Divisional Forest Officer Abad vs Devidas Machharam Chavan
2016 Latest Caselaw 579 Bom

                                                                                 WP/2606/2003
                                                 1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                
                                   WRIT PETITION NO. 2606 OF 2003




                                                        
     The State of Maharashtra
     Through the Divisional Forest
     Officer, Aurangabad,
     Osmanpura, Division Aurangabad.                              ..Petitioner




                                                       
     Versus

     Devidas Machharam Chavan,
     (Watchman), c/o Trade Union,




                                            
     Center, Kotwalpura, Aurangabad.                              ..Respondent
                              ig                ...
                              AGP for Petitioner : Shri Basarkar A.P.
                            Advocate for Respondent : Shri A.S.Shelke
                                                ...
                            
                                   CORAM : RAVINDRA V. GHUGE, J.

Dated: March 14, 2016 ...

ORAL JUDGMENT :-

1. The petitioner is aggrieved by the judgment and award dated

31.12.2002, delivered by the Labour Court, Aurangabad, vide which

Reference (IDA) No.170 of 1989 has been partly allowed. The respondent is

granted reinstatement with continuity of service from 19.4.1988. He was

denied backwages. The respondent has not challenged the denial of

backwages in this Court.

2. By order dated 14.7.2003, this Court directed status quo to be

maintained by way of ad-interim relief. By order dated 19.4.2004, the

petition was admitted and interim relief was denied.

WP/2606/2003

3. The learned AGP has strenuously criticized the impugned judgment.

Contention is that the respondent was working on Employment Guarantee

Scheme ("EGS"). It is settled law that an employee on EGS cannot claim

reinstatement or continued employment or regularization in service, since

the said scheme has been introduced only to ensure that some work is made

available to unemployed person.

4.

The respondent had not worked for 240 days in continuous

employment. In the absence of any evidence, the Labour Court could not

have partly allowed the Reference. The impugned award is an outcome of

misplaced sympathy shown by the Labour Court towards the employee. The

same deserves to be quashed and set aside.

5. Shri Shelke, learned Advocate for the employee has supported the

award. Contention is that a chart was filed by the petitioner before the

Labour Court which is at page 45. The said Chart prepared by the Range

Forest Officer indicated that the petitioner had worked for 300 days in

1984, 358 days in 1985, 1986 and 1987 and for 88 days in 1988. The said

chart, therefore, indicates that the respondent had worked continuously.

6. He further submits that though the petitioner has taken a stand that

the respondent was working on EGS, there was no document that was

produced before the Labour Court. The EGS specifically requires record to

WP/2606/2003

be maintained and identity cards are issued to all such employees, who are

offered work on EGS. There was no iota of evidence before the Labour

Court to establish that the respondent had worked on EGS.

7. He further submits that the witness of the petitioner, namely, Dattu

Pralhad Sadavarte also could not establish with the aid of documents that

the respondent was working on EGS. The record with regard to payment of

wages was not filed by the petitioner. The said witness admitted in cross-

examination that the employee was working till 1988.

8. Shri Shelke further points out that the second witness of the

petitioner, namely; Gangadhar Motiram Shinde also admitted the

employment of the respondent and identified the chart with regard to the

work done by the respondent. He, however, conceded that the respondent

never worked on EGS. Since the petitioner failed to produce any

documentary evidence, the Labour Court could not arrive at a conclusion

that the respondent was working on the EGS.

9. He then submits that the Labour Court has rightly concluded that as

the respondent was a Watchman, he was guarding the property of the

petitioner and therefore, cannot be said to be working under the EGS as the

petitioner requires watchmen for protecting its properties. He, therefore,

prays for the dismissal of this petition.

WP/2606/2003

10. I have considered the submissions of the learned Advocates. It is

informed that despite this Court having refused interim relief to the

petitioner, the respondent was not reinstated in service and has now

attained the age of superannuation.

11. It is apparent from the evidence before the Labour Court, which has

been extensively discussed in the impugned judgment, that though the

petitioner took a stand that the respondent was working on EGS, it failed to

produce any documentary evidence. The petitioner did not take a stand

before the Conciliation Officer that the respondent was working on EGS.

Since the matter was referred to the Labour Court in 1989, within one year

of the termination of the respondent, it is unconscionable for the

respondent in not producing the relevant documents with regard to the EGS

if at all the said documents indicated the presence of the respondent on

the EGS.

12. It cannot be ignored that an Industrial Dispute was raised by the

respondent immediately after his termination. It also cannot be ignored

that the respondent is out of employment for the past 28 years, after

having put in 5 years in employment.

13. The Honourable Supreme Court has recently delivered four

judgments with regard to short spell of employment and long spell of

unemployment, as under:-

WP/2606/2003

1. Assistant Engineer, Rajasthan State Agriculture Marketing Board,

Sub-Division, Kota Vs. Mohanlal [2013 LLR 1009],

2. Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh [(2013) 5 SCC 136],

3. BSNL Vs. Man Singh [(2012) 1 SCC 558] and

4. Jagbir Singh Vs. Haryana State Agriculture Marketing Board

[(2009) 15 SCC 327].

14.

The law laid down in the above said four judgments is that if an

employee has worked for short duration and is out of employment for a long

period, it would not be pragmatic to reinstate the employee. Instead,

compensation be granted. In the instant case, the respondent has already

crossed the age of retirement. The Apex Court has quantified

compensation at Rs.30,000/- per year of service. The respondent has put in

5 years in service. I, therefore, find it pragmatic and practicable to modify

the impugned award and quantify compensation to be paid to the

respondent

15. In the light of the above, this petition is partly allowed. The

impugned judgment dated 31.12.2002 shall stand modified with a direction

to the petitioner to pay Rs.1,50,000/- as compensation to the respondent

within a period of 3 months from today, failing which the said amount shall

carry interest at the rate of 3% p.a. from the date of the order of this Court

refusing interim relief, which is 19.4.2004.

WP/2606/2003

16. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

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