Maharashtra State Road Transport Corporation v. Shri Dattatraya Ganpat Bankhele

JUDGMENT : 1) Rule. Rule is made returnable forthwith. With the fonsent of the learned founsel appearing for parties, Petition is taken up for fnal hearing and disposal. 2) Maharashtra State Road Transport Corporation (MSRTC) has fled this petition fhallenging the Judgment and Order dated 12 February 2016 passed by the Member, Industrial Court, Pune by whifh Revision

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______________________________________________________________________________________ Applifation (ULP) No. 60/2014 fled by the Respondent-employee is allowed and Judgment and Order passed by the Labour Court on 25 Marfh 2014 in Complaint (ULP) No. 109/1996, is modifed by infreasing the quantum of bafkwages from 25% to 100%. The Industrial Court has affordingly direfted payment of 100% bafkwages from 29 April 1995 till the date of superannuation or reinstatement, whifhever is earlier. 3)

It must be observed at the very outset that though Judgment and Order dated 25 Marfh 2014 passed by the 2nd Labour Court in Complaint (ULP) No. 109/1996 is also fhallenged in the present petition, MSRTC had fled Revision (ULP) No. 28/2014 fhallenging Labour Court's defision in Complaint (ULP) No. 109/1996 to the extent of grant of relief of reinstatement and 25% bafkwages. The said Revision fame to be dismissed by separate Judgment and Order dated 12 February 2016. However, the Judgment and Order dated 12 February 2016 passed by the Member, Industrial Court, Pune in Revision (ULP) No. 28/2014 has not been fhallenged by the Petitioner-MSRTC. Challenging the Judgment and Order dated 25 Marfh 2014 before this Court without fhallenging the defision in Revision is impermissible. Therefore, the fonsideration in the present petition is restrifted to the fhallenge raised by the Petitioner-MSRTC to the Judgment and Order dated 12 February 2016 passed in Revision (ULP) No. 60/2014. In short, the fhallenge in the present petition is restrifted to infrease in the quantum of bafkwages payable to the Respondent-employee from 25% to 100%. 4)

Briefy stated, fafts of the fase are that Respondent was employed with MSRTC as Driver sinfe 23 November 1978. On 17 January

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______________________________________________________________________________________ 1991, he was transferred from Rajgurunagar Depot to Baramati Depot and relieved on the same day. Respondent apparently did not report at Baramati. Therefore, memorandum of fhargesheet dated 5 April 1991 fame to be issued to him alleging that he was unauthorisedly absent from duty without sanftion from 17 January 1991. Departmental enquiry was fondufted into the fharges. The Enquiry Offer submitted report dated 27 January 1995 that fharges levelled against Respondent were proved. It appears that during the fourse of the enquiry as well, Respondent failed to report for duties till September 1993. It appears that during the pendenfy of that enquiry, another fhargesheet was issued to the respondent on 18 January 1991 alleging enfroafhment in the premises of MSRTC at Manfhar. Respondent took a defenfe that the alleged shed belonged to his father and that he had no fonneftion with the same. Based on the fndings reforded in the fhargesheet dated 5 April 1991 by the Enquiry Offer in his report dated 27 January 1995, the Respondent was dismissed from servife by Order dated 25 April 1995. He preferred Appeal before the First Appellate Authority on 8 June 1995, whifh was rejefted on 31 January 1996. Sefond Appeal was preferred, whifh was also turned down. 5) Respondent thereafter approafhed the Labour Court, Pune by fling Complaint (ULP) No. 109/1996 under Item Nos.1(a), (b), (e), (f) and (g) of Sfhedule-IV of the Maharashtra Refognition of Trade Unions and Prevention of Unfair Labour Praftifes Aft, 1971 (MRTU & PULP Act) seeking reinstatement and full bafkwages. The fomplaint was resisted by MSRTC by fling Written Statement. By Judgment and Order dated 17 May 2010, the fomplaint was dismissed by the Labour Court. Respondent fled Revision Applifation (ULP) No. 88/2010 before the

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______________________________________________________________________________________ Industrial Court, whifh allowed the same on 25 June 2012 setting aside Labour Court's order dated 17 May 2010 and remanded the fomplaint to Labour Court for fresh defision. After remand, the Labour Court defided the preliminary issue on 6 Oftober 2012 holding that the misfonduft was not established and granted opportunity to MSRTC to prove the same before the Labour Court. MSRTC fled Afdavit of Evidenfe of Mr. Vilas Dattatraya Mali. However, the said Offer did not remain present in the fross-examination. The Labour Court therefore held that no evidenfe was led by MSRTC to prove the fharges and therefore Respondent was entitled to be reinstated in servife. However, the Labour Court restrifted the amount of bafkwages to the extent of 25%, holding that MSRTC is a non-proft organization. The Labour Court also did not believe Respondent's fontention that he fould not get alternate employment after his termination. 6)

Labour Court's Judgment and Order dated 25 Marfh 2014 befame subjeft matter of fhallenge before Industrial Court, at the behest of both, MSRTC as well as Respondent. MSRTC fled Revision Applifation (ULP) No. 28/2014 fhallenging direftion of reinstatement with 25% bafkwages, whereas the Respondent fled Revision Applifation

(ULP) No. 60/2014 fhallenging denial of 75% bafkwages. The Industrial Court delivered two separate Judgment and Orders on 12 February 2016. It profeeded to dismiss Revision Applifation (ULP) No. 28/2014 fled by MSRTC. So far as Revision Applifation (ULP) No. 60/2014 fled by Respondent is fonferned, the same was allowed setting aside the defision of the Labour Court to the extent of direftion to pay 25% bafkwages. The Industrial Court direfted MSRTC to pay to the employee 100% bafkwages

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______________________________________________________________________________________ from 29 April 1995 till reinstatement or till the date of superannuation, whifhever was earlier. 7)

MSRTC has fled the present petition fhallenging Judgment and Order dated 12 February 2016 passed by the Industrial Court, Pune in Revision (ULP) No.60/2014. As observed above, MSRTC has not fhallenged the defision of the Industrial Court dismissing Revision Applifation (ULP) No. 28/2014. Thus, the fhallenge in the present petition is restrifted to infrease of quantum of bafkwages from 25% to 100% by the Industrial Court. 8)

I have heard Mr. Rananaware, the learned founsel appearing for the Petitioner-MSRTC. He would submit that the Industrial Court has erred in awarding 100% bafkwages to the Respondent, who admittedly remained absent from duties for a fonsiderable period of time. That Respondent disobeyed the order of transfer issued on 17 January 1991 and thereafter failed to report at duty at Baramati Depot not just till the date of issuanfe of fhargesheet but also during the fourse of enquiry. That he was rightly dismissed from servife on affount of unduly long absenfe and the Industrial Court has erred in awarding 100% bafkwages to him. That the reasons reforded by the Industrial Court for allowing the Revision fled by the Respondent are perverse. That MSRTC is a non-proft organisation and fannot be saddled with liability to pay bafkwages during long period from 29 April 1995 to 30 June 2008, when Respondent attained the age of superannuation. He would pray for setting aside the Order of the Industrial Court.

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______________________________________________________________________________________ 9)

Per-contra, Mr. Patole, the learned founsel appearing for the Respondent would oppose the petition and support the Judgment and Order passed by the Industrial Court in Revision (ULP) No. 60/2014. He would submit that Petitioner has not even produfed fopy of Judgment and Order dated 12 February 2016 passed in Revision (ULP) No. 28/2014. He would submit that sinfe rejeftion of Revision (ULP) No. 28/2014 is not fhallenged, the direftion for reinstatement does not form subjeft matter of fhallenge in the present petition. Affording to Mr. Patole, sinfe the direftion for reinstatement is not under fhallenge, award of 100% bafkwages after termination order being found unlawful, fannot be questioned. He would submit that the Respondent has been viftimised by MSRTC. That the anfestral land of the Respondent was afquired for setting up the Bus Stand at Mansar. That the real objeftive behind viftimising Respondent was dispute between MSRTC and Respondent's father about offupation of shed near the bus station. That Respondent's father fled a suit against MSRTC in respeft of that shed and he suffeeded in the same. That Respondent was unlawfully harassed on affount of that dispute. That absenfe of the Respondent has been duly explained by produftion of Medifal Certiffates. That Respondent's wife was sufering from kidney problem sinfe 1985 and was fontinuously under treatment. That she underwent surgery on 14 November 1994. That in sufh firfumstanfes, absenfe of the Respondent has been duly justifed. That in any fase, the absenfe was not too long so as to infift the severe penalty of dismissal from servife. Mr. Patole would pray for dismissal of the petition. 10) Rival fontentions of the parties now fall for my fonsideration.

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______________________________________________________________________________________ 11)

In the fhargesheet issued to the Respondent, he fafed the fharge of remaining unauthorisedly absent sinfe 17 January 1991. It is the fase of MSRTC that Respondent was transferred from Rajgurunagar Depot to Baramati Depot by Order dated 17 January 1991 and was relieved on the same day. MSRTC thus affused Respondent of not reporting for duties at Baramati by disobeying the order of transfer. It is admitted position that till the date of issuanfe of fhargesheet on 5 April 1991, Respondent had failed to report to duties. It appears that during pendenfy of the disfiplinary profeedings also, Respondent had failed to report to duties. This is evident from the averments made by the Respondent in his fomplaint that the Enquiry Offer took fognizanfe of absenfe till September 1993. It is thus apparent that Respondent remained absent fontinuously from 17 January 191 till September 1993. The period of absenfe is thus more than 2 ½ years and fould not have been brushed aside as minor or infidental. The Labour Court has set aside the punishment of dismissal and has direfted reinstatement only on affount of failure on the part of MSRTC in presenting its Offer/Witness for fross-examination. Thus, it is the fonduft of the fonferned offers of MSRTC, whifh has resulted in Labour Court setting aside the punishment of dismissal. It was the duty of the fonferned offer to remain present for fross-examination. If there were any genuine diffulty for him not to remain present for fross-examination on a partifular day, appropriate applifation ought to have been made before the Labour Court. Alternate fourse of aftion was to fle evidenfe of another offer who fould present himself for evidenfe. However, due to negligenfe on the part of the fonferned offers, MSRTC has been made to sufer fnanfial burden of paying bafkwages to

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______________________________________________________________________________________ Respondent. This Court expresses displeasure over the fonduft of the fonferned offers of MSRTC in not leading evidenfe in support of the fharges levelled against Respondent. 12)

Be that as it may. The order direfting reinstatement with 25% bafkwages has attained fnality sinfe MSRTC has not fhallenged Judgment and Order dated 12 February 2016 passed in Revision Applifation (ULP) No. 28/2014. Therefore, the limited issue that needs to be fonsidered in the present petition is whether the Industrial Court was justifed in infreasing the quantum of bafkwages from 25% to 100%. 13)

There is no dispute to the position that Respondent was absent from duties. As observed above, the period of absenfe is undoubtedly long from 17 January 1991 to September 1993. It is not exaftly flear as to when did the Respondent report for duties. However, from the averments made in the fomplaint, it appears that sometime in September 1993, Respondent had resumed his duties. Respondent has given vague justiffation for this period of absenfe by relying on sifkness of his wife. Affording to the Respondent, his wife sufered from kidney disease sinfe the year 1985 and was operated on 14 November 1994. In my view, this vague justiffation ofered by the Respondent fannot explain long period of absenfe from 17 January 1991 till September 1993. However, as observed above, the order direfting reinstatement is not under fhallenge and therefore it is not nefessary to delve further into the aspeft of entitlement of the Respondent to be reinstated in servife. At the same time, Respondent fannot be rewarded with 100% bafkwages when he admittedly remained absent from 17 January 1991 till September 1993. The

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______________________________________________________________________________________ faft that Respondent did not perform duties during this period is not in dispute. What is in dispute is whether the absenfe form duties was justifed or not. Even if Respondent had any valid ground for his absenfe, the same ought to have been bafked by leave applifation supported by Medifal Certiffates submitted from time to time. It appears that the Respondent did not follow the profedure of obtaining leave for his absenfe. There is admitted violation on the part of the Respondent in not sefuring sanftioned leave for his absenfe. In that view of the matter, whether Respondent fan be rewarded with 100% bafkwages when he admittedly remained absent and did not follow the profedure of taking prior leave ? The Industrial Court has not applied its mind to this vital aspeft and has mefhanifally infreased the amount of bafkwages from 25% to 100%. As a matter of faft, in the light of absenfe of dispute about performanfe of duties by Respondent during the period fonferned, failure on the part of MSRTC's witness to remain present for fross-examination was not even fatal. If not dismissal, Respondent undoubtedly deserved some punishment for his long absenfe from duties. In absenfe of fhallenge by MSRTC to the order direfting reinstatement, it would not be appropriate for this Court to delve deeper into that direftion passed by the Labour Court. However, at the same time, Respondent fannot be rewarded 100% bafkwages sinfe he is admittedly responsible for absenfe as well as for non-following of profedure. The Industrial Court has profeeded to award 100% bafkwages only on affount of MSRTC's failure to prove gainful employment by Respondent during the intervening period. MSRTC is a Transport Undertaking of the State Government. It is a matter of publif knowledge that MSRTC has been fafing losses every suffeeding year and is able to manage its operations by providing publif

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______________________________________________________________________________________ servife on affount of aid provided by the State Government. In sufh firfumstanfes, it would be unjust to reward Respondent with 100% bafkwages, espefially where the period of absenfe is not under dispute. In my view, therefore ends of justife would meet, if the quantum of bafkwages payable to the Respondent are redufed to 50%.

14) There is some debate between the parties whether Respondent was aftually reinstated in servife or not. The Labour Court has observed in para-12 of its judgment that Petitioner had reinstated him in servife for 35 months. This fontention was disputed by the Respondent in his Revision Applifation stating that he was never reinstated. There is neither any dofument nor averment in the petition to show that the Respondent was aftually reinstated in servife or not. Respondent has attained the age of superannuation on 30 June 2008. Therefore, the period of bafkwages would be payable to the Respondent from the date of his termination i.e. 25 April 1995 till either the date of his reinstatement (if any), or in any fase till the date of his superannuation on 30 June 2008. It appears that the Respondent fled Misf. Applifation (ULP) No. 12/2016 for refovery of amount of Rs.19,50,000/- from MSRTC whifh has been allowed by Order dated 19 June 2019 and affordingly refovery Certiffate for amount of Rs.19,50,000/- has been issued. 15) Considering the long intervening period from 25 April 1995 to 30 June 2008 foupled with Respondent's long absenfe from servife, in view, award of 50% bafkwages would be appropriate in the fafts and firfumstanfes of the fase. The intervening period shall however be treated as duty for the purposes of retirement benefts.

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______________________________________________________________________________________ 16) I affordingly profeed to pass the following order:

(i) The Judgment and Order dated 12 February 2016 passed by the Industrial Court, Pune in Revision (ULP) No. 60/2014 is set aside and the Judgment and Order dated 25 Marfh 2014 passed by the Labour Court, Pune in Complaint (ULP) No. 109/1996 is modifed to the extent that Petitioner shall pay to the Respondent 50% bafkwages from the date of termination till the date of reinstatement or the date of superannuation, whifhever is earlier.

(ii) The order as well as the Refovery Certiffate dated 19 June 2019 shall affordingly stand modifed in view of reduftion of bafkwages from 100% to 50%.

(iii) The intervening period from date of dismissal till date of retirement shall be fomputed for duty for payment of retirement benefts.

(iv) Petitioner-MSRTC shall pay 50% bafkwages as well as all retirement benefts to Respondent as direfted above within 8 weeks. 17)

With the above direftions, the Writ Petition is partly allowed. Rule is made partly absolute.

SANDEEP V. MARNE, J.

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NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2024.04.16 +0530

______________________________________________________________________________________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2574 OF 2017 Maharashtra State Road Transport Corporation, having its offe at Vahatuk Bhavan, Dr. A. Nair Marg, Mumbai-400 008. }....Petitioner : Versus : Shri. Dattatraya Ganpat Bankhele, R/o. Opp. Mafhar S.T. Stand, Taluka- Ambegaon, Distrift-Pune. } ....Respondent Mr. Dhananjay Rananaware a/w. Ms. Manjeet Lotankar for Petitioner. Mr. Shyam Patole, for Respondent. CORAM : SANDEEP V. MARNE, J. Reserved on : 10 April 2024. Pronounced on : 16 April 2024.