1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4917 OF 1998 Shankar Rama Shelar ) `Kadam’ Building, Ground Floor, Room No.7, ) Pandit Din Dayal Road, Dombivli (West), Dist.Thane )..Petitioners Vs 1 Maharashtra State Road Transport Corporation ) Vahatuk Bhavan, Bombay Central, Bombay-400 009 ) 2 The Divisional Controller ) Maharashtra State Road Transport Corporation, Thane ) Divisional Office, Opp. Vandana Cinema, Thane )..Respondents ---- W I T H WRIT PETITION NO.1383 OF 1999 Maharashtra State Road Transport Corporation ) having its office at Vahatuk Bhawan, Bombay Central, ) Bombay-400 007, through its Divisional Controller, Thane Division )..Petitioners Vs Shankar Rama Shelar ) Kadam Building, Ground Floor, Room No.7, Pandit Din Dayal Road ) Dombivali (West), Dist. Thane, Maharashtra. )..Respondents ---- Mr.I.R.Kulkarni for Petitioner/Shankar Rama Shelar. Mr.G.S.Hegde for the respondent/MSRTC. ---- Coram : R.S.MOHITE,J Date : 19th November, 2009. 2 Judgment :- 1 Since both these writ petitions arise from a common set of facts, both can be disposed off conveniently by this common judgment and order. 2 Writ Petition No.4917 of 1998 is filed by the employee, whereas Writ Petition No. 1383 of 1999 is filed by the employer. The brief background of facts from which the aforesaid two writ petitions arise are as follows :- 3 That the employee was appointed as a clerk by the employer on 1.2.1970. On 29.6.1985, according to the employer the employee remained absent but signed the muster roll and drew his pay. 4 On 8.7.1985 according to the employer, the employee remained absent but signed his muster roll to show that he was present. 5 The employer treated the aforesaid two acts as mis-conducts on the part of the employee and commenced an inquiry by appointing an inquiry officer. The inquiry officer after considering the evidence led before him, held that the employee was guilty of mis- conduct and recommended that he be dismissed from service. 6 The employer thereafter without serving any show cause notice regarding the proposed punishment, terminated the services of the employee by the termination order with effect from 7.2.1986. 3 7 The employee thereafter, filed a complaint being complaint (ULP) No.42 of 1986 in the Fourth Labour Court at Thane alleging unfair labour practices covered under items 1(a), (b), (d), (f) and (g) of Schedule IV of the MRTU & PULP Act, 1971. The labour court upon consideration of the evidence before it, by its judgment and order dated 30.6.1993, held that the findings of the inquiry officer were perverse and the punishment of dismissal was grossly disproportionate, that this was a case of victimisation, that the punishment was not in good faith and that the punishment was for patently false reasons. The labour court also held that the show cause notice regarding proposed punishment for dismissal was not served upon the complainant. The labour court therefore, allowed the complaint and directed the employer-corporation to withdraw the dismissal order dated 7.2.1986 and to reinstate the employee with 50% back wages from 19.2.1986 i.e date of filing of the complaint till he was reinstated with continuity of service. 8 Cross revisions came to be filed by both the employee and employer before the bench of the Industrial Court, Thane. Revision (ULP) No.48/93 was filed by the employee whereas the Revision (ULP) No.68/93 was filed by the employer. After hearing both sides and considering the record before it, the Member, Industrial Court, Thane vide its judgment and order dated 31.7.1998 purported to dismiss both the revisions and confirmed the order dated 30.6.1993. After doing this, however, he proceeded to vary the impugned order and directed respondents to pay full back wages to the complainant from the date of order of the lower Court i.e. 30.6.1993 till his reinstatement. 9 On behalf of the employer it was contended that having held that no notice of the proposed punishment was served upon the employee, the labour court ought not to have 4 gone into the merits of the matter but ought to have remanded the matter to enable the employer to give a show cause notice in respect of the proposed punishment. It was further contended that the punishment could not be said to be shockingly disproportionate because it has come on record that there were four pending cases against the complainant. It was further contended that the lower court erred in granting back wages because it has come on record that the complainant had owned an ambassador car which he sold and had admitted that he was selling vegetables to maintain himself. It was lastly contended that in any case there was no reason to increase back wages from 50% to 100%. 10 On behalf of the employee it was contended that there was no reason for the industrial court to grant back wages from the date of the order of the labour court when the labour court had granted back wages from the date of the filing of his complaint. 11 After hearing both sides, I find that there is concurrent findings on the question that the punishment given is shockingly disproportionate. Admittedly, till the two incidents mentioned in the charge-sheet occurred in the year 1985 the applicant had already put in 16 years of service. As regards his remaining absent on 26.8.1985 the defence of the employee that in fact he had come to work but while he was working, he received a message regarding some domestic matter. He therefore handed over a leave application to one Mr.Pugavkar and thereafter by entrusting his job to a co-worker, he left the premises. The co-worker was examined as a witness and admitted that the leave application was given. He states that leave application was kept in the cash box. As regards the incident on 8.7.1985 also the defence of the employee is that he was not absent and had come to work and since he had come to work, he had signed the muster roll. But while at work he 5 had received the message which compelled him to leave the premises. On this occasion also, according to him, he had given a leave note which however, was not produced on the record. It is true that there is some reference to four pending cases against the employee but the Advocate for the employer could not show to me the nature of these cases. There is no mention about the nature of these cases on the record. On the contrary, the inquiry officer admitted in his evidence that no material regarding these cases were placed before him during the inquiry. In such circumstances, in view of the concurrent findings of the two lower courts who have found the punishment to be shockingly disproportionate, I find no reason to upset this finding. I, however, find that operative part of the judgment and order passed by the Industrial Court, Thane is erroneous and the operative part is not properly framed. He has given no cogent reasons whatsoever for increasing the back wages from 50% to 100%. In my view, it has come on the record that a leave application was never forwarded by the employee to the Depot manager. The employee has also therefore, not behaved properly and in accordance with the rules and this fact apart from the fact that he was conducting the business of selling vegetables, must weigh in the question of grant of back wages for the period he did not work. In my view, the industrial Court ought not to have interfered in its limited revisional jurisdiction with the quantum of back wages granted unless there were some compelling reasons. 12 In the circumstances, rule is made partly absolute and the respondent/employer is directed to pay 50% back wages to the employee from 19.2.1986 i.e date of filing of the complaint till the date of his retrenchment i.e 29.10.1998. As the employee has retired, there is no question of directing reinstatement. The complaint filed by the employee is allowed with the aforesaid directions. In my view, since I agree with the view that the 6 punishment is shockingly disproportionate, it is not necessary to go into the other aspects of the matter. The amount which is deposited in the court by the respondent/employer is allowed to be withdrawn by the employee and the amount so withdrawn will be adjusted against his dues. Rule in Writ Petition No.4917 of 1998 made partly absolute. Rule in Writ Petition No.1383 of 1999 stands discharged. Both the writ petitions stand disposed off accordingly. (R.S.MOHITE,J) 7