Bombay High Court
The Executive Engineer, ... vs Sanjay Shankarrao Wadurkar And ... on 21 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5570 OF 2013
PETITIONERS : 1. The Executive Engineer, Maharashtra
Jeewan Pradhikaran, Division No.2,
Amravati, Tahsil & District Amravati.
2. The Sub-Divbisional officer,
Maharashtra Jeewan Pradhikaran,
Division No.2, Amravati, Tahsil &
District Amravati.
-VERSUS-
RESPONDENTS: 1. Sanjay Shankarrao Wadurkar, Aged
ig 41 years, R/o Watpur, Post Loni
Takli, Tq. Nandgaon Khandeshwar,
District Amravati.
2. The Labour Court, Amravati.
WITH
WRIT PETITION NO.4943 OF 2013
PETITIONERS : 1. The Executive Engineer, Maharashtra
Jeewan Pradhikaran, Division No.2,
Amravati, Tahsil & District Amravati.
2. The Sub-Divbisional officer,
Maharashtra Jeewan Pradhikaran,
Division No.2, Amravati, Tahsil &
District Amravati.
-VERSUS-
RESPONDENTS: 1. Sudhir Ramchandra Uke, Resident of
Rewasa, Tahsil & District Amravati.
2. The Labour Court, Amravati.
WITH
WRIT PETITION NO.5200 OF 2013
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PETITIONERS : 1. The Executive Engineer, Maharashtra
Jeewan Pradhikaran, Division No.2,
Amravati, Tahsil & District Amravati.
2. The Sub-Divbisional officer,
Maharashtra Jeewan Pradhikaran,
Division No.2, Amravati, Tahsil &
District Amravati.
-VERSUS-
RESPONDENTS: 1. Bramhanand Maifatrao Chaware, R/o
Mahadeo Khori, Near New Bypass,
Zopadpatti Area, Amravati, Tahsil &
District Amravati.
2. The Labour Court, Amravati.
ig WITH
WRIT PETITION NO.5686 OF 2013
PETITIONERS : 1. The Executive Engineer, Maharashtra
Jeewan Pradhikaran, Division No.2,
Amravati, Tahsil & District Amravati.
2. The Sub-Divbisional officer,
Maharashtra Jeewan Pradhikaran,
Division No.2, Amravati, Tahsil &
District Amravati.
-VERSUS-
RESPONDENTS: 1. Purushottam Vasudeorao Wakode,
aged 42 years, Resident of Rewasa,
Tahsil & District Amravti.
2. The Labour Court, Amravati.
Shri D. M. Kakani, Advocate for the petitioners.
Shri N. R. Saboo, Advocate for the respondents.
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CORAM: A.S. CHANDURKAR, J.
DATED: 21
JULY, 2016.
st
ORAL JUDGMENT :
1. In all these writ petitions the respondent no.1 -
workman has filed an application under Section 17B of the
Industrial Disputes Act, 1947 (for short, the Act of 1947) with a
prayer to direct the petitioners - employer to pay last drawn wages
to them. While these applications were being heard, the learned
Counsel for the petitioners and the respondent No.1 submitted that
the writ petitions itself could be heard and decided finally. Said
request is accepted. Since identical issues arise in these writ
petitions, they are being decided by this common judgment. For
the sake of convenience, the facts in Writ Petition No.5570/2013
are being referred to.
2. It is the case of the respondent no.1 that he was
engaged on daily wages for attending urgent work by the
petitioners. The period of engagement of the respondent no.1 was
for the period from 1-5-1986 till 9-8-1986. On his services being
dispensed with, the respondent no.1 approached the Assistant
Commissioner of Labour by moving an application under Section
2A of the Act of 1947 in the year 2006. On failure of the
conciliation proceedings, the matter was referred to the Labour
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Court for adjudication. In the statement of claim, the respondent
no.1 stated that the provisions of Sections 25G and 25H of the Act
of 1947 were violated while terminating his services. In the reply
filed on behalf of the petitioners, a preliminary objection was
raised that the reference proceedings had been initiated after
lapse of almost nineteen years and hence, the claim in question
was stale. It was denied that there was any violation of the
provisions of Section 25G and 25H of the Act 1947. The parties
led evidence in support of their respective stands and by the
impugned order, the learned Judge of the Labour Court came to
the conclusion that the provisions of Section 25G of the Act of
1947 had been violated as juniors in service had been retained. By
the award dated 28-12-2012, the order of termination was set
aside with a direction to reinstate the respondent no.1 on his
former post with continuity in service. Being aggrieved, the
aforesaid award has been challenged.
3. Shri D. M Kakani, the learned Counsel for the
petitioners submitted that the claim as made by each workman
was highly belated and was so made after more than nineteen
years after termination of the services. According to him, there
was no industrial dispute that subsisted in view of passage of
almost nineteen years from the date of termination. There was
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total inaction on the part of the workman and the approach notice
was given only in the year 2005. According to the learned
Counsel, the finding recorded with regard to breach of provisions
of Section 25G of the said Act on the ground that some juniors had
been retained in service was also illegal. The learned Counsel
referred to the evidence on record and submitted that the juniors
who were stated to have been retained in employment had been
engaged in another division of the petitioner no.1 - Corporation.
According to him, while the workman in question had discharged
the duties at Amravati, the juniors alleged to have been retained
had worked at Daryapur Division of the office. By relying upon the
decisions of the Hon'ble Supreme Court in U. P. State Road
Transport Corporation Vs. Man Singh (2006) 7 SCC 752, Haryana
State Electronics Development Corporation ltd. Vs. Mamni (2006) 9
SCC 434 and Prabhakar Vs. Joint Director Sericulture Department
and Anr (2015) 10 SCALE 114, it was submitted that the Labour
Court erred in directing reinstatement of each workman. It was
submitted that even if it was assumed that there was breach of
provisions of Section 25G of the Act of 1947, there could not have
been a direction of reinstatement and at the most there could have
been a direction to pay monetary compensation. It was, therefore,
submitted that the impugned order directing reinstatement with
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continuity in service was liable to be set aside.
4. Shri N. R. Saboo, the learned Counsel for the
respondent no.1 in each writ petition supported the impugned
award. He submitted that the claim in question was not a stale
claim as the workmen had been persisting with their demands by
approaching the petitioners. He submitted that no prejudice was
shown to have been caused to the petitioners on the ground that
the claim in question had been made belatedly. Each workman
had completed service of ninety days and the breach of the
provisions of Section 25G of the Act of 1947 had been clearly
made out. Merely because the juniors who were retained were
working in another Division, the same would not be a ground to
hold that there was no breach of the provisions of Section 25G of
the Act, 1947. He sought to distinguish the judgments relied upon
by the learned Counsel for the petitioner and, in turn, placed
reliance upon the judgment of the Hon'ble Supreme Court in
Jasmer Singh Vs. State of Marhaya and another (2015) 4 SCC 458,
Tapash Kumar Paul Vs. BSNL & anr. AIR 2015 SC 357 and M/s
Nicks (India) Tools Ram Surat and another 2004 (103) FLR 102.
He also relied upon judgment of learned Single Judge in Writ
Petition No.715 of 2006 (Maharashtra State Electricity
Transmission Company Limited and another Vs. Mohammad
wp5570.13n4943.13n5200.13n5686.13.odt 7/11
Sadique Imad Ul-Hauque) decided on 21-08-2016. It was,
therefore, submitted that the award as passed was just and proper
not requiring any interference.
5. I have heard the respective Counsel for the parties at
length and I have given due consideration to their respective
submissions. In so far as the aspect of breach of provisions of
Section 25G of the Act of 1947 is concerned, the Labour Court
after considering the evidence on record found that each workman
had worked continuously for a period of ninety days. The seniority
list in question was published on 7-9-1987 which was after the
termination of services of each workman. The said seniority list
indicated that while terminating the services of the workmen in
question, the petitioner had retained juniors in service. This fact
was evident from the seniority list. It is on this basis that the
aforesaid finding with regard to breach of provisions of Section
25G of the Act,1947 has been recorded.
In so far as the submission that the workman in
question had been engaged at Amravati Sub-Division while juniors
had been retained at Daryapur, the said aspect would not make
much difference in view of the fact that the seniority list was
common for both the sub-divisions. In Jasmer Singh (supra), a
similar contention raised was not accepted by observing that
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merely because the workman had worked in two different sub
divisions would not be a ground for discarding the work done in
one sub-division while calculating total number of days for which
the work was done. Thus, the finding with regard to breach of
provisions of Section 25G of the Act of 1947 stands duly
established and there is no reason whatsoever to interfere with the
said finding.
6. On the aspect of delay in raising the industrial dispute
it is to be noted that the services of each workman were
terminated in the year 1986. The approach notice in that regard
was issued in the year 2005 after which the matter was referred to
the Labour Court in the year 2006. There is no explanation
whatsoever with regard to the efforts taken by each workman from
the year 1986 till issuing the approach notice in the year 2005 and
raising a grievance with regard to the illegal termination. While
considering the aspect of delay the Labour Court found it fit to
deny back wages to each workman for the delay as caused.
The Hon'ble Supreme Court in Prabhakar (supra) has
observed that the Court while adjudicating an industrial dispute
should consider whether the dispute was existing when the
reference was sought. It has then observed that though no
limitation is prescribed, if the aggrieved party does not approach
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the Court for a long period then the relief can be denied on the
ground of unexplained delay and laches. On these principles the
Hon'ble Supreme Court in UP State Road Transport Corporation,
Haryana State Electronics Development Corporation and M. P.
Administration (supra) has found that if directing reinstatement in
service after a long period is found to be unjustified, the workman
can be paid monetary compensation to serve the ends of justice.
Similar view has been taken in Rajkumar Rohitlal Mishra (supra).
In the light of aforesaid legal position and in the facts of the
present case, it is clear that for a period of nineteen long years, the
workman did not take any steps to ventilate their grievance with
regard to illegal termination of their services. Considering the long
passage of time and as their services were terminated in the year
1986, the relief of reinstatement after a period of almost thirty
years would be highly unjustified. Considering the fact that each
workman had discharged duties for a short period of about ninety
days, grant of compensation of Rs.30,000/- to each workman
would serve the ends of justice.
The ratio of the decisions in Tapash Kumar Paul, M/s
Nicks (India) Tools and Maharashtra State Electricity Transmission
Company Ltd. (supra) cannot be made applicable to the facts of the
present case.
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7. In view of aforesaid as the breach of provisions of
Section 25G of the Act of 1947 has been found to be made out,
each workman would be entitled for relief. However, considering
the fact that the reference was sought to be made after a period of
nineteen years from the date of termination and as the period of
almost thirty years have passed since termination of their services,
monetary compensation of Rs.30,000/- to each workman is
directed to be paid.
ig Accordingly, the award passed by the Labour Court
dated 28-12-2012 in each writ petition is partly modified.
The direction to reinstate the respondent No.1 is set
aside. Instead, the petitioners shall pay compensation of
Rs.30,000/- to respondent no.1 in each writ petition within a
period of eight weeks from today.
Rule is made absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
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