Metropolitan Transport Corpn vs V. Venkatesan

3. Facts are these, briefly put. V. Venkatesan, respondent, was initially employed as conductor on May 7, 1980 by Pallavan Transport Corporation. On formation of Metropolitan Transport Corporation (for short, "Corporation"), the appellant, became its employee. The respondent was promoted as Junior Assistant and subsequently as an Assistant by the Corporation. The respondent seems to have acquired Law degree and he was selected for the post of Superintendent (Legal) as trainee. But during the training period his performance was not found satisfactory and he was reverted back to the post of Assistant. On January 31, 1995, the respondent was transferred to Poonamallee Depot but he did not join his duties there and remained absent for about three months without any prior sanction of leave or intimation. The case of the Corporation is that on March 28, 1995, a memo of charge was issued to the respondent to which he filed his written response but as his reply was not found satisfactory and a domestic inquiry was instituted to inquire into his misconduct. The respondent did not attend the domestic inquiry despite repeated letters and notices including a notice published in 2 local newspaper. Ultimately, by an order dated December 12, 1986, the Corporation removed the respondent from its service.

4. The respondent filed a complaint before the Industrial Tribunal, Chennai under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, "ID Act") alleging the contravention of the provisions of Section 33A of the ID Act in removing him from service although the Industrial Dispute No. 62/82 concerning the entire transport workers was pending before the Industrial Tribunal, Chennai. The complaint was opposed by the Corporation on diverse pleas. The Industrial Tribunal by its order dated July 11, 2003 held the order of removal void and inoperative as the Corporation did not apply for approval. The Industrial Tribunal also declared that the complainant is deemed to have continued in service and he was entitled to all benefits available. The Corporation challenged the order dated July 11, 2003 passed by the Industrial Tribunal before the High Court. By an interim order, initially, the High Court granted stay of the order dated July 11, 3 2003 subject to the Corporation depositing the entire backwages as awarded by Industrial Tribunal and compliance of the provisions of Section 17B of the ID Act. The Corporation instead of paying last drawn wages to the respondent, reinstated him on June 15, 2004 without prejudice to the pending writ petition. The said writ petition came to be dismissed on August 30, 2006 and, thus, the order dated July 11, 2003 passed by the Industrial Tribunal attained finality.

5. Since the backwages for the period from December 12, 1996 until June 15, 2004 was not paid by the Corporation, the respondent approached the concerned Labour Court under Section 33C(2) of the ID Act claiming a sum of Rs. 8,08,698/- as the sum due and payable by the Corporation. The Corporation contested the application under Section 33C(2). After hearing the parties, the Labour Court allowed the claim of the respondent to the extent of Rs. 6,54,766/- towards full back wages vide its order dated December 22, 2006. The Corporation challenged the said order by filing a writ petition before the Madras High Court; the principal ground being that having been enrolled as an advocate on December 12, 2000, the respondent was gainfully employed and not entitled to back 4 wages. The respondent also filed a writ petition before the High Court seeking enforcement of the order dated December 22, 2006. The Corporation failed in its writ petition while in the writ petition filed by the respondent, the learned single Judge directed the Labour Department to take necessary steps in recovering the due sum from the Corporation. The Corporation challenged the order of the learned single Judge whereby its writ petition came to be dismissed, by filing a writ appeal which came to be dismissed on June 24, 2008 giving rise to the present appeal by special leave.

13. It is difficult to accept the submission of the learned senior counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 2-3 years of reinstatement and re- engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on December 12, 2000 until June 15, 2004, otherwise he would not have resigned from 6 (2007) 10 SCC 765 12 the settled job and resumed profession of glorious uncertainties. In this view of the matter, reasonable deduction needs to be made while determining the back wages to which respondent may be entitled. Taking overall facts and circumstances of the case and all other aspects including the aspect that he was enrolled as an advocate from December 12, 2000 to June 15, 2004, in our considered view, demand of justice would be met if the respondent is awarded back wages in the sum of Rs. 4 lacs instead of Rs. 6,54,766/-. We order accordingly.

14. The appeal is, therefore, allowed to the aforesaid extent. The impugned judgments of the division bench as well as the learned single Judge stand modified accordingly. Time of eight weeks is granted to the Corporation to make payment of Rs. 4 lacs to the respondent, if not paid so far, failing which it shall carry simple interest @ 6 per cent per annum from June 15, 2004 until the date of payment. The parties will bear their own costs.

........................J (Tarun Chatterjee) .......................J (R. M. Lodha) 13 New Delhi August 7, 2009.