Uda Bhura Chavan vs Deputy Engineer, P.W.D.
2002 Latest Caselaw 379 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioner, a daily rated labourer, under the Dy. Engineer, Public Works Division, Chalisgaon, District Jalgaon is aggrieved by the judgment and order dated March 25, 1994 passed by the Industrial Court, Nashik in Revision Application ULP No. 173 of 1993 filed by the department against the judgment and order dated April 12, 1993 passed by the Labour Court in Complaint ULP No. 21 of 1987 wherein, the petitioner was aggrieved by the order of termination w.e.f. September 1, 1983. According to the petitioner, it was an act of unfair labour practice under Item 1 of Schedule IV of the MRTU & PULP Act, 1971.

2. The case of the petitioner before the Labour Court was that the petitioner was employed as a daily rated labourer (Cartman) from January 9, 1976. He worked upto August 31, 1983 and that his services came to be terminated illegally w.e.f. August 1, 1983. (I have given the dates as reflected in the proceedings from place to place). According to the petitioner, in his complaint he was terminated from employment w.e.f. August 1, 1983 though in the order of the Labour Court it is stated as September 1, 1983. The respondent filed his written statement to contest the complaint of unfair labour practice. According to the respondent, the petitioner was not in employment from January 9, 1976 as alleged but he was in employment only from January 1, 1982 as Gadivan (Cartman) and not as labourer or a Mazdoor. The respondent also denied the fact that he had discontinued the petitioner from September 1, 1983. According to the respondent, the petitioner was given work as and when the work was available and that he was not on regular establishment. According to the respondent, therefore, there was no question of holding any enquiry. It was the case of the petitioner that he was hastily discontinued. The case of the respondent was that as no work was available upto, June 30, 1983, the petitioner was discontinued and, therefore, he was not entitled to any reliefs. It was denied by the respondent that any unfair labour practice as alleged was engaged in by the department.

3. On the basis of the pleadings, the learned Labour Court framed as many as six issues and on the basis of the evidence adduced before it the issues were answered in favour of the petitioner and directed his reinstatement with full back wages and continuity of service from January 15, 1987.

4. The respondent aggrieved by the aforesaid order of the Labour Court, preferred a revision before the Industrial Court under Section 44 of the Act. After hearing the parties, the learned Industrial Court allowed the revision and set aside the order of the Labour Court. According to the Industrial Court, the case of the petitioner was covered by Section 2(oo)(bb) of the Industrial Disputes Act, 1947. The learned member however, held that since the nature of the work of the petitioner was purely temporary and that he was employed as a daily rated labourer, his case did not attract Section 25-F of the I.D. Act.

5. At the outset, I must observe that there has been abundant poverty of pleadings on both the sides. I must also observe that the manner in which the complaint was conducted leaves much to be desired on the part of the District Government Pleader. I can understand paucity and poverty of pleadings on the part of the labourer and his representative but it was expected from the department that they should have given sufficient material and particulars in respect of the period of employment of the petitioner. It is to the contrary, and the Labour Court was constrained to observe that in spite of several adjournments the department did not produce the record though the department was specifically directed to produce the muster roll for the relevant period. It appears that the State Government is not paying sufficient attention to the labour matters at the district level of the Labour and the Industrial Court. It appears that the State Government does not realise how much it actually costs for the utter negligence of the persons concerned in the department and in the Court by way of full back wages which come to be granted by Courts on account of cavalier and negligent manner in which the matters are conducted by the authorities at the district level. It is high time that the State Government toned up its administration of conducting the labour matters at the district level. I am constrained to say that even good matters are lost by the department for the reason of negligent manner in which the cases are conducted before the Labour Court and the Industrial Court. Besides, it is high time that the State Government engages the services of specialised expert advocates in labour laws instead of leaving the matters to the ordinary A.G.Ps who are totally foreign to the field of labour laws and who are below average in caliber and who have no enthusiasm to put their best for the matters of the State Government. The result is that the State loses huge amounts by way of back wages and it suffers avoidable reinstatement of unwanted employee. I am constrained to observe this as I find such poverty on the part of the most of the AGPs in the labour matters.

6. Shri Karnik, the learned advocate for the petitioner is right when he submits that the Industrial Court has allowed the revision, erroneously interpreting Section 2(oo)(bb) of the I.D. Act. The learned advocate points out that the aforesaid provision of the I.D. Act was brought in force on and from August 18, 1984 while the case on hand was for period as on September 1, 1983. The aforesaid provision does not have retrospective effect to cover the case of unfair labour practice which is alleged, to have taken place on September 1, 1983. The Industrial Court has lost sight of this fact and has erroneously held that the case was covered by the aforesaid provision. It further appears that the Industrial Court has not applied its mind to the law under Section 2(oo)(bb). It is applicable when the contract of employment is for a definite period. It does not per se apply to the cases where employees are employed on temporary basis for years together. In any case, the ground on which the learned Industrial Court has allowed the revision application is erroneous and cannot be sustained. That, however, will not give any benefit or advantage to the petitioner-employer. The Industrial Court has rightly considered the period of employment of the petitioner. It is very unfortunate that the petitioner in his complaint had just averred very casually that he was in employment from 1976 and that he was discontinued from August 1, 1983. He has also stated in the complaint that he was in employment upto August 31, 1983. At another place he has mentioned in para 4 of his complaint that he was discontinued from September 1, 1983, it appears that the petitioner was not truthful while mentioning date or period of his employment. I do not expect from an illiterate labourer to be exact in date of his joining. In the village, people do not maintain such record. However, me difference or the variance between his complaint and his evidence is too large to say that the averments made by the petitioner in his complaint that he was in employment from 1976 is to be accepted as correct. It is pertinent to note that in his oral evidence before the Labour Court, he admitted that he was in employment from September 1, 1982. His entire case that he was in employment from 1976 is totally false and the pleading to that effect in complaint has to be totally discarded. His words on oath that he was in service from September 1, 1982 have to be accepted. It is further significant to note that his name did not appear in the muster roll from June 30, 1983 to September 1, 1983. During the period from September 1, 1982 to June 30, 1983, there is nothing on record to show that he had continuously put in 240 days of employment. It is an admitted and established position that the petitioner was employed on daily rate as and when work was available. From the material on record at page 16 it appears that for the month of February 1983 he had put in only 24 days, there was no work for him for the month of March 1983, for the month of April he had only put in 25 days. For the month of July he had put in 26 days and for the period upto September 30, his name did not appear anywhere. It is therefore clear that the, petitioner had not completed 240 days continuous employment for the preceding year of his termination. There is no material on record to say that he had put in 240 days of continuous employment to attract provisions of Section 25-F of the I.D. Act. The Labour Court has not applied its mind to the aforesaid fact and the question of law. The Labour Court has decided the complaint merely on the basis of adverse inference drawn against the department as certain muster rolls were not produced. The fact that the department had not produced certain muster rolls does not exempt primarily the petitioner from atleast saying that he had put in continuous employment of 240 days or more. The word of the petitioner cannot be; believed as he has tried to take advantage of five years of service by averring in the complaint that he joined the employment to the year 1976 while in the evidence on oath he admitted that he was in employment from 1982, Violation of Section 25-F is a serious allegation and it was for the petitioner to have proved primarily but sufficiently by producing some material atleast approximately. The violation of Section 25-F of the Act has very serious consequence of reinstatement with full back wages and continuity of service. Such relief cannot be granted very lightly on the basis of casual pleadings. The Labour Court has not computed on the basis of the material on record whether the petitioner had completed 240 days or not. The Labour Court ought to have undergone that exercise. From simple arithmetic the total number of days from September 1, 1982 to June 3, 1983 are 234 days. Even if we add three days of June, the period would come to 237 days. It is not the case of the petitioner that he had worked on all the days of the said period for 237 days. Even assuming that he had worked for 237 days obviously, it will not be the case of continuous employment of 240 days to attract provisions of Section 25-F of the I.D. Act. The Labour Court, therefore, was not right in holding that the petitioner had put in more than 240 days continuous employment to give him the benefit of Section 25-F of the I.D. Act. The order of the Labour Court cannot be sustained and, therefore, the Industrial Court has rightly quashed and set aside the same though on a wrong footing, I have myself computed the aforesaid period of employment from September 1, 1982 to June 3, 1983 as reflected from para 9 of the Industrial Court order. It is an admitted fact that the name of the employee did not appear on muster roll from the month of June till September 1, 1983. It is not that someone in the department was acting maliciously to deprive the petitioner of his employment and his wages. There is no such case made out by the petitioner. In the "aforesaid circumstances, the petitioner is not entitled to get any relief. His complaint was wrongly allowed and the Industrial Court was right in allowing the revision filed by the department but on an erroneous interpretation of law. The Industrial Court ought to have computed the period of employment and ought to have applied the law after calculating the period of employment, which I have done.

7. In the aforesaid circumstances, the petition fails and the rule is discharged with no orders as to costs.

8. The Registrar of this Court is directed to forward a true copy of this Judgment by focusing para 5 of the Judgment to the Law Minister, Law Secretary and the Chief Secretary of the State for appropriate steps to be promptly taken in all the labour matters.