1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3887 OF 1991 Rangnath Eknath Gadhe, Aged 46 years, Occu. Service, at present service as the Conductor at Jamkhed, r/o C/o Ramchandra Vithal Thorat, Wadi Panture, at post and Taluka Rahuri, District : Ahmedngar ... Petitioner. Versus Division Officer, Maharashtara State Road Transport Corporation, Ahmedngar Division, Ahmednagar ... Respondent. -------- Shri. S.T. Shelke, Advocate for the petitioner. Shri. Manoj Shinde h/f M.K. Goyanka, advocate, for the Respondent. -------- CORAM: S.S. SHINDE, J. DATE: 13th JANUARY, 2010 ORAL JUDGEMENT : 1) This Writ Petition is filed with main prayer to quashed and set aside the order dated 2 31-01-1991 passed by the Presiding Officer, Labour Court, Ahmednagar in Reference (IDA) No. 41 of 1983, in so far it relates to the full back-wages and directed the respondent Corporation to pay back wages with effect from 15-10-1966 to the petitioner. Brief facts of the case discussed in the petition are as under. The petitioner herein is the original second party and the respondent herein is the first party in Reference (IDA) No. 41 of 1983 decided by the Presiding Officer, Labour Court, Ahmednagar. The petitioner herein has challenged Award to the extent it refuses back wages to the petitoiner. 2) It is the case of the petitioner that, the conciliation proceedings were taken before the Conciliation Officer in respect of the dispute and the conciliation officer submitted his report under Sub Section 2 of Section 12 of the Industrial Dispute Act, 1947. In pursuance 3 to the said report Deputy Commissioner of Labour, Pune made a reference under clause c of sub section 1 of Section 10 read with sub section 4 of Section 12 of the Industrial Dispute Act, 1947 to the Labour Court, Ahmednagar for the adjudication of the dispute. The petitioner was called upon to submit his statement of claims. The petitioner herein filed detailed statement of claims. The respondent corporation had also filed written statement to the statement of claims and denied the averments and statements made by the petitioner herein. 3) The Presiding Officer, Labour Court, Ahmednagar adjudicated the dispute between the parties and passed an Award dated 31-1-1991, whereby the petitioner was reinstated in service with continuity from 15-10-1966 but without back wages. It is the case of the petitioner that, the Presiding Officer, Labour Court, Ahmednagar attributed the fault of delay to the petitioner without taking much pains in going into the 4 matter , as to why the delay has been caused. The petitioner is aggrieved by the said order, in so far it relates to the refusal of full back wages. Hence this Writ Petition. 4) The learned counsel appearing for the petitioner submitted that, after the dismissal of the petitioner from the service, he preferred an appeal to the special appellate committee at Ahmednagar. The said appellate committee did not call upon the petitioner herein to put forth his case. The petitioner was not given the order passed by the said appellate committee, but was orally told that the case of the petitioner herein has been considered on sympathetic ground and the petitioner would be re-appointed as helper in first available vacancy as a fresh recruit. The petitioner demanded the copy of the order passed by the special appellate committee which was never given to the petitioner. On the contrary, orally it was told that petitioner will be given an order in writing as regards the 5 appointment as labour. It is further argued that the petitioner also made representation to the Chairman of the respondent corporation and requested the said authority to do justice to the petitioner. However, no decision was communicated to the petitioner herein in respect of the representation made to the Chairman. The representation made to the Chairman carries nomen clature of mercy appeal. The petitioner thereafter, made representation to the authorities of the respondent corporation as regards fresh order of appointment as labour, but no communication was effected by the respondent corporation. It is further argued that, as the authorities respondent corporation were deaf and dumb towards grievance of the petitioner, petitioner was constrained to observe fast un- till death, petitioner informed the authorities in writing to that effect. The authorities of the respondent corporation informed the petitioner after notice of the fast that the request of the petitioner as regards appointment 6 order as labour cannot be entertained. According to the petitioner herein this is only correspondence received by the petitioner herein from the authorities of the respondent corporation. It is further argued that, the petitioner has written to the authorities of the respondent corporation as well as to the high officials of the Government time and again, but none of them cared to make a correspondence with the petitioner. It is submitted that, the petitioner is a very poor person and the petitioner has no source of earning for livelihood of the family except the income derive from the service. It is further submitted that, in fact, the first appellate authority had no authority to review the order of stoppage of increment for one year and the said committee had also no authority to pass an order to the effect that the petitioner be re-appointed as a labour instead of allowing or rejecting the appeal preferred by the petitioner. It is further submitted that, the Divisional Controller of 7 corporation again reviewed the order passed by the competent authority despite the fact that, the order passed in domestic inquiry was not in consonance with the Rules as well as with the principles of natural interest of justice. It is further submitted that, the Divisional Controller had no authority under law to review the order in domestic inquiry, the special appellate committee again acted beyond the authority namely to reject or allow the appeal and substituted its own decision contrary to the jurisdiction conferred on it. It is further submitted that, it was burden of the respondent corporation to prove that the petitioner had been indolence, all the while and in view of this indolence petitioner is not entitled for the back wages, and this burden has not been discharged by the respondent corporation which raised presumption in favour of the petitioner. It is further submitted that, the petitioner is waiting for justice from 1966 and impugned Award passed in his favour on 31-01-1991 and by not assigning any reasons 8 whatsoever, the Presiding Officer, Labour Court, Ahmednagar has refused the back wages merely on the ground that, the second party i.e. present petitioner has raised this dispute after long spell and time and on his own accord such delay is caused. According to the learned counsel, except this reason no any other reason is assigned by the Presiding Officer, Labour Court, Ahmednagar in refusing back wages to the petitioner. The learned counsel appearing for the petitioner placed reliance on the judgement of the Supreme Court in case of “ M/s. Hindustan Tin Works Pvt. Ltd., V/s. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. & others reported in AIR 1979, Supreme Court 75,” the learned counsel submitted that, there was no reason to refuse the back wages when reinstatement is ordered by the Presiding Officer, Labour Court, Ahmednagar. Therefore, the learned counsel relying on the afore said pronouncement of the Hon’ble Supreme Court would submit that, the petitioner is entitled for full back wages. 9 The learned counsel further place reliance on the judgment of Hon’ble Apex Court in the case of “C.N. Malla V/s. The State of Jammu & Kashmir & others, reported in (2009) 9 Supreme Court Cases, 597” the learned counsel submitted that, the Labour Court was not justified in refusing the back wages to the petitioner. It is submitted that, denial of back wages by the Labour Court is without assigning any reason and labour Court failed to exercise its discretion. According to the learned counsel when reinstatement is ordered, the back wages are supposed to be followed. The learned counsel further placed reliance on reported judgment of this Court in case of “Taranjitsing I. Bagga V/s. Maharashtra State Road Transport Corporation, Amravati, reported in 2008(3) Mh.L.J., 743” and submitted that, where an employee is wrongfully dismissed, it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment. Therefore, relying upon afore said three decisions, the 10 learned counsel would submit that the petitioner is entitled for the back wages. 5) The learned counsel in support of this contention further placed reliance on para Nos. 5,6,7 & 8 of statement of claim on his behalf in reference (IDA) No. 41 of 1983 which is placed on record at Exhibit A with the compilation of the Writ Petition. On the basis of para Nos. 5 to 8 the learned counsel for the petitioner would submit that, in para No. 5 to 7 the petitioner has properly explained that, from 1966 till dispute was filed, what efforts petitioner has taken to pursue his grievance. Reading of para No. 8 would show that, the petitioner herein has made statement in said para that he tried to secure employment but could not get and was therefore, without any earnings. Therefore, learned counsel would submit that, in para No. 8 of statement of claim the petitioner has specifically averred that, he was unsuccessful in securing employment and he was not gainful 11 employee. Therefore, learned counsel would submit that the statement of claim filed by the petitioner and more particularly, the para No. 8 is statement of petitioner on oath that he was not in gainful employment during the pendency of the proceedings. 6) Though the respondent is duly served and this Court has issued Rule in the Writ Petition as back as on 09-01-1992, the respondent corporation did not bother to file affidavit in reply in the matter. Therefore, there is nothing on record before this Court by way of affidavit in reply by the respondent corporation denying claim of the petitioner’s for back wages. Advocate Manoj Shinde holding for Advocate M.K. Goyanka i.e. Advocate on record, for the respondent corporation would submit that in absence of plea of gainful employment and in absence of evidence adduced by the petitioner to show that he was not in gainful employment, the Presiding Officer, Labour Court, Ahmednagar has 12 rightly refused the back wages to the petitioner. In support of his contention the counsel for respondent relied on following judgements :- 1] Kendriya Vidalaya Sangthan and another Vs. S.C. Varma [reported in AIR 2005 Supreme Court, 768) 2] Manager (Now Regional Director) R.B.I. Vs. Gopinath Sharma & another [ reported in AIR, 2006, SC, 2614] 3] Talwara Co-operative Credit Service Society Ltd. V/s. Sushil Kumar [ reported in 2008, AIR, SCW, 6532] 4] Maharashtra State Road Transport Corporation V/s. Smt. Ramabai Vijay Shede & another [reported in 2009(1) ALL MR 628] learned counsel appearing for the respondent further submitted that, Presiding Officer, Labour Court, Ahmednagar has not properly considered the submissions of the respondent corporation in respect of reinstatement and also in respect of the back 13 wages, the impugned judgment and order so far it relates to the direction of reinstatement with continuity in service is concerned, same is not sustainable. However, learned counsel submitted that, the refusal of back wages by the Labour Court is perfectly justified the petitioner himself has filed dispute belatedly, and therefore, the Labour Court has rightly concluded that, the petitioner is guilty of latches, and therefore, not entitled for full back wages. 7) I have heard learned counsel appearing for the petitioner and also for the respondent at length. I have carefully perused the pleadings in the petition and annextures thereto and impugned judgment and order passed by the Presiding Officer, Labour Court, Ahmednagar, and I am of the considered view that, the Presiding Officer, Labour Court was not justified in refusing back wages to the petitioner. The respondent corporation has not filed any affidavit in reply 14 before this Court denying the claims of the petitioner for back wages and in real sense the averments in the petition remained un- contraverted. 8) The Presiding Officer, Labour Court, Ahmednagar answered the issue No. 1 in favour of the petitioner and held that, the inquiry conducted against the petitioner by the corporation is illegal and improper and against the principles of natural justice. The Presiding Officer, Labour Court, Ahmednagar directed the respondent corporation to reinstate the petitioner with continuity of service with effect from 15-10-1966, without back wages. While deciding issue No. 2, the Presiding Officer held that, “ issue No. 1 is in favour of the second party, the second party is entitled for reinstatement with continuity of service of the second party as Conductor”. Issue No. 2 framed by the Presiding Officer, Labour Court, Ahmednagar is “ Whether, 15 the second party proved that he is entitled for reinstatement with continuity of service and back wages”. On perusal of the discussion in para No. 8 about issue No. 2, the Presiding Officer, Labour Court, Ahmednagar, held that, the petitioner herein is entitled for reinstatement with continuity of the service with respondent corporation as a conductor. So far back wages is concerned, the finding recorded by the Presiding Officer, Labour Court, Ahmednagar is “ records speak that the second party has raise this dispute after a long spell of time and on his accord such delay is caused. In this circumstances, I do not thing it necessary and just to award any amount towards back wages and costs of the proceedings to the Second party. I decide this issue in view of final order.” By the above cryptic reasoning, the Presiding Officer, Labour Court , Ahmednagar refused back wages to the petitioner. The Presiding Officer, Labour Court, Ahmednagar did not refer to averments from para Nos. 5 to 8 in 16 the statement of claims by the petitioner. The petitioner has sufficiently demonstrated in the statement of claims and also in this petition that he was constantly pursuing his cause and grievance from 1966 till dispute was filed. He was availing remedies as available under Rules of the respondent corporation. Therefore, in my considered view the Presiding Officer, Labour Court, Ahmednagar by way of criptic observations and without application of mind should not have rejected the claim of the petitioner for back wages in to to. If, at all the petitioner was guilty of latches in filing the dispute, the Presiding Officer, Labour Court, Ahmednagar should have awarded back wages from the date of filing the dispute. The petitioner herein in para No. 8 of his statement of claim has stated that “ the second party work man was kept out of employment without proper, valid, and legal inquiry and reasons, known to the first party employer. The second party work man tried to secure employment but could not get and was 17 therefore, without any earnings.” Therefore, the petitioner who is original second party in the dispute has stated in para No. 8 of statement of claim that he was not a gainful employment during the pendency of dispute or prior to that. Therefore, in my considered view that, the Presiding Officer, Labour Court, Ahmednagar was not justified in denying the claim of back wages in to to to the petitioner. The Hon’ble Supreme Court in case of “ M/s. Hindustan Tin Works Pvt. Ltd., V/s. The Employees of M/s. Hindustan Tin Works Pvt. Ltd” cited (Supra) in para No. 9 held :- “ Ordinarily, a workman whose service has been illegally terminated either by dismissal, discharge of retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. When the termination of services was found to be neither proper nor justified, it would not 18 only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. If the workmen were always ready to work but they were kept away thereform on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.” Yet in another judgment the Hon’ble Supreme Court in case of C.N. Mala cited (Supra) held that, the Court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. In the facts of that case, the Hon’ble Supreme Court has awarded 50% back wages to the petitioner therein. Taking over all view of the matter and only reason assigned by the Presiding Officer, Labour Court, Ahmednagar that, the dispute filed by the petitioner was after lapse of considerable time, ends of justice would meet, if the 19 respondent corporation is directed to pay back wages to the petitioner from the date of filing of statement of claim. The petitioner filed statement of claim before the Presiding Officer, Labour Court, Ahmednagar on 14-11-1983. Therefore, petition is partly allowed, the respondent corporation is directed to pay back wages to the petitioner herein from 14-11-1983 till he was directed to be reinstated and actually he is reinstated in the services. Rule is made absolute to the above extent. The Writ Petition is partly allowed and disposed of. (S.S.SHINDE, J.) sdm/wp3778.91 20