Bombay High Court
Divisional Controller, Maharashtra ... vs Rajjak Abbas Shaikh And Ors. on 15 November, 1999
Equivalent citations: (2000)IIILLJ417BOM
Author: R.J. Kochar
Bench: R.J. Kochar
ORDER R.J. Kochar, J.
1. The petitioner, a statutory corporation established under the Bombay Road Transport Corporation Act, 1950, engaged, inter alia, in the activity of transporting passengers from one destination to another has filed this petition, being aggrieved by the award and order dated July 6, 1992 passed by the Labour Court, Solapur directing the petitioner to reinstate the respondent No. 1 workman with 50% back wages. The facts of the petition are as follows:
2. The respondent workman was employed by the petitioner corporation in 1975 as a Driver. He was charge sheeted and dismissed from employment after holding a domestic enquiry in accordance with the rules framed by the petitioner. The show cause notice which was issued to the respondent workman was for absence from duty with effect from November 28, 1984 to November 30, 1984; December 28, 1984 to December 6, 1984 and December 11, 1984 to January 16, 1985 without prior notice, information and permission. He did not take part in the domestic enquiry also, and therefore, the petitioner was compelled to hold the enquiry ex-parte in the absence of the respondent workman. After the dismissal, the respondent workman raised an industrial dispute for reinstatement with full back wages and continuity of service. The said dispute was referred for adjudication to the Labour Court. The Labour Court found the order of dismissal not proper and legal and held that the extreme punishment of dismissal for the period of absence was shockingly disproportionate and, therefore, quashed and set aside the order of dismissal directing reinstatement of the respondent workman with 50% back wages.
3. The petitioner being aggrieved by the said order challenged the same under Article 227 of the Constitution of India. It is clear from the record that the interim stay of the order impugned herein was not granted and Rule was issued only on the question of back wages. In view of rule being restricted only to the question of back wages, the order of reinstatement has been given effect to by the petitioner. It is an admitted fact that the respondent workman is presently working with the petitioner corporation.
4. Shri Sawant, the learned advocate for the petitioner, submits that even the grant of 50% back wages to the respondent workman is not legal, proper and justifiable. He has pointed out the past record of the workman that he was in the habit of remaining absent from time to time unauthorisedly and without prior intimation. During his 15 years of service, he was punished for 7 times for absenteeism. He has also pointed out that once in the year 1979, he was even dismissed from employment for absenteeism but in the departmental appeal filed by the respondent workman the appellate authority took a lenient view and reappointed the respondent workman. The learned advocate for the petitioner, therefore, submits that though the corporation had always taken a lenient view, there was no improvement in the attendance of the respondent workman, and therefore, finally the corporation was left with no alternative but to resort to the extreme punishment of dismissal. The past record of the workman is reflected in para 7 of the impugned order. There is no dispute about the said past record of the respondent workman and his absence from time to time. Shri Dalvi, the learned advocate for the respondent workman, however has stated that the respondent workman had in fact, submitted his leave applications and that there were number of difficulties for which the respondent workman was remaining absent. I do not find any substance in the said submissions advanced on behalf of respondent workman. He has also submitted that by depriving the workman of 50% back wages, he has been sufficiently punished and he has also not filed any counter petition for the same. I do not agree with the said submissions. The petitioner industry is a different one in nature. It caters to the needs of the public at large which comprises the passengers who cannot afford to avail the facility of rich transport. The drivers who are employed to drive the public vehicles, if remained absent in the manner in which the respondent workman has remained, it does, cause great inconvenience to the people and there is great inconvenience caused to the management also to arrange for alternate driver, who may not be available on the spot. The inconvenience caused on account of abrupt or sudden absence of the employees is obvious, particularly, the drivers engaged to drive the public vehicles. The petitioner corporation has not resorted to the extreme punishment at the very first instance of absenteeism of the respondent workman. The petitioner has tolerated him for quite some time and ultimately when there was no improvement in his behaviour, the petitioner dismissed the respondent workman. During the tenure of 15 years if the respondent workman was punished for as many as 7 times for remaining absent unauthorisedly, in my opinion, on the 8th time he has been rightly dismissed from employment. Since our Court has interfered with the punishment under Section 11-A of the Industrial Disputes Act and ordered reinstatement, which has been accepted by the petitioner corporation, that is the end of the matter. In any case, I am not at all inclined to put the premium of 50% back wages which would cause monetary burden on the public which has already suffered hardships and inconvenience on account of the habitual absenteeism of the respondent workman. In fact the respondent workman should have shown improvement in his attendance when he was punished for 7 times. In spite of the said punishment, the respondent workman did not show any improvement, and therefore, the petitioner was left with no alternative but to resort to the extreme punishment of dismissing the workman in the year 1985 when the respondent workman again remained absent for the period stated hereinabove.
5. According to me, the petitioner should not even be burdened with the amount of 50% back wages. Since the petitioner has reemployed the respondent workman and he is still in service, I am not inclined to put an additional burden of 50% back wages on the petitioner corporation. I, therefore, quash and set aside the order of the Labour Court so far as grant of 50% back wages is concerned. It is however made clear that the petitioner shall grant and treat the respondent workman in continuous service without any break for all purposes from the initial date of employment condoning the break given to him in the year 1979.
6. Shri Sawant, the learned advocate for the petitioner makes a statement that if the respondent workman is (not) given continuity of service, he will be duly given continuity of service for all purposes.
7. I, therefore partly allow the petition by confirming the order of the Labour Court so far as reinstatement of the respondent workman is concerned. The order of the Labour Court so far as it relates to payment of 50% back wages is concerned the same is quashed and set aside.
8. It is however made clear that since at the time of admission of this petition, the respondent workman was only treated as re-employed and was not given continuity of service, he will be duly given the benefit of continuity of service for all purposes including his pay scale and difference in wages, paid and actually payable as a result of continuity of service, if any.
9. With these directions the petition is disposed of with no orders as to costs. Certified copy of this Order is expedited.