Bombay High Court
Vithal Nilkanth Garule vs Executive Engineer, Kukadi ... on 14 December, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7713 OF 2014
Vithal Nilkanth Garule,
Age : 51 years, Occupation : Labour,
R/o Belpandhari, Post Suregaon,
Taluka Newasa, District Ahmednagar.
...PETITIONER
-VERSUS-
Executive Engineer,
Kukadi Project Land Development,
Division No.1, Nagar Aurangabad Road,
Ahmednagar.
...RESPONDENT
...
Advocate for Petitioner : Shri Barde Parag Vijay.
Advocate for Respondent : Shri Rajale Gulab B..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 14th December, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner/ Employee is aggrieved by the judgment and
award dated 10.01.2014 by which Reference (IDA) No.1/2008 has been
rejected by the Labour Court, Ahmednagar.
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3 I have considered the strenuous submissions of the learned
Advocates for the respective sides and with their assistance, I have gone
through the petition paper book and reports cited.
4 The undisputed factors in this case are as under:-
(a) The Petitioner joined as a daily wager on 01.02.1984.
(b) He claimed to have been orally terminated on 01.04.1988.
(c) On 01.04.1996, he preferred Complaint (ULP) No.119/1996
before the Industrial Court at Ahmednagar under the MRTU &
PULP Act, 1971.
(d) On 19.03.2004, he withdrew the complaint so as to raise an
industrial dispute.
(e) After he raised an industrial dispute under Section 2-A of the
Industrial Disputes Act, 1947, the matter was referred to the
Labour Court by way of reference.
(f) During the pendency of the reference, the Petitioner
attempted to amend his statement of claim by giving up his
contention that he was orally terminated on 01.04.1988 and
instead sought to substitute the said date by 01.11.1985. The
said request/ application was rejected by the Labour Court.
(g) The Petitioner moved an application Exhibit U/4 seeking
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production of documents. The Labour Court allowed the same
by order dated 23.12.2009 and directed the Respondent/
Establishment to allow inspection (wrongly mentioned as
"verification" in the impugned award) of the documents and
supply such copies of the documents which the Petitioner
would demand after taking inspection.
(h) The witness of the Respondent Mr.Prakash Ghevrikar
submitted that no inspection of documents such as muster
rolls, salary sheets, seniority list and service book was given to
the Petitioner.
(i) By the impugned judgment and award, the Labour Court has
concluded that the Petitioner could not prove completion of
240 days in continuous employment in twelve calender
months immediately preceding the date of reference under
Section 25-B of the Industrial Disputes Act, 1947.
5 Shri Barde, learned Advocate for the Petitioner, has placed
reliance upon the following judgments of the Honourable Apex Court:-
(a) Harjinder Singh vs. Punjab State Warehousing Corporation,
AIR 2010 SC 1116.
(b) Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai
Chavda, AIR 2010 SC 1236.
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(c) Bhavnagar Municipal Corporation vs. Jadeja Govubha
Chhanubha, AIR 2015 SC 609.
6 There is no dispute that the onus and burden to prove
completion of 240 days in continuous employment, lies on the employee.
The Honourable Supreme Court in the matter of Director, Fisheries
Terminal Division (supra) has also concluded that initial burden lies on the
employee and the burden of proof then shifts on to the employer if it is
denied that the employee has completed 240 days. It cannot be ignored
that despite the directions of the Labour Court dated 23.12.2009, the
Respondent/ Establishment did not produce the documents and also did
not give any inspection to the Petitioner. Had that been done, considering
the fact that the documents were in the exclusive custody of the
Respondent/ Employer, the Petitioner would have stumbled across some
documents which would indicate his working with the Respondent. On the
one hand, the Respondent refused to produce the documents and on the
other hand, the Respondent has boldly canvassed that the Petitioner could
not prove completion of 240 days. Considering the above, the Respondent
appears to be taking an advantage of it's own wrong.
7 Insofar as the claim of the Petitioner is concerned, it appears
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from the application for amendment filed before the Labour Court that the
Petitioner had claimed to have worked in between 01.02.1984 to
01.11.1985. This is roughly a period of about 18 months. The number of
days worked in the form of a chart produced at Exhibit C/7 by the
Respondent, indicates that the Petitioner has worked for 195 days prior to
31.10.1985 keeping in view that he had worked for about 182 days in
between 17.02.1984 upto 01.02.1985. Apparently these are the days of
actual daily wage working by the Petitioner and does not include 52
weekly holidays and some national holidays. Keeping this in view, it
appears probable that the Petitioner may have put in 240 days in 12
calender months preceding the date of reference. This aspect could have
been proved had the Respondent produced the documents which it
refused to do so despite the directions from the Labour Court.
8 Considering the above, I find this to be a fit case to exercise
my jurisdiction under Articles 226 and 227 of the Constitution of India
since I find that the observations of the Labour Court on this count appear
to be perverse.
9 Shri Rajale, learned Advocate for the Respondent/
Establishment, has strenuously submitted that even if it is presumed that
the Petitioner was orally terminated from 01.11.1985, the reference
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proceedings were initiated on an industrial dispute raised in 2007 which is
practically 22 years post the oral termination. He, therefore, prays that no
interference is called for considering the delay of 22 years.
10 I find that the Petitioner had preferred Complaint (ULP)
No.119/1996. After pendency of 08 years, the said complaint was
withdrawn for raising an industrial dispute. After passage of 03 years
therefrom, he has raised an industrial dispute. In this backdrop, I am not
inclined to accept the contention of Shri Rajale and more so keeping in
view the conduct of the Respondent in refusing to comply with the
directions of the Labour Court to produce the documents.
11 It needs to be considered that the Petitioner can be said to
have worked for about a year or so. He is out of employment for the past
about 31 years. In this backdrop, I deem it proper to place reliance on the
following four judgments of the Honourable Supreme Court:-
(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
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(d) Jagbir Singh Vs. Haryana State Agriculture Marketing Board,
[(2009) 15 SCC 327].
12 In the above four judgments, the Honourable Supreme Court
has ruled that where a short tenure of employment is followed by a long
spell of unemployment, the direction of reinstatement with continuity
would be impracticable and the compensation of about Rs.30,000/- per
year of service put in by the employee, would be an appropriate relief.
13 Considering the above and keeping in view the conduct of the
Respondent, this Writ Petition is partly allowed. The impugned award
rejecting the reference is modified and Reference (IDA) No.1/2008 stands
partly allowed by directing the Respondent/ Establishment to pay
compensation of Rs.30,000/- (Rupees Thirty Thousand) to the Petitioner
within a period of TWELVE WEEKS from today, failing which the said
amount would attract interest at the rate of 6% per annum from the date
of the award of the Labour Court till it's actual payment.
14 In the peculiar facts of this case, I deem it proper to fix the
responsibility on the Executive Engineer of the Kukadi Project Land
Development, Division No.1, Ahmednagar, who was in-charge on the date
the order of the Labour Court dated 23.12.2009 was passed directing the
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Respondent/ Establishment, for refusing to produce the documents. The
State Exchequer / taxpayers' money, in these circumstances, ought not to
be burdened with this compensation. As such, the Respondent/
Establishment shall ensure that the said compensation of Rs.30,000/-
(Rupees Thirty Thousand) is paid to the Petitioner from the salary of the
Executive Engineer, who was in-charge on 23.12.2009.
15 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
