Doctrine of relation back has been considered to be an
important part of service jurisprudence. The essence of the "doctrine
of relation back" is that though an employee necessarily has to
undergo rigours of litigation, he eventually stands compensated if the
order of punishment is set aside. Entire back wages and benefits
incidental and consequential to reinstatement are then available to
an employee if the subsequent order of punishment in the form of
dismissal or termination is held to be bad in law since it relates back
to the initial date of dismissal. It is, in this situation, that the
"doctrine of relation back" has its operation.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9310 OF 2013
WITH
CIVIL APPLICATION NO.2010 of 2014
Manohar Pandit Marathe Vs President, Sharda Vidya Prasarak Mandal,
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 01/04/2014
Citation;2014(4) MHLJ 556 Bom
1. Heard the learned Advocates for the respective sides at length.
Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. Grievance of the petitioner is that he was terminated on
20/01/2009, which was challenged by preferring an appeal before
the School Tribunal bearing No.JAL/11/2009. The School Tribunal,
by its judgment and order dated 20/09/2013, concluded that Rule 36
and 37 of the M.E.P.S. Rules, have not been followed in conducting
the enquiry against the petitioner. The enquiry was, therefore,
quashed and set aside.
3. In the operative part of the impugned order, the employer has
been granted the liberty to either give up the de novo enquiry and
grant all reliefs to the petitioner or to conduct a de novo enquiry.
Option was also given to the employer to suspend the petitioner
pending the de novo enquiry, if so opted for. However, the employer
was directed to first reinstate the petitioner in employment and then
to place him under suspension, if so preferred and in the event of
conducting a de novo enquiry.
4. Grievance of the petitioner, therefore, is that from the date of
termination i.e. 20/01/2009, till the date of reinstatement
and
suspension, back wages need to be paid since the respondent
employer cannot be granted an opportunity to take advantage of its
own wrong. As an alternative submission, the petitioner contends
that the suspension be relegated back to the date of first dismissal
and the suspension allowance be therefore paid till 18/11/2012. It
is not in dispute that the petitioner has been reinstated on
18/11/2012 and has been immediately suspended on the same date.
5. The petitioner has placed reliance upon the judgment of the
Hon'ble Supreme Court in the case of Vidya Vikas Mandal and
another Vs. Education Officer and another, reported at 2007(3) Bom.
C.R. 281. Attention of this Court is drawn to paragraph Nos. 8 and
9 of the said judgment, which read thus :“
8. As rightly pointed out by the learned Counsel for the
appellants, Rule 37(6), which is mandatory in nature, has not
been strictly complied with. The Inquiry Committee comprising of
three members, as already noticed, only one member nominated
by the Management has submitted his Enquiry report within the
time stipulated as per Rule 37(6) and admittedly, the other two
members nominated by the employee and an independent
member have not submitted their report within the time
prescribed under Rule 37(6). However, the learned Judges of the
Division Bench, though noticed that the two members out of three
found the employee not guilty, failed to appreciate that the said
findings by the two members of the Committee were submitted
after the expiry of the period prescribed under Rule 37(6). In our
opinion, the report submitted by individual members is also not
in accordance with the Rules. When the Committee of three
members are appointed to enquire into a particular matter, all the
three should submit their combined report whether consenting or
otherwise. Since the report is not in accordance with the
mandatory provisions, the Tribunal and the learned Single Judge
and also the Division Bench of the High Court have committed a
serious error in accepting the said report and acted on it and
thereby ordering the reinstatement with back wages. Since the
reinstatement and back wages now ordered are quite contrary to
the mandatory provisions of Rule 37(6), we have no hesitation in
setting aside the order passed by the Tribunal, and learned
Single Judge and also of the Division Bench of the High Court.
In addition, we also set aside the order passed by the
Management based on the report submitted by the single
member of the Committee, which is also quite contrary to the
Rules.
9. In view of the order now passed by this Court, the
Rule 36(2) is now to be invoked and as per the said Rule, one
member from amongst the members of the Management is to be
nominated by the Management or by the President of the
Management if so authorised by the Management and one
member is to be nominated from amongst the employees of any
private school and the third member to be chosen by the Chief
Executive Officer from the panel of teachers on whom State /
National Award has been conferred. We direct the Management
of the School to constitute the Committee in accordance with subrules
(i), (ii) and (iii) of Rule 36(2)(a) to go into the matter afresh.
The respondent No.2, the employee, will be now treated under
suspension and he will be entitled to the subsistence allowance
as per rules with effect from the date of termination of his
services. The inquiry shall be completed by the Committee
within a period of six months from the date of their nomination /
Constitution.”
6. The petitioner, therefore, submits that in the light of the view
taken by the Apex Court in Vidya Vikas Case (supra), the respondent
employer be directed to treat the petitioner employee as being under
suspension and pay him subsistence allowance as per rules w.e.f. the
date of his termination. It is further contended that this would take
care of the forceful unemployment caused to the petitioner by the
illegal acts of the respondent employer.
7. It is also submitted that since the enquiry has been set aside
and the dismissal order has also been set aside the respondent
employer either has to treat the petitioner in employment from
20/01/2009 till 18/11/2012 or to treat him under suspension for the
said period. Mr.Brahme, therefore, strenuously contends that in any
given situation, the petitioner cannot be deprived of any relief for the
said period as it would mean that the petitioner is made to starve in
that period. He contends that if such liberty is granted to the
respondent of not compensating the petitioner for the above said
period, it would mean granting liberty to the respondent to resort to
an act of unjust enrichment.
8. Mr.Kakade, the learned Advocate on behalf of the respondent
employer contends that the Apex Court in the case of Vidya Vikas
Mandal (supra) has considered that the Tribunal had granted back
wages to the employee. The learned Judges of the Single Bench as
well as of the Division Bench of the High Court, which dealt with the
said case, had also granted back wages from the date of dismissal till
placing of the said employee under suspension for conducting a de
novo enquiry. He, therefore, canvasses that the Apex Court had
finally concluded that the Tribunal, the learned Single Judge and so
also the learned Division Bench of the High Court had committed a
serious error in ordering reinstatement with back wages to the
employee. He submits that the said judgment indicates that back
wages were not to be granted in such situation.
9. Mr.Kakade has further submitted that in the instant case, the
petitioner was not placed under suspension when the first enquiry
was conducted. He was dismissed from employment by way of
punishment on 20/01/2009. The Tribunal, in the impugned
judgment, neither granted back wages to the petitioner, nor directed
the respondent to treat the period of first dismissal till reinstatement
as a period of suspension. Mr.Kakade, therefore, submits that the
facts of the instant case are totally distinct and distinguishable from
the facts emerging from the Vidya Vikas Mandal's Case (supra).
10. Mr.Kakade has further submitted that a de novo enquiry has
already been commenced as per the order of the Tribunal. The
employer has preferred to place the petitioner under suspension
initially by reinstating him as per the directions of the Tribunal on
18/11/2012 and thereafter immediately suspended him on the same
date so as to conduct the de novo enquiry. He places reliance upon
the judgment of this Court in the case of Rangdas Swami Shikshan
Vikas Mandal and others Vs.Mutyal Vilas Rambau and others,
2011(6) Mh.L.J. 270.
11. He further states that the facts in the Rangdas case (supra) are
identical to the facts of this Case. He, therefore, has drawn my
attention to paragraph Nos. 10, 11, 14 and 15 of the said judgment,
which read thus :“
10. In the present case, it must be borne in mind that the
enquiry has been set aside since the procedure adopted by the
Enquiry Committee was violative of the principles of natural justice
as well as Rule 37 of the MEPS Act. Thus, from the very inception
itself, the enquiry was vitiated. Admittedly the employee in the
instant case was not under suspension when the enquiry was
held against him. It must also be borne in mind that the Tribunal
is a creature of the Statute.
11. It is now well settled that a Tribunal which is appointed
under a Statute cannot traverse beyond the powers conferred upon
it under the Statute. The only powers that the School Tribunal can
exercise are contained in Section 11 of the MEPS Act. Any
directions given by the Tribunal beyond the scope of the powers
conferred under section 11 of the MEPS Act would mean that the
Tribunal has acted in excess of the jurisdiction conferred upon it.
Therefore, in my view, the School Tribunal, Pune, cannot be faulted
for directing reinstatement of the employee. Had the respondent
No.1 been under suspension while the enquiry had proceeded
against him, it may have been possible to accept the submission of
Mr.Mhaispurkar that while setting aside the enquiry, the School
Tribunal should have restored statusquo
ante. The delinquent
employee could then have been continued under suspension.
However, in the present case since the respondent No.1 was not
placed under suspension when the enquiry was in progress, he
cannot be placed in a position worse than what he was in prior to
the dismissal order being passed. The directions of the School
Tribunal, therefore cannot be faulted.
14. In the case of Vidya Vikas Mandal and another (supra),
the employee was not suspended during the progress of the earlier
enquiry. However, on setting aside the enquiry the Supreme Court
directed that the employee should be placed under suspension.
The directions of the Supreme Court contained in this judgment
have obviously been passed in exercise of its jurisdiction under
Article 136 of the Constitution Of India. The Judgment does not in
any manner state that the Tribunal could have directed suspension
of the delinquent employee. Therefore, the submission of
Mr.Mhaispurkar cannot be accepted. In my opinion, the order of the
School Tribunal cannot be faulted.
15. However, while considering the submissions on behalf of
the petitioners under Article 227 of the Constitution of India, it may
not be beyond the purview of this Court to pass certain directions
while disposing of the Writ Petition. In these circumstances, in my
view, it would be appropriate to dispose of the Writ Petition as
follows :
(i) The petitioners will reinstate the respondent No.1 notionally
with continuity of service immediately.
(ii) The petitioners are at liberty to issue an order of suspension
pending a fresh enquiry. If such an order is passed, the
petitioners shall pay subsistence allowance in accordance
with the MEPS Act and Rules framed thereunder.
(iii) The petitioners are at liberty to hold a fresh enquiry after
constituting an Enquiry Committee in accordance with the
MEPS Rules.
(iv) In case the respondent No.1is exonerated of the charges in
the fresh enquiry, the petitioners shall pay the backwages
as awarded by the School Tribunal in the impugned order
within a month of the completion of the enquiry.
(v) If respondent No.1 is found guilty of the misconduct
allegedly committed by him, the petitionerManagement
will
decide whether the back wages should be paid to him as
awarded by the School Tribunal, Pune.
12. I have given an anxious thought to the submissions of the
petitioner as well as the respondent employer. The anxiety of the
petitioner is quite evident from the fact that he has been made to
suffer rigours of litigation from the date of termination till the date of
his subsequent suspension pending de novo enquiry. Mr.Brahme
has, therefore, vehemently canvassed that a human being ought not
to be treated in such a way so as to cause starvation on account of
the illegal acts of the employer. He contends that the Tribunal has
arrived at a conclusion that the employer had acted in an illegal
manner and therefore the petitioner deserves to be compensated in
some way.
13. This Court has taken a consistent view so far as "Doctrine of
relation back" is concerned in matters of service jurisprudence. Right
from the judgment in the case of Managing Director, A.P.S.R.T.C. And
another Vs.S.P.Satyanarayana, 1998(2) CLR 620, Desh Raj Gupta
Vs.The Industrial Tribunal IV,U.P. Lucknow and another, 1991(1) CLR
332, Rambhau S/o Vyankuji Khorgade Vs. M.S.R.T.C.Nagpur,
1992(2) C.L.R. 581 and lastly in the case of Mumbai Cricket
Association Vs. Pramod G.Shinde, reported at 2011(1), CLR 745. The
entire case law on the point of “Doctrine of relation back" has been
considered in the case of Mumbai Cricket Association (supra).
14. In the case of Rambhau S/o Vyankuji Khorgade Vs.
Maharashtra State Road Transport Corporation, Nagpur, 1992 II CLR
581, it is held in paragraph Nos. 11,20,21 as under :
“11. The law as enunciated in the case of D.C.Roy and
discussed above was accepted as correct in the subsequent
decision of the Supreme Court in Gujarat Steel Tubes Ltd., Vs.
Gujarat Steel Tubes Mazdoor Sabha and others. (AIR 1980 SC
1896). It is a Judgment delivered by three Judges, and Krishna
Iyer, J. speaking for the Bench stated as follows :“............
Jurisprudentially, approval is not creative but
confirmatory and therefore relates back. A void dismissal of
just void and does not exist. If the Tribunal, for the first time,
passes an order recording a finding of misconduct and thus
breathes life into the dead shell of the Management’s order,
predating of the nativity does not arise. The reference to Sasa
Musa (AIR 1959 SC 923) in Kalyani enlightens this position.
The latter case of D.C.Roy V. Presiding Officer, Madhya Pradesh
Industrial Court, Indore (supra) specifically refers to Kalyani’s
case and Sasa Musa’s case and holds that where the
Management discharges a workman by an order which is void
for want of an enquiry or for blatant violation of rules of natural
justice, the relationback
doctrine cannot be invoked. The
jurisprudential difference between a void order, which by a
subsequent judicial resuscitation comes into being de novo, and
an order, which may suffer from some defects but is not stillborn
or void and all that is needed in the law to make it good is a
subsequent approval by a tribunal which is granted, cannot be
obfuscated.”
Though the learned Judges agree with the law laid down
in D.C.Roy’s case the decision does not proceed further because
the orders of termination in that case were set aside. Actually
the point of ‘relation back, doctrine does not fall for consideration
in the case of Gujarat Steel Tubes. Suffice it to say that the
Judge, who delivered the judgment in the said case, was also
one of two Judges who decided D.C.Roy’s case.
20. An ingenious contention was also raised on behalf of
the petitioner. The contention was that when the Court find the
domestic enquiry to be defective, it is an unfair labour practice
covered by any of the clause of Item 5 of the Fifth Schedule of
the Industrial Disputes Act. The workman immediately becomes
entitled to the relief of reinstatement with back wages. Instead
the employer takes up the second chance to prove the
misconduct and if he succeeds, the workman loses all the rights
to get any relief. It is in these circumstances, it is urged that
right to claim back wages arises at least from the date of
dismissal to the date of the award. I will shortly point out that
the submissions are devoid of any merit and must be rejected for
more than one reasons.
21. Simply because the enquiry is held to be defective, it is
not necessary that holding of such an enquiry would be an
unfair labour practice. It is difficult to fathom which clauses of
item 5 would be attracted. Again it would be premature to hold
that the management indulged in unfair labour practice because
it is always open for the employer to seek an opportunity to
establish the misconduct before the Court or Tribunal by
::: Downloaded on - 09/09/2014 17:16:49 :::
Bombay High Court
( 14 ) Writ Petition No.9310 of 2013
adducing evidence before it and justifying the order of dismissal
or discharge. If the employer succeeds in establishing the
misconduct it can never be said that they have indulged in any
type of unfair labour practice. Hence, the question of
reinstatement of the workman does not arise at the time the
enquiry is held to be defective. In case the reinstatement were
to follow immediately upon the Court or Tribunal coming to the
conclusion that the enquiry is defective, the right of the employer
to prove the misconduct before it by adducing evidence would
come to an end and that is not what is contemplated by the
various decisions of the Supreme Court. The intention behind
permitting the employer to establish the misconduct before the
Court or Tribunal either for the first time or as a supplementary
measure is well illustrated in the Supreme Court case of the
Cooper Engineering Ltd., Vs. P.P.Mundhe (AIR 1975 SC 1900).
The relevant portion is extracted below to illustrate the point.
“.......The reference involves determination of the larger
issue of discharge or dismissal and not merely whether a correct
procedure had been followed by the management before passing
the order of dismissal. Besides, even if the order of dismissal is
set aside on the ground of defect of enquiry, a second enquiry
after reinstatement is not ruled out nor in all probability a
second reference. Where will this lead to ? This is neither
going to achieve the paramount object of the Act, namely,
industrial peace, since the award in that case will not lead to a
settlement of the dispute. The dispute, being eclipsed, pro
tempore, as a result of such an award, will be revived and
industrial peace will again be ruptured. Again another object of
expeditious disposal of an industrial dispute (see S.15) will be
clearly defeated resulting in duplication of proceedings. This
position has to be avoided in the interest of labour as well as of
the employer and in furtherance of the ultimate aim of the Act to
foster industrial peace.”
It is in the aforesaid background the consistent view of the
Supreme Court is that when a case of dismissal or discharge of
an employee is referred for industrial adjudication, the Labour
Court should first decide as a preliminary issue whether
domestic enquiry has violated the principles of natural justice.
When there is no domestic enquiry or defective enquiry is
admitted by the employer, there could be not difficulty. But
when the matter is controversial, it must be decided as a
preliminary issue. On that decision being pronounced, it will be
for the management to decide whether it will adduce any
evidence before the Labour Court. It if chooses not to adduce
any evidence, it will not be thereafter permissible in any
proceeding to raise the issue. In case the employer adduces the
evidence and proves the misconduct, the order of dismissal
though passed earlier is to be upheld. The ‘relation back’
doctrine must come to fore.”
15. In the case of Mumbai Cricket Association Vs. Pramod G.
Shinde, 2011 (I) CLR 745, it is held in paragraph Nos. 16,17 and 19
that :“
16. In my view, the Labour Court has seriously erred in
allowing the application. In a recent decision reported in 2004
II CLR 942 S.C. (Engineering Laghu Udyog Employees’ Union V.
The Judge, Labour Court and Industrial Tribunal and another) a
three Judges’ Bench of the Hon’ble Supreme Court was dealing
with the controversy about effective date of termination and
doctrine of relation back. It was held that by virtue of section
11A of the Industrial Disputes Act, 1947 a wide power is
conferred on the Labour Court to give appropriate relief in case
of discharge or dismissal of workman. While adjudicating on a
reference made to it, the Labour Court if satisfied that the order
of discharge and dismissal was not justified, it may, while
setting aside the same, direct reinstatement of the workman on
such terms and conditions, if any, as it thinks fit, or give such
other relief to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the
circumstances of the case may require.
17. Thus, only in case a satisfaction is reached by the
Tribunal that the order of the discharge or dismissal was not
justified, same can be set aside. So long as the same is not set
aside, it remains valid. But once where on the basis of the
evidence brought on record in the domestic enquiry or by reason
of additional evidence, the employer makes out a case justifying
the order of dismissal, such an order of dismissal cannot be
given effect to only from the date of the award but from the date
of the order of punishment. Once the charges are proved before
the Labour Court, the order of termination would relate back to
the date of original order.
19. Once this legal position is taken into consideration,
then, there is no scope for the arguments canvassed by
Mr.Pathak. The order of dismissal remains and is not set aside.
If upheld by the Court, it will be after the order of the Court in
that behalf. However, it relates back to the date of punishment.
If what is postponed is its coming into effect or operation, then,
the argument of Mr.Pathak that it is held in abeyance must be
straightway rejected. His argument would render doctrine of
relation back completely nugatory. The Supreme Court has
construed the provisions of the Industrial Disputes Act, 1947.
The provisions give a right to the employer to adduce evidence
before the Tribunal to justify its action in either cases, namely,
where no domestic enquiry whatsoever has been held or where
domestic enquiry has been held and the charges are proved
thereat but the Court finds it to be defective. In the Hon’ble
Supreme Court held that such a right is conferred by the
provisions of Industrial Disputes Act and particularly section
11A thereof and that is how the Industrial and Labour Courts
have been giving opportunity to the employer to adduce evidence
after a conclusion is drawn that the domestic enquiry held by
them is vitiated and the findings of Enquiry Officer are perverse,
then, the dismissal order stands and is not set aside but what is
postponed is the date of its coming into effect. That is the
doctrine of relation back as explained in the foregoing
paragraphs by the Hon’ble Supreme Court. To hold that the
dismissal order is kept in abeyance because of such an exercise,
would be contrary to law. Equally, such a situation cannot be
held to be akin to a suspension pending domestic enquiry.”
16. Doctrine of relation back has been considered to be an
important part of service jurisprudence. The essence of the "doctrine
of relation back" is that though an employee necessarily has to
undergo rigours of litigation, he eventually stands compensated if the
order of punishment is set aside. Entire back wages and benefits
incidental and consequential to reinstatement are then available to
an employee if the subsequent order of punishment in the form of
dismissal or termination is held to be bad in law since it relates back
to the initial date of dismissal. It is, in this situation, that the
"doctrine of relation back" has its operation.
17. In the Rangdas's case (supra), this Court has considered the
ambit of service jurisprudence in situations where enquiries are
quashed and set aside for being defective in law and the employer is
::: Downloaded on - 09/09/2014 17:16:49 :::
Bombay High Court
( 19 ) Writ Petition No.9310 of 2013
ordered to conduct de novo enquiry. In tune with the law as laid
down, this Court in the case of Rangdas (supra), therefore directed
the employer to pay suspension allowance to the employee from the
date of his suspension with liberty to hold a fresh enquiry. It is
noteworthy that he was actually placed under suspension before his
initial termination. The option of challenging the subsequent order of
punishment in the event the charges are held to be proved and for
claiming back wages from the date of first dismissal till the last order
of punishment was also kept open for the employee to agitate upon
before the School Tribunal.
18. Mr.Kakade, learned advocate for the respondent employer has
made a statement that in the event, the charges are proved against
the petitioner, the order of the Disciplinary Authority will be made
effective from the first date of the termination of the petitioner i.e.
20/01/2009. He further states that in the event, the petitioner is
exonerated of the charges levelled upon him by the Enquiry
Committee comprising of 3 members, the petitioner, subject to the
further proceedings, would be entitled for back wages from
20/01/2009 till the date of suspension 18/11/2012. Needless to state
::: Downloaded on - 09/09/2014 17:16:49 :::
Bombay High Court
( 20 ) Writ Petition No.9310 of 2013
the decision would be by a combined report of all 3 members as has
been held in Vidya Vikas Mandal's judgment (supra).
19. In the light of the above, this petition is partly allowed with the
following directions :(
a) In the event, the charges are proved against the petitioner and
the employer decides to award punishment of dismissal, the
petitioner shall be at liberty to challenge the said decision and
can also raise a comprehensive challenge as regards back
wages for the period 20/01/2009 till 18/11/2012. In that
situation, the Tribunal would be legally bound to consider the
challenge posed by the petitioner.
(b) In the event of such order of punishment, awarded to the
petitioner, he shall also be at liberty to challenge the same on
all grounds including disproportionate punishment in view of
the contentions of the petitioner that the charges levelled upon
him are trifle and minor in nature.
(c) The statement of the respondent recorded in paragraph No.16
is a statement made to the Court.
20. The writ petition is, therefore, partly allowed and disposed of
with the above directions.
::: Downloaded on - 09/09/2014 17:16:49 :::
Bombay High Court
( 21 ) Writ Petition No.9310 of 2013
21. So far as the civil application is concerned, the grievance of the
petitioner is that though the respondent employer has placed him
under suspension, he is prevented from signing the muster roll
probably with an intention that the respondent later on plans to raise
a plea that suspension allowance for the days of absence of the
petitioner shall not be granted to him. Mr.Kakade, learned Advocate
for the respondent employer makes a statement that notwithstanding
whether the petitioner signs the muster roll or not, having placed him
under suspension from 18/11/2013, the respondent employer shall
pay subsistence allowance / suspension allowance to the petitioner
under any circumstances. In light of the said statement, the
apprehension of the petitioner is laid to rest and the civil application
is therefore disposed off.
( RAVINDRA V.GHUGE, J.)
khs/April 2014/wp931013
::: Downloaded on - 09/09/2014 17:16:49 :::
No comments:
Post a Comment