1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 690 OF 1999 Maharashtra State Road Transport Corporation ... Petitioners v/s Ramchandra Dattatraya Nilkant ... Respondent Mr.G.A.Karmalkar i/by Mr.G.S.Hegde for the petitioners. None present for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 16TH DECEMBER, 2010 ORAL JUDGMENT: 1. The petitioner has approached this Court against the award passed by the Labour Court on 16.2.1998 in Reference (IDA) No.123 of 1993. 2. The respondent was employed as a Conductor. It was found that there was shortage of an amount in his collections when the bus, on which he was on duty, was checked on 18.4.1975. The respondent was charge-sheeted on 1.7.1976 2 for the misconduct committed under Clauses 10, 12(b) and 22 of the Disciplinary and Appeal Procedure applicable to the workman employed with the petitioners. According to the petitioners, an enqury was held against the respondent in which he was found guilty of the acts of misconduct alleged against him. He was, therefore, dismissed from service on 3.6.1977. 3. It appears that the respondent did not raise an industrial dispute till 12.10.1992. A reference was made for adjudication of the dispute on 24.11.1993. The Labour Court after hearing the parties and considering the evidence led before it, held that the workman had been dismissed after holding a fair and legal enquiry. However, the Labour Court was of the view that the findings recorded by the enquiry officer were perverse and, therefore, the misconduct committed had not been proved. The Labour Court has granted reinstatement with continuity of service. In view of the delay in obtaining the reference, the Labour Court has granted back wages from 19.4.1994 till the date of actual reinstatement. Aggrieved by this award, the petitioners have approached this Court under Article 227 of the Constitution of India. 3 4. The first submission advanced by Mr.Karmalkar appearing for the petitioners, is that the reference was made after almost 20 years from the date of the dismissal order. According to him, the Labour Court ought to have rejected the reference at the threshold itself since there was such an inordinate delay on the part of the respondent. He submits that although it is true that there is no period of limitation provided for making a reference under Section 10 of the Industrial Disputes Act, the reference must be made as expeditious as possible. According to him, therefore, the inordinate delay of almost 20 years is inexcusable. He has relied on the judgments of the Supreme Court in the case of Nedungadi Bank Ltd. v/s K.P.Madhavankutty & ors., reported in (2000) 2 SCC 455 and in the case of Indian Iron & Steel Co. Ltd. v/s Prahlad Singh, reported in (2001) 1 SCC 424, in support of this submission. 5. It is true that there has been an inordinate delay on the part of the respondent in approaching the machinery available to him under the Industrial Disputes Act for redressal of his grievance. The Labour Court, on considering this fact, has concluded that the workman would not be entitled to back wages because of the delay in raising the industrial dispute. In the case of Nedungadi Bank Ltd. 4 (supra), the issue before the Supreme Court was whether a reference could be dismissed if it is not made within a reasonable time. The Bank had approached the High Court immediately after the reference was made in that case and had raised the issue about the delay in referring the dispute for adjudication. It is in these circumstances that the Supreme Court held that the reference could be rejected at the threshold itself by the appropriate Government in view of the unexplained and inordinate delay. This judgment does not have any application to the facts in this case as the petitioners have not challenged the reference immediately after it was made. In fact, they proceeded with the reference and participated in the adjudication proceedings. Therefore, it is not open to the petitioners to contend, after 20 years, that the reference was bad. 6. In the case of Indian Iron & Steel Co. Ltd. (supra), the Industrial Tribunal found that the reference was belated and dismissed it because the dispute was raised several years after the order of dismissal was passed against the workman. A learned Single Judge of the High Court quashed the award and directed that the workman should be reinstated in service with back wages from the date the dispute was referred for adjudication by the appropriate Government. This judgment was confirmed by the Division 5 Bench of the High Court. The Company then preferred a Special Leave Petition. The Supreme Court held that the Tribunal’s finding that the claim of the workman was stale and, therefore, could not be granted any relief was correct. The Apex Court further noted that the Tribunal had not refused relief merely on the ground of delay and laches but also on merits. In these circumstances, the Supreme Court was of the view that the High Court ought not to have interfered with the award, more so, because there was a delay of 13 years in raising the industrial dispute. 7. In my opinion, these judgments would have no application to the facts and circumstances in the present case. This is because the Labour Court has considered the contention of the petitioners that there was a delay in raising the industrial dispute. However, it has found it fit to entertain the reference and to grant relief to the workman. The petitioners ought to have challenged the reference at that stage itself when it was made rather than waiting for 20 years to contend that the reference was bad because the claim was stale. The judgment in the case of Indian Iron & Steel Co. Ltd. (supra) also does not help the petitioners. The Supreme Court has merely held that the High Court ought not to have interfered in the facts and circumstances of that case. It further opined that the question whether relief 6 can be declined on the ground of delay and laches would depend on the facts obtaining in each case. 8. In the present proceeding, in my opinion, the submission of Mr.Karmalkar made today, cannot be accepted as the reference has proceeded and the petitioners have not cared to challenge the reference on the ground that it was belated at the threshold. 9. The second submission of Mr.Karmalkar is that, because of the delay in raising the industrial dispute, the petitioners were handicapped as they were unable to produce the record of the enquiry proceeding. He submits that it is a practice in the Corporation to destroy records after 10 years. He therefore submits that the petitioners were unable to produce relevant records pertaining to the enquiry held against the respondent. 10. In my view, this submission of the learned advocate cannot be accepted. The petitioners have not led any evidence whatsoever before the Labour Court in order to prove that there was in fact a practice prevailing in the Corporation to destroy papers which are more than 10 years old. In these circumstances, the Labour Court had, in my opinion, rightly observed that the contention of the 7 Corporation that the papers were destroyed could not be accepted. 11. The third submission of Mr.Karmalkar is that the workman had admitted the misconduct. By relying on few lines from the award, the learned advocate wants me to draw this inference. In my opinion, it is not possible to do so. Firstly, the statement of claim is not on record before me. Therefore, I am unable to accept or appreciate the submission of the learned advocate that there was in fact an admission on the part of the workman that he had committed a misconduct. Secondly, the paraphrasing of the statement of claim in the award also does not indicate that the workman had in fact admitted his guilt. This submission of the learned advocate cannot be accepted. 12. The last submission of Mr.Karmalkar is that the Labour Court erred in granting back wages to the workman. He points out that the workman has not led any evidence to show that he was not gainfully employed after his dismissal from service. In such circumstances, according to Mr.Karmalkar, the Labour Court ought not to have granted back wages. On a perusal of the award, I find that this submission of Mr.Karmalkar deserves to be accepted. Although the Labour Court has not granted back wages from 8 the date of the reference as is usual done, it has granted the back wages from 19.4.1994 which was the date on which the statement of claim was filed by the workman. The Labour Court has recorded that the respondent had not made any statement in his statement of claim about his gainful employment after being dismissed from service by the Corporation. When there were no pleadings, the Labour Court ought not to have in these circumstances granted back wages to the workman. In these circumstances, the Labour Court has erred in granting the back wages to the workman. 13. The award of the Labour Court is set aside partly and modified as follows :- (i) The petitioners are directed to reinstate the respondent in his original post with continuity of service but without back wages. (ii) The order of dismissal dated 3.6.1977 is set aside. 14. Rule made absolute partly. No order as to costs. 15. The petitioners had deposited the back wages amounting to Rs.1,88,871/- when the petition was admitted pursuant to the orders of this Court. That amount be returned to the petitioners together with the accrued interest, if any. ..... 9 10