The Uttar Pradesh State Road Transport Corporation (hereinafter referred to as U.P.S.R.T.C.) has preferred the instant writ petition challenging the award passed by the Presiding Officer, Labour Court, Lucknow on 31.07.1996 whereby, order dated 28.04.1986 removing respondent no.2, Mahendra Kumar Saini from the service of U.P.S.R.T.C was set aside. The said award by the Labour Court was published on 11.06.1996.
Heard learned counsel for the petitioner, Shri D.K.Singh and Shri Prabhakar Tiwari, learned counsel appearing for the U.P.S.R.T.C and have also perused the material available on record.
The facts of the case as deduced from the pleadings available on record are that respondent no.2, Mahendra Kumar Saini was appointed as Fitter Grade-II in the service of U.P.S.R.T.C at Varanasi and thereafter, he was transferred to Faizabad. Containing certain allegations relating to some misconduct, a charge sheet against the respondent no.2, Mahendra Kumar Saini was issued on 27.07.1984 by the Service Manager, Faizabad. The allegations contained in the said charge sheet were to the effect that the respondent no.2 did not perform his duties assigned to him and further that despite reporting for duty, he did not perform the work assigned to him which was causing adverse impact on the working of other employees in the workshop.
Respondent no.2 submitted his reply on 17.08.1984 and the Service Manager not being satisfied with the said reply issued another charge sheet on 07.05.1985 against him. The Enquiry Officer after conducting the enquiry submitted his report on 14.03.1986 stating inter-alia therein that the respondent no.2 has failed to adduce any evidence which could exonerate him of the charges levelled against him. Based on the said enquiry report, order of removal was passed on 28.04.1986 by the Service Manager. It appears that an industrial dispute was raised by the respondent no.2 and under Section 4-K of U.P. Industrial Disputes Act, 1947, a dispute, which was referred to , was as to whether removal from service of the workman Mahendra Kumar Saini son of Late Bageshwari Prasad, Fitter Grade-II on 28.04.1986 by the employer is proper and /or lawful, If no, then to what benefit/compensation, workman is entitled to and with what other details.
A written statement by the U.P.S.R.T.C was filed. The respondent no.2 also filed his reply to which rejoinder was also filed by the U.P.S.R.T.C. Before the Labour Court a preliminary issue was framed to the effect as to whether the domestic enquiry against the workman was fair and legal. The said preliminary issue was decided by the Labour Court on 16.04.1992 against the petitioner and in favour of the respondent no.2 and it was held therein that the order of removal dated 28.04.1986 is bad in law for the simple reason that the Enquiry Officer has proceeded on a wrong legal premise that it was for the workman to prove his innocence. Thereafter, fresh opportunity was given to the U.P.S.R.T.C to prove the charge against respondent no.2 by the Labour Court. However, except for filing written statement no witnesses were produced nor any other evidence was adduced by the U.P.S.R.T.C to prove the charges against the workman. It was argued before the Labour Court on behalf of U.P.S.R.T.C. that since in the domestic enquiry, the official who had reported the matter against respondent no.2 had made his deposition and proved the documents, as such the enquiry report submitted in the domestic enquiry itself should be treated to be valid evidence and the matter be decided in favour of the petitioner.
From a perusal of the impugned award dated 31.07.1996, it is evident that after decision of the preliminary issue against the petitioner, no other evidence to establish the charge against the workman, respondent no.2 was led by the U.P.S.R.T.C despite having been given several opportunities by the Labour Court in this regard. The Labour Court has thus, arrived at a correct finding that once the preliminary issue was decided against the petitioner, it was incumbent upon the U.P.S.R.T.C to have adduced evidence for the purpose of proving/establishing the charge against the workman. However, instead of adducing any evidence or taking any other steps to prove the charge against the respondent no.2, the U.P.S.R.T.C insisted before the Labour Court that the enquiry report submitted during the departmental proceedings itself be taken into consideration for the purpose of establishing/proving the charge against the respondent no.2.
The Court does not find any flaw in the reasons given by the Labour Court in its award dated 31.07.1996 to the effect that once the preliminary issue was decided against the petitioner, it was their duty to have proved the charge against respondent no.2 before the Labour Court by adducing appropriate evidence. Thus, the Court is of the considered view that the U.P.S.R.T.C has failed to discharge the burden of proving the charge against the respondent no.2 before the Labour Court. In this view , no fault is found in the finding recorded by the Labour Court in above regard.
Learned counsel for the petitioner, Shri Prabhakar Tiwari, has however, next contended that the Labour Court has erred in law in awarding full back wages after his reinstatement from the date of removal i.e. with effect from 28.04.1986 in as much as there was no material before the Labour Court to infer that the workman was not in gainful employment. In support of his contention Shri Prabhakar Tiwari , learned counsel for the petitioner has relied on a judgement of Hon'ble Supreme Court in the case of Reetu Marbles Versus Prabhakant Shukla, reported in (2010) 2SCC 70 .
It is well settled principle of law that once the order terminating the service of a workman is declared to be illegal, he shall be entitled to full back wages except to the extent he was gainfully employed during the period he is said to have sat idle. However, the grant of relief regarding award of back wages in such situations has got an element of discretion, though such discretion should be exercised for cogent and convincing reasons and such reasons should be apparent from a bare reading of the award.
The Hon'ble Apex Court in the aforementioned judgment of Reetu Marbles (Supra) has noted another judgment rendered by the Hon'ble Supreme Court in the case of U.P. State Brassware Corporation Limited Versus Uday Narain Pandey reported in 2006(1) SCC 479 wherein, it has been observed by the Hon'ble Supreme Court that with the passage of time, a pragmatic view is to be taken by the Court realizing that an Industry may not be compelled to pay to the workman the entire back-wages for a period during which such a workman contributes nothing. Hon'ble Apex Court has however, further observed in the case of U.P. State Brassware Corporation Limited (Supra) that no precise formula can be laid down as to under what circumstances, payment of entire back wages may or may not be allowed.
I have considered the arguments raised by Shri Prabhakar Tiwari, learned counsel for the petitioner in regard to the directions in the award regarding payment of full back wages to the workman in the light of the judgment of the Hon'ble Supreme Court in the case of Reetu Marbles (Supra) . From a perusal of the award under challenge in the instant writ petition, it is clear that the same is silent as regards the issue/question as to whether the workman namely; respondent no.2 was gainfully employed or not during the period he sat idle. In absence of any such finding, the portion of award to the extent it directs payment of entire back-wages to the workman appears to be bad in law and hence not sustainable.
It has come to the notice of the Court during the course of arguments, that the respondent no.2 during the pendency of the writ petition has attained the age of superannuation on 31.07.2011.
Considering the entire facts and circumstances of the case, looking into nature of the charge, also taking into account failure on the part of the U.P.S.R.T.C to prove charge against respondent no.2, having regard to the factum of the respondent no.2 having attained the age of superannuation on 31.07.2011 and in view of the law laid down by the Hon'ble Supreme Court in the case of Reetu Marbles (Supra) , in view of the Court it would be in the interest of justice to modify the impugned award only to the extent that the respondent no.2 shall be entitled to 75% of the back wages from the date of order of removal i.e. with effect from 28.04.1986 till the date he attained the age of superannuation and retired. He shall also be entitled to all other post retiral benefits treating him to be in continuous service of U.P.S.R.T.C.
With the above modification in the impugned award dated 31.07.1996, as published on 16.11.1996 contained in Annexure No.1 to the writ petition, the writ petition is partly allowed.
Consequently, respondent no.2 Mahendra Kumar Saini shall be entitled to and be paid all his dues, within four months from the date of production of a certified copy of this judgment before the competent authority.
However, there will be no order as to costs.
Order Date :- 03.07.2012 RK/*