Bombay High Court
Sultanbi Babu Shaikh vs Divisional Controller, ... on 5 August, 2016
Bench: R.V. Ghuge
WP/1115/2011+CA
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1115 OF 2011
WITH
CIVIL APPLICATION NO. 9480 OF 2016
Divisional Controller,
MSRTC, Osmanabad. ..Petitioner
Versus
Sultanbi Babu Shaikh,
Age major, Occ. Nil,
R/o Babu Bandeali Shaikh,
S.T. Depot, Bhoom,
District Osmanabad. ..Respondent
...
Advocate for Petitioner : Shri D.S.Bagul a/w Shri Rakesh Jain
Advocate for Respondent : Shri P.L.Shahane
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 05, 2016
...
ORAL JUDGMENT :-
1. The respondent / employee has moved the Civil Application for
listing the Writ Petition for final hearing out of turn. The respondent
has already superannuated in June 2015 and is said to be presently
suffering from grave and serious illness. As both the learned
Advocates graciously agreed to address the Court on the petition
itself, this Civil Application is disposed off and the Writ Petition is
heard finally by the consent of the parties.
2. The petitioner / Corporation is aggrieved by the award dated
13.8.2008 by which, the Labour Court, Latur has allowed Reference
WP/1115/2011+CA
(IDA) No. 86 of 2004 and has directed the petitioner to reinstate the
employee in service with continuity and full backwages.
3. Learned Advocate for the petitioner has strenuously criticized
the impugned award. Contention is that the employee was working
as a Sweeper on daily wages from 1.8.1986 and her service was orally
dispensed with on 1.9.2001, since she was not a regular employee in
the service of the Corporation. She was engaged for cleaning the
office premises, which was a job to be performed in the morning.
She was never engaged to perform duties in a shift schedule or during
particular office hours. A daily wager, therefore, cannot claim
continued employment in the absence of a right to employment. The
impugned award is against settled position in law and, therefore,
deserves to be set aside.
4. It is further submitted that by order dated 15.2.2011, this
Court had stayed the payment of backwages. While admitting the
matter on 13.4.2011, this Court directed the Corporation to continue
the respondent on daily wages during the pendency of the petition,
by staying the payment of backwages. Consequentially, she was
reinstated in May 2011 and she has attained the age of
superannuation in June 2015.
5. Shri Shahane, learned Advocate for the respondent has
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supported the impugned order. With regard to the direction to pay
the full backwages, he has strenuously submitted that the respondent
is entitled for full backwages as she could not get employment
despite making efforts. Being a Class IV labourer and a lady, she was
not successful in getting alternate employment. The illegality
committed by the Corporation has rendered the respondent to
starvation and hence she deserves the entire backwages.
6.
I have considered the submissions of the learned Advocates
and have gone through the petition paper book with their assistance.
7. The petitioner had filed its written statement at Exhibit C/9
before the Labour Court. Though it was denied that the employee
had not completed 240 days in continuous employment in each
calendar year with the Corporation, it was stated that she was
working from 1.8.1986 till 1.9.2001. It was also stated that as she
was orally engaged, she was orally dis-engaged. There is no dispute
that the Corporation had not complied with Section 25-F of the
Industrial Disputes Act, 1947.
8. Considering the above fact situation, I do not find that the
impugned award could be termed as being perverse or erroneous in
so far as the direction of reinstatement with continuity of service is
concerned.
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9. With regard to the full backwages granted by the Labour
Court, learned Advocate for the Corporation submits that the
Corporation has been perennially in losses. The losses are mounting
every passing day. Principle of "No work No wages" needs to be
made applicable.
10. The respondent has led evidence stating that she had become
overage after her termination and though she has tried to obtain
alternate employment, she was unsuccessful.
11. The Honourable Supreme Court in the matter of Gauri Shankar
Vs. State of Rajasthan [2015 II CLR 497], has concluded that when the
termination of an employee is held to be illegal, grant of 25%
backwages would be reasonable in order to reduce the hardships
suffered by the employee.
12. As such this petition is partly allowed. The impugned award is
modified only to the extent of the backwages and as such, the
petitioner shall pay 25% backwages to the respondent by calculating
the same on the basis of her last drawn monthly wages in the month
of August, 2001. Said amount shall be paid within 12 weeks from
today, failing which the petitioner shall pay interest at the rate of 6%
p.a. from the date of the award.
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13. Needless to state, since the direction of reinstatement has
been complied with and continuity of service has been granted, the
petitioner shall process the proposal of the respondent for payment
of all retiral benefits like family pension, gratuity, family pass, leave
encashment etc. as may be payable as per the Rules and service
conditions and to be calculated considering her service from 1.8.1986
till June, 2015, within a period of 12 weeks.
14.
Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
