BHIKHABHAI A VANAND Vs. AMUL DAIRY ANAND

JUDGEMENT

(1.) Heard learned advocate Mr. Bavishi for the petitioner and Mr. Deepak Patel, learned advocate for the respondent. In this petition, the petitioner workman has challenged the award made by the Labour Court, Anand in Reference No. 903 of 1992 (Old No. 166 of 1991) dated 9.1.1998 in so far as it relates to denial of back wages for the intervening period. Under the said award, the labour court has granted reinstatement of the workman without back wages for the intervening period. Pursuant to the award of reinstatement made by the labour court, respondent issued order of reinstatement dated 6th May, 1998 which was accepted by the petitioner and the petitioner resumed by letter dated 16th May,1998 and, thereafter, filed this petition on 18th September, 1998 challenging the denial of back wages by the labour court while granting reinstatement. Learned advocate Mr. Bavishi appearing for the petitioner submitted that the petitioner has completed more than 13 to 14 years of service as a watchman with the respondent and there was no serious allegation against the petitioner punishment of dismissal from service was harsh and unjustified and, therefore, reinstatement was rightly granted by the labour court but the labour court has committed gross error in denying back wages as a whole for the intervening period. He further submitted that there was no theft committed by the workman and, therefore, denial of back wages for the intervening period while exercising powers under section 11A of the ID Act 1947 is erroneous. He submits that some part of the back wages ought to have been granted by the labour court because it was not a serious case. Except these submissions, no other submission was made by him before this Court. On the other hand, learned advocate Mr. Deepak V. Patel appearing for the respondent has submitted that the award of reinstatement without back wages for the intervening period dated 9th January, 1998 was accepted by the respondent by issuing reinstatement order dated 5th May, 1998 informing the petitioner to resume on or before 16th May, 1998 which was received by the petitioner on 14th May, 1998 and accepting it, the petitioner resumed on 16th May, 1998 and has, thus, accepted the award of reinstatement without back wages for the intervening period and, therefore, petition challenging that part of the award is not maintainable. According to his contention, once the award has been accepted by the petitioner, then, he has no right to challenge the denial of back wages for the intervening period. In support of his submission, reliance was placed by him on the apex court decision in Sanat Kumar Dwivedi versus Dhar Jilla Sahakari Bhoomi Vikas Bank Maryadit and others reported in (2001) 9 SCC 402. Reply to this petition has been filed by the respondent and rejoinder thereto has been filed by the petitioner. I have perused the award as well as the memo of petition, reply to the petition and rejoinder to the reply filed by the petitioner. Before the labour court, statement of claim was filed by the petitioner at Exh. 6. He was dismissed from service on 27.10.1990 for the incident dated 25th May, 1990. On 26.5.1990, show cause notice was served upon the petitioner and thereafter, written statement was filed by the respondent before the labour court vide Exh. 12. Initially, departmental inquiry was challenged by the petitioner before the labour court. However, subsequently, by filing the pursis Exh. 15 dated 10.10.1994, challenge as regards legality validity and propriety of the departmental inquiry was given up by the workman. Considering that position, the labour court has considered the question whether the workman is entitled for reinstatement in service with full back wages or not. That issue has been examined by the labour court and considered the allegation levelled against the petitioner as mentioned in the show cause notice, quoted at page 10. After issuance of the show cause notice, departmental inquiry was conducted which was produced by the respondent vide Exh.1 4. Findings given by the inquiry officer were also produced on record vide Exh. 14/9. Ultimately, considering the evidence on record before the departmental inquiry officer, competent authority passed order of punishment. All such documentary evidence was considered by the labour court keeping in view the purshis filed by the workman at Exh. 15 and the labour court has come to the conclusion that the charge levelled against the workman is found to be proved and the departmental inquiry which was conducted against the petitioner is legal and valid and thereafter, the labour court considered the submissions made by the learned advocates for the parties and come to the conclusion that there was no charge of theft against the workman but the property of the respondent, branches of tree were taken by the watchman out side the premises on holiday when no one was available in the office, therefore, the labour court has not considered it a serious misconduct and looking to the charge levelled against the workman, the labour court was of the view that the punishment of dismissal imposed by the respondent management is disproportionate and not justified, therefore, in exercise of the powers under section 11A of the ID Act, 1947, set it aside. Petitioner was not examined before the labour court to prove the unemployment for the intervening period. Naturally, when the workman has not examined himself before the labour court to prove that he has remained unemployed during the intervening period, then, there is no burden upon the employer to prove that he has been gainfully employed elsewhere and, therefore, not entitled to any back wages for the intervening period. Labour court has exercised the powers under section 11A of the ID Act, 1947 on the ground that the punishment which was imposed against the workman is disproportionate and unjustified, therefore, labour court is having power to pass appropriate orders keeping in view the facts and circumstances of the case. Labour court is having wide discretionary powers to pass appropriate orders as deemed just and proper by it in light of the facts and circumstances of the case. Considering the charge leveled against the and surrounding circumstances of the case, labour court has denied the back wages for the intervening period and ordered for reinstatement with continuity of service. In support of his conclusion, labour court has given reasons that looking to the misconduct punishment of dismissal is unjustified and if reinstatement without back wages is ordered, it would be proper and, therefore, by way of punishment, labour court denied the back wages for the intervening period. The labour court has observed that if the amount of back wages is awarded, then, it would amount to giving a premium to such a workman who has committed such misconduct and, therefore, it denied the back wages and passed the award of reinstatement without back wages for the intervening period with continuity of service. Considering the submissions made by the learned advocates for the parties, the fact remains that the workman was dismissed from service on 27.10.1990 in connection with the incident dated 25.5.1990 and on 26.5.1990, show cause notice was issued and departmental inquiry was initiated and completed. Findings were given by the inquiry officer and ultimately order of punishment was passed. The award made by the labour court dated 9.1.1998 has been accepted by the Management and order of reinstatement was passed by the management on 6.5.1998 which was received by the petitioner on 14.5.1998 and he resumed duty on 16.5.1998 and thereafter,filed this petition on 18.9.1998. In Sanat Kumar Dwivedi versus Dhar Jilla Sahakari Bhoomi Vikas Bank Maryadit and others reported in (2001) 9 SCC 402 : 2001 Lab IC 2373 : 2001 AIR SCW 2430, the apex court has observed as under in para 2 & 3:

(2.) The admitted facts are that the appellant was reinstated in service by order dated 12.5.1978 with a condition that he will not get any back wages. Obviously, earlier on 8.3.1976 his services were terminated but by the aforesaid order, he was reinstated without back wages. He accepted such reinstatement without back wages by his joining report, Annexure R-4 at p.106 of the paper book that he has joined his duty on 13.5.1978. By his own conduct, the appellant has accepted the correctness of the order of reinstatement without back wages. Under these circumstances, subsequent dispute raised by him regarding back wages was clearly not maintainable as held by this Court in State of Punjab v. Krishan Niwas [(1997) 9 SCC 31:1997 7 SCC (L&S) 998:(1997) 3 Scale 338]. In view of the settled legal position, no interference is called for. The appeal is, therefore, dismissed.

(3.) It is clarified that this order will not be treated to be resulting in any break in service of the appellant. He will be deprived of only the back wages. The continuity of service and all other notional benefits on that basis will be available to him. It appears that when the order of reinstatement was granted, except depriving him of back wages, it necessarily meant that the continuity of service was implicit in the reinstatement. Even condition Nos. 1 and 2 of the order of reinstatement clearly indicate that he is reinstated in service with continuity as pay scales and other benefits were also directed to be given. " Considering the facts of the present case in light of the aforesaid decision of the apex court, in this case, the workman has, after accepting the order of reinstatement and after resuming the duties pursuant to the award of reinstatement, filed this petition and, therefore, considering such conduct of the petitioner, this petition cannot be entertained. This is the one ground for rejecting this petition. Even on merits also, it is the power and discretion of the labour court under sec. 11A of the ID Act to pass appropriate order when it is found that the punishment of dismissal is unjustified looking to the gravity of misconduct and in such circumstances, the labour court can deny the back wages by way of punishment This aspect was examined by the apex court in Jitendra Singh Rathor versus Shri Baidyanath Ayurved Bhavan Ltd. reported in AIR 1984 SC 976 wherein it has been held that where the tribunal/labour court while directing reinstatement withheld payment of half of the back wages keeping in view the proved misconduct of the employer, withholding of half of the back wages in the nature of penalty, in such a case, it could not be said that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty. In para 3 of the said decision, it has been observed by the apex court as under: