(1) WP. 1015.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1015 OF 2010 Asabdulla Baig S/o Gulab Baig Age : 49 years, Occu.: Service, R/o. Summayya Colony, Near B & C Colony Chaitnya Nagar, Nanded, Dist. Nanded .. Petitioner VERSUS 1] Maharashtra State Road Transport Corporation, Through its Divisional Traffic Officer, Nanded Division, Nanded 2] Maharashtra State Road Transport Corporation, Through its Divisional Controller, Office situated at Opposite to Workshop Nanded, Tq. and Dist. Nanded .. Respondents AND WRIT PETITION NO. 1467 OF 2010 1] The Divisional Controller, Maharashtra State Road Transport, Corporation, Nanded Division, Nanded 2] The Divisional Traffic Controller, Maharashtra State Road Transport Corporation, Nanded Division, Nanded .. Petitioners VERSUS Asabdulla Baig S/o Gulab Baig, Age : 50 years, Occu.: Nil, R/o Summayya Colony, Near B & C Colony, Chaitanya Nagar, Nanded Dist. Nanded .. Respondent Mr. M.C. Syed,Advocate for the Petitioner In W.P. 1015.2010 and for the respondent in W.P. 1467.2010 (2) WP. 1015.2010 Mr. M.K. Goyanka, Advocate for the Respondents In W.P. 1015.2010 and for the Petitioners in W.P. 1467.2010 ... CORAM : V.R. KINGAONKAR, J. DATED : 21ST JUNE, 2010 ORAL JUDGMENT:- 1] Rule. Rule made returnable forthwith. By consent, both the Petitions are finally heard and are being disposed of together inasmuch as they arise out of same judgment rendered by the Labour Court, Nanded in Complaint (ULP) no. 24 of 2005. By that judgment, the Labour Court directed the reinstatement of the employee on account of unfair labour practices committed by the employee (M.S.R.T.C.). The Labour Court also granted 25% of the backwages. The employees is aggrieved due to dismissal of claim of full backwages whereas the employer is aggrieved by grant of 25% of the backwages as well as the relief for reinstatement of the employee. 2] The employee (Asabdulla Baig) was temporarily working as Driver on the establishment of the employer i.e. MSRTC. He was driving a S.T. bus bearing registration no. MH-20-D-3135 on the fateful day i.e. 12.2.2002. The S.T. bus was being driven on Nijamabad–Hadgaon road and there was about 75 passengers on the board. The S.T. bus allegedly was (3) WP. 1015.2010 being driven in high speed. The driver was unable to control the vehicle, as per the MSRTC, and therefore the S.T. Bus left the main road and fell in a ditch after taking multiple somersaults. With the result, 65 passengers were injured. Though the employee (driver Asabdulla Baig) was prosecuted for offence of rash and negligent driving of the S.T. bus yet he was acquitted. The M.S.R.T.C. however, held him guilty of rash and negligent act during the course of employment and therefore dismissed him after taking due disciplinary action. The defence of the petitioner was that due to defective shockle pin it was broken and as such the accident had occurred. The M.S.R.T.C. however, held that conduct of the driver was indicative of fault because he had fled away from the spot without giving report about the accident. 3] On merits, the Labour Court held that the rash and negligent driving of the petitioner was not proved and that he could not be held responsible for the accident. The Labour Court held that it was more plausible that the accident was result of mechanical failure. Consequently, it was held that the penalty awarded to the employee was shockingly dis- proportionate to the alleged act and that there was no sufficient proof to infer that the driver was rash and negligent while driving the S.T. bus. Hence, the Labour Court came to the conclusion that M.S.R.T.C. (4) WP. 1015.2010 committed unfair labour practice and as such partly allowed the Petition as said earlier. 4] Heard learned counsel for the parties. It is significant to notice that the report of the Depot Manager was placed on record. It was explicit that the speedometer of the S.T. bus was showing the speed of 50 Kms/ph. Needless to say that such a speed of heavy vehicle like S.T. bus cannot be regarded as excessive and too much high. The contention of the Depot Manager was that the driver lost control as the S.T. bus was negotiating a curve at the relevant place. The Depot Manager did not obtain any report from the mechanical department nor the mechanic of the concerned depot was called in the witness box to prove that there was no mechanical defect before the S.T. bus put on road. The statements of the passengers before the Criminal Court had indicated that the S.T. bus was being driven with slow speed and due caution. The fact that accident occurred by itself, would not be sufficient to hold that the charge levelled against the employee was proved. The alleged mis-conduct was not duly proved. The inference drawn by the M.S.R.T.C. on account of conduct of the driver he had fled away from the spot is also not proper. It is of common knowledge that many a times, drivers involved in an accident are scared due to likelihood of violence which the public members may commit at the secluded place. In such a (5) WP. 1015.2010 case, aggrieved injured persons or the villagers are pitted against lonely driver and hence he may have tendency to run away at the first available opportunity. Considering the materials placed on record, the Labour Court reached the proper inferences and the revisional Court also concurred with the same findings. The revision Petition filed by the M.S.R.T.C. (revision application (ULP) no. 17 of 2009) also was dismissed. This concurrent finding need not be interferred with in the exercise of the extra-ordinary jurisdiction. It is not necessary to re-appreciate the evidence on record. 5] So far as backwages are concerned, Mr. Goyanka would submit that unless there was proof about lack of gainful employment by the employer, 25% of the backwages could not have been granted. He would submit that the Labour Court as well as the revisional Court did not ascribe any particular reason in support of the orders to grant back-wages and as such the impugned judgment to the extent of grant of backwages is unsustainable. On the other hand, Mr. Syed would submit that the burden of proof is on the employer and that 100% backwages ought to have been granted. Mr. Goyanka seeks to rely on "Talwara Co-operative Credit Service Society Ltd. Vs. Sushil Kumar 2008 AIR SCW 6532" contended that the burden of proof is on the employee. He also referred to "Kendriya Vidyalaya Sangathan and anr. Vs. S.C. (6) WP. 1015.2010 Sharma AIR 2005(8) S.C. 768". The Apex Court in the given case held that though the employee had not pleaded or produced any evidence that after dismissal of service, he was not gainfully employed, he was not entitled to full backwages. It is observed in paragraph 15 as under: “15. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.“ . It may be mentioned that "Talwara Co-operative Credit Service Society (supra)" does not deal with the issue regarding question of burden of proof to establish presence or absence of the gainful employment. In "Lalchand Govindrao Dhoke V. Industrial Court, Maharashtra Nagpur Bench and others 2005(3) Mh.L.J. 497" a single Bench of this Court held that the Industrial Court erroneously placed the burden upon the employee, and the finding that the employee did not adduce any evidence to show that he was gainfully employed during the period of his unemployment was un-sustainable. (7) WP. 1015.2010 6] The question of granting or refusing backwages would always depend on the fact situation of each case. The employee may be unable to get the employment during the relevant period due to peculiar fact situation and would be entitled to receive the backwages fully or partly as the case may be. The Labour Court no doubt came to the conclusion that no evidence was adduced by the employee to show that he was not in gainful employment after the termination. The employee (driver) had however, alleged that he was entitled to backwages because he was not gainfully employed during the relevant period. It is important to note that the employee was facing criminal prosecution after the accident. He was also suspended and enquiry was held against him. It is of common knowledge that during course of departmental enquiry, generally there is a condition imposed on the employee that he shall not accept any employment during the period of enquiry. Had the employee committed any breach of such condition, he would have been exposed to further enquiry or penalty. There was never allegation during the course of the departmental enquiry that he had committed breach of such condition. Considering this peculiar fact situation, the employee was not under an obligation to fully establish absence of gainful employment. It is, therefore, reasonable to infer that atleast for part of the period he was under prohibitory orders and could not have received gainfully employment. (8) WP. 1015.2010 7] Taking overall view of the matter, I do not find any substance in either of the Petitions. Both the Petitions are dismissed. Rule discharged. No costs. Sd/- [V.R. KINGAONKAR, J.] arp