1 Lpa46-11 dmt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 46 OF 2011 IN WRIT PETITION NO. 2890 OF 1999 WITH CIVIL APPLICATION NO. 52 OF 2011 Pune Mahanagar Parivahan Mahamandal Ltd., .... Appellant. vs. Sonu Mahadeo Chavan .... Respondent. Mr. R. M. Pethe for Appellant. Mr. S.R. Nargolkar for Respondent. CORAM : P.B. MAJMUDAR & A.A. SAYED, JJ. DATE : 8TH JUNE, 2011. P.C. Heard. Admit. 2. Mr. Nargolkar, the learned counsel for the respondent waives service of admission of this appeal. 3. With consent of both the advocates, the matter is heard today finally. 2 Lpa46-11 4. This appeal is preferred by the Appellant Pune Mahangar Parivahan Mahamandal Ltd., challenging the order passed by the learned Single Judge dated 14.6.2010 in Writ Petition No. 2890 of 1999. By the impugned order, the learned Single Judge allowed the writ petition filed by the respondent workman and awarded back wages and other consequential benefits with effect from 6.7.1987. While awarding the same the learned Single Judge has deducted Rs. 600/- per month as the workman has admitted before the Labour Court that during the intervening period he was doing casual work and earning Rs. 600/- per month. 5. The respondent workman was appointed as a driver by the appellant Municipal Corporation. While in employment, he was subjected to a departmental inquiry on the ground that he committed a fatal accident while driving a bus owned by the appellant Corporation. The respondent workman was also subjected to criminal proceedings in which he was acquitted. After the inquiry was completed, the respondent workman was dismissed from service by an order dated 16.8.1979. The respondent workman thereafter approached the Conciliation Officer on 16.7.1987. A reference was made for adjudication before the Labour Court. The Labour Court found that the appellant Corporation has failed to prove the charge of misconduct against the respondent workman. The Labour Court accordingly granted reinstatement order. However, the same was granted without continuity of service and without back wages. It is pertinent to note that the order of reinstatement passed by the Labour Court was not challenged by the appellant 3 Lpa46-11 Corporation and, therefore, the said order has achieved finality. The respondent workman however challenged the said order in so far as the Labour Court denied back wages and continuity of service. The learned Single Judge came to the conclusion that once the order of reinstatement is passed, there was no reason to deny continuity of service and other consequential benefits. The learned Single Judge restricted the payment of back wages from 6.7.1987 i.e. the date on which the respondent workman approached the Conciliation Officer as the respondent workman had not approached the Conciliation Officer immediately after the dismissal order was passed but had approached the Conciliation Officer after a long period. The aforesaid order of the learned Single Judge is under challenge in this Letters Patent Appeal. 6. So far as the order of reinstatement is concerned, the Appellant Corporation has not challenged the same and the order passed by the Court regarding reinstatement has become final. It is argued however by the learned counsel for the appellant that the learned Single Judge should not have granted any back wages in view of the fact that the respondent workman was guilty of delay and laches in approaching the Conciliation Officer. 7. Mr. Nargolkar, the learned counsel for the respondent workman on the other hand submitted that the appellant Corporation has already reinstated the respondent workman in service. But when the appellant Corporation failed to lead any evidence about the gainful employment of the respondent workman and when 4 Lpa46-11 the respondent workman himself has admitted that he was earning Rs. 600/- per month, the learned Single Judge has rightly deducted the said amount and has rightly given benefit of back wages from July 1987 and has rightly not given back wages from 16.8.1979 to 5.7.1987. It is submitted that the discretionary order passed by the learned Single Judge may not be interfered with by this Court in the Letters Patent Appeal. 8. It is further argued that once the order of reinstatement is not challenged by the management, it is not open to the management now to argue that the back wages should not have been granted by the learned Single Judge. 9. We have heard the learned counsel at length. We have gone through the judgment and award of the Labour Court as well as the order of the learned Single Judge. It is unfortunate that the appellant Corporation remained negligent and has not filed any petition challenging the order of reinstatement passed by the Labour Court. The respondent workman was dismissed from service in 1979 and he approached the Conciliation Officer for the first time by way of demand after about 8 years thereafter. However, since the order of the Labour Court regarding reinstatement has become final, now the only question which is required to be considered is whether the learned Single Judge was right in granting back wages for the relevant period. It is true, as argued by Mr. Nargolkar, that the appellant Corporation has not led any evidence to point out that the respondent workman was in gainful employment. It is true that the order of reinstatement is also not 5 Lpa46-11 challenged by the appellant Corporation. However, the question requiring consideration is whether the award of back wages should be a matter of course the moment the order of reinstatement is passed. It is no doubt true that the appellant Corporation has remained totally negligent both in the matter of challenging the order of reinstatement as well as even leading proper evidence before the Labour Court. Even not a single argument is canvassed before the learned Single Judge that a person serving as a driver may not remain without work for such a long time. It is true that the respondent workman himself has said that he was getting Rs. 600/- per month during the intervening period. It is not the mandate of law that in every case the moment the order of reinstatement is passed back wages must follow. In a given case the Court can draw a reasonable inference regarding gainful employment of the concerned workman. In the instant case, the concerned workman himself remained negligent as he approached the Conciliation Officer after 8 years after the order of removal. It is also required to be noted that the respondent workman at the relevant time was serving as a driver and it is not possible to believe that for such a long time he would have remained unemployed or might be serving on a meager amount of Rs. 600/- per month. In a given case while granting back wages the Court has to balance the equities in the facts of the case. Considering the nature of the duties performed by the respondent workman, in our view, it would be just and appropriate to reduce the amount of back wages for the intervening period i.e. 6.7.1987 till the order of reinstatement to the extent of 50% only. In our view, the learned Single Judge rightly passed the order of continuity of service as past service rendered by the respondent workman cannot 6 Lpa46-11 be allowed to be wiped out. Mr. Nargolkar, the learned counsel for the respondent workman submitted that in the case of Ajaib Singh vs. Sirhind Co-op. Marketing cum Processing Service Society Ltd., & Anr., reported on 1999 I CLR 1068 the Supreme Court has granted 60% back wages. The learned counsel for the appellant however submitted that in the said case no inquiry was held against the said workman. 10. In so far as the payment of back wages is concerned, there is no straight jacket formula and the Court is required to consider this aspect on case to case basis on the facts of each case. In payment of back wages, what should be the quantum of back wages is a matter which depends on the facts of each case. As stated above, the respondent workman approached the Conciliation Officer after a considerable period of time. Considering the said aspect, while confirming the order of reinstatement of the respondent workman with continuity of service, we modify the order of back wages for the period for which the same is granted by the learned Single Judge to 50% only. The Appellant Corporation shall pay back wages to the respondent workman for the intervening period i.e. from 6.7.1987 till he was reinstated to the extent of 50% only with continuity of service. The amount should be paid within a period of two months from today. 11. The appeal is accordingly partly allowed to the aforesaid extent. There shall be no order as to costs. 7 Lpa46-11 12. In view of the disposal of the appeal, the civil application does not survive. The same stands dismissed. (A.A. SAYED, J.) (P.B. MAJMUDAR, J.)