Bombay High Court
Ashok Appasaheb Tupe vs Pravara Medical Trust on 4 August, 2016
Bench: R.V. Ghuge
*1* 907.wp.11020.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11020 OF 2015
Ashok s/o Appasaheb Tupe,
Age : 46 years, Occupation : Labour,
R/o Gul Limb, Fattiyabad,
Taluka Shrirampur,
District Ahmednagar.
...PETITIONER
-VERSUS-
Pravara Medical Trust.
At Post Loni, Taluka Rahata,
District Ahmednagar.
Through it's Trustee & Secretary.
...RESPONDENT
...
Advocate for Petitioner : Shri Barde Parag Vijay.
Advocate for Respondent : Shri V.D.Hon, Senior Advocate a/w Shri Hon
Ashwin V..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 04th August, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 I have heard Shri Barde, learned Advocate for the Petitioner/
Employee and Shri Hon, learned Senior Counsel for the Respondent/
*2* 907.wp.11020.15
Management.
3 The litigating sides have relied upon the following
judgments:-
(1) Workmen of the Motipur Sugar Factory Private Limited vs. The
Motipur Sugar Factory Private Limited, AIR 1965 SC 1803.
(2) The Cooper Engineering Limited vs. P.P.Mundhe, AIR 1975 SC
1900.
(3) Shambhu Nath Goyal vs. Bank of Baroda, AIR 1984 SC 289.
(4) Rajendra Jha vs. Presiding Officer, Labour Court, Bokaro Steel
City, District Dhanbad, AIR 1984 SC 1696.
(5) Karnataka State Road Transport Corporation vs.
Smt.Lakshmidevamma, AIR 2001 SC 2090.
(6) Engineering Laghu Udyog Employees' Union vs. Judge, Labour
Court and Industrial Tribunal, (2003) 12 SCC 1.
(7) Board of Trustees of the Port of Mormugao, Goa vs. Yamunappa
C. Gaudar, 2009(2) Mh.L.J. 337.
4 Undisputed factors in this case are as under:-
(a) The Petitioner/ Employee was appointed as a Watchman on
01.06.1993.
*3* 907.wp.11020.15
(b) He worked continuously till 19.05.1996.
(c) The Management claimed that he had resorted to
absenteeism from 19.05.1996.
(d) The Petitioner alleges that he was prevented from reporting
for duties from 19.05.1996.
(e) The Petitioner filed Complaint (ULP) No.286/1999 on
29.11.1999 claiming the work and oral refusal of work.
(f) The Management filed it's Written Statement and took a
stand that the Petitioner was struck off the rolls on
12.08.1996.
(g) On 29.09.2004, the Petitioner withdrew the complaint.
(h) The Petitioner raised an industrial dispute in 2008 and the
same was referred to the 2nd Labour Court, Ahmednagar by
the order of reference dated 11.09.2009 passed by the Deputy
Commissioner of Labour, Nashik Division, Nashik.
(i) The terms of reference by the Deputy Commissioner of
Labour were based on the failure report, which read thus:
"Whether, Mr.Ashok Appasaheb Tupe (herein after referred as
the second party) should be reinstated in service with full back
wages and continuity of services with effect from 11.09.2009."
(j) The Petitioner/ Employee filed his statement of claims on
25.12.2010.
*4* 907.wp.11020.15
(k) The Respondent filed it's Written Statement on 23.07.2010.
(l) The Management in paragraph 10 of it's Written Statement
specifically averred that "Thereby the second party has himself
terminated the contract of employment. In view of this the first
party as stated in the letter dated 05.08.1996 has removed the
name of the second party w.e.f. 12.08.1996."
(m) The Management has taken a specific stand that they have
not terminated the Petitioner, but he has abandoned his
employment from 19.05.1996.
(n) No domestic enquiry was conducted against the Petitioner by
the Management.
(o) In paragraph 15 of it's Written Statement, the Management
contended that it had conducted an enquiry and removed the
name of the Petitioner from the muster roll.
(p) The record and proceedings of the purported domestic
enquiry were not placed before the Labour Court.
(q) Though the Labour Court has considered all the issues framed
by it, it has answered the reference in the negative vide it's
judgment and award dated 09.12.2014 on the sole ground
that there was no termination of the Petitioner on 11.09.2009
and he was struck off the rolls by the Management on
*5* 907.wp.11020.15
12.08.1996.
(r) The Petitioner had put in two years and 11 months in service
and is out of employment for about 20 years and two months.
5 Having considered the submissions of the learned Advocates,
I am not considering the issues as regard whether, the Management
reserved a right to conduct a de-novo enquiry and whether, the
Management is required to reserve such right only in the Written
Statement.
6 The reason why I am not dealing with these two issues is that
Shri Barde submits on instructions that remand of the matter to the
Labour Court would cause grave hardships and manifest inconvenience to
the Petitioner since he would have to undergo the rigours of litigation. It is
instead submitted that since the Petitioner has put in about three years of
service which is undisputed, this Court may consider quantification of
compensation.
7 Shri Hon submits that there is no record with regard to
conducting a domestic enquiry as is strictly understood in the Standing
Orders.
*6* 907.wp.11020.15
8 In my view, if the Petitioner was absent from 19.05.1996, the
Management could not have presumed abandonment of service in three
months when his name was struck off the rolls on 12.08.1996. It is settled
law that unless the absence is for a long period and the Employee keeps
himself away for such a considerable period that it would be easily
assumed that he has abandoned the service and as such, there would be
no reason to conduct an enquiry as it would be of no consequence.
I do not find from the Written Statement that the
Management has reserved it's right to conduct a de-novo enquiry.
10 The Honourable Supreme Court, in the following four
judgments, has laid down that where a short spell of employment is
followed by a long duration of unemployment, rather than granting
reinstatement with or without back-wages, the Court could quantify the
compensation :-
(a) Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal, [2013 LLR 1009];
(b) Assistant Engineer, Rajasthan Development Corporation and
another Vs. Gitam Singh, [(2013) 5 SCC 136];
(c) BSNL Vs. Man Singh, [(2012) 1 SCC 558]; and
*7* 907.wp.11020.15
(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
11 The ratio laid down by the Honourable Apex Court in the
above four judgments is that an amount of Rs.30,000/- per year of service
put in by the employee, can be sufficient compensation.
12 In this backdrop, since the Petitioner has put in about three
years in service and is out of employment for more than 20 years, I deem
it proper to quantify compensation by placing reliance upon the view
taken by the Honourable Supreme Court in the above four cases. The last
drawn wages of the Petitioner were Rs.875/- per month as in May, 1996.
13 Considering the ratio laid down by the Honourable Supreme
Court in the above referred four cases, I deem it proper to modify the
impugned award and direct the Respondent / Management to pay the
Petitioner an amount of Rs.1 lac within a period of TWELVE WEEKS from
today, failing which the said amount would carry interest at the rate of 6%
per annum from the date of the award which is 09.12.2014.
14 This Writ Petition is, therefore, partly allowed. The impugned
award is modified with the direction to the Management to pay
*8* 907.wp.11020.15
compensation as above.
15 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
