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2016 Supreme(Bom) 275
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
The Secretary, Krishi Vigyan Kendra Kharpudi Village, Bhatepuri Road - PETITIONER
VERSUS
Ghansham S/o Ramchandra Varma - RESPONDENT
WRIT PETITION NO.4035 OF 2013
Decided On : 24/02/2016
Mr.N.K.Choudhari, Advocate for the petitioner.
Mr.K.J.Suryawanshi, Advocate for the respondent.
Important Point—A charge cannot be proved unless disciplinary proceedings are initiated.
Headnote:Labour and Industrial Law—Termination—Petitioner has selectively accepted conditional oral request of respondent only to the extent of waiver of back wages which was only beneficial for itself, has exhibited an element of unfairness by rejecting connected part of his request that he should be paid his retiral benefits—Waiver of back wages was apparently on condition that he would be paid his retiral benefits—Petitioner is not entitled to take any advantage of offer of respondent—Since petitioner has taken stand of unauthorized absenteeism and has not conducted enquiry, in as much as, failed to prove unauthorized absenteeism before Labour Court, impugned termination of service deserves to be set aside.
Result—Writ Petition allowed.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. Mr.Choudhari, learned Advocate appearing on behalf of the petitioner has strenuously criticized the judgment of the Labour Court dated 08/12/2009 by which Complaint (ULP) No.41/2005 was partly allowed. He is aggrieved even by the judgment and order of the Industrial Court dated 27/07/2012 by which Revision (ULP) No.25/2010 has been dismissed.
3. The strenuous submissions of Mr.Choudhari can be summarized as follows :
[a] The Marathwada Sheti Sahayya Mandal (MSSM) is a public trust registered under the provisions of The Bombay Public Trusts Act and the Societies Registration Act.
[b] MSSM was established in 1969 for ensuring water resources management, land development, dry land farming, forestation, development and research in agricultural land.
[c] The Indian Council of Agricultural Research (ICAR) is a National Agency established by the Department of Agriculture, Union of India.
[d] The ICAR sponsored the Krishi Vigyan Kendra.
[e] The petitioner is one such Krishi Vigyan Kendra.
[f] The petitioner gets funds from ICAR mainly for pay and allowances of the staff.
[g] The respondent/employee claims to have joined the MSSM on one 01/08/1971
[h] On 30/06/1994, the respondent claimed to have resigned.
[i] The resignation was submitted in his own handwriting to the MSSM and not to the petitioner which was already in existence.
[j] The petitioner has never received the resignation letter, much less accepted it.
[k] The petitioner has never relieved the respondent pursuant to his resignation on 01/11/1994.
[l] The respondent claimed to have withdrawn his resignation.
[m] The respondent filed complaint (ULP) No.41/2005 for challenging his alleged termination dated 01/11/1994 and delay caused was condoned by the Labour Court.
[n] The petitioner filed its written statement contending that social security legislation like the EPF and MP Act, 1952 and the payment of Gratuity Act, 1972 were not applicable to the petitioner.
[o] The respondent was unauthorizedly absent from 30/06/1994.
[p] The respondent, during the pendency of the complaint, has orally waived his back wages on the ground that he should be paid his retiral benefits like provident fund, gratuity etc.
[q] The petitioner/Management has accepted his oral request made in the Labour Court regarding waiver of back wages, but has not accepted his oral request for retiral benefits.
[r] The Labour Court has delivered the impugned judgment beyond the scope of its powers u/s 30 of The MRTU and PULP Act, 1971.
[s] The Industrial Court has committed the same error as was committed by the Labour Court in dismissing the revision petition of the petitioner.
[t] The petitioner falls u/s 1(3)(c) of the Payment of Gratuity Act, 1972 and hence, until the Central Government issues a notification, this Act would not be applicable to the petitioner.
[u] Since the respondent had waived back wages and had attained the age of superannuation in 2007, the Labour Court was left with no scope to grant any relief to the respondent.
[v] Both the impugned judgments deserve to be quashed and set aside and the complaint filed by the respondent deserves to be rejected.
4. The petitioner has relied upon the following 3 judgments :
[a] State of Punjab Vs. The Labour Court, Jullundur and others, AIR 1979 SC 1981,
[b] Chief Engineer, Hydel Project and others Vs. Ravinder Nath and others, AIR 2008 SC 1315,
[c] State of Maharashtra and others Vs. Presiding Officer, Industrial Court, Civil Lines, Nagpur and others, 2006(5) Mh.L.J. 838.
5. Mr. Suryawanshi, learned Advocate on behalf of the respondent/employee has supported the impugned judgments. Contention is that a conditional oral request was made before the Labour Court by the respondent that he would waive his back wages and would accept his retiral benefits only with the intention of bringing the litigation to an end and in the light of the fact that he had attained the age of superann
