Bombay High Court
Ramdas Deoram Kahar vs The State Of Mah Thr. Dy. Director ... on 3 March, 2016
Bench: R.V. Ghuge
WP 4886/11 & another
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4886 OF 2011
Ramdas Deoram Kahar,
Age : 51 years, Occ. Daily wager,
R/o. Derde Korhale, Taluka Kopargaon,
Dist. Ahmednagar.
...Petitioner...
Versus
State of Maharashtra,
Through Deputy Director for
Social Forestry, Sudke Mala,
Balika Ashram Road,
Taluka and District Ahmednagar.
...Respondent...
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
WITH
WRIT PETITION NO.8342 OF 2015
Ramdas Devram Kahar,
Age : 55 years, Occu. Nil,
R/o. At Post Dede Korhale,
Taluka Kopargaon,
District Ahmednagar
...Petitioner...
Versus
1 The State of Maharashtra,
Rural Development & Irrigation
Department, Mantralaya,
Mumbai.
2 The Director of Social Forestry,
Maharashtra State,
Central Building, Pune.
3 The Deputy Director of Social
Forestry, Social Forest
Department, Ahmednagar.
...Respondents...
::: Uploaded on - 07/03/2016 ::: Downloaded on - 31/07/2016 07:40:38 :::
WP 4886/11 & another
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.....
Shri P.V. Barde, Advocate for petitioner.
Shri V.V. Bhavthankar, Special Counsel with Shri V.G.
Shelke, AGP for respondents.
......
CORAM: RAVINDRA V. GHUGE, J.
DATE: 03.03.2016
ORAL JUDGMENT :
1] The first petition filed by the employee has
been admitted on 26.7.2011 wherein the petitioner -
employee, though has partly succeeded before the Labour
Court, was deprived of back wages. In the second writ
petition filed by the petitioner - employee, he has
challenged the judgment of the Industrial Court dated
9.3.2015 by which his Complaint (ULP) No.57/2012 was
dismissed.
2] The employee, who has filed both these
petitions, submits that the first petition is restricted
only to the extent of his claim for back wages. Insofar
as the second petition is concerned, the Industrial Court
has dismissed his complaint, which he had filed for
seeking implementation of the award dated 27.12.2010 in
Reference (IDA) No.27/2004.
3] The petitioner submits that the Labour Court has
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deprived him of the back wages while partly allowing his
reference. The respondent - employer has not challenged
the award of the Labour Court dated 27.12.2010. The
Industrial Court, therefore, should have allowed his
Complaint (ULP) No.57/2012 as there was no challenge to
the award. He, therefore, prays that both his petitions
be allowed.
4] Shri Bhavthankar, learned Advocate appearing on
behalf of the respondent - management, submits that the
management is now taking steps in 2016 to prefer a writ
petition for challenging the award dated 27.12.2010. He,
however, concedes that the said award has not been
challenged for more than five years and due to procedural
delays, the petition has not been filed.
5] Shri Bhavthankar submits that this matter may be
adjourned so as to enable him to prefer a writ petition
against the impugned award dated 27.12.2010.
6] In this backdrop, I have heard Shri Bhavthankar
on the merits of the matter with regard to the said
award, which the petitioner - employee has challenged
only to the extent of the direction of the Labour Court
to deprive him of back wages. The respondent relies upon
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its affidavit in reply dated 9.4.2012 filed in the first
petition.
7] I have considered the submissions of the learned
Advocates.
8] Several documents were produced by the
respondent - management before the Deputy Commissioner of
Labour, Nashik, with regard to the industrial dispute
raised by the petitioner - employee u/s 2-A of the
Industrial Disputes Act. All those documents lateron
became a part of the record in Reference (IDA) No.27/2004
as all the papers contained in the conciliation
proceedings file have been transmitted to the Labour
Court.
9] I find from the record referred to by the Labour
Court that the seniority list at Exhibit U-13/1 indicates
the petitioner at Sr.No.14. One Mr.Vasant Kajale is at
Sr.No.15. Exhibit U-13/2 indicates that the respondent
had called upon Mr.Vasant Kajale to join duties forthwith
in the light of the order of the Industrial Court dated
15.11.2005 passed in Complaint (ULP) No.331/1993 by which
Mr.Kajale had sought the implementation of the award.
10] I also find that the petitioner by his
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application dated 8.5.2007 had requested the respondent -
management to permit him to join duties as juniors have
been continued in employment.
11] The document at Exhibit U-15/1 indicates that
the petitioner was working from 1987-88 and had completed
345 days in continuous employment. In the year 1988-89,
he had worked for 259 days. In 1989-90, he had worked
for 241 days. In the year 1990-91, he had worked for 298
days. In the year 1991-92, he had worked for 316 days.
As such, from the date of reference i.e. the date of
termination 4.5.1993, the petitioner had worked for 317
days in the preceding 12 Calender months.
12] These records produced by the management, which
are a part of the conciliation proceedings, in my view,
have rightly been considered by the Labour Court.
Consequentially, the termination of the petitioner
without compliance of Sections 25-F and 25-G has been
interfered with and the Labour Court has rightly answered
the reference in the affirmative.
13] I have considered the subsequent developments
that have taken place with regard to the petitioner and
the respondent pursuant to the filing of the first
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petition. The petitioner had worked for about 5 years
and 11 months in between 1.6.1987 and 4.5.1993. He had
worked for 2 years and 10 months in between 13.12.1995
till 3.8.1998. The impugned award is dated 27.12.2010.
The total duration put in by the petitioner in employment
is about 8 years and 9 months, which can be rounded off
to 9 years.
14] When this Court considered the petition filed by
the petitioner - employee and admitted the petition on
26.7.2011, the respondent - management had not challenged
the said award. It is, therefore, more than five years
that the respondent has not questioned the award. I,
therefore, have no reason to interfere with the same
though I have heard Shri V.V. Bhavthankar, learned
Advocate for the respondent on the merits of the award.
I find that there is no error in the award to the extent
of granting reinstatement with continuity of service to
the petitioner.
15] The issue in the first petition is, therefore,
whether the petitioner could be said to be entitled for
full back wages. The petitioner had deposed on oath
before the Labour Court that he is out of employment and
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he has tried to obtain an alternative job. Despite his
efforts, he could not secure a job and he, therefore,
survived on daily wages.
16] The Hon'ble Supreme Court has held in the
following four cases that when long spells of
unemployment follow short spells of employment, it would
be reasonable to quantify compensation rather than
reinstating an employee :-
[1] Assistant Engineer, Rajasthan State
Agriculture Marketing Board, Sub-Division, Kota
v. Mohanlal (2013 LLR 1009)
[2] Assistant Engineer, Rajasthan Development
Corporation & another v. Gitam Singh [(2013) 5
SCC 136]
[3] BSNL v. Man Singh [(2012) 1 SCC 558] and
[4] Jagbir Singh v. Haryana State Agriculture
Marketing Board [(2009) 15 SCC 327]
17] It is concluded by the Apex Court in the
abovesaid cases that after a long tenure of unemployment,
it would not be advisable to foist an employee on an
employer. In doing so, the Hon'ble Court has concluded
that compensation of about Rs.30,000/- per year of
service would be reasonable and appropriate.
18] In the instant case, the petitioner has put in
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about 9 years service. It is not in dispute that the
petitioner had worked for about 9 years and is out of
employment for about 18 years. Despite the award in his
favour and having not been challenged till today, the
same has attained finality.
19] As such, considering the above recorded facts
and circumstances and the ratio laid down by the learned
Apex Court in the above referred four cases, I find that
the respondent could very well be directed to pay
compensation of Rs.2,70,000/- considering that the Apex
Court has held that compensation of Rs.30,000/- per year
in service is reasonable.
20] In the light of the above, the first petition is
partly allowed with the direction to the respondent -
Department to pay compensation of Rs.2,70,000/- to the
petitioner - employee within a period of eight weeks from
today, failing which, the same shall carry simple
interest at the rate of 3% from the date of the judgment
of the Labour Court i.e. 27.12.2010.
21] Rule is made partly absolute in the first
petition i.e. Writ Petition No.4886/2011, whereas Rule is
discharged in the second petition i.e. Writ Petition
WP 4886/11 & another
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No.8342/2015. No order as to costs.
22] Needless to state that since the petitioner
herein was a party to Complaint (ULP) No.246/1992 filed
by his Union seeking benefits of permanency and which is
subject matter of Writ Petition No.2034/2006, with the
decision in these two petitions, the petitioner shall not
stake any claim in Writ Petition No.2034/2006 in relation
to Complaint (ULP) No.246/1992.ig
23] Copy of this judgment be placed on record in
Writ Petition No.2034/2006.
(RAVINDRA V. GHUGE, J.)
ndk/c33169.doc
