2023:BHC-AS:37745

Neeta Sawant 1/9 WP-12847-2018-FC

12 December 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12847 OF 2018
WITH

INTERIM APPLICATION NO. 3420 OF 2023

Mallikarjun Dhullappa Rajmane ...Petitioner

V/s.
Divisional Controller ...Respondent
____
Mr. Suhas Inamdar, for the Petitioner.
Ms. Gargi Warunjikar i/by. Mr. Nitesh Bhutekar, for the
Respondent.

CORAM : SANDEEP V. MARNE, J.

Resd. On: 7 DECEMBER 2023.
Pron. On: 12 DECEMBER 2023.
JUDGMENT:

1. By the present petition, Petitioner has challenged

the Award dated 27 June 2016 passed by the Labour Court,
Solapur in Reference (IDA) No. 23 of 2015 to the extent of non-
grant of backwages upon reinstatement of Petitioner w.e.f. 8
June 2011. Petitioner is working on the post of Driver with the
Respondent-Transport Corporation since the year 1985
consequent to disciplinary proceedings held on the charge of
absence from duty, the Respondent-Corporation imposed the

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penalty of dismissal from service on the Petitioner w.e.f 8 June

2011. At the instance of the Petitioner, Reference was made to
the Labour Court, Solapur and numbered as Reference (IDA)
No. 23 of 2013. Petitioner fled Statement of Claim in the
Reference which was resisted by the Respondent-Corporation
by fling its reply. The Labour Court has rendered Part-I Award
on preliminary issues on 11 June 2016 holding that the
Departmental Enquiry was legal, fair and proper and that the
fndings were not perverse. Petitioner examined himself as a
Witness. The Respondent-Corporation did not examine any
witness. The Labour Court thereafter proceeded to deliver Part-
II Award dated 27 June 2016 and has held that the penalty of
dismissal from service imposed on the Petitioner is
disproportionate. The Labour Court has thereafter set aside the
dismissal order and has directed the Respondent to reinstate
the Petitioner w.e.f. 8 June 2011. The Labour Court has held
that forfeiture of two annual increments permanently would be
an appropriate penalty considering the nature of charge proved
against the Petitioner. The Labour Court has denied backwages
to Petitioner. Petitioner retired from service on attaining the age
of superannuation on 31 May 2018. After retirement, Petitioner
has fled the present petition to the limited extent of denial of
backwages by the Labour Court. By Order dated 12 December
2019, this Court has admitted the petition by issuance of Rule.
Petitioner has fled Interim Application No. 3420 of 2023
seeking expeditious hearing of the petition. Petition is taken up

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for fnal hearing with the consent of the learned counsel

appearing for the parties.

3. Mr. Inamdar the learned counsel appearing for the

Petitioner would submit that the Labour Court has erred in
denying backwages to the Petitioner. That the only allegation
levelled against the Petitioner was absence from duty for 7 days
from 26 October 2010 to 2 November 2010 and for a further
period of six days from 6 November 2010 to 11 November 2010.
That for such miniscule misconduct of absence of 13 days,
harsh penalty of dismissal could not have been imposed. That
though the Labour Court has rightly set aside the penalty, it
has failed to appreciate that Petitioner was unlawfully kept
away from duties for a long period during 8 June 2011 till 24
December 2016 when he was actually reinstated in service.
That award of backwages upon grant of relief of reinstatement is
a normal rule. That Petitioner led evidence before the Labour
Court that he was not gainfully employed. That the said
assertion on the part of the Petitioner was neither contested nor
disproved by Respondents by leading any evidence. That the
Respondent-Corporation failed to examine any witness before
the Labour Court. That Petitioner thus proved before the Labour
Court that he was not gainfully employed. In such
circumstances, award of backwages was eminent. He would
pray for setting aside the Order of Labour Court to the extent of
denial of backwages.

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4. Per-contra, Ms. Warunjikar, the learned counsel

appearing for the Respondent-Corporation would oppose the
petition and support the order passed by the Labour Court.
She would submit that there is gross delay in fling the present
petition. The fact that the Petitioner did not immediately set up
a challenge to the order of Labour Court would clearly indicate
acquiescence in denial of backwages. That past record of
Petitioner is not free from blemish when he was repeatedly
subjected to disciplinary proceedings. That he was dismissed
from service on previous occasion as well. She would invite my
attention to paragraphs-7 to 12 of the Written Statement fled
before the Labour Court demonstrating imposition of various
penalties on the Petitioner in past. She would submit that
considering his past record, the Labour Court could not have
actually set aside the order of dismissal. However, now that the
order of dismissal is set aside and Petitioner is reinstated in
service, grant of backwages would be like putting a premium
over the illegality committed by the Petitioner. That Petitioner
was an incalcitrant employee who repeatedly engaged in
misconduct and in such circumstances, the Labour Court has
rightly not awarded backwages to Petitioner. That the order of
dismissal is set aside by way of indulgence and exhibition of
such indulgence by the Labour Court in favour of Petitioner
does not mean that he cannot turn around and seek payment of
full backwages. She would pray for dismissal of the petition.

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5. I have considered the contentions canvassed by the

learned counsel appearing for the parties. Petitioner was
charged with misconduct of remaining absent from 26 October
2010 to 2 November 2010 and from 6 November 2010 to 11
October 2010. Thus, the total period of unauthorized absence
is for 13 days. In ordinary course, absence of 13 days cannot be
a reason for imposition of harsh penalty of removal from service.
However, there are two factors which clearly can justify
imposition of slightly harsher penalty for absence of such small
period. Firstly, Petitioner was working as Driver and must have
been scheduled for driving buses of the Respondent-
Corporation on fxed routes. The Trafc Department of the
Corporation is required to prepare a Schedule in advance about
deployment of various drivers and conductors for operation of
various buses. Sudden unauthorized absence by a Driver
without any prior intimation could disrupt the entire schedule
where the Respondent-Corporation may have to make
emergency arrangement for plying the buses on scheduled
routes. In the event of inability of the Respondent-Corporation to
make available alternate driver, the passengers are put to
inconvenience in addition to cause of losses to the Respondent-
Corporation. This aspect must be borne in mind while
determining gravity of misconduct of absence by a Driver
employed by the Respondent-Corporation. The second factor is
about past record of the Petitioner. The Respondent-
Corporation made following averments in para-12 of its Written
Statement :

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That, the charges against the Second Party are proved

in the enquiry by evidence on record. The past service
record of the Second Party is very bad. Previously the
Second Party was awarded the punishment of stoppage
of increment 16 times and also awarded punishment of
dismissal and fne for 7 times for like misconduct. His
past record was also bad. He did not improve himself
and again committed serious misconduct of
misappropriation of S.T. amount. Considering his past
unsatisfactory service record and gravity of present
misconduct the Second Party is not entitled to any
relief from this Hon’ble Court. The awarded
punishment is not entitled to any relief from this
Hon’ble Court. The awarded punishment is quite fair
legal and proper. It cannot be said that the same is
disproportionate.

6. Thus, the Petitioner was repeatedly subjected

to disciplinary proceedings and his increments were apparently
stopped for as many as sixteen times. He was once dismissed
from service. He was also imposed fne on seven occasions
apparently for misconduct of absence from duty. It does appear
that Petitioner was habitual in remaining absent. He appears to
have become incalcitrant and was not ready to improve. This
appears to be the reason why the Respondent-Corporation was
required to take extreme step of dismissing him from service as
there was no improvement in the conduct of the Respondent.
Fortunately for Petitioner, the Labour Court has set aside the
penalty of dismissal by invoking the doctrine of
disproportionality. Though considering the facts and
circumstances of the case, it could well be argued that

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considering the past conduct of the Petitioner, the penalty of

dismissal was not disproportionate so as to shock conscience of
the Court. Fortunately for the Petitioner, the Respondent-
Corporation has not challenged the order of the Labour Court.
The Order is implemented and Petitioner is reinstated in service
on 24 December 2016. Shortly thereafter, he has retired from
service on attaining the age of superannuation on 31 May 2018.

7. It must also be borne in mind that Petitioner is not

exonerated completely. The Labour Court has imposed the
penalty of permanent stoppage of two increments of Petitioner.
Thus, he is not completely absolved in respect of the
misconduct alleged against him. The misconduct is proved,
Petitioner is held guilty and is ultimately visited with the
penalty of permanent stoppage of two increments.

8. The issue for entitlement of backwages is required to

be decided in the light of the above three facts of (i)nature of
discipline expected from a Driver employed in State Transport
Corporation, (ii)past conduct of the employee and (iii) non-
exoneration in the disciplinary proceedings. After considering
the said three factors, it is difcult to hold that Petitioner can be
awarded backwages as a natural consequence of setting aside
his termination order. Infact, this Court would be constrained
to observe that Petitioner is rather lucky to get himself
reinstated in service despite repeated indulgence in misconduct
and habitually remaining absent thereby disrupting the

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operations of the Respondent-Corporation. To expect payment of

backwages after exhibiting such conduct by the Petitioner is like
putting a premium over the irregularities committed by the
Petitioner. In my view, therefore the Labour Court has rightly
denied backwages to the Petitioner. I do not fnd any patent
error in the order passed by the Labour Court.

9. No doubt, the Petitioner made an averment in

Statement of Claim, as well as in his Afdavit in evidence that
he was not gainfully employed. However, that alone may not be
sufcient for the purpose of award of backwages. Petitioner’s
entitlement to backwages must be considered in the light of the
nature of misconduct committed by him as well as his past
record.

10. It appears that the Award of the Labour Court was

passed on 27 June 2016 whereas the Petitioner has joined
services in pursuance of the Order of the Labour Court on 27
June 2016. In respect of this period from 27 June 2016 to 23
December 2016, the Petitioner would be justifed in demanding
backwages, since he is not responsible for delay in joining
services. Accordingly, the Petitioner is held entitled for payment
of full salary and allowances during the period 27 June 2013 to
23 December 2016.

11. The impugned Award passed by the Labour Court

dated 27 June 2016 is accordingly upheld. The Writ Petition is
dismissed with no order as to costs. However, the Respondent-

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Corporation shall pay to the Petitioner full salary and allowances

during the period 27 June 2016 to 23 December 2016. Rule is
discharged.

SANDEEP V. MARNE, J.

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