Bombay High Court
Executive Eng Kukadi Project Land ... vs Pandharinath Bhau Tarte on 1 April, 2016
Bench: R.V. Ghuge
WP/1735/2003
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1735 OF 2003
Executive Engineer,
Kukadi Project Land Development
Division No.2, Narayangaon,
Tq. Junnar, District Pune. ..Petitioner
Versus
Pandharinath Bhau Tarte,
Age 56 years, Occ. Labour,
R/o Ghargaon, Tq. Shrigonda,
District Ahmednagar. ig ..Respondent
...
Advocate for Petitioners : Shri S.G.Sangle
Advocate for Respondent : Shri Pradeep Shahane
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: April 01, 2016
...
ORAL JUDGMENT :-
1. This petition was admitted by this Court on 25.6.2003. By order dated
18.10.2007, the impugned award was stayed by this Court as a consequence
of which, the respondent / employee is out of employment.
2. The petitioner / establishment is aggrieved by the judgment and
award dated 27.6.2002, by which, Reference (IDA) No.126 of 1993 has been
partly allowed and the respondent has been granted reinstatement with
continuity w.e.f. 1.6.1989. He has been deprived of backwages.
3. Shri Sangle, learned Advocate for the petitioner has made a serious
grievance about the impugned award. Contention is that though the
WP/1735/2003
respondent claimed to have worked from 4.5.1984 till 31.5.1989, he had
actually worked intermittently in the said period. The petitioner had
prepared a chart of the number of days worked below Exhibit E-5/1. The
said chart was proved in the Court and it was, therefore, established that
the respondent had not worked continuously in the uninterrupted service of
the petitioner.
4. It is further submitted that the Labour Court has arrived at a
conclusion that the respondent has worked continuously only on the basis of
the oral statements made by the respondent and since the petitioner did
not produce the record of attendance and pay register before the Labour
Court. The petitioner had volunteered to give inspection of the record to
the respondent. It expressed its inability to produce the record in the Court
as it was bulky and voluminous.
5. Shri Sangle further submits that the onus and burden of proving the
completion of the 240 days lies on the shoulders of the employee. Unless
the said burden is discharged, the onus to prove the contrary will not shift
to the employer / establishment.
6. He places reliance upon the judgment of this Court in the matter of
Bibhishan Yeshwant Babar Vs. The Executive Engineer, Kukadi Prakalp
Bhuvikas, Pune and others [1996 (72) FLR 446] and the judgment of the
learned Division Bench of this Court in the matter of Dashrath Rajaram
Solanke and others vs. Executive Engineer and another [2013 (3) All MR
WP/1735/2003
774]. He, therefore, submits that this petition deserves to be allowed and
the impugned award deserves to be quashed and set aside.
7. Shri Shahane, learned Advocate appearing on behalf of the sole
respondent submits that there is no perversity or error in the impugned
award. The respondent / employee had discharged the burden of proving
continuous service by categorically stating on oath that he had been
working from 4.5.1984 to 31.5.1989. In the event, the petitioner desired to
disprove the contention of the employee, it should have relied upon the
record available with it and should have proved the otherwise on the basis
of the record.
8. He further submits that the petitioner could have prepared a
compilation of the record with regard to the attendance of the daily wagers
for the period during which the respondent had worked. Said compilation
of documents could have been produced on record. Instead, the petitioner
prepared a data showing the period of working and the number of days and
had attempted to mis-lead the Court by establishing on the basis of the
chart that the respondent was not working continuously. Such a chart,
prepared by some officer of the petitioner and which did not carry the
signature of any officer as an authority who has prepared the chart, cannot
be said to be a piece of evidence. He, therefore, submits that the failure
on the part of the petitioner to produce the record led the Labour Court to
believe that the petitioner was holding back the record.
WP/1735/2003
9. He further submits that once the Labour Court came to a conclusion
that the illegal termination of the respondent from 1.6.1989 was illegal
retrenchment, the Labour Court has rightly reinstated him on account of
the violation of Section 25-F of the Industrial Disputes Act, 1947.
10. Shri Shahane relies upon the following judgments of this Court as well
as the Apex Court:-
(i) State of Maharashtra Vs. M.V.Ghalge -
1991 (2) Mh. L.J. 1557,
(ii) Chima Shravan Shinde and others Vs. M.V.Patil and others -
Writ Petition No.120 of 1981, dated 15.7.1994,
(iii) Director, Fisheries Termination Division Vs. Bhikubhai
Meghajibhai Cavda - 2010 AIR SCW 542,
(iv) Harjinder Singh Vs. Punjab State Warehousing Corporation -
2010 (124) FLR 700 and
(v) Anop Sharma Vs. Executive Engineer, Public Health Division-
2010 (2) Bom. L.C. 231 (SC).
11. I have considered the submissions of the learned Advocates.
12. It is trite law that the onus and burden of proving completion of 240
days in continuous employment lies on the shoulder of an employee. After
the burden is discharged, it would shift to the employer for proving the
otherwise. The witness of the petitioner stated in cross-examination that he
WP/1735/2003
has not produced the documents since they are bulky and could give an
inspection of the attendance registers and pay sheets to the employee.
However, it does not appear that the petitioner even made an effort to
prepare a compilation of the attendance register and pay sheet for the
perusal of the Court. It is observed by the Labour Court, in paragraph No.17
of the judgment, that the witness of the petitioner Shri Bhimraj Jaywant
Rahane, Sub-Divisional Engineer, had admitted in cross-examination that
the respondent had worked continuously for 240 days and he could not
explain whether there was any break period in his service.
13. In the light of the above, it appears that the Labour Court has arrived
at its conclusion in view of the petitioner having not produced the record
and on account of some admissions by the witness - Shri Rahane.
14. However, it cannot be ignored that the respondent employee was 52
years' old at the time of the recording of evidence as on 16.5.1999. As such,
he has attained the age of superannuation in 2007. It also cannot be ignored
that he has admitted in his cross-examination that he was working as a
Labourer on private work and was initially earning about Rs.13/- per day
and thereafter, about Rs.30/- to Rs.35/- per day.
15. This Court had stayed the impugned award. Section 17B of the
Industrial Disputes Act, would therefore, become applicable to the
employee notwithstanding the fact as to whether the impugned award is
sustainable or not. The employee had worked for about 5 years, according
WP/1735/2003
to the conclusions drawn by the Labour Court and was out of employment
for 18 years till his date of retirement in 2007.
16. The Honourable Supreme Court has considered situations wherein an
employee has put in a short spell of work and was out of employment fora
long duration in the following four judgments:-
(i) Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division, Kota Vs. Mohanlal [2013 LLR 1009],
(ii) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh [(2013) 5 SCC 136],
(iii) BSNL Vs. Man Singh [(2012) 1 SCC 558] and
(iv) Jagbir Singh Vs. Haryana State Agriculture Marketing Board
[(2009) 15 SCC 327].
17. In the above judgments, the Honourable Supreme Court has
concluded that reinstatement should not be granted to an employee who
has worked for a short duration and is out of employment for a long period.
Instead, grant of compensation would be more appropriate. An amount of
Rs.30,000/- was held to be sufficient compensation for each year of service
put in by an employee as against reinstatement with continuity and
backwages.
18. In the instant case, the respondent / employee has admitted in his
WP/1735/2003
cross-examination that he was working as a Labourer on private work after
his termination. Keeping this aspect in view, I find that the rate at which
the compensation could be paid to the respondent / employee should be
Rs.25,000/- per year.
19. I have gone through the case law cited by both the sides with regard
to the manner of computing continuous service, effect of violation of
Section 25-F and the effect of Clause 28 of the Kalelkar Award. Since I am
relying upon the four judgments delivered by the Honourable Supreme
Court for granting compensation in lieu of reinstatement in service, I am
not adverting to each of the judgments cited by both the Advocates.
20. In the light of the above, this petition is partly allowed. The
impugned award dated 27.6.2002, delivered in Reference (IDA) No.126 of
1993 stands modified and replaced by a direction to the petitioner to pay
compensation of Rs.1,25,000/- for the five years of service put in by the
respondent employee. Said amount shall be paid within four months from
today, failing which the said amount shall carry interest at the rate of 3%
per annum from the date of this judgment.
21. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
