MIRZA MUSHAQUE Vs. M S R T C

JUDGEMENT

(1.) BY invoking the writ jurisdiction of this Court under articles 226 and 227 of the Constitution of India, the order dated 21-9-1990 passed by the Member, Industrial Court, Nagpur in Revision (ULPA) No. 18/ 1986 whereby the revision is allowed and directed the reinstatement of the petitioner but without payment of back wages is challenged in this petition.

(2.) RELEVANT facts are as under: the petitioner was appointed as conductor in M. S. R. T. C. , the respondent-Corporation some time in the year 1971. On 19-1-1984 he was assigned the duty on the S. T. Bus No. 9631 which was scheduled from Jumda to washim. The said S. T. Bus was checked by the Inspecting Staff near Jamrul cement Factory. It was found that in all 45 passengers were travelling in the bus out of which 7 passengers were not having tickets. It was also found that 4 passengers boarded at Jumda and 3 passengers at Khandala and they were going to Washim. The petitioner-conductor was served with charge-sheet on 28-2-1984 on the allegations that he had recovered the amount from the passengers and misappropriated the same. A regular departmental enquiry was conducted and consequently he was dismissed from service w. e. f. 5-9-1984. The petitioner filed complaint under section 20 of the Maharashtra recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (short the M. R. T. U. and, P. U. L. P. Act) in the Labour Court vide Complaint (ULP) No. 251/1984 mainly on the ground that he was not given opportunity to defend his case and therefore, the orders were not sustainable. The Labour court by the order dated 8-1-1986, on considering the evidence adduced by the parties dismissed the complaint. The petitioner carried revision before the industrial Court which came to be allowed by the order dated 21-9-1990 directing reinstatement of the petitioner but without back wages. This order is under challenge in this petition.

(3.) MR. Khan, the learned Counsel for the petitioner contended that the industrial Court, though directed the reinstatement of the petitioner, has committed an error in not granting back wages. He contended that the approach of the Industrial Court to the matter was wrong by holding that since the revision is allowed on the technical ground and keeping in view the fact that instead of remanding the matter, it is to be disposed of and it would be appropriate not to award back wages. Mr. Khan contended that ordinarily a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. In support of these submissions he relied on the decision of the Supreme Court in the case of (M/s. Hindustan Tin Works Pvt. Ltd. v. Its Employers), 1978 Lab. I. C. 1667.