Bombay High Court
The Sub Divn. Engineer, P.W.Sub ... vs Laxman Gomaji Babre on 1 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5389 OF 2007
1] The Sub Divisional Engineer,
Public Works Sub Division Chandur Rly,
Tq. Chandur Rly, Distt. Amravati
2] The Executive Engineer,
Special Project Division, Chandur Rly,
Tapowan Road, Amravati. ...... PETITIONERS
ig ...VERSUS...
Laxman Gomaji Babre,
aged about 36 years, Occ. Nil,
R/o Supalwada, Post Tiwara,
Tq. Chandur Rly, Distt. Amravati...... RESPONDENT
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Smt. Rashi Deshpande, AGP for Petitioners.
Shri P.S.Patil, Advocate for Respondent.
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CORAM: R. K. DESHPANDE, J.
st
DATE : 1 JULY 2016 .
ORAL JUDGMENT
1] In view of the order dated 1st July, 2016, passed
by this Court on Misc. Civil Application No. 18074 of 2015 for
review of the judgment and order dated 24.04.2015 passed
by this Court in W.P. No. 5389 of 2007, the judgment and
order is recalled and the matter is heard finally afresh in
presence of all the parties.
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2] In Reference (IDA) No. 309 of 1996, the
respondent-employee claimed that he was appointed as a
daily-wage labourer in the month of June, 1979 and was
terminated from service on 15.12.1986 without issuing any
notice or without giving pay in lieu of notice or without giving
any compensation, in spite of the fact that he had completed
240 days continuous service preceding the date of his
termination. The labour Court found that the termination was
in violation of Section 25F of the Industrial Dispute Act. The
same was, therefore, set aside and the order of
reinstatement was passed without any backwages, on
31.10.2006. This is the subject matter of challenge in this
petition by the employer.
3] The petitioner-employer denied the fact that the
respondent-complainant worked continuously for 240 days
preceding the date of his termination on 15.12.1986. The
question before the Courts below was, therefore, about the
proof of continuous service of 240 days by the complainant
preceding the date of termination from service.
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4] The respondent-employee entered the witness-
box and deposed his case, whereas the petitioner-employer
has also examined one Assistant Engineer working in the
Department. Except the bald statement of the respondent-
employee in the deposition, there is nothing on record to
show that the respondent-employee worked for 240 days
continuously as alleged.
5] It is urged by Shri Patil, the learned counsel
appearing for the respondent-complainant that there was a
specific order passed by the labour Court below Exh. 13
directing the petitioner-employer to produce the muster-roll
for the relevant period. He has relied upon the decision of
the Apex Court in case of Director, Fisheries Terminal
Department vrs. Bhikubhai Meghajibhai Chavda, reported in
2010(2) Mh.L.J. 510, to urge that the burden shifts upon the
employer to prove that the employee had not completed 240
days continuous service.
6] The question of drawing an adverse inference is
discretionary. The respondent-employee was terminated on
15.12.1986. After lapse of 10 years i.e. in the year 1996, the
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reference was sought. It was the stand taken by the
petitioner-employer in response to the application for
production of record that such record is not available and the
respondent-employee has worked on various roads covered
under the Sub-Division on the basis of the record which was
existing. It was brought to the notice of the labour Court that
the employee had worked only for 71 days during 03.08.1984
to 05.01.1986.
7] There is no explanation for the delay of about 10
years caused in seeking reference from 15.12.1986 to 1996.
In such a situation, the record not being available with the
petitioner-employer, an adverse inference cannot be drawn.
In the absence of there being any evidence on record
indicating completion of 240 days continuous service
preceding the date of termination, the Reference Court
committed an error in allowing the reference by setting aside
termination and directing reinstatement in service.
8] In the result, writ petition is allowed. The
judgment and order dated 31.10.2006 passed in Reference
(IDA) No. 309 of 1996 is hereby quashed and set aside. The
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Reference stands answered in the negative. No order as to
costs.
JUDGE
Rvjalit
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C E R T I F I C A T E
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