: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5205 OF 2009 Sangli Jilllah Prathamik Shikshak Sahakari Bank Ltd. ... Petitioner V/s. Tanajirao Balwant Patil ... Respondent Mr.M.S. Topkar for Petitioner Mr.K.S. Bapat i/b Avinash Fatangare for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: JUNE 28, 2010 P.C.: 1. Rule. By consent of the parties, Rule called out and heard finally. 2. The Petitioner has approached this Court against the order of the Industrial Court dated 30.10.2009. By this order, the Industrial Court held that the Petitioner had committed an unfair labour practices under Items 5 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. 3. It appears that the petitioner had impugned the order of the Industrial Court by filing Writ Petition No.1302 of 1990. The Industrial Court by that order had taken the view that the punishment of dismissal from service which was imposed on the : 2 : respondent was grossly disproportionate. The Industrial Court therefore granted the relief of reinstatement with 1/3rd backwages from March 1982 to April 1986 and denied him the rest of the backwages. 4. This writ petition was heard by this Court. The learned Judge hearing the matter has recorded that the parties had accepted the suggestions of the Court and, therefore, the following order was passed by this Court: - 3. (1) The Petitioner shall reinstate the First Respondent from 1st January, 1993. (2) Between the period from today to the said date, the First Respondent shall forward to the Petitioner’s management certificates from the employers indicating the period of alternative employments and the total emoluments drawn by him in such alternative employments subsequent to the date of his dismissal from the petitioner’s service. (3) The Petitioner shall pay to the First Respondent an amount equivalent to 50% of the difference between his back-wages for the period commencing from 22nd March, 1982 to 1st January, 1993, after deducting therefrom the total sum earned by him in alternative employments, as evidenced by the certificates furnished by him. Such payment shall be made not later than 31st January, 1993. 5. The question in dispute is the interpretation of clause 3 of this order. The petitioner, according to the respondent workman, had not calculated the backwages : 3 : in accordance with clause 3 of the aforesaid order of this court. He therefore filed a complaint before the Industrial Court under Items 5 & 9 of Schedule IV of the MRTU & PULP Act. The Industrial Court by the impugned order has held that the Petitioner has engaged in an unfair labour practice under Items 5 and 9. 6. The dispute regarding interpretation of clause 3 above is in my view untenable. The words used in clause 3 are unambiguous and warrant no other interpretation other than the specific sense made from those words. The Court has recorded that the parties agreed that the Petitioner would pay the workman an amount equivalent to 50% of the difference in backwages for the period from 22.3.1982 to 1.1.1993 after deducting the sum earned by him in alternate employments. This obviously means that the amount which he had earned would be deducted from the total backwages payable to him and the 50% of that balance would be paid to the workman. The Industrial Court has rightly observed thaty the amount calculated by the petitioner was incorrect. 7. The other issue raised by Mr.Topkar, appearing for the petitioner, is that while calculating the backwages it is not necessary to consider the increments which the workman would have earned from 22.3.1982 to 1.1.1993 had he been in service. He relies on the judgment of the Supreme Court in the case of Andhra Pradesh State Road Transport Corporation & anr. v/s.S. Narsagaud, 2003 I CLR 511 and more specifically para 9 of the judgment. 8. Mr.Bapat appearing for the respondent workman has rightly submitted that the parties had settled the dispute between themselves culminating in an order passed : 4 : by this Court on December 17, 1992. He points out that in a “spirit of settlement”, the parties had agreed that the workman should be paid 50% of the difference of backwages for the period of his unemployment after deducting the amount he had earned elsewhere. He submits that at that point of time, the petitioner had not raised the issue regarding the increments for the intervening period not being payable. 9. In my view, Mr.Topkar’s interpretation of this judgment cannot be accepted. Para 9 of the judgment cannot be read out of context of the facts in that matter. Mr.Bapat has rightly pointed out that it was in the fact situation of that matter, that observations in para 9 had been made. 10. To appreciate the submissions of the learned Counsel it would be necessary to consider the facts in the APSRTC vs. S. Narsagaud’s case (supra). The workman in that case was a conductor who was absent from duty on several occasions. A chargesheet was issued to him in which it was mentioned that the period of absence would be considered as unauthorised absence from duty. A departmental enquiry was held and the explanation advanced by the workman was not found sufficient to condone his absence. The punishment of removal from service was therefore, imposed on the workman. The Labour Court in the Reference raised for adjudication of the dispute held that though the respondent workman was guilty of the charges levelled against him he was entitled to reinstatement with continuity of service but without backwages. Aggrieved by the decision, the workman preferred a writ before the High Court of Andhra Pradesh. One of the grievances raised by the workman was that his pay fixation on reinstatement in service was incorrect as the increments which he was entitled to were not taken into account. The High Court directed the : 5 : Corporation to compute the periodical increments that the workman would have earned had he been in service during the period of absence from duty and to fix the wages payable to him by including these increments. The intra-Court appeal filed by the Corporation was dismissed and hence, the appeal before the Supreme Court. The Supreme Court in the light of these facts observed thus: 5. The only submission made by the learned counsel for the appellant is that when an employee remains unauthorisedly, absent from duty and though he has been directed to be reinstated with continuity of service by a judicial order unless and until there is a direction for released of consequential benefits and specifically for the benefit of increments being given which the employee might have earned during the period of unauthorised absence from duty merely because the employee has been allowed the benefit of continuity of service the benefit of such increments cannot be released to him. The benefit of continuity of service only means that for the purpose of seniority and pensionary benefits the period of absence shall be taken into account as spent on duty, submitted the learned counsel for the appellant. In support of his submission he has also invited our attention to the provisions of Andhra Pradesh State Road Transport Corporation Employee (Pay and Allowances) Regulations, 1964 and a circular issued thereunder by A.P.S.R.T.C. 6. The said Regulations have been framed and promulgated in exercise of the statutory powers conferred on the Corporation, Para 13 of the Regulations provides inter alia as under:- "13.(1) All duty in a post on a time-scale counts for increments in that time-scale. (2) Service in another post, whether in a substantive of officiating capacity, service on deputation and leave other than extraordinary leave or leave without pay count for increments in the time-scale applicable to the post on which the employee holds a lien, as well as in the time- scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended: Provided that the competent authority shall have the power in any case in which it is satisfied that the extraordinary leave or leave without pay, as the case may be, was taken on account of illness or any other cause beyond the employee's control, to direct that such period shall count for increments under this clause. Explanation: Where an employee is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time- scale under Clause (5) of the Regulation 9, the period of officiating : 6 : service shall not count for increments under Clause (2) above. xxx xxx xxx xxx xxx (8) A period of overstayal after the expiry of leave or joining time, as the case may be does not count towards increments unless it is commuted into extraordinary leave or leave without pay, as the case may be and extraordinary leave, or leave without pay is specifically allowed to count for increments." xxx xxx xxx xxx xxx 7. On 8.9.1992, the Corporation issued Circular No. 19/9 laying down guidelines for implementation of the Awards of Labour Courts in the matter of fixation of pay of employees reinstated pursuant to such Awards subject to result of writ petitions. The Circular provides inter alia as under:- "(2) When an employee is reinstated into service with continuity of service only, the last pay drawn by the employee has to be fixed at the appropriate stage in the revised pay scale 1989 without adding any notional increment for the period out of service. xxx xxx xxx xxx xxx (4) On fixation of pay as on the date of reinstatement annual increment may be regularly drawn." xxx xxx xxx xxx xxx 8. However, it appears that consequent upon the judgment of the learned single Judge dated 16.8.1999 and other similar judgments disposing of the writ petitions, the Corporation was compelled to issue another circular whereby it directed that in view of the said judgments of the High Court it was necessary that in a case where an employee was directed to be reinstated with continuity of service the pay of the employee shall be re-fixed by giving notional increments for the period out of service though the monetary benefit of revised fixation shall be given only from the date of reinstatement. The effect of the judgment of the learned single Judge, upheld by the Division Bench and the Circular issued consequent upon the judgment of the High Court is that the employee being reinstated, inspite of having been held guilty of unauthorised absence from duty, continues to earn increments though there is no payment of wages for the period of absence. This results into an incongruous situation, submitted the learned counsel for the appellant. 9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from : 7 : reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service. 10.The Regulations referred to hereinabove clearly spell out that the period spent on the extraordinary leave or leave without pay or a period of over-stayal after one expiry of leave or joining time cannot count towards increments unless the order of the competent authority sanctioning the extraordinary leave or leave without pay or the order commuting the period of over-stayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorised absence from duty treated as a misconduct and held liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of over-stayal. Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave, the entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorised absence from duty though held liable to be punished in departmental inquiry proceedings would amount to putting a premium on the misconduct of the employee. 11. In my view, it is therefore, clear that the judgment of the Supreme Court in the aforesaid case dealt with the situation where the regulations of the State Transport Corporation clearly had a provision that a period of overstay upto the expiry of the leave would not count towards increments unless it was commuted into extra-ordinary or leave without pay and that such leave was specifically allowed to count of increments. It is in these circumstances that the Supreme Court observed that backwages in that case were to be paid without considering the increments and that the pay of the workman was to be fixed on last dawn wages. : 8 : 12. In my opinion, the judgment of the Supreme Court in the case of APSRTC v/s. S.Narsagoud (supra), has no application to the facts and circumstances in the present case. 13. Rule is thus discharged. No costs.