Bombay High Court
Mungi Vikas K.S.Sangh Ltd vs The State Of Mah. & Others on 16 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3646 OF 1995
1. Mungi Vikas Karyakari Seva Sangh Maryadit,
Mungi, Tq. Kopargaon, Dist.Ahmednagar
PETITIONER
VERSUS
1. The State of Maharashtra,
2. Shaikh Sikandar S/o Jamalbhai,
Age-36 years, Occu-Director,
R/o Mungi,
Tq. Kopargaon, Dist.Ahmednagar RESPONDENTS
Mr.P.P.Mandlik h/f Mr.P.V.Mandlik, Advocate for the petitioner.
Mr.S.D.Kaldate, AGP for the respondent/State.
Mr.D.R.Markad h/f Mr.N.K.Kakde, Advocate for respondent No.2.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 16/08/2016
ORAL JUDGMENT :
1. The petitioner is aggrieved by the ex-parte judgment and award
dated 17/05/1994 by which Ref.(IDA) No.10/1987 has been allowed
and the petitioner is directed to reinstate the respondent with
continuity and full back wages from 01/02/1986.
2. I have considered the lengthy submissions of Mr.Mandlik,
learned Advocate for the petitioner and Mr.Kakade, learned Advocate
for respondent No.2.
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3. Since I am inclined to remand the reference to the Labour
Court, Ahmednagar for a rehearing, I am not required to advert to the
entire submissions of the learned Advocates since there is a
possibility that this Court would be required to make certain
observations on the merits of the matter.
4.
The respondent claimed that he was working from 1975 and by
letter dated 05/02/1986, his services are terminated w.e.f.
01/02/1986. It is further alleged that the petitioner passed a
Resolution on 28/01/1986 and discharged the respondent from
01/02/1986.
5. While allowing the reference by the impugned award, the
Labour Court had no occasion to consider any documentary evidence
for the reason that the respondent did not produce any documentary
evidence to prove that he was working continuously for 11 years and
the petitioner did not participate in the Labour Court proceedings.
Hence the ex-parte award.
6. Despite opportunities, the petitioner did not participate in the
proceedings and the Labour Court, therefore, allowed the reference
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entirely on the basis of the following observations :-
"The matter is ex-parte. The second party has filed his
affidavit. I have no reason to disbelieve the same. I therefore
proceed to pass following order in the interest of justice.
ORDER
1. First party is directed to reinstate second party workman Shri
Shaikh Sikandar Jamalbhai in his original post with full back
wages and continuity of service w.e.f. 1.2.86.
2. No order as to cost."
7. It is settled law that any suit or claim cannot be allowed merely
on the basis of an affidavit in lieu of oral evidence when not a single
statement in the affidavit is corroborated by any other evidence or
documentary evidence. The reference has been allowed by the
impugned award purely on the basis of the affidavit of the respondent
and the conclusion of the Labour Court that it had no reason to
disbelieve the affidavit. The impugned award, therefore, is
unsustainable.
8. It, however, cannot be overlooked that because of the
negligence and laxity on the part of the petitioner, the proceedings
before the Labour Court resulted in the ex-parte award. This Court,
by its order dated 07/08/1995, admitted this petition and granted
interim relief in terms of prayer clause "C" thereby staying the award.
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The respondent, however, did not file a civil application claiming last
drawn wages u/s 17-B of the I.D.Act, 1947. As a result of the remand
of the proceedings, the litigation will have to be reversed by about 20
years.
9. As such, this petition is partly allowed. The impugned award
dated 17/05/1994 is quashed and set aside. Ref.(IDA) No.10/1987 is
remitted back to the 2nd Labour Court, Ahmednagar on the following
conditions :-
[a] The petitioner shall deposit an amount of Rs.75,000/-
(Rs.Seventy Five thousand only) towards costs to be paid to
respondent No.2, before the Labour Court within a period of 6
(six) weeks from today, failing which, this order shall stand
recalled and the impugned award dated 17/05/1994 shall
stand restored.
[b] If the amount is deposited, respondent No.2 shall withdraw the
said amount without conditions, by submitting his identity
proof like PAN card or election ID card.
[c] The petitioner shall file its written statements alongwith
documents, if any, while depositing the amount before the
Labour Court within 6 (six) weeks.
[d] Both the litigating sides are at liberty to lead oral and
documentary evidence and after hearing both the sides, the
Labour Court shall deliver its judgment by considering the
entire matter afresh.
[e] The contention of the petitioner that, after his termination,
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respondent No.2 was elected as a member of the Gram
Panchayat and later on as the Director of the petitioner society,
shall be considered while granting any relief to respondent
No.2.
[f] Since the reference proceedings are of 1987, the litigating sides
shall be precluded from seeking adjournments on trivial and
unreasonable grounds.
[g] The Labour Court shall decide the said proceedings as
expeditiously as possible and preferably on or before
[h]
31/03/2017.
Learned Advocates for the respective sides submit that there
could be a possibility of settlement and in the event such a
situation occurs, they would not be precluded from settling the
matter.
10. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
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