2007(4) ALL MR 53
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.B. CHAUDHARI, J.
Maharashtra State Road Transport Corporation Vs. W. M. Tandekar
Writ Petition No.3562 of 2005
9th April, 2007
Petitioner Counsel: Shri. S. C. MEHADIA
Respondent Counsel: Shri. M. P. JAISWAL
Industrial Disputes Act (1947), S.11, Sch.II, Item 3 - Dismissal of employee - Order found to be wholly illegal and unjustified - Reinstatement - Grant of back wages - Matter remitted for considering relief of back wages.
In the instant case, the order of dismissal was found to be wholly illegal and unjustified since the domestic enquiry that was held has been found to be not fair and proper but in violation of principles of natural justice and then the petitioner - Corporation did not choose to prove the charges levelled against the respondent - employee even before the Labour Court by grabbing the available opportunity. Therefore, the interest of justice would be met if in so far as the issue regarding award of back wages is concerned, the matter is remitted to the Labour Court for deciding the issue as to whether the respondent - employee was entitled to back wages from the date of his dismissal till the date of his reinstatement. [Para 8]
Cases Cited:
J. K. Synthetics Ltd. Vs. K. P. Agrawal, 2007(2) S.C.C. 433 [Para 4]
M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd., AIR 1979 S.C. 75 [Para 4]
Allahabad Jal Sansthan Vs. Daya Shankar Rai, 2005(5) ALL MR 705 (S.C.)=2005(5) S.C.C. 124 [Para 6]
JUDGMENT
JUDGMENT :- Rule returnable forthwith. Heard finally by consent of parties.
2. By the present petition, the petitioner Maharashtra State Road Transport Corporation challenges the judgment and order dated 15-9-1994 in Complaint ULPA No.1003/1989, passed by the Second Labour Court, Nagpur as well as the order dated 9-3-2005 in Revision (ULPN) No.523/1994, passed by the Industrial Court only in relation to direction by the Courts below to make payment of full back wages to the respondent.
3. FACTS :- The respondent who was working as a conductor with petitioner - Corporation was charge-sheeted for misconducts under items 12(b), 27 and 35-B of Schedule - 'A' to the Discipline and Appeal Procedure. In the domestic enquiry it was held that charges were proved against him and consequently he was dismissed from service on 31-8-1989. The respondent challenged his dismissal from service by filing Complaint (ULPN) No.1003/1989 before the Labour Court at Nagpur. The Labour Court initially by order dated 3-2-1993 held that the enquiry that was held against the respondent was not in accordance with the principles of natural justice, and therefore, same being not fair and proper, preliminary issue was decided in favour of respondent - employee. Finally, the Labour Court by impugned judgment and order dated 15-9-1994 held that the enquiry having been held to be contrary to the principles of natural justice, the dismissal order based on the basis of domestic enquiry was illegal. The Labour Court, therefore, directed reinstatement of the respondent with full back wages. In the revision filed by the petitioner before the Industrial Court in paragraph 12, the Industrial Court held that since the enquiry itself was found to be illegal, the dismissal order was obviously not justified and, therefore, the respondent could not be deprived of back wages for fault of the petitioner - Corporation. The Industrial Court thus confirmed the judgment and order passed by the Labour Court.
4. ARGUMENTS :- Shri. S. C. Mehadia, learned Counsel for petitioner relied upon several decisions of the Supreme Court and vehemently argued that the Courts below have committed an error in ordering full back wages. Shri. Mehadia, learned Counsel cited several decisions. I need not cite all the decisions cited by him, since the last decision in the case of J. K. Synthetics Ltd. Vs. K. P. Agrawal and another, reported in 2007(2) Supreme Court Cases 433 takes conspectus of the cases decided by the Apex Court in the past. Shri. Mehadia, learned Counsel then argued that the burden to prove that the employee was not gainfully employed is on the employee. He further argued that there was neither any pleading nor proof in the instant case in relation to the claim for back wages as made by the respondent employee and, therefore, in the wake of various judgments of the Apex Court, the Courts below could not have ordered grant of full back wages to the respondent. Per contra, Shri. M. P. Jaiswal, learned Counsel for respondent relied upon the three Judges decision of the Supreme Court in the case of M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, reported in AIR 1979 Supreme Court 75 and in particular paragraph 11 thereof.
5. In the alternative, he argued that at the time when the litigation was being contested before the Labour Court, the legal position as set out in the case of M/s. Hindustan Tin Works Pvt. Limited was prevailing and the lawyers as well as litigants were guided by the said legal position. According to him law laid down by the Apex Court in the case of M/s. Hindustan Tin Works Pvt. Ltd. was crystal clear that in as much as full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. He, therefore, contended that it was for the petitioner - Corporation to plead and prove that respondent was not entitled to full back wages. Finally, Shri. Jaiswal, learned Counsel prayed that in case this Court finds that in view of the law laid down in the case of J. K. Synthetics Ltd., the requirement of pleadings and proof by the employee is essential, the matter should be remanded to the Labour Court on the said issue.
6. CONSIDERATION :- Having heard learned Counsel for the rival parties and having regard to the observations made by the Hon'ble Apex Court in the case of Allahabad Jal Sansthan Vs. Daya Shankar Rai and another, reported in 2005(5) Supreme Court Cases 124 : [2005(5) ALL MR 705 (S.C.)] and in particular paragraph 6 thereof, I quote the following observation.
"6. A law in absolute terms cannot be laid down as to in which cases and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration."
7. In the case of M/s. Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, paragraph No.11 thereof reads thus;
"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 it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances...."
8. Having regard to the law laid down by the Apex Court in the above cited cases and to the various reported cases cited by Mr. Mehadia, which I have not referred to in this judgment, I feel that the parties as well as Counsel were guided by the statement of law in the case of M/s. Hindustan Tin Works Pvt. Ltd. when the litigation commenced in the Labour Court. In the instant case neither the employer nor employee pleaded anything in relation to the back wages nor proved the same. This is a case where the dismissal has been found to be wholly illegal and unjustified since the domestic enquiry that was held has been found to be not fair and proper but in violation of principles of natural justice and then the petitioner - Corporation did not choose to prove the charges levelled against the respondent - employee even before the Labour Court by grabbing the available opportunity. In my opinion, therefore, the interest of justice would be met if in so far as the issue regarding award of back wages is concerned, the matter is remitted to the Labour Court for deciding the issue as to whether the respondent - employee was entitled to back wages from the date of his dismissal till the date of his reinstatement further granting liberty to the parties to plead and prove their respective case. Hence, the following order.
9. Writ petition is partly allowed. The impugned orders passed by the Labour Court in Complaint ULPA No.1003/1989, dated 15-9-1994 as well as Industrial Court in Revision (ULPN) No.523/1994, dated 9-3-2005 in so far as direction for payment of full back wages to the respondent is concerned are quashed and set aside. The matter is remitted to the Labour Court, Nagpur for deciding the issue as to whether the respondent - employee is entitled to back wages from the date of his dismissal till the date of his reinstatement. The learned Labour Court shall allow the parties to plead and to lead their evidence on the said issue. The Labour Court is directed to decide the said issue within a period of six months from the date of receipt of writ from this Court.