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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 2457/2015
Ganesh S/o Krushnarao Shirole,
Aged about 60 years, Occc. Service,
R/o C/o Suresh Krushna Shirole
Plot No. 53, Flat No. 3,
Makarand Apartment, Gokulpeth,
Hill Road, Nagpur
..... PETITIONER
...V E R S U S...
1] The General Manager
Sakal Paper Limited,
Reg. Officer 595, Budhwarpeth,
Pune-411 002
2] The Dy. General Manager/Resident
Editor, Sakal Paper Limited,
B-32-33, M.I.D.C, Hingna Road,
Nagpur-16
3] The Member
Industrial Court
Civil Lines, Nagpur
4] Presiding Officer,
Fourth Labour Court,
Civil Lines, Nagpur
... RESPONDENT
S
=====================================
Shri V.P. Marpakwar, Advocate for the petitioner
Shhri K.L. Dharmadhikari, Advocate for the respondent no. 2
=====================================
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CORAM:- Z.A. HAQ,J.
DATED :- 17 November
th
,
201
7
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The petitioner/employee had filed complaint under
Section 28 read with Section 30 of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971
praying for declaration that by illegally terminating the services of
the employee, the employer indulged in unfair labour practice.
The employee prayed for quashing of the termination order and
directions regarding reinstatement with backwages.
3] The Subordinate Courts have concurrently upheld the
claim of the employee that his services were illegally terminated
and have directed the employer to reinstate him with continuity of
service. However, the claim of the employee for backwages is
rejected. Being aggrieved by the rejection of the claim for
backwages, the employee has filed this writ petition.
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4] The learned advocate for the petitioner has pointed out
the conclusions of the Subordinate Courts on the basis of which
claim of the employee for backwages is rejected. The Subordinate
Courts have found that though the employee pleaded and led
evidence on the point that he was gainfully employed during the
relevant period, the claim for backwages is denied on the ground
that the employee has failed to prove that he made attempts to
secure the employment.
The learned advocate for the respondent/employee has
supported the conclusions of the Subordinate Courts.
5] After examining the documents placed on record of the
writ petition, I find that the employee pleaded in para 13 of the
complaint that he was not gainfully employed during the relevant
period and had no other source of income to maintain himself and
his family members. In para 13 of the evidence, the employee
reiterated the facts as pleaded in the complaint. There is no cross-
examination by the employer on this point. The employee has
discharged the preliminary burden of showing that he was not
gainfully employed during the relevant period and has also given
the evidence on that point. The employer has failed to discharge
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the burden to show that the case pleaded by the employee is not
correct. The conclusions of the Subordinate Courts that the
employee is not entitled for backwages as he has failed to show
that inspite of efforts, he could not get an alternate employment
cannot be sustained as the employer had not given any such
suggestion to the employee in the cross-examination. Moreover, it
would be improper to cast burden on the employee to show that
he had made all possible attempts to secure an alternate
employment. In my view, the conclusions of the Subordinate
Courts are unsustainable in law.
6] In the facts of the case, hence, the following order is
passed:-
O R D E R
1] The impugned order, to the extent the claim of the employee for backwages is denied, is set aside.
2] The respondent/employer is directed to make available to the petitioner the backwages for ::: Uploaded on - 02/12/2017 ::: Downloaded on - 02/12/2017 23:04:20 ::: 5 wp2457.2015.odt the period from the date of the termination till the date of reinstatement. The amount shall be paid to the petitioner by demand draft till 30/01/2018 failing which the respondent/employer shall be liable to pay interest @ 9% on the amount receivable by the petitioner, the interest being chargeable from 07/12/2011 i.e. the date on which the labour Court allowed the complaint filed by the petitioner/employee till the amount is paid to the petitioner/employee.
The writ petition is allowed in the above terms. In the circumstances, the parties to bear their own costs.
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