha state
that, he depending on the income of his wife. As far as
his economic problem is concerned, evidence led by him
does not prove that, he was very much sufferer by the
order of termination. On the contrary he has not made
out any specific case regarding his economic crisis
which he suffered after his termination as a result of
his termination. On the contrary he states that he is
maintaining his family with the income of his wife since
she is earning.
15) If we consider all this, coupled with the case made out
by both, I conclude that, the termination under the
challenge effect by 1st Party on the 2nd party Workman
dated 20th September, 1999 is not just and proper and
it is not proportionate in the light of charges leveled
and proved against the 2nd Party Workman. So I
answer these Issues to that effect and conclude that,
termination or Removal of the 2nd Party Workman
from the service with effect from 20th September, 1999
require to be set aside
16. As far as back wages are concern, as stated above no
specific case is made out by 2 nd Party Workman. Still
the evidence discussed show that, the fault so called
alleged committed by 2nd Party is not that much
sufficient to conclude that removal punishment is
appropriate or just and proper. So wee have to consider
that 2nd Party was wrongly removed. In this
background I consider him in the employment for his
increment benefits and passes the following order
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10) Going by the reasons recorded by CGIT, it is difficult to
comprehend as to why backwages are denied to Petitioner. The
backwages apparently falls into two periods. As observed above,
penalty of dismissal/removal from service was initially imposed on the
Petitioner by order dated 3 November 1998 after he was found guilty
of misconduct. However, the appellate authority held that adequate
opportunity of hearing was not given by the disciplinary authority. It
was also found that the personal hearing was given by Traffic
Manager whereas the final penalty order dated 3 November 1998 was
passed by the In-charge Traffic Manager. On account of these
technical reasons, the Appellate Authority set aside the punishment
order dated 3 November 1998 and remanded the proceedings to
disciplinary authority for grant of personal hearing and passing of a
fresh order. Accordingly, the Traffic Manager himself granted
personal hearing to the Petitioner and passed order dated 20
September 1999 once again imposing penalty of removal from service.
However, the Appellate Authority's order dated 28 July 1999 is silent
about the intervening period from the date of earlier removal dated 3
November 1998. The Appellate Authority did not direct reinstatement
of the Petitioner. As a matter of fact, further proceedings could not be
initiated by the Disciplinary Authority unless employer-employee
relationship was restored. Therefore, formally Petitioner ought to have
been reinstated in service as a consequence of setting aside penalty
order dated 3 November 1998.
11) During the course of hearing of the present Petition on 17
October 2024, this Court raised a query about the manner in which
the intervening period between the first and second removal order
was treated by the Respondent-Port Trust. Accordingly, Respondent
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Nos.1 and 2 have filed second additional affidavit-in-reply dated 22
October 2024 clarifying that Petitioner had filed review petition before
the Chairman, MPT against the second removal order and that while
rejecting the review petition by order dated 27 November 2000, the
Chairman had directed that the period during date of removal i.e. 3
November 1998 to date of Appellate Authority's order dated 28 July
1999 be treated as leave without pay and the period from 28 July 1999
to the date of second removal order dated 20 September 1999 be
regularised as leave due and admissible. It is pointed out that leave
balance to the credit of the Petitioner as on 3 November 1998 is 48
days earned leave and 20 days of half pay leave. Accordingly, period
from 3 November 1998 to 28 July 1999 is treated as leave without pay.
Period of 48 days from 29 July 1999 to 14 September 1999 is treated
as earned leave and period of five days from 15 September 1999 to 19
September 1999 is treated as half pay leave. It is further pointed out
that salary for 53 days of leave has been paid to the Petitioner.
12) In my view, the action of Respondent -Port Trust in
treating the intervening period between the two removal orders as
leave without pay is totally erroneous. Once the first removal order
dated 3 November 1998 was set aside, the Petitioner ought to have
reinstated in service. If there was any reason not to permit him to
work as a result of reinstatement, Respondent-Port Trust could have
placed him under suspension. However, it is impermissible to conduct
further departmental enquiry without first restoring the employer-
employee relationship. In any case, Petitioner is not responsible for
the intervening period from 3 November 1998 till 20 September 1999.
The earlier removal order dated 3 November 1998 was set aside on
account of fault on the part of Respondent-Port Trust. Respondent -
Port Trust did not place Petitioner under suspension, therefore his
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balance leave of 53 days could not have been utilised for regularising
part of such intervening period. For the reasons recorded in the latter
part of the judgment, I have declined backwages to the Petitioner for
the period after 20 September 1999. In the light of this situation, the
least that must be paid to the Petitioner is full backwages during the
intervening period from 3 November 1998 to 20 September 1999.
13) Coming to the issue of backwages after 20 September
1999, it is seen that the Respondent-Port Trust has now come up with
a voluminous evidence about ownership of Tea Stall in the name of
the Petitioner, who was also issued various licenses for operation of
the Tea Stall. The issue of ownership of Tea Stall by the Petitioner
came to the light on account of MCGM's letter dated 5 December 2010
addressed to Respondent -Port Trust enquiring about status of service
of Petitioner with Port Trust and as to whether Petitioner was
working with Port Trust or not. The Municipal Corporation
communicated to the Port Trust that a Tea Stall at Chunam Lane,
Grant road, near Pandit building, opposite Dr. Bhadkamkar Road,
Grant Road, Mumbai, for sale of electric goods was granted to the
Petitioner, which he acquired on the strength of Sale Deed as per the
Municipal Commissioner's sanction dated 25 March 1991. Voluminous
documents are placed on record by the Respondent-Port Trust to
demonstrate as to how the Petitioner continued owning the said Tea
Stall and how various licenses were issued in his name. The licenses
were ultimately cancelled on 20 November 2010 i.e. after his
reinstatement by order dated 12 December 2006.
14) True it is that the information relating to ownership and
operation of Tea Stall was not produced before the CGIT. This was
because Port Trust was oblivious about the Petitioner owning or
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operating the said Stall, which was used for sale of electric goods. The
issue is whether this Court can turn a blind eye to the voluminous
documents placed on record suggesting ownership and operation of
the said Tea Stall by the Petitioner. Several licenses for operation of
the said Stall were issued directly in the name of the Petitioner. It
therefore becomes hard to believe that Petitioner would sit idle during
the period of removal from service and not take part in business of
electric goods in the Stall allotted to him. Petitioner was thus in a
position to earn livelihood during intervening period. It appears that
Petitioner is in fact punished on the charge of suppression of
ownership and operation of Tea Stall by order dated 29 October 2012.
In such circumstances, paying him backwages during the period of
actual removal from service i.e. 20 September 1999 till his
reinstatement on 12 December 2006 would tantamount to rewarding
him despite commission of misconduct of suppression.
15) Even otherwise, award of backwages cannot be automatic
on account of the setting aside penalty of removal. The penalty is set
aside essentially on account of delay in initiation of the disciplinary
proceedings. The CGIT also held that Petitioner could not be held
responsible for missing of the lading bills. The CGIT further held that
imposing of the lading bills did not ultimately cause any monetary
loss or loss of reputation to the Respondent- Port Rust. The charge of
absence from duty was held to be not very serious. It is on account of
above factors that penalty of removal is ultimately set aside.
Petitioner was directed to be reinstated and was in fact indeed
reinstated on 12 December 2006 and served with the Port Trust till
28 January 2009. He has already granted benefit of continuity and
has earned increments even during period of removal from service.
Considering these factors, I am not inclined to award backwages to
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Petitioner during intervening period from 20 September 1999 till his
reinstatement on 12 December 2006. As observed above, Petitioner is
being granted full backwages during the intervening period of two
removal orders from 3 November 1998 to 20 September 1999, which
would help the Petitioner to receive substantial amount.
16) I would accordingly proceed to pass the following order:-
(i) The Award dated 27 June 2006 passed by the Presiding
Officer, CGIT is modified to the extent that Petitioner
shall be paid full salary and allowances for the period
from 3 November 1998 to 20 November 1999 without
adjusting his leave in any manner.
(ii) Petitioner shall be paid encashment of leave balance in
his account, if admissible in accordance with the rules
and regulations of the Respondent -Port Trust.
(iii) Prayer for backwages from 21 September 1999 to 11
December 2006 is however rejected.
(iv) The Award passed by the CGIT-2 shall stand modified
in above terms.
(v) All payment arising out of above directions shall be
paid by the Respondent Nos.1 and 2 to the Petitioner
within a period of two months.
17) With the above directions, the Petition is partly allowed.
Rule is made partly absolute. There shall be no orders as to costs.
[SANDEEP V. MARNE, J.]
25 March 2025
