Bombay High Court
Sangamner Nagar Palika vs Nandkishor Panalal Saki on 18 March, 2016
Bench: R.V. Ghuge
WP 1199/05 with CA 3423/16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1199/2005
WITH
CIVIL APPLICATION NO.3423/2016
Sangamner Nagar Palika
(Through its Chief Officer)
Shri Devidas s/o Dagduji Tekale,
age 34 yrs., occu.service,
r/o Sangamner Tq.Sangamner
Dist.Ahmednagar.
ig ...Petitioner..
Versus
Nandkishor Panalal Saki,
age 50 yrs., occu.service,
r/o Vari Tq.Kopargaon
Dist.Ahmednagar.
...Respondent...
.....
Shri V.S. Bedre, Advocate for petitioner.
Shri V.D. Patnoorkar, Advocate for respondent.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 18.03.2016
ORAL JUDGMENT :
1] The respondent - employee in the petition has
moved this civil application for listing the writ
petition for final hearing. Both the learned Advocates
graciously addressed the Court on the petition itself by
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way of a final hearing. As such the civil application is
disposed of.
2] The petitioner is aggrieved by the judgment and
award dated 9.9.2004 delivered by the Labour Court by
which Reference (IDA) No.7/1998 was partly answered in
the affirmative.
3] Shri Bedre, learned Advocate for the petitioner,
has strenuously criticized the impugned award.
Contention is that though the respondent claimed to have
joined the Health Department of the petitioner on
30.9.1989 and was terminated on 20.4.1991, he had never
completed 240 days in the continuous and uninterrupted
service of the petitioner. It is further submitted that
an industrial dispute was raised after about 7 years.
Without there being sufficient evidence on record and in
the face of the fact that the respondent was engaged on
daily rate basis only during the leave vacancy of regular
employees, the Labour Court has granted reinstatement
with continuity and 25% back wages.
4] He further submits that the respondent can be
said to have worked for a period of about one year and 7
months and is out of employment for the last 25 years.
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By an order dated 19.9.1998 passed by this Court on Civil
Application No.2852/2006, the respondent is being paid
his last drawn wages at the rate of Rs.670/- per month.
He further submits that though the respondent attained
the age of superannuation, the petitioner - Municipal
Council continued to pay him his last drawn wages till
this month. He, therefore, prays that this petition be
allowed and the excess amount paid to the respondent u/s
17B after his superannuation be permitted to be
recovered.
5] Shri Patnoorkar, learned Advocate appearing on
behalf of the sole respondent - employee, has strenuously
supported the impugned award. HE submits that there is
no limitation prescribed under the Industrial Disputes
Act. After his termination on 20.4.1991, he raised an
industrial dispute in 1996 and the same was referred to
the Labour Court. Twelve pay-sheets were produced by the
petitioner itself below Exhibit C-9, which indicated that
the respondent had completed 240 days in continuous
service.
6] Shri Patnoorkar further submits that the
petitioner introduced a single day break in every
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engagement and continued the respondent for about one
year and 7 months. Having completed 240 days in
continuous employment and since Section 25-F of the
Industrial Disputes Act was violated, the Labour Court
has rightly granted reinstatement with continuity and 25%
back wages. He adds that the respondent has not
challenged the said award despite the Labour Court having
deprived him of 75% back wages.ig
7] He further submits in the alternative that if
this Court is inclined to interfere with the impugned
award, compensation may be quantified and the amount
towards Section 17B having been paid to him, may be
adjusted against the compensation amount. He further
prays that the petitioner may not be permitted to cause a
recovery of the amount from the respondent, who is now
practically 70 years of age.
8] I have considered the submissions of the learned
Advocates for the respective sides.
9] It is apparent from the documents proved before
the Labour Court below Exhibit C-9 that the respondent
had completed 240 days in one calender year with breaks
of one day after each month of service. The Hon'ble
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Supreme Court in catena of judgments has held that such
artificial breaks, which are aimed at preventing an
employee from completing 240 days in continuous
employment are to be disregarded and such technical
breaks are to be bridged. As such, the Labour Court has
rightly concluded that the respondent had worked
continuously.
10] By an order dated 17.1.2006 passed by this
Court, this petition was admitted and the impugned award
was stayed to the extent of the direction to reinstate
the respondent. Consequentially, the respondent is out
of employment for the past about 25 years. It cannot be
ignored that the respondent had worked for one year and 7
months and is out of employment for about 25 years.
11] Considering short spells of employment and long
durations of unemployment, the Apex Court has delivered
the following four judgments, which are applicable to
this case:-
[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]
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[3] BSNL v. Man Singh [(2012) 1 SCC 558] and
[4] Jagbir Singh v. Haryana State Agriculture
Marketing Board [(2009) 15 SCC 327]
12] The Hon'ble Supreme Court in the abovesaid
judgments has concluded that where an employee has put in
a short spell of employment and longer durations of
unemployment, reinstating an employee would not be
practicable. It would be pragmatic and reasonable to
quantify compensation to be paid to such an employee in
lieu of reinstatement with continuity and back wages.
The Hon'ble Supreme Court has held that Rs.30,000/- per
year of service would be reasonable compensation.
13] It is trite law that Section 17B of the
Industrial Disputes Act has its applicability till the
date of superannuation of an employee and any direction
by this Court to pay last drawn wages u/s 17B to an
employee, who has succeeded before the Reference Court or
Tribunal, is to be implemented only till the date of the
employee's superannuation.
14] In the instant case, the petitioner - Council
has continued to pay the last drawn wages to the
respondent for almost a period of about 5 and half years
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after his retirement. Even if it is presumed that the
respondent has worked for two years (rounding of his one
year and 7 months service), he would be entitled for a
compensation of Rs.60,000/-. Shri Bedre submits that
after his superannuation till February, 2016, an amount
of Rs.45,560/- has been paid to the respondent towards
Section 17B compliance.
15] As such, the petitioner shall pay an amount of
Rs.15,000/- towards residual compensation to the
respondent within a period of four weeks from today.
16] This petition is, therefore, partly allowed.
The impugned award is, therefore, accordingly modified
and the respondent is granted compensation as above in
lieu of reinstatement with continuity and back wages.
17] Rule is made partly absolute in the above terms.
(RAVINDRA V. GHUGE, J.)
ndk/c1831615.doc
