Executive Engineer vs Salukram Eknath Rakkte
2016 Latest Caselaw 3788 Bom

                                        1               WP NO.4464 OF 1995

                 
                IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                         BENCH AT AURANGABAD




                                               
                          WRIT PETITION NO.4464 of 1995

               Executive Engineer,
               Public Works, Sangmner,




                                              
               Tq. Sangamner, Dist. Ahemadnagar.
       
                                       ...PETITIONER
                       VERSUS




                                     
               Salukram Eknath Rakate,
                             
               Deceased, through his L.Rs.

      1-A              Smt.Chhaya w/o Salunkram Rakate,
                            
                       Age 41 yrs., Occu: Nil.

      1-B.             Kum.Dipali d/o Salukram Rakate,
                       Age 14 yrs. Occu: Education.
      


      1-C.             Ku.Chandrakala D/o Salukram Rakte,
   



                       Age 14 yrs. Occu: Education.

      1-D.             Kum.Sarala D/o Salukram Rakte
                       Age 9 yrs. Occu. Education.





               No.1-B to 1-D are minor, through
               their Minor Guardian: Mother i.e. 
               1-A.





               All R/o. Dhangarwadi, Post: Wakadi,
               Tal.Rahata, Dist. Ahmednagar. 

               (L.Rs. brought on record as per 
               Registrar's (Judl) order dated 12.1.2009 
               passed in C.A.No.13436/2008/)

                                            ...RESPONDENTS

                                      ...



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                                                2               WP NO.4464 OF 1995


               Shri S.W.Munde, AGP for petitioner State.




                                                                              
               Mr.N.C.Garud,   Advocate,   for   respondent  
               (sole).




                                                      
                                 ...

                                    CORAM: P.R.BORA, J.




                                                     
                                ...
               Date of reserving the judgment:  24.6.2016

               Date of pronouncing the judgment:13.7.2016




                                            
                                ... 
                             
      JUDGMENT:

1. The present petition is filed against the award

passed by the second Labour Court at Ahmednagar, on

28.4.1995, in Reference (IDA) No.28/1990, whereby the

respondent (now deceased) was directed to be reinstated

with full backwages and continuity of service w.e.f.

4.5.1986. By the order dated 18.9.1995, Rule and

interim relief in terms of prayer clause C was granted by

this Court. Vide prayer clause C, the petitioner had

prayed for stay to the operation of the impugned order

dated 28.4.1995.

2. The present petitioner had raised a dispute

before the Deputy Commissioner of Labour, Nashik

3 WP NO.4464 OF 1995

Division, Nashik, in regard to his alleged termination by

the present petitioner w.e.f. 4.5.1986 whereupon the

Deputy Commissioner of Labour made a Reference under

Section 10(1) read with Section 12(5) of the Industrial

Disputes Act, 1947 (hereinafter referred to as 'the ID Act')

and forwarded it for adjudication to the Labour Court at

Ahmednagar, in the year 1990.

3. In the aforesaid Reference, it was the

contention of the respondent employee that though he had

continuously worked with the present petitioner from the

year 1979 till 4th of May, 1986, and had worked for more

than 240 days in one calendar year in all the preceding

years, his services were abruptly terminated without

following due procedure of law as provided under the ID

Act. It was the specific contention of the respondent

employee that he was not served with any notice before

his alleged termination nor any retrenchment

compensation was paid to him. It was his further

contention that the persons junior to him were retained in

service and thus his termination was in violation of

Sections 25-F and 25-G of the ID Act. The respondent

4 WP NO.4464 OF 1995

employee had, therefore, prayed for the relief of

reinstatement with continuity of service and backwages.

4. As against the contentions raised by the

respondent employee, noted hereinabove, it was the

contention of the petitioner before the Labour Court that

the respondent employee had never worked continuously

with the establishment and had also never worked for

more than 240 days in any calendar year prior to his

alleged termination. It was the further contention of the

petitioner establishment that the respondent employee

was provided with the work on the principle of `as and

when available' and he was thus a temporary employee

appointed on daily wages. It was further contended by

the petitioner establishment that from 4.5.1986 the

respondent employee himself had stopped coming to the

work and has abandoned his services voluntarily and, as

such, there was no question of terminating his services.

5. During the course of hearing of the Reference

Application, oral and documentary evidence was adduced

by both the sides to the said Reference. Respondent

5 WP NO.4464 OF 1995

employee himself had deposed before the Labour Court

whereas Shri Rajendra Pandurang Targe was examined by

the petitioner establishment as their witness. The

learned Labour Court on its assessment of the oral and

documentary evidence brought before it allowed the

Reference Application and directed the present petitioner

to reinstate the respondent employee with full backwages

and continuity of service w.e.f. 4.5.1986. As mentioned

above, the said order is impugned in the present petition.

6. Shri Munde, learned A.G.P. has assailed the

impugned award on various grounds. Learned A.G.P.

submitted that the Labour Court has failed in appreciating

that considering the nature of work being performed by

the respondent employee, the provisions of the ID Act

could not have been applied in his case. Learned A.G.P.

submitted that the respondent employee was provided

with the work on daily wages and on the principle of `as

and when available'. Learned A.G.P. further submitted

that there was no scheme or any criteria in respect of

allotment of the work to the daily wagers. Learned A.G.P.

further submitted that on the availability of work, whoever

6 WP NO.4464 OF 1995

used to be available on the site, used to be provided with

the work and as such, there was no reason for maintaining

the seniority list as such. Learned A.G.P. further

submitted that it was the specific contention of the

petitioner establishment before the Labour Court that the

respondent employee had never worked continuously with

the petitioner establishment and had not worked for 240

days in any calendar year preceding the date of his alleged

termination. Learned A.G.P. submitted that available

record was produced on record by the petitioner

establishment which was clearly showing that the

petitioner had not continuously worked and had not

worked for more than 240 days in any calendar year.

Learned A.G.P. further submitted that an objection was

also raised by the petitioner establishment in regard to the

delay which has occurred on the part of the respondent

employee in raising the industrial dispute, thereby dis-

entitling him from claiming any relief, however, the Labour

Court has rejected the said contention for erroneous

reasons.

7 WP NO.4464 OF 1995

7. Shri N.C.Garud, learned Counsel appearing for

the respondent employee supported the impugned award.

Learned Counsel submitted that the respondent employee

had sufficiently proved that he was in continuous

employment of the petitioner establishment and that

before his alleged termination, he had worked for more

than 240 days in every calendar year. Learned Counsel

further submitted that the respondent employee had also

proved that the workers junior to him, namely, Govind

Santur Rakte and Bansi Shankar Lande were retained and

his services were terminated by the petitioner

establishment. Learned Counsel further submitted that

in his cross examination, the witness examined by the

petitioner establishment had clearly admitted the aforesaid

facts. Learned Counsel further contended that the Labour

Court has recorded an unambiguous finding that the

petitioner establishment had violated the provisions of

Sections 25G and 25H of the ID Act while terminating the

services of the respondent employee. Learned Counsel

further submitted that the Labour Court has

passed a well reasoned order and no interference

is required in the order so passed. In the -

8 WP NO.4464 OF 1995

alternative, it was argued by the learned Counsel that if

the Court reaches to the conclusion that the relief of

reinstatement may not be possible to be maintained

because of long lapse of time, the respondent employee

shall be compensated by directing the petitioner to pay the

respondent employee adequate compensation. In order

to substantiate his alternate prayer, learned Counsel relied

on the judgment of this Court in Writ Petition

No.2606/2003 (The State of Maharashtra Vs. Devidas

Machharam Chavan), dated 14th March, 2016. Learned

Counsel submitted that the learned Single Judge of this

Court in the aforesaid matter, relying on the Supreme

Court judgments referred to in the said judgment, has

awarded the compensation in similar circumstances.

8. It is apparent from the evidence before the

Labour Court, which has been extensively discussed in the

impugned judgment that relying on some averments in the

written statement filed by the petitioner establishment and

some admissions given by the witness examined by the

petitioner establishment in his cross examination, despite

there being any concrete evidence brought on record by

9 WP NO.4464 OF 1995

the respondent employee in regard to his contentions that

he had continuously worked during the period from 1979

to 4.5.1986 and that during the said period in every

calendar year he had worked for more than 240 days and

further that while terminating his services, juniors were

retained in services, the Labour Court has allowed the

Reference and directed reinstatement of the respondent

employee with ig continuity of service and with full

backwages.

9. Perusal of the impugned judgment reveals that

the Labour Court has not addressed to the other objections

raised by the petitioner establishment as regards to the

applicability of the provisions of the ID Act to the case of

the respondent employee. It was the specific contention

of the petitioner establishment that there was no scheme

or any criteria in respect of allotment of the work to the

workers employed on daily wages. It was the further

contention of the petitioner establishment that such work

used to be provided as and when available to the workers

who used to be available on the site at the relevant time.

      In     the      circumstances,        according          to     the      petitioner




                                              10                WP NO.4464 OF 1995

establishment, there was no need for maintaining any

seniority list of such workers. It was specifically

contended that such appointments were of a very

temporary nature and used to be made without following

any procedure. The Labour Court has, admittedly, not

considered these objections. However, after lapse of 21

years, according to me, it will be a futile exercise to go

into all those issues which, for the present case, would be

merely academic in view of the fact that the respondent

employee has expired during the pendency of the present

petition and his legal heirs are prosecuting the cause

further.

10. From the evidence which was brought before

the Labour Court, even if controversies are kept aside,

there is reason to believe that the respondent employee

had worked with the petitioner establishment for the

period of about five years. As has been held by the

Honourable Apex Court in the case of Assistant Engineer,

Rajasthan Development Corporation and another Vs.

Gitam Singh ( (2013) 5 SCC 136), before exercising its -

11 WP NO.4464 OF 1995

judicial discretion under Section 11-A of the ID Act, the

Labour Court has to keep in view all relevant factors,

including mode and manner of appointment, nature of

employment and length of service. The Honourable

Supreme Court has further observed that a distinction has

to be drawn between a daily wager and an employee

holding regular post for the purposes of consequential

relief. The Honourable Apex Court has further held that

even if the termination of a daily wager is held wrongful,

who had worked for some period, the award of

reinstatement would not be a proper relief, and rather,

award of compensation, in such cases, would be in

consonance with the demand of justice.

11. Having regard to the law laid down in the

aforesaid judgment, the petition is partly allowed. The

impugned judgment dated 28.4.1995 shall stand modified

with a direction to the petitioner to pay Rs.1,00,000/- ( Rs.

one lac) as compensation to the legal heirs of the

deceased worker within a period of six months from today,

failing which the said amount shall carry interest at the

12 WP NO.4464 OF 1995

rate of 9 per cent per annum from the date of this order till

the actual payment of the said amount of compensation.

No order as to costs. Rule made partly absolute.

(P.R.BORA) JUDGE ...

AGP/4464-95wp