Bombay High Court
The Superintending Engineer And ... vs Tukaram Baliram Suryawanshi on 7 March, 2016
Bench: R.V. Ghuge
24.WP.11035.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11035 OF 2015
WITH
CIVIL APPLICATION (ST) NO. 7589 OF 2016
IN
WRIT PETITION NO. 11035 OF 2015
1. The Superintendent Engineer,
Beed Water Resources Project Circle,
Parli (V), Dist. Beed.
2. The Executive Engineer,
Lower Terna Canal Division No.2,
Latur Tq. & Dist. Laur. ..PETITIONERS
VERSUS
Tukaram Baliram Suryawanshi
Age: Major, Occu.: 55 years,
R/o c/o Com. Rajendra Vihire,
Trade Union Center,
Maharashtra Housing Society,
Barshi Road, Latur ..RESPONDENT
....
Mr. P.R. Tandale, Advocate for petitioners.
Mr. V.D. Gunale, Advocate for respondent.
....
CORAM : RAVINDRA V. GHUGE, J.
DATED : 7th MARCH, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
S.S.DESHPANDE 1 / 7
24.WP.11035.15.doc
2. The petitioners are aggrieved by the judgment and award
dated 31.03.2015 by which the Labour Court has allowed Reference
IDA No. 17/2009 thereby directing the petitioners to reinstate the
respondent in service with continuity. The respondent is deprived
of back wages for the entire past service.
3. The grievance of the petitioners-management is that the
respondent used to be engaged intermittently whenever the work of
wireman was available. Though he claimed to have worked
continuously from 01.10.1988 to 31.12.1990, he has not put in
continuous service during the said period. His admissions in the
cross examination before the Labour Court have been reproduced
on page nos. 9 and 10 of the memo of the petition which would
indicate that he also admits that he was working whenever the
work was offered to him. He has also admitted that there was no
post of wireman available. He had not applied pursuant to any
advertisement and was not selected to any post.
4. Mr. Tandale, learned Counsel for the petitioners
therefore submits that the impugned award though partly answers
S.S.DESHPANDE 2 / 7
24.WP.11035.15.doc
the reference in the affirmative, is unsustainable for yet another
reason. The respondent claimed to have been terminated orally on
31.12.1990. He raised an industrial dispute under Section 2A of
the Industrial Disputes Act, 1947 in 2009, which is practically 19
years after his purported termination. He therefore submits that
the impugned award deserves to be quashed and set aside.
5.
Mr. Gunale, learned counsel appearing on behalf of the
respondent-employee strenuously defends the impugned award. In
addition thereto, he relies on the civil application filed, praying for
relief under Section 17B of the Industrial Disputes Act, 1947.
6. Mr. Gunale submits that the Labour Court has gone
through the oral and documentary evidence. The impugned award
is a finding on facts which cannot not be interfered with only
because a second view is possible.
7. He further submits that the respondent had proved
completion of 240 days in continuous employment.
S.S.DESHPANDE 3 / 7
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Consequentially he had proved non-compliance of Section 25F and
25G of the Industrial Disputes Act, 1947, thereby rendering his
termination illegal. He therefore submits that his illegal
termination has rightly been appreciated by the Labour Court and
hence he has been granted reinstatement with continuity in service.
8. I have considered the submissions of the learned
Counsels.
9. It is apparent that the respondent claimed to be in service
with the petitioners from 01.10.1988 to 31.12.1990 which is a
period of about 2 years and 3 months. He was working as a
wireman. It is equally undisputed that neither was any
advertisement published calling for applications with regard to the
post of a wireman, nor had the respondent applied pursuant to any
advertisement. So also, there was no selection process initiated by
the petitioners for causing a recruitment to the post of a wireman.
10. The respondent has conceded in his cross examination
that he used to work whenever the work of a wireman was
S.S.DESHPANDE 4 / 7
24.WP.11035.15.doc
available. He further admitted that he had no documentary
evidence to prove that he had worked for 240 days in the
continuous and uninterrupted service of the petitioners. In this
backdrop, I am of the view that the Labour Court has failed to
consider these admissions of the respondent and the fact that there
was no documentary evidence on record.
11. Though the Industrial Disputes Act does not prescribe any
limitation for raising an industrial dispute under Section 2(k) or
under Section 2A, it needs to be considered as to whether an
employee can be permitted to be in deep slumber and wake up after
a period of 19 years for raising an industrial dispute. The other
aspect which is vital is as to whether any employer or an
establishment could preserve documents pertaining to a short spell
of employment of a temporary worker for a period of 15 or 20 years
or more. In this back drop, the issue that becomes significant is as
to whether such an industrial dispute could be termed as being a
stale dispute or as to whether it is no dispute in the eyes of law. In
the instant case, the respondent has raised an industrial dispute
after 19 years.
S.S.DESHPANDE 5 / 7
24.WP.11035.15.doc
12. Considering the total effect of the above recorded facts, I
find that quantified compensation in lieu of reinstatement and
continuity in service in the light of the ratio led down by the
Hon'ble Supreme Court, would be a pragmatic approach. The
learned Apex Court has concluded that short spells of employment
followed by long spells of unemployment ought not to lead to an
order of reinstatement and instead compensation can be quantified,
in the following four judgments:-
(i) Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub Division, Kota Vs. Mohanlal,
2013 LLR 1009,
(ii) Assistant Engineer, Rajasthan Development Corporation
and another Vs. Gitam Singh, (2013) 5 SCC 136,
(iii) BSNL Vs. Man Singh, (2012) 1 SCC 558,
(iv) Jagbir Singh Vs. Haryana State Agriculture Marketing
Board, (2009) 15 SCC 327.
13. The learned Apex Court in the above referred four
judgments has concluded that the compensation of about
Rs.30,000/- per year of service put in by an employee would be an
S.S.DESHPANDE 6 / 7
24.WP.11035.15.doc
appropriate compensation. In the instant case, the respondent
employee has put in about two years in service.
14. Considering the above, this petition is partly allowed.
The impugned award to the extent of directing reinstatement with
continuity of service stands modified. The petitioners shall pay
compensation of Rs.60,000/- to the respondent within a period of
12 weeks from today as quantified compensation.
15. Needless to state, all issues with regard to the
employment and non-employment of the respondent are therefore
put to rest with this direction of payment of compensation as above.
16. Rule is made partly absolute in the above terms.
17. Civil Application filed by the respondent would not
survive in view of this judgment and hence is disposed off.
(RAVINDRA V. GHUGE, J.)
S.S.DESHPANDE 7 / 7
