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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Letters Patent Appeal No. 200 of 2010
In
Writ Petition No.3591 of 1997 (D)
Laxman Durgaji Borkar,
Aged Major, R/o.-Mahadeopura,
C.No.14, Wardha, Tahsil and District Wardha. .... Appellant.
Versus
1) The Sub-Divisional Officer,
Public Works Department, Sub-Division,
Sub-Division, Hinganghat, District Wardha.
2) State of Maharashtra,
through its Secretary,
P.W.D. Department, Mantralaya, Mumbai 400032.
3) Presiding Officer,
2nd Labour Court, Nagpur. .... Respondents.
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Shri S.A. Kalbande, Advocate for appellant.
Shri A.D. Sonak, AGP for resp. no.2.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 07th November, 2017.
ORAL JUDGMENT ( Per B.P. Dharmadhikari, J.) The appellant workman questions the judgment delivered by the learned Single Judge on 14-08-2009 in Writ Petition No.3591 of 1997, whereby award delivered by 2 nd Labour Court, Nagpur dated 18-08-1997 ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:51:39 ::: 2 071117 lpa 200.10 Judg..odt in Reference (IDA) No. 77 of 1991 has been set aside. The learned Single Judge has found that the appellant workman had abandoned his services and therefore the contention that his termination was not in accordance with the provisions of Section 25-F of the Industrial Disputes Act, 1947 [for short, 'ID Act'] was erroneous.
2] The 2Nd Labour Court, Nagpur has by an award directed the employer to reinstate him in the post last held and pay full back wages from 23-10-1989 when he approached the Conciliation Officer till his reinstatement.
3] Learned Advocate Shri Kalbande for the appellant, invites our attention to the reference as made to urge that the dispute regarding the abandonment was not at all open for adjudication and in any case for such abandonment appropriate order after departmental enquiry was must. He heavily relies upon the findings of the learned Labour Court to show that the employment of the workman and his termination was not in dispute. The oral termination with effect from 20-04-1986 is established and non compliance with the provisions of Section 25-F of the ID Act has also come on record. He submits that there is a finding of fact by the Labour ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:51:39 ::: 3 071117 lpa 200.10 Judg..odt Court that case of voluntary abandonment with effect from 07-02-1986 was not at all established.
4] The learned Advocate for the appellant by inviting our attention to the judgment dated 14-08-2009 delivered by the learned Single Judge states that it over looks the dispute as referred and accepts the story of abandonment. He submits that the finding in paragraph 17 that there was no effort to join after 18-04-1986 is erroneous. On the contrary, the approach notice was given and machinery under the Industrial Disputes Act for concilliation was set in motion. In absence of any termination order, the abandonment could not have been used to deny the relief of reinstatement. He has relied upon the judgment of the Hon'ble Apex Court in the case of Nicks (India) Tools vs Ram Surat and another, reported at (2004) 8 SCC 222, particularly paragraphs 14 and 19 therein, to submit that the burden to show abandonment or then justify the termination was upon the employer and the Labour Court rightly awarded the full back wages. He submits that even the burden in that respect lay upon the employer.
5] Today, he has invited our attention to the judgment of the
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Hon'ble Apex Court in the case of Vashrambhai Dhanabhai Vegad vs State of Gujarat and others, reported at (2017) 2 SCC 508 to urge that there when the Labour Court had reinstated the workman with 20% back wages, the Hon'ble Apex Court granted compensation of Rs. 5 lacs and also ordered its payment in stipulated time.
6] Learned Advocate Shri Sonak, on the other hand, submits that as the abandonment has been established there is no question of complying with the provisions of Section 25-F of the ID Act. He relies upon the judgment of the Hon'ble Apex Court in the case of Assistant Engineer, Rajasthan Development Corporation and another vs Gitam Singh, reported at 2013 (5) Mh.L.J. 1 to submit that in case of daily wager who does not hold any post there is no scope for reinstatement. He points out that there the Hon'ble Apex Court granted compensation only of Rs.50,000/-. According to him, in the present matter, even that compensation cannot be awarded as the workman never attempted to join duties and was only happy in fighting the Court case. He, therefore, urged that an adverse inference should be drawn and the judgment of the learned Single Judge should be maintained.
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5 071117 lpa 200.10 Judg..odt 7] After hearing the learned respective Advocates, we find that
the fact that the workman was an Oilman from 01-11-1983 and worked till 20-04-1986 has been established by the workman by entering the witness box. The suggestion was given to him that he voluntary left the job with effect from 07-02-1986, but he has denied it. He also denied the receipt of any letters from his employer dated 21-04-1986 and 06-05-1986. He accepted that he forwarded the demand notice to his employer on 14-10-1988 and in it he gave date of termination to be 10-04-1986. He accepted that he was paid salary up to 06-02-1986. He also accepted that he was paid arrears on 07-03-1986.
8] This cross examination itself brings on record the hollowness in the story of worker being a deserter. Admittedly, he had not submitted any resignation and he therefore could not have left the job voluntarily on 07-02-1986. If he was absconding, there was no question of he being paid on 07-03-1986 his wages. It is no doubt true in pleadings he has pointed out, that he was terminated on 10-04-1986, but then that by itself is not decisive. The employer always had relevant record with it and could have produced the same to show that after 07-02-1986 he remained absent. The employer also could have produced records to show that he ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:51:39 ::: 6 071117 lpa 200.10 Judg..odt did not work after 10-04-1986.
9] The reference made by the appropriate Government to the Labour Court mentions date of termination to be 20-04-1986 and it appears that no evidence on above lines was produced before the Labour Court. 10] The Labour Court after appreciating oral evidence has recorded a finding of completion of 240 days' and therefore the violation of provisions of Section 25-F of the ID Act. The receipt of approach notice has also been accepted by the employer. The employer did not prove any reply sent to these approach notices.
11] In paragraph 8, learned Single Judge has considered the inconsistency about the date of termination. It has taken note of the fact that in demand notice the date was mentioned as 10-04-1986. Because of this inconsistency, the finding has been recorded that the workman did not join from 08-02-1986.
12] The finding by the learned Single Judge, only because of the
inconsistency in the date of termination, cannot be sustained. The
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workman has entered the witness box, was subjected to cross examination and his evidence has been accepted by the Labour Court. 13] The employer always had all records and better evidence to rebut workman's contention but the employer failed to do so. The Labour Court therefore has reached a probable finding in favour of weaker sections of the society in welfare jurisdiction. The learned Single Judge could not have overlooked this aspect.
14] We, therefore, find that the conclusion of the learned Single Judge on violation of Section 25-F of the ID Act, is unsustainable. 15] It is not in dispute that because of the interim orders granted in Writ Petition, the worker could not join and has superannuated in the meanwhile and before his termination he has worked only for three years. In this situation, even if grant of full back wages only is to be upheld, the worker will be getting wages for past about 21 years as per award till his superannuation i.e. 23-10-1989 onwards. The date of his superannuation is not on record. Learned Advocate Shri Kalbande for the appellant submits that he reached superannuation on 28-02-2010. Learned ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 00:51:39 ::: 8 071117 lpa 200.10 Judg..odt Advocate Shri Sonak disputes this. He points out that the workman was only a daily wager, the daily wager does not hold a post and therefore there is no question of his superannuation as such. However, in this situation, taking overall view of the matter, following the law laid down in the case of O.P. Bhandari vs. Indian Tourism Development Corpn. Ltd. and others, reported at (1986) 4 SCC 337 and in the case of Workmen vs Bharat Fritz Werner (P) Ltd and another, reported at (1990) 3 SCC 565, 1/3rd of the wages payable to the petitioner for period from 20-04-1986 up to date of reaching the age of superannuation can be made over to him. 16] Thus, we modify the award and maintain the relief of reinstatement, but then as the actual reinstatement is not possible, we direct that he shall be paid wages calculated at 1/3rd of the wages for the said period as daily wager. This amount shall be calculated and paid to the appellant after ascertaining his date of superannuation within next four months. If the amount is not so paid, the respondents shall pay to him interest calculated at 8% on it thereafter, till its realization. 17] Accordingly, we partly allow this Letters Patent Appeal. No order as to costs.
JUDGE JUDGE
Deshmukh
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