Bombay High Court
Balu Sahebrao Ujgare vs The Commissioner Aurangabad ... on 20 December, 2016
Bench: R.V. Ghuge
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1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12096 OF 2016
Sangitabai W/o. Bhaskar Kamble,
Age. 35 years, Occ. Nil,
R/o. Nagsen Nagar, Osmanpura,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ig ...RESPONDENT
WITH
WRIT PETITION NO. 12097 OF 2016
Sundarbai W/o. Suryabhan Mhaske,
Age. 40 years, Occ. Nil,
R/o. Jaybhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12098 OF 2016
Kalindabai W/o. Rajendra Tribhuvan,
Age. 38 years, Occ. Nil,
R/o. Nagsen Nagar, Osmanpura,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12099 OF 2016
Anitabai W/o. Gauttam Dabhade,
Age. 40 years, Occ. Nil,
R/o. Ambedkar Nagar, Galli No. 06,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12122 OF 2016
Laxmibai W/o. Bhaskar Sasane,
Age. 30 years, Occ. Nil,
R/o. Kabir Nagar, Osmanpura,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12123 OF 2016
Kasturbabai W/o. Annu Alkunte,
Age. 52 years, Occ. Nil,
R/o. Jaybhim Nagar, Pragati Colony,
Town Hall, Aurangabad,
Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12124 OF 2016
Chandrakalabai W/o. Bhagwan Hiwrale,
Age. 45 years, Occ. Nil,
R/o. Kachiwada, Jadhavmandi,
N-7, CIDCO, Aurangabad,
Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12125 OF 2016
Bhagwan S/o. Sampatrao Ugale,
Age. 35 years, Occ. Nil,
R/o. Jaybhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12126 OF 2016
Bharat S/o. Devidas Kale,
Age. 32 years, Occ. Nil,
R/o. Yekata Nagar, Harsul,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12127 OF 2016
Sunita W/o. Gauttam Bhivsane,
Age. 38 years, Occ. Nil,
R/o. Gulabnagar, Town Hall,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12128 OF 2016
Nandu S/o. Sundarlal Sable,
Age. 35 years, Occ. Nil,
R/o. Begumpura, Ghati,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12129 OF 2016
Sagar S/o. Tukaram Navkar,
Age. 32 years, Occ. Nil,
R/o. Kabeer Nagar, Osmanpura,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12130 OF 2016
Balu S/o. Sahebrao Ujgare,
Age. 30 years, Occ. Nil,
R/o. Nagsen Nagar, Osmanpura,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12131 OF 2016
Bhartabai W/o. Vijay Bhalerao,
Age. 37 years, Occ. Nil,
R/o. Near Bhadkal Gate,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12132 OF 2016
Ushabai W/o. Subhash Dabhade,
Age. 40 years, Occ. Nil,
R/o. Jaibhim Nagar, Town Hall,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12133 OF 2016
Anita W/o. Bhagwan Ugale,
Age. 37 years, Occ. Nil,
R/o. Near Dr. Babasaheb Ambedkar Garden,
Gulabwadi, Jaybhim Nagar,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12134 OF 2016
Nandabai W/o. Prakash Phule,
Age. 40 years, Occ. Nil,
R/o. Kabir Nagar, Osmanpura,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12135 OF 2016
Suresh S/o. Sheshrao Sable,
Age. 29 years, Occ. Nil,
R/o. Padegaon, Aurangabad,
Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12136 OF 2016
Kailash S/o. Uttamrao Hiwrale,
Age. 28 years, Occ. Nil,
R/o. Jaybhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12137 OF 2016
Jyotibai W/o. Bharat Bhivsane,
Age. 32 years, Occ. Nil,
R/o. Jaibhim Nagar, Town Hall,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12138 OF 2016
Kantabai W/o. Ashok Gangawane,
Age. 40 years, Occ. Nil,
R/o. Jaibhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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WITH
WRIT PETITION NO. 12139 OF 2016
Amol S/o. Dhuraji Suryanarayan,
Age. 28 years, Occ. Nil,
R/o. Jaybhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
ig WITH
WRIT PETITION NO. 12140 OF 2016
Rekhabai W/o. Raosaheb Hiwale,
Age. 38 years, Occ. Nil,
R/o. Jaibhim Nagar, Town Hall,
Aurangabad, Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
WITH
WRIT PETITION NO. 12141 OF 2016
Vijaya W/o. Kailash Sadaphule,
Age. 40 years, Occ. Nil,
R/o. Satara Parisar, Satara,
Aurangabad, Tq. & Dist. Aurangabad. ...PETITIONER
Versus
The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad Municipal Corporation,
Aurangabad. ...RESPONDENT
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...
Advocate for Petitioners : Shri Rajesh K. Khandelwal
Advocate for Respondent : Shri Sambhaji S. Tope
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: December 20, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petitions are taken up for final disposal.
4. In all these petitions, the petitioners claim to be Safai Kamgar
with the respondent / Corporation. All of them have claimed to have
worked for about two years prior to their oral termination on the
dates stated in the order of Reference passed by the Deputy
Commissioner of Labour, Aurangabad, by which, the Industrial
Disputes were referred to the labour Court. All of them are aggrieved
by the impugned orders, dated 23.8.2011 and 4.2.2013, by which, all
the Reference Cases were dismissed for non-prosecution.
5. Applications for restoration of the Reference cases were filed
in 2016 and by the impugned orders dated 19.5.2016, all the Misc.
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Applications were rejected. Such rejection was challenged before
this Court in Writ Petition Nos. 8476 and 8486 to 8490 of 2016. By
the judgment dated 10.8.2016, this Court dismissed the petitions for
the reason that the restoration applications which were filed after a
delay of about 460 to 1100 days were untenable, considering the law
laid down by this Court in Dnyaneshwar Anantrao Kulkarni Vs. The
Superintendent Engineer, PWD and others [2015 III CLR 81], by
placing reliance upon the law laid down by the Honourable Supreme
SCC 331].
Court in the matter of Sangham Tape Company Vs. Hansraj [(2005) 8
Liberty was, therefore, granted to these petitioners to
challenge the orders dated 23.8.2016. It is in this backdrop that
these petitions have been filed in this Court.
6. Shri Tope, learned Advocate appearing on behalf of the
Corporation in all these cases submits that these petitions suffer the
from inordinate delay, none of these petitioners can be said to have
worked continuously with the Corporation, much less completed 240
days in any given calendar year, none of them were inducted in
employment of the Corporation, none of them were issued with
appointment orders and as such, even on the merits of the matter no
purpose would be served in restoring the reference cases to the
Labour Court.
7. I have considered the submissions of the learned Advocate.
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8. The law is well settled that a Reference made to the Labour
Court or the Tribunal is not to be dismissed in default. Once a
reference has been made by the order of the competent authority
under Section 12(4) read with Section 10(1) and Section 12(5) of the
Industrial Disputes Act, the Labour Court or the Tribunal as the case
may be, is under a legal obligation to decide the reference cases.
Even if the second party workman does not file it's statement of
claim, the Labour Court / Tribunal is expected to deliver it's award
on the material available and the reference could then be answered
in the negative.
9. The learned Single Judge of the Karnataka High Court in the
matter of T.S.Zingade Vs. Karnataka State Road Transport
Corporation [1979 (38) FLR 202], has held that the term 'Award' used
in Section 15 of the Industrial Disputes Act means a decision on the
merits of the question / terms of reference addressed to the Court.
In my view, once a reference has been made to the Tribunal / Court,
the reference has to be answered. Section 2(b) indicates that a
decision delivered by the Court would constitute an Award. There
must be a determination on the terms of reference and questions
addressed / referred to the Court. In the absence of a statement of
claim, the Labour Court could very well scan the available record and
decide the reference.
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10. In the matter of Yadvinder Sharma Vs. State of H.P. and
others - Civil Writ Petition NO.683 of 2011, dated 28.11.2011
(High Court of Himachal Pradesh), it has also been held that a
reference case cannot be dismissed in default. The learned Division
Bench of the Himachal Pradesh High Court has held in paragraph
Nos.3 to 6 as under:-
"3. Section 16 provides that the Award of the Labour court or
Tribunal shall be in writing. Under Section 17, the same has
to be published and within 30 days of publication, th eAward
becomes enforceable, as provided under Section 17-A. Section
2(b) defines an Award as follows:
"(b) 'Award' means an interim or a final determination
of any industrial dispute or of any question relating
thereto by any Labour Court, Industrial Tribunal or
National Industrial Tribunal and includes an arbitration
award made under section 10-A."
Section 2(k) defines Industrial dispute, which reads as follows:
"(k) 'industrial dispute' means any dispute or
difference between employers and employers, or
between employers and workmen, or between workmen
and workmen, which is connected with the employment
or non-employment or the terms of employment or
with the conditions of labour, of any person."
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4. Settlement of industrial dispute being the main object
behind the Industrial Disputes Act, 1947, the provisions as
extracted above would show that once an industrial dispute
which could not be settled in conciliation, the same is
referred to the Labour Court or the Industrial Tribunal, as the
case may be, for adjudication. The purpose of adjudication is
determination of the industrial dispute and the same is
expressed in the form of an Award. Therefore, once a
Reference under Section 10 of the Industrial Disputes Act is
made to the Labour court or the Industrial Tribunal, the said
forum is to determine the dispute or question referred to it
by appropriate adjudication. The Government along with the
Reference also forwards the relevant materials also to the
Court or the Tribunal. Thus, once a Reference is made, the
Court or the Tribunal has to decide the same on the basis of
the materials available on record. Whether any party to the
dispute cooperates or not is immaterial. Hence, there arises
no question of dismissal of the Reference for default. The
Reference can be disposed of only by passing an Award
whereby the question referred to it has been determined by
the Labour Court or the Tribunal by passing an Award. The
Presiding Officer, on the basis of the materials available on
record should consider the matter on merits and enter the
findings.
5. Under Section 18 of the Land Acquisition Act also, the
Collector makes a Reference to the Civil Court in the matter
of fixation of compensation. In that process also the available
materials are made available to the Civil Court. The
Reference Court is bound to consider the matter referred to
it and take a decision as to the just and proper compensation.
The Court cannot dismiss the same for default. This principle
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has been settled by the Supreme Court in Khazan Singh
(dead) by L.Rs vs. Union of India reported in AIR 2002 SC
726, wherein it has been held as follows:
" The reference made by a Collector under S. 18 of the
Land Acquisition Act, 1894 cannot be dismissed for
default. The provisions of Ss. 18, 20, 26 make it clear
that the Civil Court has to pass an award in answer to
the reference made by the Collector under S. 18 of the
Act. If any party to whom notice has been served by the
Civil Court did not participate in the inquiry it would
only be at his risk because an award would be passed
perhaps to the detriment of the concerned party. But
non-participation of any party would not confer
jurisdiction on the Civil Court to dismiss the reference
for default."
6. A Division Bench of the Punjab and Haryana High Court
had occasion to consider the question as to whether the
Labour Court is free to dismiss a Reference for non-
prosecution by the decision in K.K. Rattan vs. Presiding
Officer, Labour Court and others, reported in High Court,
Punjab and Haryana 378. It has been held that the Labour
Court has no power to dismiss a Reference for non-
prosecution. It is bound to adjudicate on merits even if the
workman is absent. To quote:
" When a dispute is referred to the Tribunal, it has to
decide it on merits. There is no power conferred on it
to dismiss a reference for non-prosecution. It is the
duty of the Labour Court to consider the claim
statement of the workman and the written statement
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of the management and any other record before it and
answer the point referred to it on merits."
11. This Court (Coram : Smt. Nishita Mhatre, J.), in the matter of
Rajman Shrikrishna Morya Vs. Marshal Security Pvt. Ltd. - Writ
Petition No. 8682 of 2009, dated 6.9.2010, has concluded that an
order of dismissing a reference in default is not an award and as
such, the same would be unsustainable since a reference has to be
answered either way, whether the litigating sides participate in the
proceedings or not.
12. I find that the submissions of Shri Tope on the ground of delay
needs to be accepted to a limited extent. The Industrial Disputes Act
does not prescribe any limitation for raising an Industrial Dispute, be
it under Section 2(k) or Section 2A. So also, after the reference cases
were dismissed for non-prosecution on 23.8.2011 and 4.2.2013, the
restoration applications were filed belatedly in 2014. Thereafter, the
petitioners were before this Court in 2016 as noted above. In this
backdrop, considering the negligence on the part of the petitioners,
they need to be deprived of the monetary benefits, if at all, they
succeed in their reference cases.
13. In the light of the above, these petitions are partly allowed.
The impugned orders dated 23.8.2011 and 4.2.2013 in Reference IDA
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Nos. 422, 410, 405, 404, 417, 418, 415, 403, 427, 420, 406, 210, 203,
259, 269, 249, 213, 214, 209, 208, 205, 264, 215 and 263 all of 2010
are quashed and set aside and all these reference cases are restored
to the file of the 1st Labour Court at Aurangabad. The litigating sides
shall appear before the said Court on 10.1.2016 and formal notices
need not be issued by the Court.
14. These petitioners shall file their statements of claim in all
these matters on/or before the 21.1.2017. Upon receipt of the same,
the respondent / Corporation shall file it's written statements on/or
before 24.2.2017. The Labour Court shall decide these reference
cases on their own merits. In the event, these petitioners succeed in
the reference cases, they shall be deprived of all monetary benefits
from the date of registration of their reference cases before the
Labour Court till December, 2016 for the lapses on their part due to
which the reference cases were dismissed earlier.
15. The Labour Court shall also keep in view the law laid down by
the Honourable Supreme Court in the following four cases, if at all,
compensation is to be quantified, considering the purported short
span of employment followed by a long period of unemployment:-
1. Assistant Engineer, Rajasthan State Agriculture Marketing
Board, Sub-Division, Kota Vs. Mohanlal [2013 LLR 1009],
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2. Assistant Engineer, Rajasthan Development Corporation
and another Vs. Gitam Singh [(2013) 5 SCC 136],
3. BSNL Vs. Man Singh [(2012) 1 SCC 558] and
4. Jagbir Singh Vs. Haryana State Agriculture Marketing Board
[(2009) 15 SCC 327].
16. It be noted that the above observations of this Court are
purely on the basis of law and would not mean that this Court is
convinced about the merits of the claims of the petitioners.
Needless to state, the Labour Court shall decide the reference cases
on their own merits.
17. Rule is made partly absolute in above terms, in all these
petitions.
( RAVINDRA V. GHUGE, J. )
...
akl/d
