Bombay High Court
The State Of Mah.Thr.Executive ... vs Kamalprasad Tilakchand Damhe And ... on 28 September, 2012
Bench: B.P. Dharmadhikari
WP3117.02.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3117/2002
Petitioners : 1. The State of Maharashtra
through the Executive Engineer
Public Works Division (E.G.S.)
Gondia, Distt. Gondia.
2. The Sub Divisional Engineer,
Public Works Sub-Division (E.G.S.),
ig Gondia, Distt. Gondia.
...Versus...
Respondents : 1. Kamalprasad Tilakchand Damhe
r/o at Pandhrabodi,
Tq. & Distt. Gondia.
2. Madhukar Pandurang Meshram
Jogalegar Ward, Govindpur,
Tq. Gondia Distt. Gondia.
------------------------------------------------------
Mrs. K.S. Joshi, A.G.P. for petitioners
Shri P.D. Meghe, Adv. for respondents
------------------------------------------------------
CORAM : B.P. DHARMADHIKARI,J.
DATE : 28.09.2012
ORAL JUDGMENT
1. Heard learned Assistant Government Pleader
for the petitioners employer and Advocate Shri Meghe
for both respondents. Respondent no.1 filed ULP
Complaint No.273/1992 pointing out that he worked as a
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muster assistant from 18.11.1987 to 31.7.1992 and his
termination w.e.f. 31.7.1992 constituted unfair labour
practice under Schedule IV Item 1 clause (d) of the
Maharashtra Recognition of Trade Unions & Prevention
of Unfair Labour Practices Act, 1971 (for short, the
MRTU and PULP Act ). Respondent no.2 filed ULP
Complaint No.274/1992 for the same relief. He,
however, pointed out that he had worked from 7.3.1980
to 31.7.1992. Both claim that they have put in service
more than 240 days. The Labour Court, Bhandara
delivered separate judgments on same day in both these
complaints. It accepted completion of 240 days of
continuation of service and found termination of
respective complainants before it in violation of
provisions of Section 25 F and 25 G of the Industrial
Disputes Act, 1947. It, therefore, granted relief of
reinstatement with 30% back wages to them. These
separate judgments were then questioned in two
revisions under Section 44 of the MRTU and PULP Act
before the Industrial Court. The Industrial Court
decided both these Revision (ULPN) Nos.170/2000 and
171/2000 by common order on 14.3.2001 and upheld the
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separate orders of the Labour Court. This common order
along with separate orders of Labour Court are
questioned by the employer in present petition filed
under Article 226 and 227 of the Constitution of
India.
2. Contention of learned Assistant Government
Pleader is, in their complaints as filed, both
respondents
working
ig specifically
between the
averred
respective
that
dates
they
with
were
some
technical and artificial breaks. Burden was upon them
to establish that breaks were technical and
artificial. The Labour Court has drawn inference of
completion of 240 days by them merely on account of
alleged failure on the part of the petitioners to
produce relevant records. As burden upon them was not
discharged by the respondents, this approach of the
Labour Court is unsustainable and separate orders are
liable to be quashed and set aside.
3. In the alternative and without prejudice it
is submitted that grant of 30% back wages is without
any basis. There is neither pleading nor proof of
non-employment and hence, judgment of the Hon'ble Apex
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Court in the case of U.P. State Brassware Corpn. Ltd.
and another...Versus...Uday Narain Pandey, reported at
2006 (1) Supreme Court Cases 479 ought to have been
followed.
4. Advocate Shri Meghe for the respondents
submits that in complaints there was a prayer for
grant of reinstatement with continuity and full back
wages. Accordingly evidence was led by the respondents
and they were cross-examined by the petitioners. The
petitioners did not lead any evidence. However,
defence of the petitioners was that the respondents
were engaged from time to time for stipulated period
and the Labour Court has found that attempt of the
employer was to seek benefit of exemption in the light
of provisions of Section 2 (oo) (bb) of the Industrial
Disputes Act, 1947. The Labour Court, therefore,
correctly placed the burden of proof upon the
petitioners employer as they possessed necessary
documents to substantiate it. He invites attention of
this Court to consideration of this issue in its
separate orders by the Labour Court.
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5. After hearing the respective Counsel, I find
that while entertaining this writ petition, this Court
has not granted any stay in so far as direction to
reinstate the respondents is concerned. Accordingly,
both the respondents are today in service. However,
grant of back wages to them has been stayed.
6. Both complainants before the Labour Court
have produced
certificates
to
some documents
substantiate their
like
contention
experience
that
they have worked continuously. They have also deposed
accordingly. The appointment orders were also produced
by the complainants since they were in their custody.
The Labour Court has considered the period stipulated
in appointment orders as also experience certificates
issued to them and found that recourse to Section
2 (oo) (bb) of the Industrial Disputes Act by the
petitioners employer was not substantiated.
7. Section 2 (oo) of the Industrial Disputes
Act defines retrenchment and exception has been carved
out only in very limited situations. Burden to bring
on record those limited contingencies is upon the
employer. If termination of service of workman is as a
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result of non-renewal of contract of employment after
its expiry or as such contract is terminated because
of the contingency stipulated in that behalf in that
contract itself, that termination is excluded from the
concept of retrenchment. Here except pointing out that
complainants were engaged for stipulated period, the
petitioners have not brought on record any material
the
either justifying such appointments or then satisfying
ingredients of Section 2 (oo) (bb) of the
Industrial Disputes Act. The Labour Court as also the
Industrial Court have correctly appreciated the
position.
8. The complainants produced documents in their
custody, proved those documents and also deposed on
oath about completion of 240 days. Law does not expect
them to do more than this. It was open to the
petitioners to cross-examine them and also to produce
relevant attendance register or payment slips and to
confront them with that material. No such effort is
made by the petitioners. The argument about burden of
proof by the petitioners therefore, in this situation,
is misconceived. The Labour Court as also Industrial
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Court have correctly placed that burden upon the
petitioners.
9. The judgment of the Hon'ble Apex Court in
the case of U.P. State Brassware Corpn. Ltd. and
another...Versus...Uday Narain Pandey (Supra) has been
lateron looked into by the Hon'ble Apex Court and the
Hon'ble Apex Court has in appropriate cases found it
proper to maintain grant of full back wages or 50%
back wages even in the absence of any evidence on
record. Here the Labour Court has granted 30% back
wages and that grant has been maintained by the
Industrial Court. I do not see any jurisdictional
error or perversity in it.
10. With the result, no case is made out
warranting interference in the writ jurisdiction. Writ
petition is, therefore, dismissed. Rule is discharged.
However, in the circumstances of the case, there shall
be no order as to costs.
JUDGE
ssw
