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2012 DIGILAW 1443 (BOM)

Union of India v. D. J. Pujar

2012-08-02

ANOOP V.MOHTA

body2012
Judgment : The Petitioner, Union of India (Railway Authority) has challenged the impugned Award dated 31 August 1998, whereby the Industrial Tribunal, Kolhapur, after considering the merits of the matter, directed to reinstate Respondent No.1 by declaring the termination order dated 10 December 1990 to be shockingly disproportionate and thereby also directed to reinstate Respondent No.1 with continuity of service but without backwages. 2. Admittedly, by the impugned order, the Court has refused to grant any backwages. The Petitioner has challenged the same and this Court, after hearing, granted Rule on 14 June 1999 and also stayed the effect and operation of the judgment in terms of prayer clause (b). The stay has been in force till this date. 3. Admittedly, the Respondent has attained the age of superannuation. Therefore, the question only remains of the wages of the period from the date of order of stay granted till his retirement. Admittedly, Respondent No.1 moved an application under Section 17B of the Industrial Dispute Act. This Court, on 1 February 2001, granted the same w.e.f. 6 May 1999 i.e. from the date of filing of the Petition. Respondent No.1 was getting this amount pursuance to the said order till the date of his retirement. 4. Respondent No.1 was terminated from the service w.e.f. 22 November 1990 on the ground of unauthorized absence for more than 111 days between the October 1988 to July 1989. Respondent No.1 gave justification by placing on record material for the said absence. 5. Both the parties have accordingly made their submissions. The learned Judge, after considering the rival case/submission made by the parties, accepted the case of Respondent No.1 that he had given reasons for his absence for 111 days. But at the same stroke, recorded its findings that Respondent No.1 was in service for 20 years and comparatively his service record is clean and unblemish. In this background, rightly observed that the order of dismissal from service is shockingly disproportionate. 6. The material so placed on record read with the affidavit and documents filed and after going through the same, I see there is no case made out to interfere with the reasoning, as well as, the order so passed. In this background, rightly observed that the order of dismissal from service is shockingly disproportionate. 6. The material so placed on record read with the affidavit and documents filed and after going through the same, I see there is no case made out to interfere with the reasoning, as well as, the order so passed. Unauthorized absence and/or unintentional absenteeism just cannot be equated with the situation where the party for sufficient reason unable to attend and/or remained absent, but provided the reasons for such absenteeism and as supported by the reasons as recorded and referred in the affidavit, just cannot be overlooked while considering to punish such employees. The 18 years unblemished service is also relevant factor. The justification so given is required to be accepted in the present facts and circumstances. If that is so, the order of grant of reinstatement without back wages in my view, needs no interference. The Court has rightly considered while passing the order of reinstatement not to grant back wages. Such balanced order on a foundation of shockingly disproportionate punishment, in any way, cannot be stated to be perverse and/or bad in law. In the present case, as noted, Respondent No.1 is already retired. The amount which he has received pursuance to the order passed by this Court under Section 17B need to be adjusted. 7. Having once observed above, there is no case made out to interfere with the impugned order. The Court once come to the conclusion as recorded above and refused to entertain the reasoned order so passed, the entitlement of Respondent No.1 of all the benefits arising out of the said impugned order therefore, just cannot be denied. The effect of dismissal of present Petition is restoration of the order dated 31 August 1998 and if that is so, the stay of the reinstatement is also therefore, required to be treated as of no effect while considering the right of Respondent No.1 to claim the benefits arising out of the same. The grant of stay by the Court, in no way, sufficient to deny the right of the employees basically when the impugned order was of reinstatement. The grant of stay by the Court, in no way, sufficient to deny the right of the employees basically when the impugned order was of reinstatement. The Petitioner for whatever may the reason, has challenged the same but once the Petition is dismissed, the consequence as recorded above, means entitlement of Respondent No.1 to all the benefits, as if he is holding service from the date of reinstatement itself. 8. Therefore, I am inclined to observe that Respondent No.1 is entitled for all the benefits pursuance to the award dated 31 August 1998 subject to the adjustment of the amount if he has already received in accordance with law. 9. The Petition is dismissed. Rule is discharged. There shall be no order as to costs.