Davare S.P., J.
1. Perused the writ petition. Heard Shri. Goyanka, learned Counsel for the petitioner and Shri Warad, learned Counsel for the respondent.
2. The petitioner is the Maharashtra State Road Transport Corporation and respondent is working as Conductor with it. The factual matrix of the matter are as follows:
3. The respondent was appointed as Conductor with the petitioner on 18.3.1981, but was dismissed from service on 30.10.1985 on account of misconduct of remaining absent from duty as per Clauses 10 and 38 of Schedule 'A' of Discipline and Appeal Procedure of the Corporation. Being aggrieved by the said decision, the respondent No. 1 filed appeal before first Appellate Authority of the Corporation on 27.2.1989, contending that he was involved as an accused in Sessions Case No. 99/1985 and was detained in jail since 28.4.1985 up to 7.2.1989, he was convicted by the Sessions Court and was sentenced to undergo imprisonment for life by judgment and Order dated 31.12.1985. He also stated that, later on he was acquitted by the High Court on 7.2.1989. Hence, the respondent contended that since he was accused in aforesaid Criminal Case and was detained in jail, he could not remain present on duty and as such, prayed that the order of dismissal may be set aside. However, the first Appellate Authority rejected the said appeal on 11.4.1989 on the ground that it is barred by limitation and there was inordinate delay of four years.
4. Being aggrieved by the said decision, the respondent preferred second appeal before the second Appellate Authority of the Corporation on 17.4.1989. The second Appellate Authority considered the plea of the respondent and by Order dated 25.4.1991, modified the order, directing that the respondent be reappointed in State Transport Corporation as fresh Conductor in existing vacancy without giving him any benefit of his past service. In compliance of the said order, the respondent joined the duty as a fresh Conductor and since then he is in service of the Corporation.
5. Thereafter the respondent herein filed Complaint (ULP) No. 53/1991 before the Labour Court, Ahmednagar, alleging unfair labour practice practised as per the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act' for short). The learned Judge of the Labour Court, Ahmednagar, by judgment and Order dated 4.11.1995, allowed the said complaint and thereby held that the petitioner Corporation has committed unfair labour practice under Items (a) and (f) of Schedule IV of the Act, and directed the Corporation to give the respondent continuity in service and back wages from 10.7.1989 to 25.4.1991 at the rate of his last drawn wages. Being aggrieved by the said judgment and order, the petitioner Corporation preferred Revision (ULP) No. 15/1996 before the Member, Industrial Court, Ahmednagar and challenged the said order. However, the learned Member, Industrial Court, Ahmednagar, vide judgment and Order dated 26.2.1996, dismissed the said revision. Hence the petitioner preferred the present Writ Petition under Articles 226 and 227 of the Constitution of India and raised the following contentions:
I) Whether the Labour Court has jurisdiction to entertain the complaint filed by the respondent/complainant since he was in the service when the said complaint was filed ?
II) Whether the respondent was estopped from approaching the Labour Court alleging the unfair labour practices when he accepted the appointment as fresh Conductor and joined the service?
6. In the context of contention No. 1, the learned Counsel for the petitioner submitted that the complaint filed by the respondent herein before the Labour Court, Ahmednagar, alleging unfair labour practice was not maintainable under the provisions of Item No. 1 of Schedule IV of the Act and the said complaint could not have been entertained and should have been dismissed by the Labour Court, Ahmednagar. In substance, it is the contention of the petitioner that there was lack of jurisdiction and Labour Court, Ahmednagar has no authority to entertain the said complaint.
However, the learned Counsel for the respondent rightly pointed out that the respondent herein had filed Complaint under Section 28 read with Schedule IV, Item Nos. 1(a) and (b) etc. of the said Act against the petitioner herein, alleging that the Corporation terminated the services of the respondent herein by following unfair labour practices and the petitioner herein appeared and filed written statement, and during the pendency of the said complaint, also filed an application raising the objection on the very maintainability of the complaint, contending that since the respondent herein is in service, the provisions of Item No. 1 of Schedule IV of the Act do not attract, and thus, the said complaint be dismissed. The respondent herein filed say to the said application and opposed the said application. However, the Labour Court, Ahmednagar rejected the said application vide judgment and Order dated 19.9.1994. Being aggrieved by the said order, the petitioner Corporation preferred Revision No. 49/1994 before the Member, Industrial Court, Ahmednagar. However, the said revision also came to be dismissed by judgment and Order dated 28.2.1995, passed by Member, Industrial Court, Ahmednagar. Thereafter the petitioner Corporation did not prefer any proceedings against the said judgment and order. Hence, the objection raised by the petitioner Corporation in respect of jurisdiction of the Labour Court, Ahmednagar in entertaining the Complaint (ULP) No. 53/1991 was turned down by the Labour Court, Ahmednagar as well as Member, Industrial Court, Ahmednagar and since the petitioner Corporation did not prefer any further proceedings against the said judgment and order, the said matter rested there itself. Hence, in view of the said position, the objection regarding jurisdiction raised by the petitioner Corporation has been dealt with aptly and, therefore, there is no substance in the argument canvassed by the learned Counsel for the petitioner in that respect.
7. As regards another limb of the argument advanced by the learned Counsel for the petitioner that the respondent was estopped from approaching the Labour Court alleging the unfair labour practice when he accepted the appointment as fresh Conductor and joined the service, the learned Counsel for the petitioner relied upon the judgment delivered by this Court (Coram : Dr. D.Y. Chandrachud, J.) on 22.4.2008 in Writ Petition No. 1858 of 2003 (Maharashtra State Road Transport Corporation, Bombay v. Prakash Tulshiram Pardeshi) : 2009(1) Bom.C.R. 359 and more particularly observations made therein that,
The respondent accepted the order of Appellate Authority and joined the service with effect from 10.12.1994. Once that was done and having taken the benefit of the order, it was clearly not open to the respondent to turn back and complain of an unfair labour practice. The respondent is clearly estopped from doing so. The principle of estoppel must apply in such a case and the Labour Court ought to have rejected the complaint on this ground alone. The interference of the Labour Court in the proceeding was, therefore, clearly not warranted.
Accordingly, it was canvassed by the learned Counsel for the petitioner that once the respondent accepted the decision of second Appellate Authority and joined the service as fresh Conductor, it was not open for him to turn back and to approach to the Labour Court, Ahmednagar by filing complaint alleging unfair labour practice against the petitioner herein, since principle of estoppel will come into picture and the respondent was estopped from filing the complaint before the Labour Court, Ahmednagar as he already joined the services of petitioner Corporation as fresh Conductor.
8. Having considered the observations made by Brother, Dr. Justice D.Y. Chandrachud in the above referred order, and also considering the arguments put forth by the learned Counsel for the petitioner on the basis of the said observations, it is necessary to scan the facts in the said case comparing with the facts of the present case and applying the legal principle of estoppel therefrom. On going through the said case before Dr. Justice D.Y. Chandrachud, it is seen that the respondent in the said case was also Bus Conductor and petitioner was also State Road Transport Corporation, but the charge against the said respondent Conductor was of misappropriation of funds of the Corporation and dereliction of duties by not issuing tickets to passengers for the journey, which are of serious nature and the service record of the said respondent i.e. Conductor was not satisfactory arid he was penalised in the past under the Service Rules and, therefore, the Appellate Authority was inclined to dismiss him from service. But the said respondent i.e. Conductor stated that he would not commit such mistake in future and it was on his request the Appellate Authority eventually decided to make a fresh offer of appointment so as to enable him to have some opportunity to improve upon himself. On the said backdrop of the facts, Dr. Justice D.Y. Chandrachud observed that,
Once that was done and having taken the benefit of the order, it was clearly not open to the respondent to turn back and complain of an unfair labour practice. The respondent is clearly estopped from doing so. The principle of estoppel must apply in such case and the Labour Court ought to have rejected the complaint on this ground alone.
However, in the instant case, it is observed by the second Appellate Authority while giving its decision on 25.4.1991 that the respondent herein has put in five years service as Conductor and has no serious pilferage case on its record, his service record apparently was not doubtful. Moreover, the charge against the respondent herein was absenteeism and in the said context, it is the matter of record that the respondent herein was involved in Sessions Case No. 99/1985 and was convicted by Sessions Court and was awarded sentence for life imprisonment, but subsequently he was acquitted by the High Court on 7.2.1989 and accordingly he was in jail from 28.4.1985 upto 7.2.1989 and, therefore, it is apparently clear that the circumstances which led to the absence of the respondent were beyond his control. Moreover, it is significant to note that ultimately the respondent was acquitted from the charges by the High Court and, therefore, the absence of the respondent during the period from 28.4.1985 to 7.2.1989 was required to be considered as a legal absence and even it is observed in the decision given by the second Appellate Authority of the petitioner Corporation dated 25.4.1991 that,
The S.T. Authorities while trying his case being the Competent Authority rather ought to have awaited for the decision of the Bombay High Court which would have been correct while giving the final decision from natural justice point of view to the accused person.
9. Hence, comparing the charges levelled against the respondent Conductor in the case before Dr. Justice D.Y. Chandrachud and the charges levelled against the respondent Conductor in the present case, needless to say, the charges levelled against the respondent in the present case were on the lesser pedestal in the degree of seriousness and more importantly things were beyond control of the respondent in the present case.
10. Besides, in the case before Dr. Justice D.Y. Chandrachud, the Appellate Authority was inclined to dismiss the respondent Conductor and he stated that he would not commit such mistake in future and it was on his request that the Appellate Authority eventually decided to make a fresh offer of appointment so as to enable the respondent to have opportunity to improve upon himself. However, so was not the position in the instant case and the respondent herein did not make any statement before the Appellate Authority and did not admit his mistake and did not make any request and Appellate Authority did not make any offer of fresh appointment to the respondent herein to enable the respondent to have opportunity to improve himself. In fact, the second Appellate Authority in the instant case observed that,
Shri Gamare is a young and having more years of service left over in S.T. In view of these facts on record and that he has been acquitted by the Bombay High Court on 2.3.1988 and that there is no pilferage case on record against him, we are giving sympathetic consideration to this second appeal.
11. Accordingly, the second Appellate Authority, after making the aforesaid observations, gave directions of reappointment of the respondent herein as fresh Conductor in existing vacancy without giving him any benefit of his past service. Thereupon, the respondent herein joined the service as fresh Conductor and thereafter filed the complaint before the Labour Court alleging unfair labour practice against the petitioner herein. Hence, on the background of the aforesaid facts in the instant case, since the reappointment of the respondent herein was not at the instance of the respondent, the principle of estoppel cannot be invoked in the instant case.
12. Moreover, the very root cause for dismissal of the respondent Conductor in the case before Dr. Justice D.Y. Chandrachud was the misappropriation of funds and dereliction of duties whereas the cause of dismissal of respondent Conductor in the case in hands was absenteeism only and circumstances for the said absenteeism were beyond his control as mentioned hereinabove, and, therefore, it is crystal clear that the facts and circumstances in the case before Dr. Justice D.Y. Chandrachud and facts and circumstances in the present case differ from each other. Thus, since the very basis and foundation of dismissal of respondent Conductor in the instant case was absenteeism as he was in jail regarding the charges levelled against him for which he was acquitted later on, resultant absenteeism due to circumstances beyond his control, it cannot be said that the respondent cannot agitate and persuade his legal right after joining the service as fresh Conductor and in this set of facts and circumstances, the principle of estoppel cannot deprive the respondent in the present case to pursue his legal right by approaching the Labour Court.
13. Apart from the said position, it is material to note that the very dismissal of the respondent herein was held to be by way of following unfair labour practice by the learned Labour Court as circumstances were beyond the control of the respondent since he was detained in jail in the present case and the learned Member, Industrial Court, Ahmednagar also concurred with the said view that absence of the respondent Conductor was for the reasons which were beyond his control and he cannot be punished without any fault and, therefore, he dismissed the revision filed by the petitioner herein by judgment and Order dated 26.2.1996, observing that once it is held that the dismissal is illegal, the employee is entitled for continuity in service, and the Labour Court has rightly appreciated the evidence on record and facts involved in the present case. Having considered the judgment and Order dated 4.11.1995, passed by learned Labour Court, Ahmednagar and the judgment and Order dated 26.2.1996, passed by learned Member, Industrial Court, Ahmednagar in revision, I do not find any fault therein to interfere under Articles 226 and 227 of the Constitution of India.
14. The learned Counsel for the petitioner also relied upon paragraph No. 10 of the judgment of the Andhra Pradesh High Court, reported in 1993 (1) C.L.R. 810 (K. Dayanand v. Depot Manager, A.P. State Road Transport Corporation, Khammam and Anr.). Relying upon the said observations, the learned Counsel for the petitioner submitted that it was not open to the respondent after accepting the decision of the second Appellate Authority and joining the service as fresh Conductor to approach the Labour Court, alleging unfair labour practices and the Labour Court has no jurisdiction to entertain the reference and grant continuity of service. Paragraph 10 of the said judgment reads as under:
The appellant has been given the benefit of humanitarian considerations and option to apply afresh for the post of conductor. For all intensive purposes, the order of removal passed against him subsists and there was no challenge to it before the Labour Court as such. He has been denied the continuity of service, which means that he will have to start from a scratch in his career as a conductor in the respondent Corporation. He has been given the benefit of continuity of service by the Labour Court, which means that the penalty which has been imposed on him is definitely watered down in the sense that he stands to gain a lot by getting the continuity of service by way of salary, increments, perquisites, pensionary benefits, etc., in future. Therefore, we find ourselves in agreement with the approach of the learned Single Judge that behind the facade of the reference made by the State Government solely for the purpose of determining whether the continuity of service denied to the appellant is justified or not, is the main question and that granting him the continuity of service is really by way of reducing the quantum of punishment, which he is otherwise likely to suffer under the orders of the Appellate Authority. Once we clear the ground that the case of the appellant comes within the purview of reduction of quantum of punishment, then obviously it will be difficult to escape from the provisions of Section 11-A of the Act. Indeed, the contention on behalf of the appellant before the Labour Court was that his case shall be considered under Section 11-A of the Act, though Shri Ramchandra Rao, Counsel for the appellant, has retracted from that position before us at the stage of writ appeal. Therefore, we are constrained to observe that we do not find much force in the submission that since the matter was referred by the State Government, the Labour Court was justified in giving a decision under Section 10(4) of the Act confining itself to the question referred by the State Government. The Labour Court ought to have seen that while answering the reference, it would be impinging on the domain of Section 11-A of the Act, which invests the Labour Court with the power to reduce the quantum of punishment only in cases of discharge and dismissal of workmen. In that view of the matter, the proper Award to be passed by the Labour Court would have been to hold clearly that it does not have the jurisdiction to entertain the reference made to it.
15. However, as rightly pointed out by learned Counsel for the respondent that in the case before Their Lordships, it was a reference made to the Labour Court under the Industrial Disputes Act for adjudication of the industrial dispute. It had a limited scope of the powers of the Labour Court to deal with the reference under Section 11-A of the Industrial Disputes Act. It did not deal with the unfair labour practices enlisted in Schedule IV of the Act. Moreover, in the said case, the employee was specifically directed to apply for fresh appointment which he did. However, so was not the position in the instant case and the respondent Conductor did not apply for fresh appointment. On the contrary, the respondent herein persistently demanded reinstatement in service with continuity of service and back wages. Besides, the fresh appointment to the workman in the above referred case before Their Lordships was purely given on humanitarian grounds, but so was not the case in the present case and the respondent herein persuaded the legal remedy available to him under law. Hence, in view of the said position, facts and circumstances in the above referred case before Their Lordships and facts and circumstances in the instant case differ from each other and hence, the ratio laid down and observations made therein will not be applicable to the present case.
16. Having taken a comprehensive view of the matter, I have no hesitation to hold that the second limb of the argument canvassed by learned Counsel for the petitioner bears no substance. Thus, there cannot be any dispute that the respondent herein is entitled for continuity of service.
17. As regards the back wages awarded to the respondent by the learned Labour Court, Ahmednagar from 10.7.1989 up to 25.4.1991 vide Judgment and Order dated 4.11.1995 and confirmed by the Member, Industrial Court, Ahmednagar vide its Judgment and Order dated 26.2.1996 in Revision Application filed by the petitioner herein, the learned Counsel for the petitioner canvassed the argument that the respondent has neither pleaded nor shown that he was not gainfully employed after dismissal from service and, therefore, he is not entitled to back wages. The learned Counsel for the petitioner relied upon the observations made by the Hon'ble Supreme Court in paragraph Nos. 12 and 15 of the case reported in : 2005 DGLS (soft) 29 : A.I.R. 2005 S.C. 768 : 2005(2) S.C.C. 363 (Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma), which read as under:
12. We find that for application of Rule 19(ii) in the background of Rule 14 of the Rules the basic requirement is that a conclusion has to be recorded that it is not reasonably practicable to hold the inquiry proceedings. Such a finding does not appear to have been recorded. Therefore, the views expressed by the CAT as affirmed by the High Court do not suffer from any infirmity.
15. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
18. On the face of the said position, learned Counsel for the respondent pointed out that his occupation was shown as Nil in the complaint (ULP) No. 53/1991 filed before the Labour Court, Ahmednagar. He also pointed out that respondent herein has made averments in the said complaint that,
The second appeal committee though gave findings in favour of the complainant, failed to give justice to the complainant inasmuch as the complainant was not reinstated with continuity of service and was not paid back wages from 7.2.1989 i.e. the date on which the complainant was released and was ready and willing to perform his duty and thus, the respondent has adopted unfair labour practice under Item Nos. (a), (b), (c), (d), and (g) of Schedule II of the Act of 1975.
Moreover, the learned Counsel for the respondent pointed out that the respondent, who was the complainant before the Labour Court, had filed Affidavit in support of his said contentions. Accordingly, the learned Counsel for the respondent submitted that the respondent was unemployed and was ready and willing to perform his duty, but the petitioner did not allow him to work during the aforesaid period i.e. 10.7.1989 to 25.4.1991. In the said context, learned Counsel for the respondent relied upon the observations in paragraph No. 32 of the judgment reported in : 2008 (1) Mh.L.J. 546 (Commissioner, Karnataka Housing Board v. C. Muddaiah), which reads as under: 'The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. It is open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong.
It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition, of law that no direction of payment of consequential benefits can be granted by a Court of law and if such directions are issued by a Court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.
19. Having considered the arguments advanced by the learned Counsel for the petitioner and the learned Counsel for the respondent, and also having considered the observations made by the Hon'ble Supreme Court in the above referred cases cited by learned Counsel for the petitioner and learned Counsel for the respondent, admittedly there is no dispute about the rule of 'no work no pay', but, considering the peculiar facts and circumstances in the instant case in entirety, it is apparently clear that the respondent herein was ready and willing to work but was not allowed to do so unlawfully and, therefore, the respondent herein is entitled for the benefits of back wages from the period 10.7.1989 to 25.4.1991, 'as if he has worked' during the said period, relying upon the observations made by the Hon'ble Supreme Court in paragraph No. 32 in the case reported in Commissioner, Karnataka Housing Board v. C. Muddaiah : 2008 (1) Mh.L.J. 546 (supra).
Accordingly, the argument canvassed by learned Counsel for respondent in respect of back wages from 10.7.1989 to 25.4.1991, is convincing and I am inclined to accept the same whereas the argument advanced by learned Counsel for petitioner in that respect bears no substance.
20. In the circumstances, this is not a fit case wherein the present Writ Petition can be allowed under Articles 226 and 227 of the Constitution of India and, therefore, present Writ Petition fails and accordingly same stands dismissed. Rule discharged.