Bombay High Court
Conservator Of Forest, North ... vs Shri Dilip S/O Ishwar Buradkar And ... on 6 June, 2016
Bench: Z.A. Haq
Judgment 1 wp1339.14+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1339 OF 2014
WITH
WRIT PETITION NO. 1693 OF 2016
WRIT PETITION NO. 1339/2014.
1) Conservator of Forest, North Division,
Chandrapur, Taluka & District :
Chandrapur.
2) Dy. Conservator of Forest, Rambaug,
Chandrapur, Taluka & District :
Chandrapur.
3) Range Forest Officer, Head Quarter,
Chandrapur, Taluka & District :
Chandrapur.
.... PETITIONERS.
// VERSUS //
1) Shri Dilip S/o. Ishwar Buradkar,
Aged about 36 years, Occupation :
Ex-Carpenter Cum Labour, Resident of
Balaji, Ward No.2, Taluka & District :
Chandrapur.
2) Hon'ble Member, Industrial Court, Chandrapur.
3) Hon'ble Labour Court, Chandrapur.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.D.Sonak, A.G.P. for the Petitioners-Employer.
Mrs. Shilpa Giratkar, Advocate for Respondent No.1-Employee.
___________________________________________________________________
WITH
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Judgment 2 wp1339.14+1.odt
WRIT PETITION NO. 1693/2016.
Dilip S/o. Ishwar Buradkar,
Aged about 48 years, Occ.: Ex-
carpenter cum Labour, R/o. Balaji
Ward No.2, Chandrapur, Tahsil and
District : Chandrapur.
.... PETITIONERS.
// VERSUS //
1)
Conservator of Forest, North Division,
Chandrapur, Tahsil and District -
Chandrapur.
2) Deputy Conservator of Forest, Rambaug,
Chandrapur, Tahsil and District -
Chandrapur.
3) Range Forest Officer, Head Quarter,
Chandrapur, Tahsil and District -
Chandrapur.
4) Hon'ble Labour Court, Chandrapur,
Tahsil and District - Chandrapur.
5) Hon'ble Member, Industrial Court,
Chandrapur, Tahsil and District -
Chandrapur.
.... RESPONDENTS
.
___________________________________________________________________
Mrs. Shilpa Giratkar, Advocate for Petitioner-Employee.
Shri A.D.Sonak, A.G.P. for the Respondents-Employer.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 06, 2016.
ORAL JUDGMENT :
Judgment 3 wp1339.14+1.odt
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
3. These two petitions are disposed by common judgment as the
same order passed by the Industrial Court confirming the order passed by the
Labour Court is challenged in these two petitions.
4. The employee filed complaint under Section 28 read with Item
I of Schedule IV of the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act, 1971 contending that he had been
working with the employer since 3rd March, 1996 as Carpenter-cum-Labour
till his services were orally terminated w.e.f. 29th November, 2004.
According to the employee, he had been working for more than 240 days in
each calendar year. The employee contended that the termination of his
services was illegal and in violation of the provisions of Section 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 and Rules 77 and 81 of the
Industrial Disputes(Bombay) Rules, 1957.
5. The employer opposed the claim of the employee on the ground
that the work was not available with the employer to continue the employee.
According to the employer, the employee could be provided with work for
200 days in 1998, for 194 days in 1999, for 140 days in 2000, for 26 days in
Judgment 4 wp1339.14+1.odt
2001, for 207 days in 2002, for 219 ½ days in 2003 and for 175 days in
2004. The employer pleaded that there was no violation of the provisions of
Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1971 and Rules
77 and 81 of the Industrial Disputes(Bombay) Rules, 1957.
6. The Labour Court considered the material on record and by the
order dated 5th February, 2010 concluded that the employee proved that he
was in continuous employment of the employer from 1996 till 29 th
November, 2004 and that the employee proved that his services were
terminated on 29th November, 2004 without following the mandatory
provisions. The Labour Court partly allowed the complaint directing
reinstatement of the employee afresh and dismissed the claim of the
employee regarding continuity of service and back wages.
7. The employer challenged the order passed by the Labour Court
insofar as directions were given to reinstate the employee in service afresh in
revision before the Industrial Court. The employee being aggrieved by the
rejection of his claim for continuity of service and back wages filed revision
before the Industrial Court. The Industrial Court by the impugned order, has
dismissed both the revision applications. The employer and the employee
being aggrieved in the matter have filed these petitions.
Judgment 5 wp1339.14+1.odt
8. With the assistance of the learned A.G.P. and the learned
advocate for the employee, I have examined the documents placed on the
record of the writ petitions. The subordinate Courts have concurrently
recorded that the employee worked with the employer for more than 240
days in the year preceding his termination. The subordinate Courts have
recorded that the employer has not led any evidence to prove that the work
was not available with the employer because of which the services of the
employee were required to be terminated. The employer has not been able
to point out any patent illegality or perversity in the findings recorded by the
subordinate Courts upholding the claim of the employee for reinstatement.
9. Shri A.D.Sonak, learned A.G.P. has submitted that as the
employee was engaged only for a short period, the directions given by the
subordinate Courts to reinstate the employee are not sustainable. To support
the submission, reliance is placed on the judgment given in the case of
Rajasthan Development Corpn. Vs. Gitam Singh, reported in (2013) 5 SCC
136. However, in the facts of the present case and the findings recorded by
the subordinate Courts, that the employee had worked for more than 240
days in the preceding year and as the employer has failed to establish that
the work was not available with the employer when the services of the
employee were terminated, in my view, the judgment relied upon by the
learned A.G.P. does not assist the employer.
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10. In view of the finding recorded by the subordinate Courts that
the termination of services of the employee is illegal and in violation of the
provisions of Section 25-B of the Industrial Disputes Act, the claim of the
employee for reinstatement with continuity of service has to be upheld and
the orders passed by the subordinate Courts are required to be modified to
that extent.
11.
As far as the claim of the employee for back wages is
concerned, in my view, the interests of justice would be sub-served by
directing the employer to pay 25% back wages to the employee for the
period from the date of termination till the date on which the employee is
reinstated. I am conscious that the normal Rule is that the employee is
entitled for entire back wages, however, considering the fact that the
employee had not been in the employment for more than 11 years and as the
employee can do the work of carpenter, he might have been earning his
livelihood.
12. Hence, the following order :
i) The directions given by the subordinate Court to reinstate the
employee are maintained.
ii) It is held that the employee is entitled for continuity of service
and 25% back wages for the period from the date of his
termination till the date on which he is reinstated.
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The amount of back wages shall be paid by the employer to the
employee till 15th September, 2016. If the amount is not paid
till 15th September, 2016, the employer shall be liable to pay
interest on the amount at 9% per annum from 1st March, 2010
i.e. from the month after the Labour Court passed the order.
iii) The impugned orders are modified accordingly.
iv) Writ Petition No. 1339 of 2014 is dismissed.
v) Writ Petition No.1693 of 2016 is partly allowed.
vi) In the circumstances, the parties to bear their own costs.
JUDGE
RRaut..
