YESUMITHRA SABANNA AND ORS. Vs. CHIEF MANAGER, NITIN ARUN NIVSARKAR, CENTRAL RAILWAYS EMPLOYEES CO-OPERATIVE CREDIT SOCIETY LTD. AND ORS.

JUDGEMENT

(1.) Writ Petition No. 460 of 2016 is filed by Central Railway Employees Co -operative Credit Society Ltd., who is the employer of the Respondent. The petition challenges an order of the Industrial Court, Mumbai passed in a revision application. The revision application was filed by the first Respondent, whose complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was dismissed by the Labour Court. The Revisional Court partly allowed the revision application and set aside the order of the Labour Court, directing the Petitioner employer to reinstate the first Respondent employee in his original post with continuity of service and with 50% back wages. Writ Petition No. 638 of 2016 is filed by the first Respondent employee challenging the revisional order referred to above to the extent that it does not allow full back wages to the employee and also to the extent that it does not issue a sanction to prosecute the employer for filing of a false affidavit under Sec. 193 of IPC read with Sec. 33(4) of the MRTU and PULP Act. The two petitions are being tagged together and disposed of by this common order.

(2.) The disputes between the parties have a long and checkered history, which, in any event, bears a mention in detail so as to understand and resolve the controversy. The facts are, accordingly, noted below:

(3.) The reading of the orders of the Courts below indicates that the first Court, i.e. the Labour Court, had, after a detailed consideration of the evidence on record, held that the Petitioner had substantiated the charges levelled against the Respondent. The Respondent was transferred from Bhusawal to Jhansi by an order of 25 July 1994 and relieved from the Bhusawal Branch by a letter dated 29 July 1994, so as to enable him to report at Jhansi on 24 July 1994. It is an admitted fact that the Respondent never reported at Jhansi but instead filed a complaint and prosecuted the same before different courts. It is also an admitted fact that the Respondent was absent from work and failed to report at the transferred location, namely, at Jhansi and was absent from work between 17 October 1994 and 4 July 1995. It is also an admitted position that after 17 October 1994, the Respondent did not have any interim order in his favour. The Labour Court, in the premises, came to the conclusion that the absenteeism of the Respondent stood proved by reason of the unauthorised absence between 17 October 1994 and 4 July 1995. The Labour Court also considered the Respondent's applications for extension of leave made to the Branch Manager of the Petitioner at Bhusawal. The Labour Court noted the admitted position that no leave was granted or extended upon such applications. The Court noted the letter of the Bhusawal Branch addressed to the Respondent, communicating to him that it had no administrative control over him, considering that he was relieved from the Bhusawal Branch after his transfer to Jhansi. The Labour Court noted that from the applicable standing orders it appears that any employee of the Petitioner Society, who desired to obtain leave of absence, had to apply to the Manager in writing before a stipulated period; and that no leave or extension could be deemed to have been granted unless an order to that effect was passed and communicated to the employee concerned. The Labour Court held that taking into consideration the standing orders, mere giving or sending of an application for extension of leave was not sufficient but the leave had to be granted or extended by a specific order and that no such order was issued and therefore, it was imperative for the Respondent to have resumed duties at the transferred location. The Labour Court also considered whether the punishment awarded to the Respondent was disproportionate to the gravity of his misconduct. The Labour Court came to the conclusion, on the basis of the material on record, including the past service record of the Respondent (which was also considered by the Disciplinary Authority), that the decision to terminate the Respondent's services was justified. The Labour Court also considered the Respondent's plea that similarly placed employees as the Respondent, who had committed the same misconduct, were awarded minor punishments, but were not terminated from service. The Labour Court considered the distinction between the cases of these other employees and the case of the Respondent. The Court rightly considered that the other employees had submitted applications for regularisation of their leave as without pay or extraordinary leave and, in the premises, such leave was granted and a minor punishment was inflicted upon them. The Labour Court, in the premises, dismissed the complaint.