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2020 Supreme(Bom) 507
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Ravindra V. Ghuge, J.
Maharashtra State Road Transport Corporation & Ors. - Appellants
Versus
Ramakant - Respondent
Writ Petition No.7677/2017
Decided On : 14-01-2020
Ms B.V. Reddy, Advocate For the Appellants, for the Appellant; Shri A.H. Jamal, Advocate for the respondent, for the Respondent
Once a dismissal order is withdrawn and replaced with another order, the dismissal order is non-existent in law, and back wages cannot be denied.
Headnote:
Unfair Labour Practice - Denial of Back Wages - The court found that the respondent engaged in unfair labour practice by denying the complainant back wages and other monetary benefits, and directed the respondents to pay the back wages and other monetary benefits to the complainant from the date of dismissal till his reinstatement.
Fact of the Case:
The complainant was dismissed from service, but the order of dismissal was withdrawn and replaced with the punishment of stoppage of two increments. The complainant challenged the denial of back wages before the Industrial Court.
Finding of the Court:
The court found that the charge of theft was not proved against the complainant, and the punishment of denial of back wages was not prescribed in the Discipline and Appeal Procedure of the MSRTC. The court concluded that the impugned judgment delivered by the Industrial Court was not perverse and erroneous.
Issues: The issues involved the denial of back wages and other monetary benefits to the complainant after the withdrawal of the dismissal order and the imposition of the punishment of stoppage of two increments.
Ratio Decidendi: The court held that once the dismissal order is withdrawn and replaced with another order, the dismissal order is non-existent in law, and back wages could not have been denied.
Final Decision: The petition was dismissed, and the court discharged the rule with no costs.
JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
2. The petitioner MSRTC is aggrieved by the judgment and order dated 14.3.2016 delivered by the Industrial Court, Nagpur by which Complaint (ULP) No.433/2003 filed by the respondent complainant, has been partly allowed and he has been granted the following reliefs:
''i) The Complaint is partly allowed.
ii) It is hereby declared that, the respondents have engaged in unfair labour practice under item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act by denying the complainant back wages and other monetary benefits, from the date of dismissal till the date of reinstatement.
iii) The respondents are directed to cease and desist from committing such unfair labour practice in future.
iv) The respondents are directed to pay the back wages and other monetary benefits to the complainant from the date of dismissal till his reinstatement within a period of two months from the date of this order, else the amount of the back wages will carry interest at the rate of 6% per annum from the date of this order till its realization.
v) Considering the facts and circumstances, parties to bear their own costs.''
3. I have considered the strenuous submissions of the learned Advocates for the respective sides and gone through the petition paper book with their assistance. The learned Advocate for the petitioner has strenuously canvassed the six grounds formulated in the memo of the petition.
4. The undisputed factors in this case are as under:
(a) The complainant was chargesheeted on 29.7.1993 for having been involved in a case of theft.
(b) He was suspended on 20.2.1999 pending disciplinary proceedings.
(c) After the conclusion of the disciplinary proceedings, he was issued an order of dismissal from service dated 11.11.1993.
(d) The MSRTC withdrew the order of dismissal dated 11.11.1993 on 4.6.2003 and granted reinstatement in service with continuity.
(e) Back-wages were denied and at the same time, punishment of stoppage of two increments with cumulative effect was awarded.
(f) The complainant approached the Industrial Court disputing that since he had already been punished with stoppage of two increments with cumulative effect, he cannot be denied back-wages as the departmental first appeal was allowed by the MSRTC concluding that no offence is proved against the complainant to the extent of the theft and he is only guilty of not entering the theft in the appropriate book and he had not brought the theft to the notice of the higher authorities.
(g) The record reveals that the complainant had challenged his dismissal order in Complaint (ULP) No.601/1999 while his first departmental appeal before the Chief Security and Vigilance Officer was pending.
(h) Since the dismissal order was withdrawn and the order of stoppage of two annual increments with cumulative effect was awarded on 4.6.2003, he withdrew his ULP complaint and the order of dismissal became non-existent.
(i) He has independently challenged the order dated 4.6.2003 before the Industrial Court being aggrieved by the deprivation of the back wages for the period for which he was dismissed and since the order of dismissal was withdrawn.
5. I find from the record that the order passed by the first Appellate Authority of the MSRTC clearly indicates that the charge of theft and/or being involved in the theft, was held to be not proved against the complainant. The charge of indiscipline and negligence was proved as the complainant did not take an entry of the incident of theft in his daily worksheet and did not report the theft to the higher Authority, for which two increments were stopped.
6. I find from the Discipline and Appeal Procedure of the MSRTC that no punishment of the nature of denial of back-wages is prescribed. Once the dismissal order is implemented, an employee remains dismissed. But if the order of dismissal is withdrawn, the order of dismissal is non-existent in law and more so when it is
