Bombay High Court
======================================================= vs Shri Neeraj R. Patil on 17 December, 2009
Bench: V. A. Naik
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO.2161 OF 2003
1] The Chief Executive Officer, Zilla Parishad, Wadha
2] The Deputy Engineer, Minor Irrigation, Sub Division, Hinganghat,
District :Wardha.
VERSUS
RESPONDENTS:
1] Mr. Pandhari Bhauraoji Maske, aged - major, r/o Saigawan, post
Nimbha, tahsil Samudrapur, district : Wardha.
2] Judge, 3rd Labour Court, Nagpur.
=======================================================
Shri P.D. Meghe, advocate for the petitioner
Shri Neeraj R. Patil, h/f Shri R.M. Ahirraro, advocate for respondent no.1
=======================================================
CORAM: SMT. VASANTI A. NAIK, J.
DATE: DECEMBER 17, 2009
ORAL JUDGMENT.
By this petition, the petitioner impugns the order passed by the 3rd Labour
Court, Nagpur on 27.1.2003 partly allowing the application filed by the respondent
on.1 under section 33-C(2) of the Industrial Disputes Act and directing the petitioner
to pay the amount of R.25900/- to the respondent no.1 towards the salary for the
period from 30.7.1995 to 30.6.1998. The respondent no.1 had filed an application
under section 33-C(2) of the Industrial Disputes Act before the Labour Court,
Nagpur. It was the case of the respondent no.1 that he was working as a Pump
Operator and Watchman with the petitioner from 7.3.1983 on monthly wages of Rs.
700/-. The respondent no.1 pleaded that the petitioner had not made payment of
salary to the respondent no.1 from July 1995 till the date of his termination in the
year 1998. The respondent no.1 had therefore, claimed total salary of Rs.33600/-
with 18% interest thereon.
2] The petitioner Zilla Parishad, filed the reply and denied the claim of the
respondent no.1. It was denied that there was an employer and employee
relationship between the parties. It was the case of the petitioner that the respondent
no.1 was never appointed by the petitioner and he never worked with the petitioner
at any point of time. According to the petitioner there was no question of paying any
amount to the respondent no.1 as there was no relationship between the parties. The
respondent no.1 entered into the witness box and tendered evidence. On an
appreciation of the evidence tendered by the respondent no.1, the Labour Court,
Nagpur by the impugned order dated 27.1.2003 partly allowed the application filed
by the respondent no.1 and directed the petitioner to pay an amount of Rs.25900/ to
the applicant. The said order is impugned by the instant writ petition.
3] Shri P.D. Meghe, the learned counsel for the petitioner submitted that the
Labour Court committed a serious error in allowing the application when the
relationship between the parties was in dispute. According to the learned counsel for
the petitioner, the respondent no.1 had not produced a single document on record to
show that he was an employee of the Zilla Parishad. In such circumstances,
according to the learned counsel for the petitioner, the claim of the respondent no.1
ought to have been dismissed, specially when it was made under the provisions of
section 33- C(2) of the Industrial Disputes Act. The learned counsel for the
petitioner submited that the evidence of the respondent no.1 clearly showed that he
was an employee of the Gram Panchayat and was not an employee of the Zilla
Parishad.
4] Shri Patil, the learned counsel for the respondent no.1 supported the order
passed by the Labour Court on 27.1.2003 and submitted that the Labour Court had
rightly appreciated the oral and documentary evidence on record to hold that the
amount of Rs.25900/- was payable to the respondent no.1 by the petitioner. The
learned counsel for the respondent no.1 sought for the dismissal of the writ petition.
5] I have considered the submissions made on behalf of the parties and have
perused the impugned order dated 27.1.2003 along with the pleadings of the parties
and the evidence of the respondent no.1. From a perusal of the same, it is clear that
the Labour Court committed an error in holding that the petitioner was liable to pay
an amount of Rs.25900/- to the respondent no.1 towards salary for the period from
30.7.1995 to 30.6.1998. The Labour Court failed to consider that all the documents
produced by the respondent no.1 on record were signed by the Sarpanch of the
Gram Panchayat and none of the documents were ever signed by the officers of the
Zilla Parishad. The communications issued by the respondent no.1 to the Zilla
Parishad would not be of any assistance to the case of the respondent no.1 as they
were not the communications from the Zilla Parishad showing that the respondent
no.1 was their employee. The documents at serial no.18 and 19, the two exercise
books, were also signed by the Sarpanch of the village. These documents therefore,
did not show that the respondent no.1 was an employee of the Zilla Parishad. There
was no seal of the Zilla Parishad on any of the documents on exhibit 21 and 22, and
those were applications, written by respondent no.1 to the petitioner. Some
document was produced by the respondent no.1 to show that that the scheme of
water supply was not transferred to the Gram Panchayat of village Barfa till the year
1998. This document however could not show that the scheme of water supply was
with the Zilla Parishad and indeed the respondent no.1 was appointed by the Zilla
Parishad as its employee.
6] It is further necessary to peruse the cross-examination of the respondent no.1
as he had admitted in his cross examination that there was no documentary evidence
to show that he was employed by the Zilla Parishad as a Pump Operator. He had
also admitted that his services were terminated by the Gram Panchayat and not by
the Zilla Parishad. He then admitted that Barfa Gram Panchayat was looking after
the work of water supply of village Barfa. He admitted that the Gram Panchayat of
village Barfa issued certificates exhibit 22 to 25 on his demand. He admitted that
he had not filed any document to show that the Zilla Parishad was making the
payment to him. Thus, on an overall reading of the evidence tendered by the
respondent no.1 it was clear that the respondent no. 1 had not proved that he was an
employee of the Zilla Parishad. The Labour Court unnecessarily drew an adverse
inference against the petitioner for not entering the witness box. It was not necessary
for the petitioner to enter the witness box in the facts of this case as it was necessary
for the respondent no.1 to prove by cogent evidence that he was an employee of the
Zilla Parishad. The Labour Court was therefore, not justified in directing the
petitioner Zilla Parishad to pay salary of the respondent no.1 for the period from
30.7.1995 to 30.6.1998. Though the Labour Court was not justified in directing the,
petitioner to pay an amount of Rs.25900/- to the respondent no.1, it appears that
during the pendency of the writ petition, the petitioner had deposited the amount of
Rs.25900/- in this court and this court had permitted the respondent no.1 to
withdraw that amount. In the peculiar facts and circumstances of the case and in the
interest of justice, it would not be proper to permit the petitioner to recover the said
amount form the respondent no.1, as the same is already withdrawn by the
respondent no.1 five years earlier.
7] In the result, the writ petition is allowed. The impugned order passed by the
Labour Court on 27.1.2003 is hereby quashed and set aside. The application filed by
the respondent no.1 under section 33-C(2) of the Industrial Disputes Act stands
dismissed. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE
smp.
