Bombay High Court
The State Of Mah & Ors vs Manohar Santu Bambere on 13 August, 2015
Bench: R.V. Ghuge
WP/5719/2005/Group
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 5717/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Soma Lahanu Vayal
Age : Adult, Occu. Nil,
At Kodani Post, Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 5718/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Shivram Bhau Kokate
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 5719/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Pandurang Laxman Wakchoure
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
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WP/5719/2005/Group
2
With
Writ Petition No.5720/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Rama Laxman Bande
Age : Adult, Occu.Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
ig With
Writ Petition No. 5722/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Navnath Rambha Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 5723/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Pandu Tukaram Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
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WP/5719/2005/Group
3
With
Writ Petition No. 5724/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Ankush Bhau Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
ig With
Writ Petition No. 6175/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Tukaram Soma Muthe
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 6176/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Deoram Rama Patekar
Age : Adult, Occu. Nil,
At Kodani Post. Katlapour,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
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WP/5719/2005/Group
4
With
Writ Petition No. 6177/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Maruti Soma Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
ig With
Writ Petition No. 6178/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Manohar Santu Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 6179/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Ramesh Yadav Pawar
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
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WP/5719/2005/Group
5
With
Writ Petition No. 6180/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Namdeo Ravji Jadhav
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
ig With
Writ Petition No. 6181/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Hari Lahanu Vayal
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal. Akole, Dist. Ahmednagar. ..Respondent.
With
Writ Petition No. 6182/2005
The State of Maharashtra,
Through Executive Engineer,
Ghatghar Pumped Hydroelectric Project,
Division No. 1, Bhandardara,
Tal. Akole, Dist. Ahmednagar. ..Petitioner.
Versus
Kisan Chindhu Bambere
Age : Adult, Occu. Nil,
At Kodani Post. Katlapur,
Tal.Akole, Dist. Ahmednagar. ..Respondent.
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WP/5719/2005/Group
6
...
AGP for Petitioners : Smt. Shinde V.A.
Advocate for Respondents : Shri Shelke S.T.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 13, 2015
...
ORAL JUDGMENT :-
1. These petitions were admitted by order dated 25.8.2005 and this
Court granted interim relief to the petitioner in terms of prayer clause (C),
"(C)
which reads as under:-
Pending hearing and final disposal of the Writ Petition, the
impugned judgment and order dated 12.4.2005 passed by the
learned Judge, II Labour Court, Ahmednagar in Reference (IDA)
No.16 of 2001, may kindly be stayed."
This relief has been identically sought in all the above mentioned
petitions. The said relief was, therefore, granted to the petitioners in all
these petitions.
2. The petitioners are the same in all these petitions. The respondents
are identically placed workmen. Since a common issue and common point
of law is involved, I have taken up all these petitions together for hearing.
3. By a common order, dated 10.7.2009, delivered by this Court in Civil
Application No.452 of 2008 and connected Civil Applications, in which all
these respondents were applicants, this Court has granted the benefit of
Section 17B of the Industrial Disputes Act, 1947 to each of these
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respondents / workmen. The learned AGP appearing on behalf of the
petitioners, categorically states that 12 respondents, out of the 16 in these
group of cases, have received Rs.2,31,840/- till March 2015. The remaining
four have received Rs.1,34,400/- since they attained the age of
superannuation.
4. The learned AGP points out from paragraph No.4 of the order dated
10.7.2009, referred to above, that this Court had directed the petitioners to
offer work on ad-hoc basis on any activity as per availability for a maximum
period of 20 days in a month or pay daily wages for 20 days in a month in
lieu of work. The learned AGP further submits that none of the respondents
offered themselves for work and hence the petitioners have been paying
them an amount of Rs.3,360/- per month in lieu of 20 days work in a month,
as per the directions of this Court.
5. The petitioners submit that these respondents were offered work on
daily wages as labourers as and when such work was available. To be
precise, she indicates from page 66 of the petition paper book, which
reflects the reference proceeding numbers, names of these respondents,
and their period of service. For ready reference, the said chart, which was
placed before the Labour Court is reproduced as under:-
Ref. IDA Name of 2nd Party. Period of Date of claiming
No. Service Reinstatement,
Continuity and
back wages wef.
9/2001 Soma Lahanu Vayal 1-5-83 to 21-07-89 21-7-86
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10/2001 Rama Laxman Bande 1-3-85 to 21-10-86 21-7-86
11/2001 Maruti Cindhu Bambere 1-2-83 to 21-10-86 21-10-86
12/2001 Shivram Bhau Kokate 1-1-83 to 21-10-86 21-10-86
13/2001 Ankush Bhau Bambere 1-1-83 to 21-10-86 21-10-86
14/2001 Navnath Rambhau Bambere 1-3-83 to 21-06-86 21-06-86
15/2001 Pandu Tukaram Bambere 1-1-84 to 31-10-86 31-10-86
16/2001 Pandurang Laxman
Vakchoure. 1-5-85 to 21-07-86 21-07-86
17/2001 Maruti Soma Bambere
ig 1-1-83 to 21-07-86 21-07-86
18/2001 Kisan Cindhu Bambere 1-8-85 to 21-07-86 21-07-86
19/2001 Tukaram Soma Muthe 1-2-83 to 21-07-86 21-07-86
20/2001 Deoram Rama Patekar 1-6-83 to 21-07-86 21-07-86
21/2001 Hari Lahanu Vayal 1-1-83 to 21-07-86 21-07-86
22/2001 Namdeo Ravji Jadhav 1-1-83 to 21-07-86 21-07-86
23/2001 Manchar Santu Bambere 1-2-84 to 21-07-86 21-07-86
24/2001 Ramesh Yadav Pawar 1-2-84 to 21-07-86 21-07-86
6. The learned AGP has then drawn my attention to the issues cast by
the Labour Court, identically in every case, which read as under:-
ISSUES FINDINGS.
1 Does the second party prove Yes without
that his services were illegally compliance of
terminated, without complying Sec. 25 G and
the provisions of Sec. 25 F, G Rule 81 of
& H and Rule 81 of I.D. Act ? I.D. Act.
2 Whether this court has jurisdiction Yes
to try the reference ?
3 Does the first party prove that No
the demand of the second party
WP/5719/2005/Group
has become stale due to lapse
of time ?
4 Whether the second party is Yes
entitled to the relief as demanded but as per
in the reference ? Final order
5 What order ? As per final
order.
7. She has then drawn my attention to the statement made by the
respondents in their cross-examination in paragraph No.14 of the impugned
award, which indicates that the respondent workmen had never worked for
240 days in a calender year of service.
8. She has then drawn my attention to paragraph Nos.17 and 18 of the
impugned judgment, wherein, the statement of the learned Advocate for
the respondent / employee based on the evidence recorded before the
Labour Court was noted that none of the respondents had worked for 240
days in a calender year and their case is not under Section 25F, but is under
Section 25G before the Labour Court.
9. She then indicates from paragraph No.20 of the impugned award,
wherein the Labour Court has concluded that all the respondents /
employees were working elsewhere on daily wages, were not idle and were
earning more wages than the amounts they would have earned had they
continued in the service of the petitioners. She, therefore, assertively
submits that this was the reason why none of the respondents offered
themselves for work despite the order of this Court dated 10.7.2009. She
WP/5719/2005/Group
submits that on the one hand all the respondents / employees were working
elsewhere and on the other hand were also drawing an amount of
Rs.3,360/- per month under orders of this Court, which is against the
prescription u/s 17B.
10. She then submits that the respondents had worked for meager days,
which are less than 240 days as per their own admission, till 1986 and they
are out of employment for the past more than 29 years. She, therefore,
criticizes the impugned judgment, wherein despite no evidence being
available, the Labour Court has concluded that juniors were retained in
service and the respondents were terminated.
11. She further submits that the petitioners had filed their Written
Statement and had taken a specific stand that none of the respondents had
reported for work from the dates mentioned in the chart reproduced above
and there was no termination in the eyes of law. It was stated that they
were at liberty to offer themselves for work. She, therefore, submits that
the impugned awards deserve to be quashed and set aside.
12. Shri Shelke, learned Advocate appearing on behalf of all the
respondents has strenuously defended the impugned awards. He submits
that all the respondents are tribals and living in tribal areas which are
disconnected from the society. Whatever lands they had, have been
acquired under projects. They are project affected persons. Whenever
work was offered, they used to work with the petitioners. They are in need
WP/5719/2005/Group
of employment. Despite their termination in 1986, they have raised
industrial disputes in 2001, though belatedly and have pursued the litigation
till today.
13. He submits that the respondents could not remain idle as they could
not have starved. They had to work somewhere to keep themselves and
their families alive. Since they were in need of wages, they had moved
Civil Applications, seeking benefits of Section 17B and hence this Court, by
order dated 10.7.2009, had granted those benefits to the respondents. He
denies that the respondents did not offer themselves for work, even after
the order of this Court dated 10.7.2009.
14. He submits that the Labour Court has rightly considered the effect of
non-compliance of Section 25G of the ID Act and Rule 81 of the Industrial
Disputes (Bombay) Rules, 1957. He further submits that the Labour Court
was convinced that juniors were retained in service and hence, the order of
reinstatement.
15. I have considered the exhaustive submissions of the learned AGP and
Shri Shelke and have gone through the record.
16. It is trite law that when an employee makes an allegation of junior
employees being retained in service while terminating senior employees, a
mere bald contention in the statement of claim, is not enough. In my view,
when a litigant alleges violation of Section 25G and Rule 81, he cannot
WP/5719/2005/Group
suppress or hide the names of such employees, whom he brands as juniors
to him, having been retained in employment. There must be a specific and
precise pleading in the statement of claim. Only when it is pleaded, it could
be proved.
17. I do not find from any statement of claim filed by the respondents in
their respective reference cases that they have specifically mentioned the
names of such junior employees, so as to enable the petitioners employers
to peep into its records and take a stand in response to the said allegation.
18. In my view, the case of the respondents is further weakened. They
had led evidence by way of an affidavit in 2004 before the Labour Court. In
the said examination-in-chief, there has not been a whisper of any name of
an employee who could be said to be junior to the respondents. Naturally,
in the cross-examination, conducted by the petitioner, the said issue was
left untouched as there was no specific averment in the oral evidence. The
said issue of non-compliance of Section 25G was, therefore, not established
before the Labour Court.
19. In the cross-examination of the management's witness, the
petitioners stood by a seniority list, produced by them, which contains the
names of persons, who were in employment. The said seniority list was
prepared for the first time by the petitioners in December 1986. Obviously,
the names of the respondents were not in the said list. The respondent
employees did identify any person from the seniority list and did not
WP/5719/2005/Group
confront the witness of the petitioners with such names, in relation to their
claim that juniors were retained. No suggestion was put forth to the
witness of the petitioners, so as to elucidate factual information about
juniors being retained in employment.
20. In its conclusions on the issue of Section 25G and Rule 81, even the
Labour Court has failed to rely upon any such piece of evidence, on the
basis of which the conclusion that Section 25G was violated as juniors were
retained in service, could be arrived at. In fact, the Labour Court has
misdirected itself by only referring to several judgments cited and the ratio
laid down therein. The Labour Court has merely considered the ratio laid
down and has applied the said ratio to these cases without any evidence
that Section 25G was violated. In my view, unless there was sufficient oral
and documentary evidence before the Labour Court, it could not have
drawn its conclusion of violation of Section 25G merely based upon the ratio
laid down in the judgments cited.
21. In the light of the above, I am of the considered view that the
impugned awards are perverse and erroneous. All the impugned awards
are, therefore, quashed and set aside.
22. Notwithstanding the above, it is an undisputed position that these
respondents were drawing Rs.3,360/- per month, under orders of this Court
dated 10.7.2009. The learned AGP has placed on record a chart indicating
the amounts paid to these respondents. The same is taken on record and
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marked as Exhibit "X" for identification. Shri Shelke, learned Advocate
submits that he would not be in a position to confirm the veracity of the
said statement Exhibit "X".
23. I have considered the solemn statement made by the learned AGP on
behalf of the petitioners after taking instructions from the representative
Shri Radhakrishna Eknath Ghule, Sub-Divisional Officer, Ghatghow Pumped
Electric Project, Sub Division No.3, Bhandardara, Tq. Akole, District
Ahmednagar, who is present in the Court and who has supplied Exhibit "X".
24. Shri Shelke, learned Advocate has submitted that some compensation
be granted to the respondents in the light of the recent view of the Apex
Court.
25. The Apex Court recently has dealt with similar situations and has
concluded that compensation in lieu of reinstatement could be granted
wherein, the employee has been working for very short tenures and have
been out of employment for 15-20 years. The said four judgments are as
under:-
1. Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-
Division, Kota Vs. Mohanlal [2013 LLR 1009],
2. Assistant Engineer, Rajasthan Development Corporation and another Vs.
Gitam Singh [(2013) 5 SCC 136],
3. BSNL Vs. man Singh [(2012) 1 SCC 558] and
4. Jagbir Singh Vs. Haryana State Agriculture Marketing Board [(2009) 15 SCC 327].
WP/5719/2005/Group
26. This Court had considered the said ratio of the Apex Court in the case
of State of Maharashtra Vs. Santosh Gorakh Patil and another [2015 (3) Mh.
L.J. 922], and has concluded in paragraph Nos. 9 to 13 as under:-
"9. I, however, do not desire to go into this aspect since the
respondent has been out of employment for the past 28 years. He
has earned last drawn wages from 2000 onwards. In the light of the
law laid down by the Honourable Supreme Court in the case of
Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division, Kota Vs. Mohanlal 2013 LLR 1009] and in the case of
Assistant Engineer, Rajasthan Development Corporation and another
Vs. Gitam Singh : (2013) 5 SCC 136], I am convinced that the
impugned judgment and award deserves to be partly set aside.
10. Paragraph No. 20 of the judgment in the case of Mohanlal
(supra) reads as under:-
" We are clearly of the view that though Limitation Act,
1963 is not applicable to the reference made under the
I.D. Act but delay in raising industrial dispute is
definitely an important circumstance which the Labour
Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection
has been raised by the other side. The legal position laid
down by this Court in Assistant Engineer, Rajasthan
Development Corporation and Anr. v. Gitam Singh : :
(2013) 5 SCC 136 that before exercising its judicial
discretion, the Labour Court has to keep in view all
relevant factors including the mode and manner of
appointment, nature of employment, length of service,
the ground on which termination has been set aside and
the delay in raising industrial dispute before grant of
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relief in an industrial dispute, must be invariably
followed."
11. Paragraph No. 29 of the judgment in the case of Gitam Singh
(supra) reads as under:-
" In light of the above legal position and having regard to
the facts of the present case, namely, the workman was
engaged as daily wager on 01.03.1991 and he worked
hardly for eight months from 01.03.1991 to 31.10.1991,
in our view, the Labour Court failed to exercise its
judicial discretion appropriately. The judicial discretion
exercised by the Labour Court suffers from serious
infirmity. The Single Judge as well as the Division Bench
of the High Court also erred in not considering the above
aspect at all. The award dated 28.06.2001 directing
reinstatement of the Respondent with continuity of
service and 25% back wages in the facts and
circumstances of the case cannot be sustained and has to
be set aside and is set aside. In our view, compensation
of Rs. 50,000/- by the Appellant to the Respondent shall
meet the ends of justice. We order accordingly. Such
payment shall be made to the Respondent within six
weeks from today failing which the same will carry
interest @ 9 per cent per annum."
12. It would be apposite to refer to the observations of the
Honourable Supreme Court in paragraph Nos.4 and 5 in the case of
BSNL Vs. Man Singh : (2012) 1 SCC 558] as under:-
"4. The award of reinstatement passed by the Labour
Court was challenged by the Department by filing writ
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petitions before the High Court. The High Court after
hearing the Learned Counsel for the parties and going
through the records of this case, dismissed the writ
petitions filed by the Department. The Appellant is thus
before this Court.
5. This Court in a catena of decisions has clearly laid
down that although an order of retrenchment passed in
violation of Section 25F of the Industrial Disputes Act
may be set aside but an award of reinstatement should
not be passed. This Court has distinguished between a
daily wager who does not hold a post and a permanent
employee."
13. The Honourable Supreme Court in the case of Jagbir Singh Vs.
Haryana State Agriculture Marketing Board : (2009) 15 SCC 327], has
held in paragraph No. 14, as under:-
" It would be, thus, seen that by catena of decisions in
recent time, this Court has clearly laid down that an
order of retrenchment passed in violation of Section 25F
although may be set aside but an award of reinstatement
should not, however, be automatically passed. The
award of reinstatement with full back wages in a case
where the workman has completed 240 days of work in a
year preceding the date of termination, particularly,
daily wagers has not been found to be proper by this
Court and instead compensation has been awarded. This
Court has distinguished between a daily wager who does
not hold a post and a permanent employee. ........."
27. Since, I have quashed and set aside the impugned awards, the issue
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of quantification of compensation would, in fact, lose its significance.
Nevertheless, it cannot be overlooked that 12 out of the 16 respondents
have received Rs.2,31,840/- till March 2015 and four of them, who have
superannuated have received Rs.1,34,400/- till their superannuation age
vide order dated 10.7.2009 passed by this Court.
28. In the light of the above, I am inclined to grant nominal
compensation to the respondents only to the extent of Rs.5,000/- per
respondent.
Besides the same, their monthly wages at the rate of
Rs.3,360/- shall be payable to them till the passing of this judgment today.
It is stated by the petitioners that they are paid till March 2015. Hence, the
compensation of Rs.5,000/- as well as the monthly wages shall be paid to
the 12 respondents till this date. In so far as the 4 respondents are
concerned, they shall be paid only Rs.5,000/- as directed above. These
payments shall be made within a period of 12 weeks from today.
29. These petitions are, therefore, partly allowed, by quashing and
setting aside the impugned judgments and awards. All reference cases,
instituted by the respondents stand rejected. Rule is made partly absolute
in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
