Bharat Sanchar Nigam Limited v. G.B. Khetade

4.3. She would submit that Respondent had voluntarily abandoned his duties after his arrest on 06.11.1992. She would submit that his whereabouts were not known after 06.11.1992 until his acquittal on 28.04.1999. She would submit that he did not raise any dispute regarding his employment. She would submit that although Respondent state that he had sent a letter stating that he must be reinstated on compassionate grounds dated 02.02.1994, the same was not acknowledged by Petitioner’s office. She would submit that Respondent remained unauthorisedly absent and abandonded hiswork for six and a half years. She would submit that CGIT failed to consider that Respondent’s services were terminated because of his arrest.

4.4. She would vehemently agree that Respondent is not acquitted by Trial Court on merits but technical grounds and lapses in prosecution. She would submit that his aquittal by Trial Court is on the ground of benefit of doubt which does not allow him to seek continuous employment and full back wages parallel with retrenchment as acquittal on benefit of doubt is not equal to honourable acquittal. Hence she would urge the Court to allow the Petition and set aside the impugned order dated 06.03.2003

5. Mr. Pandire, learned Advocate appearing for Respondents (who are legal heirs of original Respondent No. 1) would submit that the decision of Industrial Court be upheld and Respondent be 5 of 12 compensated. He would submit that dismissal/termination of Respondent in the present facts is not fair and is against the principles of the natural justice. He would submit that his termination was without following the dur process of law and other procedural obligations prescribed in the Section 25F of the said Act and hence his discharge without any enquiry amounts to grave injustice and against principles of natural justice.

5.1. He would submit that Respondent was also employed on a continious basis from 1985 to 1992 with artifical breaks and was terminated following his arrest on 06.02.1992 without following the procedure for his retrenchment under Section 25F of said act i.e. without any documentation, notice, show cause notice.

5.2. He would submit that Respondent was arrested on charges of theft and therefore his services were automatically terminated because of his arrest without any notice issued to him. He would submit that Respondent showed his intent to resume services by letter dared 02.02.1994, whihc is not acknowledged by Petitioner. He would submit that Respondent addressed another letter dated 20.12.1992 about his prior record and his clean compliant free background while working in the organization prior to he being arrested. He would submit that Respondent did not acknowledge the letter either. He would submit that on aquitted once again he showed 6 of 12 interest and willingness to join services which was denied by Petitioner.

5.3. He would submit that letters addressed by Respondent on several different occasions after his acquittal were acknowledged by Petitioner but was intentionally ignored as agreed in the crossexamination of Petitioner’s witness as stated in the Award of Industrial Tribunal-2, Kalyan. Letter dated 02.02.1994 and 10.05.1999 sent by Respondent after getting bail and acquittal respecctively regarding his will were also ackowledged by Petitioner by using appropriate stamps but still intentionally ignored.

5.4. In support of his above submissions he has referred to and relied upon the following decisions of the Supreme Court, this Court and various other High Courts:- (1) Water supply & Sewage Disposal Vs P.O. Labour Court & Anr.[1] (2) Nedungadi Bank Ltd. Vs K.P. Madhavankutty and Ors.[2] (3) The State of Maharashtra through the… Vs Shri Anil (4) Sr. Suptd Telegraph(Traffic) Bhopal Vs Santosh Kumar Seal and Ors.[4] (5) Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya. (D.ED.) and Others.[5] 1 1990 SCCR(3) 111

7 of 12 (6) Water supply & Sewage Disposal Vs P.O. Labour Court & Anr.[6] (7) Bharat Sanchar Nigam Ltd. Vs Bhurumal.[7] (8) Imtiyaz Ahmad Malla Vs The State of Jammu And Kashmir.[8] (9)Surender Prasad Vs Central Public Works Deprtment.[9]

6. I have heard Ms. Masurkar, learned Advocate for Petitioner and Mr. Pandire, learned Advocate for Respondent Nos.1A to 1F and perused the record of the case. Submissions made by both the Advocates at the bar have received due consideration of the Court.

7. At the outset, it appears that Writ Petition is filed under the Industrial Disputes Act. The Petitioner challenges Award dated 06.03.2003 passed by the Central Government Industrial Tribunal NO. 2, Mumbai (CGIT) in Reference No. 2/96 of 2000. By the said Award, the Tribunal directed reinstatement of the workman, late Shri G.B. Khetade (now represented by his legal heirs), with continuity in service and full back wages from 06.12.1992 till 10.05.1999. The Petitioner, BSNL, seeks to set aside the said Award on multiple grounds, inter alia that the Respondent was a daily rate worker employed on "when work available" basis,that he was not employed or appointed to a sanctioned post, that he was arrested for theft and

8 of 12 accordingly terminated and that the dispute was raised much belatedly and without proper authority by the Union on his behalf.

8. The facts on record indicate that the Respondent had admittedly worked intermittently with the Telecommunication Department, Ulhasnagar, from 1980 onwards. His last period of engagement was from 01.08.1990 till 06.12.1992, on the Muster Roll prior to his arrest on allegation of theft.

9. It is undisputed that Respondent was arrested on 06.12.1992 and he was terminated from service forthwith without any inquiry on the following day i.e. 07.12.1992. No inquiry was conducted, principles of natural justice was not followed prior to termination. Record reflects that Respondent workman got bail and gave letters for his reinstatement in 1992 itself, but Petitioners ignored the same. Thereafter he was acquitted from the criminal charge by the Competent Court on 28.04.1999 and he once again again approached the Petitioner who ignored him.

10. Despite Petitioner’s contentions, Tribunal has rightly held that termination without inquiry, especially when allegations are serious and criminal proceedings are pending, is unsustainable. The obligation of the employer to hold a domestic inquiry is not dispensed with merely because a criminal prosecution is launched. The Petitioner 9 of 12 has failed to demonstrate any compliance with the procedure under Section 25F of the Industrial Disputes Act, 1947 and no material is placed before Court to justify non-adherence thereto.

11. The Tribunal has also considered Petitioner’s argument regarding delay and laches. Record shows that the Respondent sent representations immediately after being released on bail and again in 1999 post his acquittal but was intentionaaly ignored by Petitioner. The Union took up his cause shortly thereafter. The Court found no gross negligence or inaction on the part of the Respondent to deny relief solely on the ground of delay to these facts, greviance of Petitioner on the ground of delay is unacceptable.

12. The argument that Respondent was not a member of the Union which raised the dispute is also devoid of merit. It is well settled that a Union may espouse the cause of a workman even without formal membership, if done with his consent or in the larger interest of the workmen. The Tribunal has correctly applied the legal maxim of espousal and its findings are consistent with settled principles of industrial jurisprudence.

13. The Petitioner further contends that acquittal was not on merits but by giving him benefit of doubt, and therefore, reinstatement should not automatically follow. However, in the absence of a 10 of 12 departmental inquiry or any evidence on record justifying termination, this Court cannot uphold the punitive action meted out by the Petitioners to the Respondent merely based on a criminal allegation which has not been substantiated. Further Respondent has stood cleared of all charges.

14. The submission regarding Respondent’s employment status being “daily rate” and hence dis-entitling him to relief is also rejected in view of the aforesaid findings that he admittedly worked from 1980 to 1992 with the Petitioners. The Tribunal has taken into account the pattern of Respondent's employment and found continuity in engagement sufficient to attract the protection of the Industrial Disputes Act, which I am unable to dislodge.

15. On the basis of the above, no case is made out to interfere with the well reasoned and cogent Award passed by the learned Tribunal. The Writ Petition is devoid of merit and stands dismissed. Respondent has expired in the interregnum. Hence under the Award, the dues that would have to be paid over to Respondent. Respondent Nos. 1A to 1F equally i.e. in equal proportion forthwith.

16. All parties including Registry of this Court shall act on a server copy of this order downloaded from the website of the High Court. Respondent's Advocate shall forthwith provide the details of 11 of 12 Respondent Nos. 1A to 1F viz, self attested Aadhar card copy, self attested bank account details and passbook copy with IFSC Code etc any other details as required to the Registry of this Court.

17. By order dated 12.12.2005, this Court (Coram: V.C. Daga, J.) directed Petitioners to deposit the entire backwages from 06.12.1992 amounting to Rs.6,10,137/- which was deposited by Petitioner in this Court on 13.02.2006.

18. In view of dismissal of Petition, Registry is directed to release the said amount with all accrued interest on the said amount to Respondents as directed forthwith on production of a server copy of this judgment without any delay and in any event within a period of two weeks from the date of submitting the details by the Advocate for Respondents. If any Fixed Deposit is required to be broken, the same shall be broken forthwith for the above purpose.

19. Resultantly, the Writ Petition stands dismissed with the above directions. Amberkar [ MILIND N. JADHAV, J. ] 12 of 12 TRAMBAK UGALMUGALE