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Madhya Pradesh High Court · body

2016 DIGILAW 720 (MP)

Shivakant Upadhyay v. State of M. P.

2016-08-22

ANURAG SHRIVASTAVA, RAJENDRA MENON

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ORDER 1. Challenging the order dated 21.11.2011 passed by the M.P. State Co-operative Tribunal, Bhopal in First Appeal No.108/2008 treating the period when the petitioner was out of employment on the principle of no work no wages petitioner has filed this writ petition under Article 227 of the Constitution of India, petitioner was working as Society Manager in the Head Office, Co-operative Central Bank, Bhopal. It is seen that he was Incharge of Stationery Department and in the matter of supply of stationery to various departments as irregularities is said to have been committed by the petitioner, a sum of more than Rs.35,000/- defalcated. The charge sheet was issued to the petitioner a departmental enquiry was conducted and vide order dated 1.5.1985 his services were terminated. Challenging his termination raised the dispute before the Industrial Dispute before the Labour Court and the matter was kept pending for 12 years and on 10.11.1997 the Labour Court found that it has no jurisdiction to deal with the matter and dismissed the reference. Accordingly, the petitioner agitated the matter before the Deputy Registrar, Co-operative Society in a dispute raised by him under section 55(2) of the M.P. State Co-operative Society Act and the Deputy Registrar allowed the application and directed for reinstatement for employee the petitioner herein but denied the back wages. Challenging the order both the employer Bank and the petitioner preferred the appeal before the M.P. State Co-operative Tribunal the appeal bearing First Appeal No.119/2008 filed by the Bank and First Appeal No.108/2008 filed by the petitioner employee. The Tribunal by the impugned order found that the enquiry stood vitiated and documents and other particulars along with charge sheet were not given to the petitioner and as termination on the basis improperly conducted enquiry which stood vitiated directed for the reinstatement without back wages. The Tribunal by the impugned order found that the enquiry stood vitiated and documents and other particulars along with charge sheet were not given to the petitioner and as termination on the basis improperly conducted enquiry which stood vitiated directed for the reinstatement without back wages. For the purpose of payment of back wages the Tribunal found that the enquiry has been found to be vitiated on account of the fact that documents along with charge sheet were not supplied to the petitioner this being a technical ground for quashing the enquiry under the normal circumstances the matter should have been remanded back to the Disciplinary Authority for proceeding with the enquiry in accordance with the law from the stage the enquiry was found to be vitiated but finding the respondent/employee to have attained the age of superannuation, in the interest of justice it was directed that treating him to be retired by attaining the age of superannuation by denying him back wages he was directed to be reinstated and treated to have retired on attaining the age of superannuation. Now before this Court in this writ petition under Article 227 of the Constitution of India the petitioner has come out with a case that as his termination is found to be illegal, the normal consequence of reinstatement with full back wages should have been granted to him and this having not been done he prays for modification of the order passed by the M.P. State Co-operative Tribunal and direct the respondents to pay full back wages to the petitioner for the period he remained out of employment and in support thereof an affidavit has been filed vide I.A. No.10832/2016. 2. Shri Mishra took us to the material available on record he canvas the contention that once the termination is found to be illegal the normal relief of reinstatement with full back wages should have been granted. However, learned counsel appearing for the respondent/Bank argues that in this case petitioner himself is responsible for delay in disposal of the matter, he prosecuted his case before the wrong forum i.e the Labour Court between 1.5.1985 10.11.1997 i.e. for the period of 12 years and for this period the bank cannot be saddled with the responsibility of payment of back wages. That apart he took us through the reason which waived with the Tribunal to deny the back wages and argued that the Tribunal having taken the reasonable approach in the matter discretion available to this Court under Article 227 of the Constitution of India need not be exercised now and the Tribunal has given cogent and justifiable reason for denial of the back wages. 3. Having heard the learned counsel for the parties, we are of the considered view that in this case the petitioner himself is responsible for delaying the matter. The petitioner prosecuted the case before a wrong forum for about 12 years between 1.5.1985 to 10.11.1997 and when the Co-operative Tribunal was seized of the matter it was found that enquiry is vitiated only on account of the fact that the documents annexed with the charge sheet were not supplied to the petitioner and as the enquiry is being quashed on technical ground and the relief granted the Tribunal was of the considered view that at the normal circumstances the matter should have been remanded back to the disciplinary authority for proceedings with the enquiry but finding that the petitioner has already attained the age of superannuation on 30th June, 2007, it was held that interest of justice would be met in case he is directed to be reinstated without back wages. The approach adopted and the reasons indicated by the Tribunal for denying the back wages in the peculiar facts and circumstances of this case cannot be termed as perverse, erroneous or illegal to such an extent that interference in the matter now in this petition under Article 227 of the Constitution is called for. Accordingly, finding no ground, the petition stands dismissed.