Bombay High Court
M.S.R.T.C., Thr The Divisional ... vs Pramod Sevakram Sultane on 4 October, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
wp5018.09.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5018 OF 2009
Maharashtra State Road Transport
Corporation through the Divisional
Controller, Amravati Division,
Amravati. ....... PETITIONER
...V E R S U S...
Pramod Sevakram Sultane
R/o Sahkar Nagar, Banosa,
Daryapur, Tq. Daryapur,
Dist. Amravati. ....... RESPONDENT
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Shri A.S. Mehadia, Advocate for Petitioner.
Shri N.R. Saboo, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
4 OCTOBER, 2018.
ORAL JUDGMENT
1] The petitioner - employer is assailing the judgment dated 12.09.2008 rendered by the Labour Court, Amravati in Complaint (ULP) 14/2005 and the revisional judgment dated 26.08.2009 of the Industrial Court, Amravati in Revision Application 37/2008.
::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 22] Facts are few, and are broadly not in dispute or are irrefutable.
3] Respondent was working with the petitioner -
employer as Conductor. Respondent remained absent from 06.01.2003 to 27.03.2003 unauthorizedly, is the case of the employer.
4] The employer issued charge-sheet dated 27.03.2003 to which the respondent - employee failed to reply.
5] The employer conducted a departmental inquiry in which the employee did not participate. The disciplinary action culminated in termination order dated 27.06.2003.
6] The case of the employee is that he was falsely implicated in offence punishable under section 302 of the Indian Penal Code and was in police and judicial custody from 06.01.2003 to 23.6.2003, on which date he was discharged from the offence.
::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 37] On appreciation of material on record, both the Courts below have concurrently held that the employee was prevented from resuming duty due to circumstances beyond his control. Both the Courts below have further concurrently held that the inquiry conducted is not fair and in accordance with law.
The employer sought permission to prove the misconduct before the Court and adduced evidence. Both the Courts below have noted the admission given by the witness Shri Pradip Garud that his superior the then Depot Manager was aware of the incarceration of the employee. I do not see any reason to take a view different from the view concurrently taken by the Courts below.
8] The petitioner is concededly a regularly appointed permanent employee. The misconduct is held not proved.
The normal rule is that if the misconduct is held not proved the relief of reinstatement with back-wages should follow.
No compelling case is demonstrated to deviate from the normal rule.
::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 49] In all fairness, both the learned Counsels have invited my attention to the decision of the Apex Court in Raghubir Singh v. General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301, and in particular to paragraphs 31, 32 and 33 which read thus:
31. With respect to the case on hand, the appellant was on unauthorised absence only due to the fact that he had genuine constraints which prevented him from joining back his duties. The unauthorised absence of the appellant which lead to his termination was due to the fact that the he was falsely implicated in the criminal case filed at the instance of the respondent and that he must have had reasonable apprehension of arrest and was later in judicial custody. It is to be noted that out of the total period of the alleged unauthorised absence, the appellant was under judicial custody for two months due to the criminal case filed against him at the instance of the respondent.
32. Further, assuming for the sake of argument that the unauthorised absence of the appellant is a fact, the employer is empowered to grant of leave without wages or extraordinary leave. This aspect of the case has not been taken into consideration by the employer at the time of passing the order of termination. Therefore, having regard to the period of unauthorised absence and facts and circumstances of the case, we deem it proper to treat the unauthorised absence period as leave without wages. In our view, the termination order is vitiated since it is disproportionate to the gravity of misconduct alleged against him. The employment of the appellant-workman with the respondent is the ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 5 source of income for himself and his family members' livelihood, thereby their liberty and livelihood guaranteed under Article 21 of the Constitution of India is denied as per the view of this Court in its Constitution Bench decision in Olga Tellis v. Bombay Municipal Corpn. wherein it was held as under: (SCC p. 572, para 32) "32. .... The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.
Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life."
33. The appellant workman is a conductor in the respondent-statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 6 considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, the impugned award of the Labour Court and the judgment & order of the High Court are liable to be set aside.
10] It would also be apposite to refer to paragraphs 42 to 45 which read thus:
42. Now, it is necessary for this Court to examine another aspect of the case on hand, whether the appellant is entitled for reinstatement, back wages and the other consequential benefits.
In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, this Court opined as under: (SCC pp. 344-47, paras 22-24) "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 7 gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
23. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works (P) Ltd. v. Employees: (SCC pp. 85-86, paras 9 & 11)
9. ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 8 to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages.
* * *
11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 9 it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.
24. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court and observed: (SCC p. 447, para 6)
6. Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. ..... In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted." (Emphasis supplied)
43. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 10 judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal.
44. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case.
45. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court ::: Uploaded on - 05/10/2018 ::: Downloaded on - 06/10/2018 01:36:31 ::: wp5018.09.J.odt 11 and the judgment & order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits.
11] The employee has stated on oath that he was not gainfully employed. The settled position of law appears to be that once the employee states on oath that he was not gainfully employed, the burden would shift on the employer to establish the contrary. In this view of the matter, I do not see any infirmity in the relief granted by the Courts below.
12] The petition is dismissed.
JUDGE
NSN
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